Patna High Court
The Bihar State Housing Board,versusM/s Enarch Consultants Private Limited,
- Decided
- Disposal
- DISMISSED
- Bench
- RAJIV ROY
Holding
The appeal is dismissed; the District Judge’s order rejecting the Board’s petition for delay is affirmed.
Summary
The Bihar State Housing Board (BSHB) entered into a 2011 agreement with Enarch Consultants for infrastructure development. An arbitrator awarded Rs 1.74 crore plus interest on 18 July 2021, but BSHB failed to pay and did not file a Section 34 application within the statutory period. The Board filed the application 472 days later; the District Judge dismissed it as time‑barred. On appeal, the Patna High Court examined Section 34(3) of the Arbitration & Conciliation Act, 1996, relevant Supreme Court precedents and held that the three‑month period (with a possible 30‑day extension) is absolute and cannot be extended beyond that. Consequently, the award became enforceable under Section 36, and the Board’s appeal was dismissed.
Issues considered
- Whether the 472‑day delay in filing a Section 34 application can be condoned.
- Interpretation of the three‑month period versus 90‑day period in Section 34(3) and the permissible 30‑day extension.
- Whether the arbitral award becomes enforceable after the limitation period expires.
- Whether any relief can be granted to the Board despite the delay.
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 34(3), 36(1), 36(2), 36(3)
- Code of Civil Procedure, 1908
- Limitation Act, 1963 — s. 12(1), 5
Subjects
- Arbitration
- Section 34
- Limitation
- Arbitral award enforcement
- Bihar State Housing Board
- Enarch Consultants
- Delay condonation
- Section 36
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.637 of 2025
======================================================
1. The Bihar State Housing Board, Through its Managing Director, Having its
registered office at 6, Sardar Patel Marg, Patna - 800015, Bihar.
2. The Managing Director, Bihar State Housing Board having its Office 6,
Sardar Patel Marg, Patna- 800015.
3. The Secretary, Bihar State Housing Board, 6, Sardar Patel Marg, Patna-
800015.
4. The Chief Engineer, Bihar State Housing Board, 6, Sardar Patel Marg,
Patna- 800015.
... ... Appellant/s
Versus
M/s Enarch Consultants Private Limited, a company incorporated under the
Companies Act, having its registered office at B-66, Sector-63, Noida 201301
(U.P.), through its Managing Director, Rahul Gupta, son of Shri Jai Prakash
Gupta, resident of House No. E-56, Sector-41, P.S. Sector-39, Noida, District
GautamBudh Nagar, Pin Code-201301 (U.P.).
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Brajesh Kumar Singh, Adv.
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
Date : 12-02-2026
Heard Mr. Brajesh Kumar Singh, learned counsel for
the appellant.
2. The present application has been preferred:
against the order dated 20.09.2024
passed by the Learned DistrictJudge, Patna
in Misc. (Arbitration) Case No. 16/2023,
whereby the application filed under Section
34 of the Arbitration & Conciliation Act by
the appellants challenging the arbitral award
dated 18.07.2021 has been dismissed solely
on the ground of limitation.
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3. The appellant- Bihar State Housing Board, Patna
(henceforth for short ‘the Board’) entered into an agreement
with the sole respondent for the Infrastructure development of
the lands under ‘the Board’ and the agreement was signed
between the parties on 01.12.2011.
4. The sole respondent thereafter submitted bills for
the work undertaken which was not cleared by ‘the Board’. He
earlier moved before this Court in CWJC No. 9212 of 2017
(M/s Enarch Consultants Private Limited vs. The Bihar State
Housing Board and others) which was disposed of on
23.02.2018 allowing the petitioner to represent ‘the Board’.
(Annexure A/3 to the petition).
5. The representation of the petitioner thereafter was
negated by ‘the Board’ on 19.09.2018 duly signed by its
Managing Director (Annexure A/4 to the petition).
6. Thereafter the petitioner moved before the Patna
High Court in Request Case No. 210 of 2019 (M/s Enarch
Consultants Private Limited vs. Bihar State Housing Board
& ors.) for the appointment of an Independent Arbitrator. The
order came to be passed in the said request case on 19.02.2020
by the then Hon’ble the Chief Justice appointing a retired Judge
of Patna High Court with a direction to the parties to appear on
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30.04.2020 (Annexure- A/6 to the petition).
7. The parties appeared and thereafter, the sole
Arbitrator vide an order dated 18.07.2021 directed ‘the Board’
to make payment of Rs. 1,74,85,026.00/- (rupees one crore
seventy four lakh eighty five thousand and twenty six only)
along with an interest of 12% on the award amount from the
date of the award till the realization is made (Annexure-7 to the
appeal).
