BELA M.TRIVEDI J. - (1.)THE appellants-original applicants have filed the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act') challenging the order dated 30.4.09 passed by the District & Sessions Judge, Sawai Madhopur (hereinafter referred to as 'the court below)in Arbitration Case No. 144/05, whereby the court below has dismissed the application of the appellants filed under Section 5 of the Limitation Act seeking condonation of delay occurred in filing the application under Section 34 of the said Act, for setting aside the award in question.
(2.)IN the instant case, the award dated 31.3.05 made by the Sole Arbitrator in the Arbitration Proceedings between the parties, was sought to be challenged by the appellants before the court below under Section 34 of the said Act, alongwith the application seeking condonation of delay under Section 5 of the Limitation Act. The learned Dy. Govt. Advocate Mr. Hari Barath for the appellants has submitted that the delay was caused in filing the application for setting aside the award, because of the time spent in following the procedure which the Govt. has to follow for filing the court proceedings. He also submitted that the legal adviser in the concerned department had advised to file appeal against the award passed by the Arbitrator instead of filing the application under Section 34 of the said Act and it was only the Government Advocates Office in the High Court, which advised that the application under Section 34 was required to be filed and, therefore, the delay was caused in filing the application in question, otherwise there was an intention to challenge the award. Pressing into service Section 14 of the Limitation Act and the decision of the Apex Court in case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Ors. (2008)7 SCC 169, the learned Dy. Govt. Advocate has submitted that the period spent bonafide for pursuing the legal remedy should be excluded from the period of limitation prescribed under Section 34(3) of the said Act.
The learned Sr. Counsel Mr. R.K. Agrawal for the respondent however relying upon the decisions of the Apex Court in case of Union of India Vs. Popular Construction Co. (2001) 8 SCC 470 and in case of Assam Urban Water Supply and Sewerage Board Vs. Subash Projects and Marketing Ltd. (2012) 2 SCC 624 submitted that Section 5 of the Limitation Act would not be applicable to the proceedings under Section 34 of the said Act for setting aside the award. He also submitted that the case of the appellants does not fall within the five criteria laid down by the Apex Court in case of Consolidated Engineering Enterprises (supra) relied upon by the learned Govt. counsel for the appellants. Mr. Agarwal also submitted that the amount of the award has already been paid to the respondents.

(3.)IN order to appreciate the rival contentions raised by the learned counsels for the parties, it is necessary to reproduce the relevant provision of Section 34(3) of the said Act, which reads as under :-
"34(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."