- (1.) The Court : The petitioner being Union of India, represented by the Chief Materials Manager(Sales), Eastern Railway, questioned the arbitral award dated September 25, 2007 passed by Md. Manzar Hossain, Ex-Deputy Chief Engineer (P&D), KPA. On 19th July, 2011 when this application was taken up for hearing the learned Counsel appearing for the petitioners submitted that, although the award was passed on September 12, 2007 and received by his clients on September 25, 2007, it could not be challenged within the prescribed period of three months and there is further delay of 95 days for filing this petition due to some slam in the department. The said petition was decided after hearing the learned Counsel appearing for the parties and the following order was passed: "This is an application under Section 34 of the Arbitration and Conciliation Act, 1996 filed by the Union of India, represented by the Chief Materials Manager (Sales), Eastern Railway, questioning the arbitral award dated September 25, 2007, passed by Md. Manzar Hossain, Ex-Deputy Chief Engineer (P&D), KPA. Mr. Jayanta Mitra, learned senior Counsel appearing for the petitioner submits that the award was passed on September 12, 2007 and received by them on September 25, 2007. However, it was submitted that within the period of three months, the award could not be challenged due to some scam in the department for which they have transferred one officer and suspended two other officers on coming to know about such scam. He submitted that there is a further delay of 95 days for filing this application under Section 34 of the said Act. It is beyond 120 days. Sub-section (3) of Section 34 of the said Act has clearly prescribed a period of limitation. As per the said Section, the award could not be challenged after three months and the application could be filed with an application for condonation of delay for a further period of thirty days and not thereafter. In the instant case, the award was passed on September 12, 2007 which was received by the department on September 25, 2007. Therefore, from September 25, 2007, if a calculation is made by adding three months and thirty days, then it can safely be concluded that by January 25, 2008, the award should be challenged with an application for condonation of delay for thirty days. But unfortunately, the award was questioned by this application filed on March 19, 2008. In my opinion, there is no scope to entertain this application since this application has been filed, beyond 120 days. Furthermore, transfer of one officer and suspension of two others do not prove the scam nor fraud. In view of the above, this application is barred by the laws of limitation under sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996 and therefore the same is dismissed. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities."
(2.) The petitioners being aggrieved by and dissatisfied with the order passed on 19th July, 2011 preferred an appeal and the Hon'ble Appeal Court allowed the appeal and remanded the matter for fresh hearing. The order of the Hon'ble Appeal Court dated 24th November, 2011 reads as follows : "The Court:- There will be an order in terms of prayer (a) of the Notice of Motion. Dispensing with all the formalities by consent of the parties we dispose of the appeal treating it as on day's list. This appeal is directed against the order of the learned Trial Judge whereby and where under the learned Trial Judge has dismissed the application under Section 34 of the Arbitration and Conciliation Act, 1996 of the appellant. The ground for dismissal was that the application was made beyond the extreme period of time under Section 34 of the said Act itself. The appellant wanted to have exclusion of certain period from the period of limitation on the ground of fraud, presumably under the provisions of Section 17 of the Limitation Act, 1963. Going by the Section 17 of the Act, 1963 if the fact of fraud is established which has been perpetrated and for which the appellant was prevented from taking action the period during which the fraud is alleged to have been perpetrated is to be excluded. By filing supplementary affidavit with the leave of the Court such plea was taken specifically which we have noted. This affidavit has not been controverted by filing a counter affidavit by the respondent before us. Taking face value of the statements and averments it cannot be said that there has been no fraud at all. Until and unless the same is dealt with properly this plea cannot be brushed aside instantly. There was no denial of this plea. If there is a denial question of non-traverse arise, but the learned Judge did not think of this aspect of the matter. Without looking into this aspect of the matter the learned Trial Judge has dismissed the application. We, therefore, set aside the judgment and order of the learned Trial Judge. We remand the matter for fresh hearing restoring the matter on file. Mr. Chowdhury's client will file affidavit dealing with the statements and averments made in the supplementary affidavit made in the petition within two weeks from the date of receipt of a copy of this order. Matter may be heard out after completion of filing of affidavit within three months, if not earlier. Accordingly, we request the learned Trial Judge. Since no affidavit has been called for the allegations contained in the petition are not admitted by the respondent."
(3.) After the appeal was allowed, the petitioner filed supplementary affidavit disclosing the fact of fraud which has been perpetrated and for which the petitioners were prevented from taking action and prayed for exclusion of time.;