Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5998  OF 2010 [Arising out of SLP [C] No.4063/2010]

State of Himachal Pradesh & Anr. … Appellants

Vs.

M/s Himachal Techno Engineers & Anr. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard.

2. The  appellant  (State  of  Himachal  Pradesh  represented  by  the  

Executive Engineer, I&PH Division, Hamirpur) entered into a contract with  

the  respondent  on 15.7.2002,  for  the  construction of  a  water  purification  

plant.  The respondent raised a dispute in regard to the payment for extra  

work, which was referred to arbitration. The arbitrator made an award dated  

5.11.2007 in favour of the respondent and sent it to the parties by speed post.  

The postal cover containing the award was received by a peon/beldar in the  

office of the Executive Engineer on 10.11.2007 (a Saturday) which was a  

1

government  holiday.  11th November,  2007  being  a  Sunday  was  also  a  

holiday. It was received by the Executive Engineer on 12.11.2007.  

3. A petition under section 34 of the Arbitration and Conciliation Act,  

1996 (‘Act’ for short) was filed by the appellant on 11.3.2008, challenging  

the arbitral award. The petition was accompanied by an application under  

sub-section (3) of section 34 of the Act, for condonation of delay of 28 days  

in filing the petition. The respondent resisted the application contending that  

the petition under section 34 was filed beyond the period of 3 months plus  

30 days and therefore, was liable to be rejected. A learned Single Judge of  

the High Court dismissed the application for condonation of delay and as a  

consequence dismissed the petition under section 34 of the Act. He held that  

as the award was received in the office on 10.11.2007, the period of three  

months, that is “90 days” had to be reckoned from 11.11.2007 by excluding  

the date of receipt; that the said three months period ended on 9.2.2008; that  

even if the maximum additional period of 30 days was counted thereafter  

(by  calculating  from 10.2.2008),  the  last  date  of  limitation for  filing  the  

petition  would  have  been  10.3.2008  and  therefore  the  petition  filed  on  

11.3.2008 was barred by limitation. He held that court had power to condone  

the delay only to a maximum period of ninety days plus thirty days and  

therefore,  the  delay  in  filing  the  petition  on  11.3.2008  could  not  be  

2

condoned. Feeling aggrieved the appellant has filed this appeal by special  

leave.  

4. Section 34 of the Act relates to applications for setting aside arbitral  

awards. Sub-section (3) of Section 34 prescribes the period of limitation for  

such applications. It reads thus:  

“(3) An application for setting aside may not be made after three months  have elapsed from the date on which the party making that application  had received the arbitral award or, if a request had been made under  section 33, from the date on which that request had been disposed of by  the arbitral tribunal:

Provided that if the court is satisfied that the applicant was prevented by  sufficient cause from making the application within the said period of  three months it may entertain the application within a further period of  thirty days, but not thereafter.”

Having regard to the proviso to section 34(3) of the Act, the provisions of  

section 5 of the Limitation Act, 1963 will not apply in regard to petitions  

under section 34 of the Act. While section 5 of the Limitation Act does not  

place any outer limit in regard to the period of delay that could be condoned,  

the proviso to sub-section (3) of section 34 of the Act places a limit on the  

period  of  condonable  delay  by  using  the  words  “may  entertain  the  

application  within  a  further  period  of  thirty  days  but  not  thereafter.”  

Therefore, if a petition is filed beyond the prescribed period of three months,  

the court has the discretion to condone the delay only to an extent of thirty  

3

days, provided sufficient cause is shown. Where a petition is filed beyond  

three months plus thirty days, even if sufficient cause is made out, the delay  

cannot be condoned.

5. This leads us to the question whether the petition was filed beyond  

three months plus thirty days. There is no dispute that if the petition had  

been filed within a period of three months plus thirty days, the delay has to  

be condoned as sufficient cause was shown by the appellant for condonation  

of  the  delay.  But  the  High  Court  has  accepted  the  contention  of  the  

respondent  that  the  period  of  three  months  plus  thirty  days  expired  on  

10.3.2008  and  therefore  the  petition  filed  on  11.3.2008  was  barred.  

Therefore, the following questions arise for our consideration:

(i) What is the date of commencement of limitation?

(ii) Whether the period of three months can be counted as 90 days?

(iii) Whether only three months plus twenty eight days had expired when  the  petition  was  filed  as  contended  by  the  appellant,  or  whether  petition was filed beyond three months plus thirty days, as contended  by the respondent?

Re : Question (i)

6. Sub-section (3) of section 34 of the Act provides that an application  

for setting aside an award may not be made after three months have elapsed  

4

from the date on which the party making that application has received the   

arbitral award. Sub-section (5) of section 31 of the Act provides that after  

an arbitral award is made, a signed copy shall be delivered to each party. If  

one of the parties to arbitration is a government or a statutory body or a  

corporation,  which has notified holidays or  non-working days,  and if  the  

award was delivered to it on a holiday, the question is whether the date of  

physical delivery to the office of a party, should be considered as the date of  

receipt  of  the  award  by  the  party,  or  the  next  working  day  should  be  

considered as the date of receipt.  

7. In Union of India v. Tecco Trichy Engineers & Contractors [2005 (4)  

SCC 239],  this  Court  considered  the  meaning  of  the  word  ‘received’  in  

Section 31(5) of the Act and held :  

“The delivery of an arbitral award under sub-Section (5) of Section 31 is  not  a  matter  of  mere  formality.  It  is  a  matter  of  substance…….  The  delivery of arbitral award to the party, to be effective, has to be "received"  by the party. This delivery by the arbitral tribunal and receipt by the party  of  the  award  sets  in  motion  several  periods  of  limitation  such  as  an  application for correction and interpretation of an award within 30 days  under Section 33(1), an application for making an additional award under  Section 33(4) and an application for setting aside an award under Section  34(3) and so on. As this delivery of the copy of award has the effect of  conferring certain rights on the party as also bringing to an end the right to  exercise those rights on expiry of the prescribed period of limitation which  would be calculated from that date, the delivery of the copy of award by  the tribunal and the receipt thereof by each party constitutes an important  stage in the arbitral proceedings.

