Condonation of Delay under Section 34 of Arbitration is Appealable under Section 37 of the Act: SC

This appeal arises out of a certificate issued under Article 133 read with
Article 134A of the Constitution of India by the High Court of Delhi

The question raised in this appeal is whether a learned single Judge’s order refusing to condone the Appellant’s delay in filing an application under section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act, 1996”) is an appealable order under section 37(1)(c) of the said Act.

It may be noted that the learned single Judge of the High Court dismissed the application for condonation of delay in an application filed under section 34 of the Arbitration Act, 1996 to set aside the award.

“34. Application for setting aside arbitral award.— (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in
accordance with sub-section (2) and sub-section (3).”

Section 34(2) and (2A) then sets out the grounds on which an arbitral
award may be set aside. A reading of section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3).

The Court referred the case of BGS SGS Soma JV. v. NHPC Limited and State of Maharashtra and Anr. v. M/s Ramdas Construction Co. and Anr(2017)

“A limited right of appeal is given under section 37 of the Arbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for,given the language of the provision as interpreted by us hereinabove”, the judgment authored by Justice RF Nariman held.

Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.

The appeal is accordingly allowed. The impugned judgment of the Division Bench under appeal is set aside, and the matter is remitted to a Division Bench of the High Court of Delhi to decide whether the Single Judge’s refusal to condone delay is or is not correct.

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