2024 INSC 477

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7426 OF 2023

The State of West Bengal represented

through the Secretary & Ors. … Appellants

versus

Rajpath Contractors and Engineers Ltd. … Respondent

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 was a dispute between the parties, the
respondent invoked the arbitration clause in the contract, and
a sole arbitrator was appointed. On 30 th 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
Signature Not Verified

Digitally signed by
Sixty­Seven Thousand Fifty­Four Rupees Only) to the
Anita Malhotra

respondent with interest thereon, as directed. The counter­

Date: 2024.07.08
18:10:00 IST
Reason:

claim made by the appellants was dismissed. The appellants

Civil Appeal No.7426 of 2023 Page 1 of 8

 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 4 th 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 30 th
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

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 of pooja vacation. Therefore, the petition under Section 34 of
the Arbitration Act filed immediately after the re­opening 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 e­filed in pooja vacation as the relevant e­filing
notification provided for e­filing of only urgent matters during
the vacations. The learned counsel relied upon a 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
Company3. He submitted that, as held by this Court in the
said decision, the applicability of Section 5 of the Limitation

1 (2010) 12 SCC 210]

2 (2012) 2 SCC 624
3 (2001) 8 SCC 470

Civil Appeal No.7426 of 2023 Page 3 of 8

 Act is excluded in view of the language used in the proviso to
sub­section (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 1 st 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 sub­section
(3) of Section 34. Sub­section (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 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

Civil Appeal No.7426 of 2023 Page 4 of 8

 petition under Section 34 will have to be reckoned from 30 th
June 2022, when the appellants received the award. In view
of Section 12(1) of the Limitation Act, 30 th 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 1 st 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 30 th 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 sub­section (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 re­opens.

Civil Appeal No.7426 of 2023 Page 5 of 8

 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)

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 sub­section (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

Civil Appeal No.7426 of 2023 Page 6 of 8

 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 sub­section
(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 Another1 which is relied upon by the
appellant, follows the aforesaid decision.

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 30 th
September 2022. Therefore, the appellants were not entitled
to take benefit of Section 4 of the Limitation Act. As per the
proviso to sub­section (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 30 th
October 2022. As noted earlier, the petition was filed on 31 st
October 2022.

Civil Appeal No.7426 of 2023 Page 7 of 8

 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 sub­section (3) of Section 34. Hence, we
find no merit in the appeal, and it is, accordingly, dismissed.

….…………………….J.
(Abhay S. Oka)

…..…………………...J.
(Pankaj Mithal)
New Delhi;
July 08, 2024.

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