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. This assertion was made by the honorable Supreme Court of India presided by J. R. F. Nariman, J. Navin Sinha and J. K.M. Joseph in the case of CHINTELS INDIA LTD. vs. BHAYANA BUILDERS PVT. LTD. [CIVIL APPEAL NO. 4028 OF 2020].
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 in the impugned judgment. The question raised in this appeal was 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 is an appealable order under section 37(1)(c) of the said Act. The High Court of Delhi dismissed the appeal as not maintainable and granted certificate under Article 133 read with Article 134A of the Constitution of India to the appellant.
The honorable court held, “Undoubtedly, 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. Thus, this last argument also has no legs on which to stand. 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 court further held, “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.”
The court referred to the judgment of this Court in Essar Constructions v. N.P. Rama Krishna Reddy (2000) 6 SCC 94, which was a judgment delivered under section 39 of the Arbitration Act, 1940. His argument is that since section 39 of the 1940 Act is in pari materia with section 37 of the Arbitration Act, 1996, in that an appeal lies where a single Judge refuses to condone delay, resulting in an order refusing to set aside an arbitral award, the ratio of Essar Constructions would apply on all fours to the same provision contained in section 37. This being so, he argued that it is clear that refusal to condone delay would result in a refusal to set aside an award, an appeal against such order being maintainable under section 37 of the Arbitration Act, 1996.
