Limitation Period for Filing an Appeal under Section 37 of the Arbitration & Conciliation Act: 90 or 120 Days?

By: Amrit Singh (Institute of Law, Nirma University)


In India, the Code of Criminal Procedure 1973 and Code of Civil Procedure 1908 provide an option to a party to appeal if an unfavourable order/judgment is passed by a court. However, the appeals filed under the afore-mentioned statutes are subject to the limitation period provided under the Limitation Act 1963 (“Limitation Act”). 

In this article, the author would discuss the limitation period for an appeal under Section 37 of the Arbitration & Conciliation Act (“the Act”). But before that, it is imperative to discuss the fundamental question, which is, whether the Limitation Act is applicable to a proceeding in a court under the aegis of the Act. 

This issue was before the Supreme Court in M/S Consolidated Engineering v. The Principal Secretary (“Consolidated Engineering”). In the said case, the Court held that the purpose of Section 29(2) of the Limitation Act and Section 43(1) of the Act is to ensure that the provisions of the Limitation Act apply to all proceedings under the Act, both in court and in arbitration, unless they are expressly excluded by the provisions of the Act.

HIGH COURTS’ UNDERSTANDING OF LIMITATION PERIOD FOR A SECTION 37 APPEAL

In this section, the author would address three crucial decisions of Indian High Courts wherein the courts have attempted to determine the limitation period for filing an appeal under Section 37 of the Act.

The Bombay High Court in the matter of ONGC Limited v. Jagson International Limited (“Jagson”), had an opportunity to determine the period of limitation for filing an appeal under Section 37 of the Act. After perusing the said provision, the Court refused to import the period of limitation provided under Section 34 to the appeals filed under Section 37.

As per the Court, the Legislature was well aware of the importance of providing a limitation period for the provisions of the Act and that it had chosen to not provide a specific period of limitation for filing an appeal under Section 37. Further, the Court also went through the Articles of the Second Division of the Schedule to Limitation Act which deals with appeals. After analysing the Articles from 114 to 119, the court reiterated that the absence of any provision on Section 37 shows the intention of the legislature to not provide for any limitation period for filing an appeal under Section 37.

Moreover, the Bombay High Court clearly ignored Section 29(2) of the Limitation Act when it held that if a special law does not provide a limitation period for a remedy, then the general law of limitation cannot be made applicable to provide a limitation period. The said judgment is clearly bad in law and stands overruled by the Consolidated Engineering case.

On the other hand, it is equally important to look at the decisions of the Bombay High Court and Meghalaya High Court in ONGC Limited v. M/S. Dinamic Corporation (“Corporation”) and North Eastern Electric Power Corporation Ltd. v. M/S Patel Unity Joint Venture (“Patel Unity”) respectively.

In Corporation, the Division Bench of the Bombay High Court revisited its judgment in Jagson. It held that the decision of the Single Bench in Jagson was incorrect because of the flawed premise of the Court as per which if the Legislature had not specifically provided a limitation period for a provision, then no limitation would be applicable in those proceedings. The Court pointed out that the judgment had clearly overlooked Section 29 of the Limitation Act and Section 43 of the Act when it reached the incorrect conclusion that there was no limitation period for filing an appeal under Section 37 of the Act. Further in Corporation, the appeal was filed against the order of the Single Judge of the High Court allowing a petition under Section 34 of the Act, which thereby meant that the Single Judge had set aside the arbitral award. So, the Division Bench of the High Court rightly applied Article 117 of the Limitation Act to govern the appeal filed under Section 37 and held that the limitation period was 30 days. In this case, Article 117 was attracted as the appeal was directed “from an order of the High Court to the same Court”.

In Patel Unity, the appeal was filed against the order of the Additional Deputy Commissioner (Judicial), who refused to set aside the arbitral award. The Meghalaya High Court after going through various judgments of the Supreme Court and High Courts held that the limitation period for filing an appeal under Section 37 of the Act is governed by Article 116(a) of the Schedule to the Limitation Act, which stipulates a period of 90 days. The High Court found Article 116(a) applicable to the appeal filed under Section 37 as the appeal was directed “to the High Court from any order”. 