8. ‘The Board’ chose to sleep over the matter
inasmuch as neither the payment was made nor it took recourse
to the legal remedy available to it under the Arbitration and
Conciliation Act, 1996 (henceforth for short ‘the Act’). The sole
respondent in the meantime preferred Execution Case No. 244
of 2021 (M/s Enarch Company Private Limited vs. Bihar
Housing Board & ors.).
9. ‘The Board’ finally came out of deep slumber and
preferred Misc. (Arbitration) Case No. 16 of 2023 (Bihar
State Housing Board & ors. vs. M/s Enarch Consultants
Private Limited) before the learned District Judge, Patna.
10. The Court took note of the fact that Section 34(3)
of ‘the Act’ mandates an award to be challenged within a period
of three months with an additional period of 30 days if the Court
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is satisfied with the reasons assigned for the delay and not
thereafter. It further recorded that there is a delay of 472 days in
filing the present case by ‘the Board’and in that background, no
relief can be extended.
11. The Misc. (Arbitration) Case No. 16 of 2023
came to be dismissed on 20.09.2024. The relevant paragraphs
10 and 11 read as follows:
10. In the present case, there is a delay
of 472 days, after allowing 3 months for filing of
application under Section 34 of Arbitration and
Conciliation Act, 1996, in filing of this
Miscellaneous (Arbitration) case. A condonation
petition has been filed and it has been stated that
the appellants had got knowledge of the impugned
award from Execution Case No.244 of 2021 after
which they initiated and obtained certified copy of
the award and filed the present case. From perusal
of Para-11 of the impugned award, it transpires
that the appellants had appeared in the arbitration
proceedings. Hence, the averment made on behalf
of the appellants that the award was passed ex-
parte does not hold ground. Since under no
circumstance, this Court can condone delay
beyond a period of thirty days after completion of
three months from the day the party making the
application has received the arbitral award, in the
instant case the same being beyond that, this
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Court, under the circumstances, cannot entertain
the present application seeking condonation of
delay.
11. Accordingly, having regard to the
abovementioned facts & circumstances as well as
mandate of Section 34(3) of Arbitration and
Conciliation Act, 1996, this Miscellaneous
(Arbitration) case being time barred, stands
dismissed.
12. By that time, ‘the Board’ had again gone for its
long sleep and it was only after a delay of 207 days that the
present appeal was filed before the Patna High Court.
13. The case of the appellant is that the sole
respondent pressed his case in Execution Case No. 244 of 2021
in which notice was issued to ‘the Board’ to make payment by
16.09.2025 failing which warrant of attachment shall be issued.
This has been brought on record by way of Interlocutory
Application No. 3 of 2025.
14. Learned counsel for the appellant submits that
there had been procedural formalities, no intentional delay on
the part of ‘the Board’ and as such the delay is bonafide. He
submits that the learned District Judge, Patna erred in passing
the order in question rejecting the petition of ‘the Board’ on the
ground of delay. Learned counsel further submits that in the
interest of justice, the Interlocutory Application be allowed and
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the further proceeding of Execution Case No. 244 of 2021 be
stayed beside the issuance of notice upon the sole respondent.
15. This Court has heard the learned counsel for the
appellant at length. Before proceeding further, it is important to
take a look on the Section 34(3) of ‘the Act’ which read as
follows:
(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.
16. Section 34(3) of ‘the Act’ is very clear, the
application has to be submitted for setting aside the award
within a period of three months from the date, it has been
prepared. Further, if the Court is satisfied with the sufficient
cause presented in the application detailing out bonafide delay,
it may entertain the application within further 30 days, but not
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thereafter.
17. Further, Chapter- VIII deals with the Finality and
Enforcement of Arbitral Awards and it would be proper to
incorporate Section 36 of ‘the Act’ which deals with the
Enforcement and read as follows:
“36. Enforcement- (1) Where the time for
making an application to set aside the arbitral
award under section 34 has expired, then,
subject to the provisions of sub-section(2), such
award shall be enforced in accordance with the
provisions of the Code of Civil Procedure, 1908
(5 of 1908), in the same manner as if it were a
decree of the court.
(2) Where an application to set aside
the arbitral award has been filed in the Court
under section 34, the filing of such an
application shall not by itself render that award
unenforceable, unless the Court grants an order
of stay of the operation of the said arbitral
award in accordance with the provisions of sub-
section (3), on a separate application made for
that purpose.
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(3) Upon filing of an application under
sub-section (2) for stay of the operation of the
arbitral award, the Court may, subject to such
conditions as it may deem fit, grant stay of the
operation of such award for reasons to be
recorded in writing:
Provided that the Court shall, while
considering the application for grant of stay in
the case of an arbitral award for payment of
money, have due regard to the provisions for
grant of stay of a money decree under the
provisions of the Code of Civil Procedure, 1908
(5 of 1908).]
