[2025:RJ-JP:37322-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 3113/2025 Jaipur Vidhyut Vitran Nigam Limited, Having Registered Office At Old Power House Premises, Near Ram Mandir, Bani Park, Jaipur (Rajasthan)-302006 Through Superintending Engineer (It). ----Appellant/Non-Claimant Versus M/s Compucon Software Ltd., Having Registered Office At It 14- 17, Epip, Riico Industrial Area, Sitapura, Jaipur-302022 Through Its Authorized Signatory Sh. Ajay Batarka. ----Respondent/Claimant For Appellant(s) : Mr. Sarvesh Jain For Respondent(s) : Mr. James Bedi Mr. Aditya Maheshwari HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA HON'BLE MR. JUSTICE SANJEET PUROHIT Order REPORTABLE 15/09/2025 1. The objections have been raised under Section 37 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act of 1996’) by the appellant assailing the award dated 08.06.2024 and amended award dated 12.07.2024 passed by the Sole Arbitrator and affirmed by the Commercial Court No.1, Jaipur Metro-II vide order dated 13.06.2025 (rejecting the application of the appellant raising objections under Section 34 of the Act of 1996). 2. Learned counsel for the appellant submits that the award passed by the Arbitrator suffers from basic defect that there was no arbitration clause amongst the parties and, therefore, the Arbitrator was not required to pass an award. In fact, the appointment of the Arbitrator itself was not in accordance, as there was no existing arbitration clause. [2025:RJ-JP:37322-DB] (2 of 8) [CMA-3113/2025] 3. He further submits that there was a gross delay in raising the claim by the respondent-claimant as the period of limitation expired way back in the year 2015, while the notice for appointment of the Arbitrator was issued on 09.11.2021 and the Arbitrator was appointed on 28.07.2023. He submits that although the said argument was not raised before the Court while dealing with the objections under Section 34 of the Act of 1996, the appellant is not prevented from raising the said objection before this Court under Section 37 of the Act of 1996. 4. Learned counsel for the appellant relies on the judgment passed by the Hon’ble Apex Court in the case of State of Gujarat Vs. Kothari and Associates (2016) 14 SCC 761 to submit that an objection with regard to limitation can be raised even at the highest available forum. 5. We have considered the submissions. 6. We noticed that the objection regarding there being no arbitration clause, was examined by the Arbitrator as issue No.1 and the Arbitrator held that an arbitration clause exists between the parties. 7. We also noticed that it is the High Court which appointed the Arbitrator and at the stage of appointment of the Arbitrator under Section 11 of the Act of 1996, the High Court had also examined the said aspect. Both the High Court as well as the Arbitrator reached the conclusion that there is inter se arbitration clause existing which governs both the parties. 8. We find that the challenge to the said issue as decided by the Arbitrator, would not lie in terms of Section 34 of the Act of 1996 [read with the amendment made under the Arbitration and [2025:RJ-JP:37322-DB] (3 of 8) [CMA-3113/2025] Conciliation (Amendment) Acts of 2015 & 2019]. The provisions under Section 34 of the Act need to be quoted as under:- 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). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application [establishes on the basis of the record of the arbitral tribunal that]— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or [2025:RJ-JP:37322-DB] (4 of 8) [CMA-3113/2025] (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. [Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, — (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. [Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: [2025:RJ-JP:37322-DB] (5 of 8) [CMA-3113/2025] Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.] (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. (4) On receipt of an application under sub- section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. [(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.] (6) An application under this section shall be disposed of expeditiously, and in any event, [2025:RJ-JP:37322-DB] (6 of 8) [CMA-3113/2025] within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.] 9. In view of the above, it is apparent that the question would be finally concluded at the stage of Arbitrator himself and on the said issue, the Commercial Court while examining the objections under Section 34 of the Act of 1996 would have no jurisdiction to decide the said issue even otherwise having it been finally decided by the High Court while appointing the Arbitrator, there was no occasion for the Commercial Court to examine the same. 10. This view is also supported by a previous judgment of the Hon’ble Supreme Court in Punjab State Civil Supplies Corporation vs M/S Sanman Rice Mills 2024 SCC OnLine SC 2632. Speaking on the scope of interference at the appellate stage, the Hon’ble Supreme Court held that : “In view of the above position in law on the subject, the scope of the intervention of the court in arbitral matters is virtually prohibited, if not absolutely barred and that the interference is confined only to the extent envisaged under Section 34 of the Act. The appellate power of Section 37 of the Act is limited within the domain of Section 34 of the Act. It is exercisable only to find out if the court, exercising power under Section 34 of the Act, has acted within its limits as prescribed thereunder or has exceeded or failed to exercise the power so conferred. The Appellate Court has no authority of law to consider the matter in dispute before the arbitral tribunal on merits so as to find out as to whether the decision of the arbitral [2025:RJ-JP:37322-DB] (7 of 8) [CMA-3113/2025] tribunal is right or wrong upon reappraisal of evidence as if it is sitting in an ordinary court of appeal. It is only where the court exercising power under Section 34 has failed to exercise its jurisdiction vested in it by Section 34 or has travelled beyond its jurisdiction that the appellate court can step in and set aside the order passed under Section 34 of the Act. Its power is more akin to that superintendence as is vested in civil courts while exercising revisionary powers. The arbitral award is not liable to be interfered unless a case for interference as set out in the earlier part of the decision, is made out. It cannot be disturbed only for the reason that instead of the view taken by the arbitral tribunal, the other view which is also a possible view is a better view according to the appellate court.’’ 11. On the second aspect regarding limitation, we find that the very basis of the argument advanced before us is misconceived. From the averments which have come on record, it is apparent that the respondent/claimant was engaged in providing software to the appellant and improvements in the said software have been continuously demanded from time to time and the appellant has also directed the claimant to renew its performance bank guarantee from time to time, but the payments of the work performed by them was not released, and ultimately notices were issued by the claimant on 09.11.2021 demanding the amount for the work which was done all the way up to the year 2021. 12. In view thereto, there is no question of any delay in raising the dispute. The judgment of State of Gujarat (supra), would [2025:RJ-JP:37322-DB] (8 of 8) [CMA-3113/2025] have no application, as the facts are different. In the present case, the question of limitation does not arise at all nor it was raised at any stage. We, therefore, do not find any reason to entertain the objections under Section 37 of the Act of 1996. 13. The Civil Miscellaneous Appeal is, accordingly, dismissed. (SANJEET PUROHIT),J (SANJEEV PRAKASH SHARMA),J Amit/Ritu/32