- (1.) The instant appeal has been filed against summary judgment and order of 10th March, 2010 by which the learned Trial Judge dismissed the application for condonation of delay of six days in filing an application for setting aside the award under Arbitration and Conciliation Act, 1996 (hereinafter referred to the said 'Act').
(2.) The parties before us were having jural relationship arising out of a contract. The contract of storage of foodgrains at a godown provided by the claimant-respondent. In breach of the terms and conditions the agreement was put an end. Consequently dispute and differences arose between the parties and both of them raised their claim and rival claim. The resolution of dispute has been provided in the contract by way of an arbitration, which was pressed into operation by the parties through the intervention of the Court. It appears from record that by consent of the parties the learned retired District Judge was appointed as sole Arbitrator. After having received the statement and counter statement from both the parties and hearing them learned sole Arbitrator on 23rd February, 2005 passed a speaking award. The said award was sought to be challenged by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996. The said application was originally filed on 21st June, 2005. The said application was however dismissed by the learned Trial Judge holding application being barred by limitation. In order to maintain the said application in paragraph 15 thereof it was stated that the copy of the award was obtained from the residence of the learned Arbitrator on 17th March, 2005 as such the said application was filed before expiry of the period of limitation. The said application was kept pending and when it was made ready for hearing and about to be heard it was detected that filing of the application was delayed by six days and this fact was detected by the learned Senior Counsel when holding conference with the officials of the appellant. Then on his advise an application for condonation of delay for six days was made on 5th of March, 2010. Learned Trial Judge however rejected the application holding that there has been no explanation in the application as to why the present application has been made more than 27 months after the applicant's attention was drawn to the fact that petition under Section 34 of the Arbitration and Conciliation Act was delayed. In absence of explanation for this inordinate delay the said application was dismissed. Mr. Suresh Majumdar, learned counsel appearing for the appellant contends that the impugned judgment and order of the learned Trial Judge is completely misdirected in the eye of law as action was taken by the appellant after expiry of six days from the stipulated period of limitation however within the extreme time limit as provided in the proviso of the said Act. He contends that there was an averment in the petition for condonation of delay but in the prayer portion thereof there was none. He has drawn our attention to paragraph 15 of the said petition. He submits that period during which the matter was pending no explanation is required to be given meaning thereby explanation for post application period is not required.
(3.) The learned counsel for the respondent while supporting the impugned judgment and order contends that the original application was filed beyond the period of limitation and without any explanation whatsoever though admittedly an application was filed beyond the period of limitation and subsequent application for condonation of delay after long years could not be entertained and the learned Trial Judge has rightly not entertained. The application filed initially in the eye of law is no application as there was no prayer for condonation of delay. Therefore learned Trial Judge has passed the just and perfect order and does not require any interference.;