[Provided further that where the Court
is satisfied that a prima facie case is made out
that,-
(a) the arbitration agreement or
contract which is the basis of the award;
or
(b) the making of the award, was
induced or effected by fraud or corruption, it
shall stay the award unconditionally pending
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disposal of the challenge under section 34 to the
award.”
18. Again Section 36(1) of ‘the Act’ is very clear-once
the period for making an application to set aside the arbitral
award under section 34 has expired, subject to Sub-Section (2),
such award shall be enforced in accordance with the provisions
of the Code of Civil Procedure in the same manner as if it were
on decree of the court.
19. This Court in the case of Union of India through
Airports Authority of India, Gaya Airport & ors. vs. Brajesh
Kumar Sinha (M.A. 449 fo 2025) delivered a judgment on
11.12.2025 after deliberating upon Section 34(3) of ‘the Act’.
20. It is important to incorporate paragraphs 48 to 55
of the aforesaid judgment and order dated 11.12.2025 in the
Airports Authority of India (supra) case which read as
follows:
48. The language of Section 34(3)
of ‘the 1996 Act’ is very clear. After the lapse
of three months, if the Court is satisfied that
sufficient cause is there and the reasons have
been explained which prevented them to file
a petition within the said period, it can
entertain the application for further period
of thirty days but not thereafter. Thus, ‘the
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Act’ completely bars entertaining any
petition after lapse of thirty days.
49. This Court is further guided by
the order passed by the Hon’ble Apex Court
in the case of Union of India vs. Popular
Construction Company reported in (2001) 8
SCC 470. Paragraphs 12, 14 and 16 of the
said order read as follows:
12. As far as the language of
Section 34 of the 1996 Act is concerned, the
crucial words are "but not thereafter" used
in the proviso to sub-section (3). In our
opinion, this phrase would amount to an
express exclusion within the meaning of
Section 29(2) of the Limitation Act, and
would therefore bar the application of
Section 5 of that Act. Parliament did not
need to go further. To hold that the court
could entertain an application to set aside
the award beyond the extended period under
the proviso, would render the phrase "but
not thereafter" wholly otiose. No principle of
interpretation would justify such a result.
14. Here the history and scheme of
the 1996 Act support the conclusion that the
time-limit prescribed under Section 34 to
challenge an award is absolute and
unextendible by court under Section 5 of the
Limitation Act. The Arbitration and
Conciliation Bill, 1995 which preceded the
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1996 Act stated as one of its main objectives
the need "to minimise the supervisory role of
courts in the arbitral process". This
objective has found expression in the Section
5 of the Act which prescribes the extent of
judicial intervention in no uncertain terms:
"5. Extent of judicial intervention.
Notwithstanding anything contained in any
other law for the time being in force, in
matters governed by this Part, no judicial
authority shall intervene except where so
provided in this Part.”
16. Furthermore, Section 34(1)
itself provides that 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). Sub-section (2) relates
to grounds for setting aside an award and is
not relevant for our purposes. But an
application filed beyond the period
mentioned in Section 34, sub-section (3)
would not be an application "in accordance
with" that sub-section. Consequently by
virtue of Section 34(1), recourse to the court
against an arbitral award cannot be made
beyond the period prescribed. The
importance of the period fixed under Section
34 is emphasised by the provisions of
Section 36 which provide that
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"where the time for making an
application to set aside the arbitral award
the award shall be enforced under the Code
under Section 34 has expired of Civil
Procedure, 1908 in the same manner as if it
were a decree of the court"
This is a significant departure
from the provisions of the Arbitration Act,
1940. Under the 1940 Act, after the time to
set aside the award expired, the court was
required to "proceed to pronounce judgment
according to the a award, and upon the
judgment so pronounced a decree shall
follow" (Section 17). Now the consequence
of the time expiring under Section 34 of the
1996 Act is that the award becomes
immediately enforceable without any further
act of the court. If there were any residual
doubt on the interpretation of the language
used in Section 34, the scheme of the 1996
Act would resolve the issue in favour of
curtailment of the court's powers by the
exclusion of the operation of Section 5 of the
Limitation Act.
50. Hon’ble Apex Court made it
clear that one of the main objective of ‘the
Act’ is “to minimise the Supervisory role of
the Courts in the arbitral process.”
51. The Hon’ble Apex Court
further took note of Section 36 of ‘the Act’
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and recorded that once the time under
Section 34 of ‘the Act’ expires, the award
immediately becomes enforceable without
any futher act of the Court.
