1 2025:CGHC:9526 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR REVP No. 40 of 2025 • M/s Chhattisgarh Pathya Pustak Nigam Haribhumi Parisar Dhamtari Road, Tikrapara Raipur, - 492001, Chhattisgarh. ... Petitioner. versus • M/s Chhattisgarh Packagers Pvt. Ltd., Through Shyam Lal Gupta S/o Ganesh Prasad Gupta, Aged About 85 Years, 4/1 Nehru Nagar West Bhilai, District Durg, Chhattisgarh. ... Respondent. For Petitioner : Shri Anand Shukla, Advocate. For Respondent : Shri Aman Tamrakar appears on behalf of Shri Avinash Chand Sahu, Advocates. Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 25/02/2025 1. This Review Petition has been filed to review the order dated 01.08.2024 passed in WP(227) No.879/2017, whereby order dated 05.10.2017 passed by the District Judge, Raipur in unregistered Arbitration Case wherein application filed by the petitioner under Section 5 of the Limitation Act, AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.03.01 11:12:49 +0530 2 1963 (for short “the Act, 1963”) for condonation of delay in filing application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short “the Act, 1996”) was allowed, was set-aside. 2. Learned counsel for the petitioner submits that petitioner herein is a small scale industry registered under the Micro, Small and Medium Enterprises Development Act, 2006 (for short “the MSME Development Act, 2006”). On account of non-payment of dues, a dispute arose between the parties and the respondent preferred an application under Section 18(1) of the MSME Development Act, 2006 before the Micro and Small Industries Facilitation Council for resolution of dispute. When the conciliation failed, the council passed an award dated 25.06.2016 issued on 15.12.2016. Against the said order, review petitioner preferred Writ Petition bearing WPC No.2093/2017 before this Court on 21.07.2017 which was withdrawn by him on 28.07.2017 with liberty to file duly constituted appeal under the provisions of the Act, 1996. Thereafter, review petitioner preferred an application under Section 34(2) the Act, 1996 before the District Judge, Raipur and also filed an application under Section 5 of the Act, 1963 for condonation of delay in filing the said application which was allowed by the order dated 05.10.2017 and the same was challenged in WP(227) No.879/2017 which was set-aside vide order dated 01.08.2024. 3. Learned counsel for the petitioner submits that there is special mechanism under Section 19 of the MSME Development Act, 2006 which stipulates application for setting aside decree, award or order. Learned counsel further submits that there is no such provision of limitation under Section 19 of the said act as there is a special Act, therefore, provisions of the same shall prevail. Learned counsel further submits that at the time of 3 hearing in WPC No.2093 of 2017, respondent had not raised any grievance or objection with regard to the liberty prayed for availing alternate remedy, on the ground of limitation. Learned counsel also submits that the order was passed under consideration and is a consent order. Learned counsel further submits that though the respondent/claimant withdrew the amount to the tune of Rs.25,00,000/-, which was deposited by the petitioner in terms of Section 19 of the MSME Development Act, 2006, however, he has simultaneously challenged the said order in WP(227) No.879/2017, suppressing the fact that he has already withdrawn the amount deposited by the petitioner. Hence, the claimant could not approbate and reprobate the same order at the same time. Learned counsel would further submit that similar issue came up before Jharkhand High Court in the matter of Ekta Telecommunication System, Kharasa-WAN vs. Union of India1 ,wherein it was categorically observed that when a claimant himself consented or rather did not object to such liberty while the order in L.P.A. No.200 of 2013 was passed, therefore the said order has attained finality as no challenge was made thereto. By that order, a direction was made to prefer an application under Section 34 of the Act, 1996 within 8 weeks and during the said period, in the said case, the said application was preferred. Thereafter, such a nature of the objection was raised about limitation which has been turned down. 4. Learned counsel for the petitioner further submits that in the present case also, as the order has been passed in WPC No.2093/2017 on 28.07.2017 and within 7 days, an application under Section 34(2) of the Act, 1996 has been preferred by the review petitioner on 04.08.2017. Hence, the 1 {AIR 2019 (NOC) 714 (JHA.)} 4 applicant had no intention to cause delay and he has duly filed the application as per the liberty granted by the writ Court. Learned counsel further submits that even otherwise, the order passed condoning the delay in filing application under Section 34 of the Act, 1996 which has been passed by the District Judge, Raipur is an appealable order in terms of Section 37 of the Act, 1996 and he places reliance in the matter of Sanganer Enviro Project Development vs. Advent Envirocare Technology Pvt. Ltd. {AIRONLINE 2023 GUJ 44}. Lastly, learned counsel submits that considering the aforesaid grounds, this Review Petition may be allowed. 5. On the other hand, learned counsel for the respondent would submit that no case is made out for review. He also submits that law is well settled in the matter of Mahindra and Mahindra Financial Services Limited vs. Mahesbhai Tinabhai Rathod and Ors {(2022) 4 SCC 162}, that if the petition is filed under Section 34 of the Act, 1996 beyond the prescribed period of 3 months, the provisions of Section 5 of the Act, 1963 will not apply. He further submits that the proviso to sub-section (3) of Section 34 of the Act, 1996 prescribes a limit on the period of condonable delay by using the words ‘may entertain the application within a further period of 30 days, but not thereafter’. Therefore, if a petition is filed beyond the prescribed period of 3 months, the Court has the discretion to condone the delay only to an extent of 30 days, provided sufÏcient cause is shown. Where the petition is filed beyond 3 months + 30 days, even if sufÏcient cause is made out, the delay cannot be condoned. Considering the backdrop, he prays to dismiss this petition. 6. I have heard learned counsel for the parties and considered their rival 5 submissions. 7. There is specific provision in the special Act (MSME Development Act, 2006) under Section 18(3), which in clear terms, provides that- the provisions of Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in sub-section (1) of Section 7 of that Act. Hence, for the dispute under the MSME Development Act, 2006 also, procedure of the Act, 1996 shall apply. However, under the Act, 1996, the law of the Limitation Act for condonation of delay under Section 5 does not apply and only provisions under Section 34(3) of the Act, 1996 shall be applicable. Hence, the submission put forth by learned counsel for the petitioner that there is no limitation under MSME Development Act, 2006 and the same shall prevail, is not acceptable. 8. So far as submission of learned counsel for the petitioner that the order has been passed in a conciliation proceeding or is a consent order is concerned, this Court does not agree with the said submission for the reason that when the statue prescribes the limitation, the writ petition itself was filed beyond the period of limitation, when there was no occasion to consider the ground of limitation, and the right was reserved only to consider the said issue on merits and the learned District Judge has, only on the principle that in the writ petition a liberty was extended, condoned the delay. The said ground is not acceptable. Even the fact that claimant has withdrawn the amount, the same would not dilute the rigor of limitation which has been prescribed under the Act, 1996. 9. So far as the ground that an appeal was preferred under Section 37 of the Act, 1996 is concerned, this Court is not convinced that against the order 6 of condonation of application under Section 5 of the Limitation Act in case filed beyond the period of limitation provided under Section 34 (3) of the Act, 1996, any remedy is provided to file appeal under the Act, 1996. Therefore, the writ petition is maintainable. 10.In view of the aforesaid discussion, this Court is of the considered view that no case is made out for review of the order. 11.Accordingly, this Review Petition being bereft of any merit or substance is dismissed at the motion stage itself. Sd/- (Deepak Kumar Tiwari) Judge Avinash