THE STATE OF WEST BENGAL REPRESENTED THROUGH THE SECRETARY & ORS.versusRAJPATH CONTRACTORS AND ENGINEERS LTD.

                    [2024] 7 S.C.R. 1 : 2024 INSC 477

               The State of West Bengal represented
                   through the Secretary & Ors.
                                 v.
              Rajpath Contractors and Engineers Ltd.
                        (Civil Appeal No. 7426 of 2023)
                                   08 July 2024
               [Abhay S. Oka* and Pankaj Mithal, JJ.]

                            Issue for Consideration
       Issue arose as regards correctness of the order passed by the
       High Court dismissing the petition u/s. 34 of the Arbitration and
       Conciliation Act, holding that it was not filed within the period
       specified under sub-section (3) of s. 34 of the Act.

                                    Headnotes†
       Arbitration and Conciliation Act, 1996 – s. 34 – Application for
       setting aside arbitral awards – Period of limitation for filing
       petition u/s. 34 – On facts, petition u/s. 34 filed by the appellant
       challenging the arbitral award – Dismissed by the High Court,
       holding that it was not filed within the period specified under
       sub-section (3) of s. 34 – Correctness:
       Held: Period of limitation for filing a petition u/s. 34 will have to be
       reckoned from the day when the appellants received the award,
       i.e. 30th June 2022 – In view of s. 12(1) of the Limitation Act, the
       day from which the limitation period is to be reckoned must be
       excluded, as such 30th June 2022 will have to be excluded while
       computing the limitation period – Thus, in effect, the period of
       limitation, started running on 1st July 2022 – Period of limitation is
       of three months and not ninety days – Thus, from the starting point
       of 1st July 2022, the last day of the period of three months would
       be 30th September 2022 – Pooja vacation started on 1st October
       2022 – Three months provided by way of limitation expired a day
       before the commencement of the pooja vacation – Furthermore,
       the prescribed period within the meaning of s. 4 of the Limitation
       Act ended on 30th September 2022 – Thus, the appellants are not
       entitled to take benefit of s. 4 – As per the proviso to sub-section
       (3) of s. 34, the period of limitation could have been extended
       by a maximum period of 30 days – Maximum period of 30 days

* Author
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     expired on 30th October 2022 – Petition was filed on 31st October
     2022 – Thus, the High Court was right in holding that the petition
     u/s. 34 was not filed within the period specified under sub-section
     (3) of s. 34 of the Act. [Paras 6, 7, 10,11]

                             Case Law Cited
     State of Himachal Pradesh and Another v. Himachal Techno
     Engineers and Another [2010] 8 SCR 1025 : (2010) 12 SCC 210;
     Assam Urban Water Supply & Sewerage Board v. Subash Projects
     & Mktg. Ltd. [2012] 1 SCR 403 : (2012) 2 SCC 624; Union of India
     v. Popular Construction Co. [2001] Supp. 3 SCR 619 : (2001) 8
     SCC 470 – referred to.

                                List of Acts
     Arbitration and Conciliation Act, 1996; Limitation Act of 1963;
     Constitution of India; General Clauses Act, 1897.

                             List of Keywords
     Arbitral awards; Period of limitation; Limitation period to be
     reckoned.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.7426 of 2023
     From the Judgment and Order dated 04.05.2023 of the High Court
     of Calcutta in AP No. 737 of 2022
                         Appearances for Parties
     Ms. Madhumita Bhattacharjee, Ms. Urmila Kar Purkayasthe, Ms.
     Srija Choudhury, Advs. for the Appellants.
     Saurav Agrawal, Priyankar Saha, Sarad Kumar Singhania, Mrs.
     Rashmi Singhania, Anshuman Choudhary, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                                Judgment
     Abhay S. Oka, J.
     FACTUAL ASPECTS
1.   The first appellant – the State of West Bengal appointed the
     respondent as a contractor for the construction of a bridge. As there
[2024] 7 S.C.R.                                                             3

The State of West Bengal represented through the Secretary & Ors. v.
              Rajpath Contractors and Engineers Ltd.

