- 1 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE T.M.NADAF MISCELLANEOUS FIRST APPEAL NO. 9372 OF 2018 (AA) BETWEEN: DINAKAR RAI SON OF LATE JATHAPPA RAI, AGED ABOUT 65 YEARS R/AT NO.128, 3RD FLOOR, 10TH CROSS, MARGOSA ROAD, MALLESHWARAM, BANGALURU – 570 003. …APPELLANT (BY SRI. OM SHANDILYA, ADVOCATE FOR SRI. VIJAY NARAYAN, ADVOCATE) AND: 1. M/S DHRUVA ENTERPRISES A PARTNERSHIP FIRM, HIGHER SECONDARY ELEMENTRY SCHOOL ROAD, PUTTUR D.K., REPRESENTED BY ITS PARTNER MR. A RAGHUVEER PRABHU SON OF DEVANNA PRABHU 2. DIVAKAR K. NIDAVANNAYA ARBITRATOR/ADVOCATE Digitally signed by MADHUSHREE H Location: High Court of Karnataka - 2 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 1ST FLOOR, SRI RAGHAVENDRA COMPLEX, M.S. ROAD, PUTTUR, D.K. – 574 201. …RESPONDENTS (BY SRI. ANIL SHEKAR K S, ADVOCATE FOR R1; VIDE ORDER DATED 20.03.2025 NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, PRAYING TO SET ASIDE THE ORDER ON I.A.NO.III FOLLOWED BY A JUDGMENT AND DECREE DATED 21.08.2018 PASSED BY THE 1ST ADDITIONAL DISTRICT JUDGE, D.K. MANGALURU, IN ARBITRATION SUIT NO.74/2016 CONSEQUENTLY SET ASIDE THE ARBITRATION AWARD DATED 16.05.2011 PASSED BY THE ARBITRATOR 2ND RESPONDENT HEREIN IN A.P.NO.1/2011 AND PASS ANY OTHER ORDER OR DIRECTION IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE T.M.NADAF - 3 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE V KAMESWAR RAO) The challenge in this appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short) is to an order dated 21.08.2018 passed by the I Additional District Judge, Dakshina Kannada, Mangaluru in Arbitration Suit No.74/2016 whereby, the learned I Additional District Judge has dismissed the I.A.III seeking condonation of delay filed under Section 34(3) of the Act, r/w Section 5 of the Limitation Act and consequently, rejected the suit filed by the appellant under Section 34 of the Act. Some of the facts which are required to be referred to for a decision in the appeal are that the disputes have arisen between the parties and the same were referred to arbitration. 2. The Arbitral Tribunal has rendered the award on 16.05.2011. It is a conceded case that the petition under Section 34 of the Act was filed on 04.11.2016 with an application seeking condonation of delay of 5 years 6 - 4 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 months. The learned I Additional District Judge has rejected the I.A.III on a finding in paragraphs No.29 and 30, which are reproduced as under:- “29. As per the arbitration proceedings file, the Arbitration proceedings has been commenced on 13.1.2011 and notice was issued to both the parties. Even after the service of arbitration notice on the plaintiff on 22.1.2011, the proceedings was adjourned to 20.3.2011 on 20.2.2011 by granting one month time. On 20.3.2011, M/s Pragathi Mines and Minerals was placed exparte for having failed to appear before the arbitrator even after the service of notice. Then the case was adjourned to 27.3.2011 for enquiry. Thereafter the proceedings continued in accordance with law. By considering the oral and documentary evidence placed before the defendant No.2, the claim petition of the M/s Dhruva Enterprises was allowed on 16.5.2011. The arbitration proceedings file also shows that the learned arbitrator has sent the award copy to the plaintiff through the registered post on 18.5.2011 and it was duly served on the plaintiff - 5 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 M/s Pragathi Enterprises on 21.5.2011. Postal acknowledgement card in the file establishes the due service of the copy of the award to the addressee on 21.5.2011 through the registered post. Hence the contention of the plaintiff that he was not served with the copy of the award cannot be accepted. 30. The arbitration proceedings file as well as the admitted fact that the plaintiff has appeared before the III Addl. DJ Mangalore on 2.1.2013 in EP.190/2012 clearly proves and establishes that the plaintiff had knowledge regarding the award passed by the learned arbitrator in A.P.1/2011 in the year 2013 itself. The fact that the plaintiff has not raised any objections by way of counter to the E.P filed for the execution of the award on the grounds urged in this suit also clearly leads to the conclusion that the plaintiff had no objection for the award passed by the learned arbitrator in A.P.1/2011. As per the certified copy of the ordersheet produced before the court in EP.190/2012, the execution court after the appearance of the plaintiff as J.Dr., posted the case for payment on 12.3.2013 by considering - 6 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 the objections as not filed. Section 34(3) and the proviso therein, makes it clear that the court if satisfied regarding sufficient cause shown for non-filing of the petition U/s 34 of A & C Act within the period of 3 months, court may entertain the petition filed U/s 34 of A & C Act within further period of 30 days and not thereafter. Since the period of limitation for filing application U/s 34 of A & C Act has been prescribed U/s 34(3) of A & C Act, Section 5 of the Limitation Act does not become applicable. Hence I proceed to answer point No.1 in the negative.” 3. The submission of the learned counsel for the appellant is primarily with regard to appointment of the Arbitrator. According to him, despite the said aspect has been noted by the learned I Additional District Judge still he has rejected I.A.III. 4. We are not impressed by the submission made by the learned counsel for the appellant for the simple reason that the challenge to the arbitration award having been made much after 5 years 6 months, the I Additional - 7 - NC: 2025:KHC:11688-DB MFA No. 9372 of 2018 District Judge has rightly dismissed the application being I.A.No.III and consequently, rejected the suit filed under Section 34 of the Act. There was no occasion for the Arbitral Tribunal to go into the issue of appointment of Arbitrator, when the challenge to the award itself was not maintainable. We do not see any merit in the appeal. The same is dismissed. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE MH/- List No.: 1 Sl No.: 19