- (1.) PRESENT appeal has been preferred against the judgment and order passed by the Sub. Judge -I, Giridih in T.S. (Arbitration) No.09 of 2004 dated 26th February, 2007 whereby the application preferred by the present appellants has been dismissed and it has been observed in paragraphs 30 and 36 as under: "30. On dated 1.9.07 a petition has been filed on behalf of the State U/S 34(3) of the Arbitration and Conciliation Act for condonation of delay. The reasons assigned in petition for delay is that, the Executive Engineer received permission on 17.1.04 to take step for challenging the award. However, no document has been filed or annexed in support of the petition. Therefore the petition for condonation of delay is vague, not supported by documents and not before the court to be examined. The court is not suppose to hunt for these documents. 36. In this view of the matter, the application filed by the plaintiff U/S 34 of the Act is held to be barred by law of limitation as prescribed, Under Sub -Section 3 of Section 34 of the Act and reason assigned in the petition filed by the plaintiff U/S 34(3) after 3 years of the filing of the suit is not sustainable under the law and is liable to be dismissed." 2) Counsel for the appellants submitted that there is thoroughly a misconception of law on the part of the respondents that delay in preferring an application under Section 34 of Act cannot be condoned. It has been decided by the Hon'ble Supreme Court of India in the case of Assam Urban Water Supply and Sewerage Board v. Subash Projects and Marketing Limited reported in (2012) 2 S.C.C. 624, that delay in preferring application under Section 34(3) of the Act can be condoned looking to the facts and circumstances of the case and in view of this fact, the matter may be remanded by quashing and setting aside the order passed by the Sub Judge I, Giridih and let a direction be given to decide the application under Section 34 of the Act on its own merit, firstly on delay condonation application and thereafter on merits. Counsel for the appellants submitted that there are several errors in the award dated 17 th October, 2003 (wrongly mentioned as 17.2.2003 in the 1 st paragraph of the impugned judgment) passed by the arbitrator which was challenged under Section 34 of the Act. It has also been submitted by the counsel for the appellants that the learned trial Court has not properly appreciated that once there is a delay, the delay appreciation has to be allowed or should have been rejected and thereafter only upon the merit the decision can be given. 3 I have heard the learned counsel for the respondents who has submitted that the application for condonation of delay should be decided first and thereafter only merit should be decided, but looking to the order passed by the Sub. Judge -I, Giridih, it has also been stated by the learned Trial Court that the application under Section 34 of the Act is barred by limitation and also there is no merit in the application preferred by the appellants. Moreover, at the time of preferring an application under, there was no delay condonation application and hence, this arbitration appeal may not be allowed by this Court. 4 Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the learned Sub Judge I, Giridih in T. S. (Arbitration) No.09 of 2004 dated 26th February, 2007, mainly for the following reasons: (I) It appears that in pursuance of a dispute between the parties, there was an arbitration proceeding initiated and an arbitrator was appointed. The arbitration proceeding was concluded through arbitration and the award was delivered on 17th October, 2003 (by mistake in paragraph 1 of the impugned judgment the date is mentioned as 17th February, 2003). The said arbitral award was challenged under Section 34 of the Arbitration and Conciliation Act, 1996 before the Sub. Judge -I, Giridih by the present appellants and it has been stated in the impugned order in paragraph 30 and 36 there there is delay and the application is barred by limitation. The reasons stated in these two paragraphs is running counter to the decision rendered by the Hon'ble Supreme Court in the case of Assam Urban Water Supply and Sewerage Board v. Subash Projects and Marketing Limited reported in (2012) 2 S.C.C. 624. Paragraphs 11, 12, 13 and 14 of the said decision read as under: "11. The question, therefore, that falls for our determination is whether the appellants are entitled to extension of time under Section 4 of the 1963 Act in the above facts? 12. Section 4 of the 1963 Act reads as under: "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. 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." The above section enables a party to institute a suit, prefer an appeal or make an application on the day the court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. 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 sub section (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 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 sub section (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." 4 ii) In view of the aforesaid decision, the delay in preferring an application under Section 34 of the Act can be condoned under Section 5 of the Limitation Act looking to the reasons for delay and, therefore, an opportunity should have been given to the applicant to prefer such an application and if the application is preferred, the same ought to have been decided on its own merits and thereafter only application under Section 34 of the Act should have been decided by the trial Court, whereas the learned trial Court without appreciating the reasons for delay has pointed out that the application preferred by the State of Jharkhand is beyond period of limitation and delay cannot be condoned and the issue to which the merit of the application under Section 34. Two things cannot be done simultaneously. Learned trial Court ought to have given an opportunity for condonation of delay and first the delay condonation application should have been decided and if the delay condonation application is dismissed, then there is no reason for deciding the case on merit, whatsoever arises. Only if delay is condoned, then the learned trial Court should have decided an application under Section 34 of the Act on its merit. This aspect of the matter has not been properly appreciated by the trial Court. Hence, the judgment and order passed by the Sub. Judge -I, Giridih dated 26th February, 2007 is quashed and set aside. Iii) Learned counsel for the State of Jharkhand submitted that delay condonation application has already been preferred before the learned trial Court. 5 I, therefore, direct the Sub. Judge I, Giridih to decide the delay condonation application preferred by the State of Jharkhand as expeditiously as possible and practicable, preferably within a period of eight weeks from the date of receipt of a copy of this order. Counsel for the respondents submitted that they shall cooperate the hearing before the learned trial Court. 6 In view of the aforesaid directions and observations, this arbitration appeal is allowed and disposed of.;