     was a dispute between the parties, the respondent invoked the
     arbitration clause in the contract, and a sole arbitrator was appointed.
     On 30th June 2022, the Arbitral Tribunal passed an award directing
     the appellants to pay a sum of Rs.2,11,67,054.00 (Two Crores
     Eleven Lakhs Sixty-Seven Thousand Fifty-Four Rupees Only) to
     the respondent with interest thereon, as directed. The counter-claim
     made by the appellants was dismissed. The appellants received a
     copy of the award on the same day. The High Court of Judicature
     at Calcutta was closed for pooja vacation from 1st October 2022 to
     30th October 2022 (both days inclusive). On 31st October 2022, the
     appellants filed a petition under Section 34 of the Arbitration and
     Conciliation Act, 1996 (for short, ‘the Arbitration Act’) to challenge the
     award. By the impugned order dated 4th May 2023, the High Court
     dismissed the petition under Section 34 of the Arbitration Act filed
     by the appellants on the ground of bar of limitation. The High Court
     held that the period of limitation for filing a petition under Section
     34 expired on 30th September 2022. Therefore, the appellants are
     not entitled to the benefit of Section 4 of the Limitation Act of 1963
     (for short, ‘the Limitation Act’).
2.   Being aggrieved by the view taken by the High Court, the appellants
     are in this appeal. We may note here that under the impugned
     judgment, the High Court granted a certificate to prefer an appeal
     before this Court by exercising powers under Article 133 (1) and
     Article 134(A)(a) of the Constitution of India.
     SUBMISSIONS
3.   The learned counsel appearing for the appellants submitted that as
     the period of limitation for filing a petition under Section 34 of the
     Arbitration Act ought to have been calculated from 1st July 2022, the
     prescribed period of limitation ended on 1st October 2022, which was
     the first day of pooja vacation. Therefore, the petition under Section
     34 of the Arbitration Act filed immediately after the re-opening of the
     Court on 31st October 2022 must be held to be within limitation. The
     learned counsel relied upon Section 9 of the General Clauses Act,
     1897 (for short, ‘the General Clauses Act’). The learned counsel also
     submitted that the petition could not be e-filed in pooja vacation as
     the relevant e-filing notification provided for e-filing of only urgent
     matters during the vacations. The learned counsel relied upon a
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      decision of this Court in the case of State of Himachal Pradesh
      and Another v. Himachal Techno Engineers and Another1.
4.    The learned counsel appearing for the respondent supported the
      findings recorded by the High Court. He submitted that in any event,
      the benefit of Section 4 of the Limitation Act is available only if the
      proceedings are filed within the prescribed period of limitation, which
      will be three months in this case in terms of Section 34(3) of the
      Arbitration Act. The learned counsel relied upon a decision made by
      this court in the case of Assam Urban Water Supply & Sewerage
      Board v Subash Projects & Mktg. Ltd.2. He also invited our attention
      to a decision of this Court in the case of Union of India v. Popular
      Construction Company 3. He submitted that, as held by this Court
      in the said decision, the applicability of Section 5 of the Limitation
      Act is excluded in view of the language used in the proviso to sub-
      section (3) of Section 34.
      OUR VIEW
5.    The facts are undisputed. The award made by the Arbitral Tribunal
      on 30th June 2022 was served upon the appellant on the same day.
      Between 1st October 2022 and 30th October 2022 (both days inclusive),
      the High Court was closed for pooja vacation. The petition under
      Section 34 of the Arbitration Act was filed on 31st October 2022.
6.    The period of limitation for filing a petition under Section 34 of the
      Arbitration Act is governed by sub-section (3) of Section 34. Sub-
      section (3) of Section 34 reads thus:
             “(3) An application for setting aside may not be made
             after three months have elapsed from the date on which
             the party making that application had received the arbitral
             award or, if a request had been made under section 33,
             from the date on which that request had been disposed
             of by the arbitral tribunal:
             Provided that if the Court is satisfied that the applicant was
             prevented by sufficient cause from making the application


1    [2010] 8 SCR 1025 : (2010) 12 SCC 210
2    [2012] 1 SCR 403 : (2012) 2 SCC 624
3    [2001] Supp. 3 SCR 619 : (2001) 8 SCC 470
[2024] 7 S.C.R.                                                            5

The State of West Bengal represented through the Secretary & Ors. v.
              Rajpath Contractors and Engineers Ltd.

