Gujarat High Court: In a batch of appeals filed by the National Highways Authority of India (‘NHAI’) against orders passed by the Civil Court under Section 34 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’), rejecting NHAI’s applications filed under Section 34 for being beyond the limitation prescribed in Section 34(3), the Division Bench of Sunita Agarwal*, CJ., and Pranav Trivedi, J., rejected the appeals holding that the contention that NHAI never received the signed copy of the award, should have been raised before the Civil Court on the first instance when the Section 34 application was being decided, but since NHAI did not do so, such novel plea could not be appreciated in appeal under Section 37.
Background
NHAI filed the batch of appeals against various orders passed by the Civil Court under Section 34 of the Arbitration Act, rejecting the applications filed by the NHAI under Section 34 of the Arbitration Act on the ground of delay beyond the limitation prescribed under Section 34(3) of the Arbitration Act.
NHAI contended that though there was a substantial delay of approximately 200-230 days in filing the applications since the signed copy of the award was never received by the NHAI, there was no question of delay. The copy of the award received by the NHAI was signed by the Chitnish (Secretary) of the Arbitrator, thus the limitation period under Section 34 could not be said to have commenced. It was contended that the Civil Court overlooked Section 31, which prescribed the manner of making the award.
Analysis
The Court noted that this ground was not raised before the Civil Court and was raised for the first time in the present appeals. The statement that the duly signed copy of the award had not been delivered upon NHAI as per Section 31(5) of the Arbitration Act was a factual statement required to be brought up before the Court in the first instance, dealing with the application under Section 34.
The Court further noted that in the facts disclosed in the Section 34 application, there was a categorical statement that the award was received by NHAI, after which NHAI had preferred an application under Section 33(1), which was pending on the date of filing of the Section 34 application, the application under Section 33(1) was pending. Thus, the only explanation offered by NHAI was the pendency of the application under Section 33(1). The Court noted that another contention was that the delay had occurred due to the internal procedure regarding approvals, and the application under Section 34 be treated as being filed within the limitation given the pendency of the application under Section 33(1). Thus, clearly, NHAI was aware of the award and its contents but did not raise an issue about non-delivery.
Noting this, the Court stated that the aforementioned grounds had been dealt with by the Civil Court, and no infirmity could be pointed out by NHAI therein.
The Court remarked that a novel plea was taken in the present appeals without any substantial basis on the factual aspects regarding the non-delivery of the signed award copy, which cannot be appreciated within the limited scope of Section 37. The Court stated that if NHAI was aware that Section 31(5) had not been complied with, it was required to make such a plea before the Court in the application under Section 34. As this was not done, the Court found no reason to permit the NHAI to undertake this plea in the present appeal, which was nothing but an afterthought.
Thus, the appeals filed on this ground were dismissed as misconceived and without any merits.
[NHAI v. Kishorbhai Valjibhai Jethani, First Appeal No. 4705 of 2023, decided on 14-02-2025]
*Judgment authored by Chief Justice Sunita Agarwal
Advocates who appeared in this case :
For the appellant: Maulik Nanavati, Kishan Patel, and Manvi Damle, Nanavati & Co.
For the respondents: Hetal Patel, Chaitanya J Patel, and Rahul Patel
Buy Arbitration and Conciliation Act, 1996 HERE