52. There is a recent judgment of
the Hon’ble Apex Court in the case of State
of West Bengal represented through the
Secretary & ors. vs. Rajpath Contractors
and Engineers Limited reported in (2024) 7
SCC 257 wherein paragraph nos. 8 and 9
recorded as follows:
8. As per Section 12(1) of the
Limitation Act, the day from which the
limitation period is to be reckoned must be
excluded. In this case, the period of
limitation for filing a petition under Section
34 will have to be reckoned from 30-6-2022,
when the appellants received the award. In
view of Section 12(1) of the Limitation Act,
30-6-2022 will have to be excluded while
computing the limitation period. Thus, in
effect, the period of limitation, in the facts of
the case, started running on 1-7-2022. The
period of limitation is of three months and
not ninety days. Therefore, from the starting
point of 1-7-2022, the last day of the period
of three months would be 30-9-2022. As
noted earlier, the pooja vacation started on
1-10-2022.
9. We may note here that Section
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43 of the Arbitration Act provides that the
Limitation Act shall apply to the arbitrations
as it applies to proceedings in the Court. We
may note here that the consistent view taken
by this Court right from the decision in
Union of India v. Popular Construction Co.
is that given the language used in the
proviso to sub-section (3) of Section 34 of
the Arbitration Act, the applicability of
Section 5 of the Limitation Act to the petition
under Section 34 of the Arbitration Act has
been excluded.
(emphasis added)
53. As observed above, the
admitted position is that the award/order
came to be passed on 26.04.2022, the
petition under Section 33 of ‘the Act’ filed
thereafter too was rejected on 31.05.2023.
The three months period ended on
31.08.2023 by which an application under
Section 34 of ‘the Act’ should have been filed
by the appellants. Further, alongwith the
sufficient reason explaining the delay, the
petition could have been filed upto
30.09.2023 and not thereafter. However, the
petition was filed only on 14.03.2024.
Section 34(3) of ‘the Act’ records three
months and not 90 days and as such, there
was delay of 195 days in filing the petition.
The award became enforceable after the
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period under Section 34(3) of ‘the Act’ came
to an end.
54. In that background, the
learned Principal District Judge, Patna was
fully justified in coming to the conclusion
that under no circumstances, it can entertain
the application of the apellants beyond the
period mandated under Section 34(3) of ‘the
Act’. The well reasoned order dated
07.04.2025 passed in Arbitration Case No.
18 of 2024 need no interference.
55. M.A. No. 449 of 2025 stands
dismissed.
21. In the present case, the Award was signed on
18.07.2021 and three months period came to an end on
18.10.2021. If the further 30 days is included, the period comes
to an end on 17.11.2021. In that background, the case preferred
by ‘the Board’ i.e. the Misc. (Arbitration) case no. 16 of 2023
after lapse of 472 days (as recorded by the learned District
Judge) was rightly rejected by the learned District Judge, Patna
as the Court cannot go beyond 34(3) of ‘the Act’.
22. Further section 36 makes the arbitral award
enforceable immediately after the period for filing appeal under
section 34 of ‘the Act’ expires subject to provisions of Sub-
section (2).
23. However, this Court would like to clarify on the
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point of time that is allowed under section 34(3) of ‘the Act’.
Paragraph 7 of the learned District Judge, Patna’s order dated
29.09.2024 records about 90 days period with an additional 30
days. It is to be noted that Section 34(3) of ‘the Act’ records
about three months (and not 90 days) and 30 days.
24. To make it simpler, if an Award has been signed
on 1st of February (with February having 28 days in that year),
the three months period shall come to an end on 1 st of May and
not 3rd of May. Similarly, if the order has been passed on 1 st of
November, the three months period shall again come to an end
on 1st of February and not 30st January. ‘The Act’ clearly talks
about three months period and not 90 days.
25. Further, though the observation made below has
no relevance in the present case, this Court must record that
even after the dismissal of the Misc. (Arbitration) Case No. 16
of 2023 on 20.09.2024 on the ground of delay in filing of the
petition beyond section 34(3) of ‘the Act’, ‘the Board’ once
again went in silent mode and got activated only in the second
part of the year 2025 when the present appeal was filed. The
office report shows that it has been filed after a delay of 207
days. This clearly shows how ‘the Board’ functions and why it
suffers. The appeal(s) in the opinion of the Court is/are filed
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only to complete the process and to show that they took the
legal route but failed. Clearly, the accountability part is missing
in ‘the Board:
26. In that background, this Court holds that the
learned District Judge, Patna was fully justified in rejecting the
petition preferred by the Bihar State Housing Board filed after
lapse of 472 days. The order dated 20.09.2024 has been passed
in line with the mandate of section 34(3) of ‘the Act’.
27. This takes the appeal to only one conclusion. It is
fit to be dismissed. Accordingly, ordered. The M.A. No. 637 of
2025 stands dismissed. All the Interlocutory Applications also
stand consigned along with the dismissal of the appeal.
(Rajiv Roy, J)
Vijay Singh/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 17.02.2026
Transmission Date
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