In the context of a huge organization like Railways, the copy of the award  has to be received by the person who has knowledge of the proceedings  

5

and who would be the best person to understand and appreciate the arbitral  award and also to take a decision in the matter of moving an application  under sub-Section (1) or (5) of Section 33 or under sub-Section (1) of  Section 34.

When the award is delivered or deposited or left in the office of a party on a  

non  working  day,  the  date  of  such  physical  delivery  is  not  the  date  of  

‘receipt’ of the award by that party. The fact that the beldar or a watchman  

was present on a holiday or non-working day and had received the copy of  

the  award  cannot  be  considered  as  ‘receipt  of  the  award’  by  the  party  

concerned, for the purposes of section 31(5) of the Act. Necessarily the date  

of receipt will have to be the next working day. In this case, it is not disputed  

that though the cover containing the award was delivered to the beldar in the  

office of the Executive Engineer on 10.11.2007 which was a holiday, the  

Executive Engineer received the award on 12.11.2007 (Monday), which was  

the next working day. Therefore we hold that the date of delivery of the  

award on a holiday (10.11.2007) could not be construed as ‘receipt’ of the  

award by the appellant.  The date of receipt  therefore should be taken as  

12.11.2007 and not 10.11.2007.

8. Section 12 of Limitation Act, 1963 provides for exclusion of time in  

legal  proceedings.  Sub-section (1) thereof provides that in computing the  

6

period of limitation for any application, the day from which such period is to  

be reckoned, shall be excluded. The applicability of Section 12 of Limitation  

Act, 1963 to petitions under Section 34 of the Act is not excluded by the  

provisions of the Act. Section (9) of General Clauses Act, 1897 provides that  

in any Central Act, when the word ‘from’ is used to refer to commencement  

of  time,  the  first  of  the  days  in  the  period  of  time  shall  be  excluded.  

Therefore  the period of  “three  months  from the date  on which the party  

making that application had received the arbitral award” shall be computed  

from 13.11.2007.

Re : Question (ii)

9. The High Court  has held that  ‘three  months’  mentioned  in section  

34(3) of the Act refers to a period of 90 days. This is erroneous. A ‘month’  

does not refer to a period of thirty days, but refers to the actual period of a  

calendar month. If the month is April, June, September or November, the  

period of the month will be thirty days. If the month is January, March, May,  

July, August, October or December, the period of the month will be thirty  

one days. If the month is February, the period will be twenty nine days or  

twenty eight days depending upon whether it is a leap year or not.   

7

10. Sub-section  (3)  of  Section  34  of  the  Act  and  the  proviso  thereto  

significantly,  do not express the periods of time mentioned therein in the  

same units. Sub-section (3) uses the words ‘three months’ while prescribing  

the period of limitation and the proviso uses the words ‘thirty days’ while  

referring to the outside limit of condonable delay. The legislature had the  

choice of describing the periods of time in the same units, that is to describe  

the periods as ‘three months’ and ‘one month’ respectively or by describing  

the periods as ‘ninety days’ and ‘thirty days’ respectively. It did not do so.  

Therefore, the legislature did not intend that the period of three months used  

in sub-section (3) to be equated to 90 days, nor intended that the period of  

thirty days to be taken as one month.  

11. Section 3(35) of the General Clauses Act, 1897 defines a month as  

meaning a month reckoned according to the British calendar. In  Dodds v.   

Walker - (1981) 2 All ER 609, the House of Lords held that in calculating  

the period of a month or a specified number of months that had elapsed after  

the  occurrence  of  a  specified  event,  such  as  the  giving  of  a  notice,  the  

general  rule  is  that  the  period  ends  on  the  corresponding  date  in  the  

appropriate  subsequent  month  irrespective  of  whether  some  months  are  

longer than others. To the same effect is the decision of this Court in Bibi  

8

Salma  Khatoon v. State of Bihar – (2001) 7 SCC 197. Therefore when the  

period  prescribed  is  three  months  (as  contrasted  from  90  days)  from  a  

specified date, the said period would expire in the third month on the date  

corresponding  to  the  date  upon  which  the  period  starts.  As  a  result,  

depending upon the months, it may mean 90 days or 91 days or 92 days or  

89 days.  

Re: Question (iii)

12. As the award was received by the Executive Engineer on 12.11.2007,  

for the purpose of calculating the three months period, the said date shall  

have to be excluded having regard to Section 12(1) of Limitation Act, 1963  

and Section 9 of General Clauses Act, 1897. Consequently, the three months  

should be calculated from 13.11.2007 and would expire on 12.2.2008. Thirty  

days from 12.2.2008 under the proviso should be calculated from 13.2.2008  

and,  having  regard  to  the  number  of  days  in  February,  would  expire  on  

13.3.2008. Therefore the petition filed on 11.3.2008 was well in time and  

was not barred by limitation.  

9

Conclusion

13. In view of the above, the appeal is allowed and the order of the High  

Court is set aside. The delay of twenty eight days on the part of the appellant  

in filing the application under section 34 of the Act being within the limit of  

condonable delay, is condoned, as sufficient cause was shown. The matter is  

remanded to the High Court for consideration of the petition under section  

34 of the Act on merits, in accordance with law.

…………………………J. (R V Raveendran)

New Delhi; …………………………J. July 26, 2010. (Gyan Sudha Misra)   

10