Also, it is interesting to note that the Meghalaya High Court in Patel Unity, condoned the delay of 32 days in filing the appeal while observing that the delay was not significant in nature. The appellants had submitted that the delay was because of the time they consumed in examining files and obtaining opinions and that it was not deliberate or intentional on their part. The Court accepted the submission of the appellant and allowed their appeal to be examined on its merits.

SUPREME COURT’S UNDERSTANDING OF LIMITATION PERIOD FOR A SECTION 37 APPEAL

The High Courts in Corporation and Patel Unity rightly interpreted the law to hold that the provisions of the Limitation Act are applicable to proceedings under the Act and accordingly determined the limitation period for an appeal under Section 37 of the Act as 30 days and 90 days respectively, depending on the nature of appeal.

In this section, the author would analyse the recent judgment of the Supreme Court and examine as to how it is in direct conflict with the past and reasonable decisions of High Courts in Corporation and Patel Unity. 

On December 06, 2019, in the case of M/S N.V. International v. The State of Assam (“N.V. International”), the question of computing the limitation period for filing an appeal under Section 37(1)(c) of the Act had arisen before the Supreme Court. In this case, the arbitral award was rendered by a former judge of the Supreme Court, Justice K.N. Saikia. As per Section 34 of the Act, the said award was challenged, however, was rejected by the District Judge, Gauhati. Subsequently, the petitioner availed the recourse available under Section 37 of the Act and appealed against the District Judge’s order which refused to set aside the award. But, the appeal was filed after a delay of 189 days as opposed to the prescribed limit of 90 days under Article 116 of the Limitation Act 1963 and since the petitioner failed to furnish a sufficient cause for the delay, the appeal was consequently dismissed.

The ruling in N.V. International is based on the decision of a two-judge bench in the matter of Union of India v. Varindera Constructions Limited (“Varindera”). In Varindera, the Supreme Court had attempted to draw an analogy in order to compute the limitation period for filing an appeal under Section 37 of the Act. The Court stated that since an application under Section 34 has to be filed within a maximum period of 120 days, an appeal from the exact same proceedings (under Section 37) should also be filed within the same period i.e. 120 days. The 120 days’ period for an application under Section 34 was arrived at by adding a 30 days’ grace period if sufficient cause for delay is shown in addition to the statutory limitation of 90 days provided under Article 116 of the Limitation Act. The Court also held that if the party filing the appeal fails to make an application within 120 days from the day its petition was either allowed or dismissed under Section 34, the delay shall not be condoned as it would be opposed to the objective of the Act which is to promote speedy resolution of disputes.

The reasoning adopted by the Supreme Court in N.V. International does not hold water as there is no raison d’être for giving a grace period of 30 days in filing an appeal under Section 37 of the Act. The only basis for doing so stems from the fact that the Court equated the proceedings under Sections 34 and 37. Therefore, it can be presumed that the Court in N.V. International adopted this reasoning along the lines of the judgment in Varindera and concluded that a similar extension can be granted to the party appealing under Section 37. It held that a maximum period of 120 days is available to the applicant for appealing under Section 37 against an order passed by the court under Section 34.

It is imperative to highlight that the legislature has not mentioned the period of limitation for appealing under Section 37, let alone an extension for the same. Hence, the Supreme Court in N.V. International might have transgressed its powers when it tried to legislate by amending the explicit terms of the statute. The High Courts in Corporation and Patel Unity had only examined the applicability of the limitation law to the Act and accordingly determined the period of limitation for filing an appeal under Section 37. The High Courts in the above-mentioned cases did not equate the limitation period provided under Section 34 with Section 37 but rather simply interpreted the law as it is, to hold different limitation periods for inter and intra-court appeals as stipulated by Articles 116 and 117 of the Schedule to the Limitation Act.

Similarly, the Supreme Court was well within its powers to hold that the limitation period for a Section 37 application in an inter-court appeal is 90 days as per the Limitation Act but it went further to hold that an extension of 30 days is also available if a sufficient cause is furnished by the party. The Court should not have added words to the statute as its task was to only interpret it in accordance with the intention of the legislature. Therefore, it is highly contentious as to whether the said ruling of the Supreme Court is per incuriam or not and a larger bench may need to provide a better interpretation.


(Amrit is currently a fifth-year undergraduate at Institute of Law, Nirma University. He is interested in constitutional law, arbitration and taxation.)

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