- (1.) THIS appeal has been filed against the order dated 9.10.2007 passed by the Subordinate Judge -I, Ranchi in Misc. Case No. 9/2007 whereby the application filed by the appellant -M/s Shyam Enterprises against the award passed against it for a sum of Rs. 2,44,803/ - was dismissed by the Sub -Judge -1 on the ground at limitation as the Misc. Case which was dismissed under Section 34 of the Arbitration and Conciliation Act, 1996 was time barred by twenty months from the date of the award although under sub -section (3) of Section 34 of the Act, 1996 the limitation to file an application for setting aside an award is only three months.
(2.) THE learned Sub -Judge was pleased to hold that the, appellant had failed to state the reason indicating that the delay in filing the application was bona fide and in fact it amounted to laches and delay on its part. This appeal, therefore, has been preferred under Section 37(1)(b) of the Act, 1996 assailing the award initially on the ground that the Sub -judge was not justi - fied in dismissing the same on the ground, of limitation. In addition, it was also submitted that the award for a sum of Rs. 2,44,803/ - which was passed against the appellant was not legally justified as the appellant could not be held liable to make the payment to the respondent as it was merely a commission agent to supply the goods which was done at the instance of the respondent.
(3.) THE first question which arises for consideration by this Court is whether the appeal should be considered on merit when the court below was pleased to dismiss the application of the appellant not on merit but merely on the ground of limitation. To avert this part of the objection, the counsel for the appellant relied upon an authority reported in (2006)13 SCC 622. [Chief Engineer of BPDP/REO vs. M/s Scoot Wilson Kirpatrick India (P) Ltd.] wherein the learned Judges of the Supreme Court had been pleased to hold that even. if the case is rejected by the court below on the oround of limitation and an appeal is preferred against the same, the appellate court would decide the matter not only on the ground of delay but also on merit.;