           within the said period of three months it may entertain the
           application within a further period of thirty days, but not
           thereafter.”
7.   As per Section 12(1) of the Limitation Act, the day from which the
     limitation period is to be reckoned must be excluded. In this case,
     the period of limitation for filing a petition under Section 34 will have
     to be reckoned from 30th June 2022, when the appellants received
     the award. In view of Section 12(1) of the Limitation Act, 30th June
     2022 will have to be excluded while computing the limitation period.
     Thus, in effect, the period of limitation, in the facts of the case,
     started running on 1st July 2022. The period of limitation is of three
     months and not ninety days. Therefore, from the starting point of
     1st July 2022, the last day of the period of three months would be
     30th September 2022. As noted earlier, the pooja vacation started
     on 1st October 2022.
8.   We may note here that Section 43 of the Arbitration Act provides
     that the Limitation Act shall apply to the arbitrations as it applies to
     proceedings in the Court. We may note here that the consistent view
     taken by this Court right from the decision in the case of Union of
     India v. Popular Construction Co.3 is that given the language used
     in proviso to sub-section (3) of Section 34 of the Arbitration Act, the
     applicability of Section 5 of the Limitation Act to the petition under
     Section 34 of the Arbitration Act has been excluded.
9.   Now, we proceed to consider whether the appellant will be entitled
     to the benefit of Section 4 of the Limitation Act. Section 4 of the
     Limitation Act reads thus:
           “4. Expiry of prescribed period when court is closed.—
           Where the prescribed period for any suit, appeal or
           application expires on a day when the court is closed, the
           suit, appeal or application may be instituted, preferred or
           made on the day when the court re-opens.
           Explanation.—A court shall be deemed to be closed on
           any day within the meaning of this section if during any
           part of its normal working hours it remains closed on
           that day.”
                                                  (underline supplied)
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     The meaning of “the prescribed period” is no longer res integra. In
     the case of Assam Urban Water Supply & Sewerage Board v.
     Subash Projects & Mktg. Ltd.2, in paragraphs nos. 13 and 14, the
     law has been laid down on the subject. The said paragraphs read thus:
          “13. The crucial words in Section 4 of the 1963 Act are
          “prescribed period”. What is the meaning of these words?
          14. Section 2(j) of the 1963 Act defines:
               “2. (j) ‘period of limitation’ [which] means the period of
               limitation prescribed for any suit, appeal or application
               by the Schedule, and ‘prescribed period’ means the
               period of limitation computed in accordance with the
               provisions of this Act;
               Section 2(j) of the 1963 Act when read in the context
               of Section 34(3) of the 1996 Act, it becomes amply
               clear that the prescribed period for making an
               application for setting aside an arbitral award is
               three months. The period of 30 days mentioned in
               the proviso that follows sub-section (3) of Section
               34 of the 1996 Act is not the “period of limitation”
               and, therefore, not the “prescribed period” for the
               purposes of making the application for setting aside
               the arbitral award. The period of 30 days beyond
               three months which the court may extend on sufficient
               cause being shown under the proviso appended to
               sub-section (3) of Section 34 of the 1996 Act being
               not the “period of limitation” or, in other words, the
               “prescribed period”, in our opinion, Section 4 of the
               1963 Act is not, at all, attracted to the facts of the
               present case.”
                                                  (underline supplied)
     Even in this case, this Court was dealing with the period of limitation
     for preferring a petition under Section 34 of the Arbitration Act.
     We may note that the decision in the case of State of Himachal
     Pradesh and Another v. Himachal Techno Engineers and
     Another 1 which is relied upon by the appellant, follows the
     aforesaid decision.
[2024] 7 S.C.R.                                                        7

The State of West Bengal represented through the Secretary & Ors. v.
              Rajpath Contractors and Engineers Ltd.

10. In the facts of the case in hand, the three months provided by way
    of limitation expired a day before the commencement of the pooja
    vacation, which commenced on 1st October 2022. Thus, the prescribed
    period within the meaning of Section 4 of the Limitation Act ended
    on 30th September 2022. Therefore, the appellants were not entitled
    to take benefit of Section 4 of the Limitation Act. As per the proviso
    to sub-section (3) of Section 34, the period of limitation could have
    been extended by a maximum period of 30 days. The maximum
    period of 30 days expired on 30th October 2022. As noted earlier,
    the petition was filed on 31st October 2022.
11. Thus, looking from the angle, the High Court was right in holding
    that the petition filed by the appellants under Section 34 of the
    Arbitration Act was not filed within the period specified under sub-
    section (3) of Section 34. Hence, we find no merit in the appeal, and
    it is, accordingly, dismissed.

     Result of the case: Appeal Dismissed.



     †
         Headnotes prepared by: Nidhi Jain