Novel Plea Taken For First Time About Non-Delivery Of Award Copy Can’t Be Appreciated U/S 37 Arbitration Act: Gujarat HC
The Gujarat High Court dismissed a batch of First Appeals filed under Section 37 of the A&C Act against the Orders of Civil Court.
The Gujarat High Court held that a novel plea taken for the first time about the non-delivery of the copy of the Award by the Arbitrator cannot be appreciated under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act).
The Court held thus in a batch of First Appeals filed under Section 37 of the A&C Act, challenging the Orders of different dates passed by the Civil Court.
A Division Bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi observed, “A novel plea has been taken for the first time without any substantial basis on the factual aspects about the non-delivery of the copy of the award by the Arbitrator to the NHAI, in the present Appeal under Section 37 of the Act’ 1996, which cannot be appreciated within the limited scope of Section 37.”
Advocates Maulik G. Nanavati, Manvi Damle, and Kishan Patel appeared on behalf of the Appellant while Assistant Government Pleader (AGP) Hetal Patel, Advocates Rahul Patel, and Chaitanya J. Patel appeared on behalf of the Respondents.
Brief Facts
The Appeals in this case were preferred against the Orders of the Civil Court by which it rejected the Application of the Appellant i.e., National Highways Authority of India (NHAI), being beyond the limitation prescribed in Section 34(3) of the A&C Act. In the said Appeals heard on different dates, a common question for consideration was raised by the counsel for the parties. The common issue raised for consideration was about the validity of the Civil Court’s Order, dismissing the Applications of NHAI on the ground of delay.
The Applications under Section 34 of A&C Act filed by the NHAI were accompanied with Applications filed under Section 34(3), seeking for condonation of delay in challenging the Awards passed under Section 3G(5) of the National Highways Act, 1956 of the Arbitrator, namely Collector, Bhavnagar, in different Arbitration Applications. There was a substantial delay of approximately 200-230 days in filing the Applications. However, it was argued that since the signed copy of the Award was never received by NHAI, there was no question of delay in challenging the Awards.
Reasoning
The High Court in the above context of the case, noted, “Suffice it to say that if the applicant/ NHAI was aware of the fact that the provisions of Section 31(5) had not been complied with and signed copy of the award had not been delivered to the NHAI, it was required to make the said plea before the Court by making a declaration of the fact about the non-delivery or improper delivery of the award in the application under Section 34, itself. As this has not been done, we do not find any reason to permit the NHAI to undertake this plea in the present appeal, which is nothing but an afterthought.”
The Court said that it is clear that the Appellant was having due knowledge of the making of the Award and also the content of the Award and for the reasons best known to it, did not raise any issue about the alleged non-delivery of the signed copy of the Award.
“This scenario, the contention of the learned counsel for the appellant NHAI that the limitation would not reckon from the date of receipt of the award by the NHAI which is admittedly 28.02.2019 as per the statement of NHAI, cannot be appreciated”, it added.
The Court observed that all pleas based on the reading of the provisions of Section 31(5) to assail the correctness of the Order passed by the Civil Court under Section 34, holding the Applications being barred by the limitation prescribed under Section 34(3) of A&C Act, are liable to be turned down.
“The sole ground to challenge the validity of the orders passed by the Civil Court in dismissing the applications under Section 34 on the ground of delay is found to be misconceived”, it concluded.
Accordingly, the High Court dismissed the Appeals.
Cause Title- National Highways Authority of India v. Kishorbhai Valjibhai Jethani & Ors. (Neutral Citation: 2025:GUJHC:10759-DB)
