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1997 DIGILAW 46 (KER)

STATE OF KERALA v. P. N. SIVAN PILLAI

1997-01-30

D.SREEDEVI, P.A.MOHAMMAD

body1997
JUDGMENT P. A. Mohammed - This appeal is filed by the respondents against the judgment and decree in O.P. (Arb.) No. 24 of 1985 of the Sub-Court, Thodupuzha. The respondent in the appeal is the contractor who had undertaken the 'work of improvements of Thoudupuzha - Volambannoor Road, Parts II and III balance work under contract agreement No. 29/EE/79-80 dated 22-6-1979). The respondent failed to complete the work within the stipulated period. Therefore, the contract was terminated on the risk md cost of the contractor on 6-3-1982. Later, the supplemental agreements were executed whereby the period of completion was extended on the specific undertaking that the work would be carried out at the original rate as per the original agreement, Later, certain disputes were raised by the respondent and those disputes were referred to the Chief Engineer (Arbitration) for adjudication. After the enquiry, an award was passed by the arbitrator on 21-8-1986 and the same was notified to the parties. The original award and connected documents were produced in Court. The respondent filed an application, I.A. No. 1321 of 1986, before the court below praying for passing a judgment and decree in terms of the award. However, the appellants filed an objection on 5-4-1986 seeking to sat aside the award or to remit it for fresh disposal. Since the said objection was filed after the expiry of the period prescribed in that behalf, a petition for condonation of delay was also filed under Section 5 of the Limitation Act. By the said petition, the appellants have prayed to condone the delay of 48 days in filing the objection. The said petition was rejected by the court below on the ground that the court below has no jurisdiction to fix the date beyond thirty days for filing the objection. Thereafter, it passed a decree in terms of the award. The said judgment and decree are under challenge. 2. Heard the Government Pleader for appellants and the counsel for the respondent. 3. The prime question that falls for consideration in this appeal is whether the court below is justified in holding that it has no jurisdiction or power to extend the period of limitation prescribed for filing objection under Section 33 of the Arbitration Act, 1940. 2. Heard the Government Pleader for appellants and the counsel for the respondent. 3. The prime question that falls for consideration in this appeal is whether the court below is justified in holding that it has no jurisdiction or power to extend the period of limitation prescribed for filing objection under Section 33 of the Arbitration Act, 1940. Article 119(b) of the Limitation Act, 1963 prescribes that for setting aside an award or getting an award remitted for reconsideration, the applicant shall move the court within a period of thirty days from the date of service of notice of the filing of the award in Court. If the said application is not filed within the aforesaid period it is not maintainable. In the context the question for determination is whether an application under Section 33 of the Arbitration Act can be filed after the expiry of the period prescribed in Article 119(b) of the Limitation Act, 1963 with a petition for condonation of delay under Section 5 of the said Act. Section 5 of the Limitation Act applies in the case of any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. Such application may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. In the present case the application under Section 5 filed by the appellant was dismissed not on the ground that the applicant has not made any 'sufficient cause' for condoning the delay but purely on the basis that the Court has no jurisdiction or power to entertain an application under Section 5 of the Limitation Act. 4. It was pointed out on behalf of the respondent that the objection filed by the appellants on 5-4-1986 was not a petition to set aside the award but an objection against the passing of the judgment and decree in terms of the award. In this context, it is necessary to examine whether the aforesaid objection can be treated as an application under Section 33 of the Arbitration Act praying to set aside the award. The Government Pleader has submitted that along with the objection, the appellants have deposited the court fee of Rs. In this context, it is necessary to examine whether the aforesaid objection can be treated as an application under Section 33 of the Arbitration Act praying to set aside the award. The Government Pleader has submitted that along with the objection, the appellants have deposited the court fee of Rs. 250/- so as to make it an application to set aside the award under Section 33 of the Act. In the objection, he adds, the appellants prayed that the award shall be set aside accepting the contentions raised by them. In this background, the objection filed by the appellants can be treated to be a petition to set aside the award under Section 33 of the Arbitration Act. But it does not ipso facto make the petition maintainable. That objection might have been filed within a period of thirty days prescribed for setting aside an award under Article 119(b) of the Limitation Act, 1963 and then only it can be said that the said petition is maintainable. It is an admitted case that the objection had not been filed within the period prescribed in that behalf and there was a delay of 48 days in filing the same. 5. The question now remains to be considered is whether Section 5 of the Limitation Act can be invoked for condoning the delay in filing a petition to set aside an award under Section 33 of the Arbitration Act, 1940. The Supreme Court in Madan Lal v. Sunder Lal (AIR 1967 SC 1233), observed thus : "Assuming that the court has power to set aside the award suo moto, we are of opinion that that power cannot be exercised to set aside an award on grounds which fall under Section 30 of the Act, if taken in an objection petition killed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Article 158 of the Limitation Act would be completely negatived." In this context the following observation of the Division Bench of the Bombay High Court in Hastimal Dalichand Barg v. Hiralal Motichand Mutha (AIR 1954 Bombay 243), is apposite : "It is common ground that the written statement has been filed by the defendants in the present proceedings beyond the limitation prescribed by Article 158, and it is conceded by Mr. Kotwal that Section 5 of the Limitation Act has not been made applicable and the court has no jurisdiction to condone the delay which a party may make in Filing an application under Section 33. In other words, even if the court was inclined to treat the written statement of the defendants as an application made under Section 33 of the Act, the difficulty created by the delay would be insuperable and the court would have no jurisdiction to consider the contentions raised in such an application when it has been filed beyond time, and yet, without considering this point, the learned Judge has proceeded to deal with the merits of the contentions, though it is true that in the end he has rejected them." In Kawal Singh Akbar v. Baldeo Singh Akbar (AIR 1957 Nagpur 57), the Nagpur High Court observed : "It was held that the application to take the additional ground should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. No. quarter can, therefore, be given to the laches and delay which the appellant has been guilty of. The question, however, does not arise as Section 5 of the India Limitation Act does not apply to the proceedings under the Arbitration Act, and cannot, therefore, be invoked. We, therefore, affirm the finding of the court below that the application filed by the appellant to set aside the award was barred by limitation." In view of the aforesaid decisions, we are of the view that the court has no jurisdiction to condone the delay in filing an application to set aside the award under Section 33 of the Act. That would mean the Court has no power to invoke Section 5 of the Limitation Act in such situation. An application to set aside the award under Section 33 of the Arbitration Act is like an Original Suit. Section 5 of the Limitation Act does not apply to suits. In the present case, the application to set aside the award was filed in a suit by the respondent praying to pass a judgment and decree in terms of the award. Even in such situation the character of the application under Section 33 remains in tact. Section 5 of the Limitation Act does not apply to suits. In the present case, the application to set aside the award was filed in a suit by the respondent praying to pass a judgment and decree in terms of the award. Even in such situation the character of the application under Section 33 remains in tact. Further, the Arbitration Act does not provide that the powers contained in Section 5 of the Limitation Act would apply to the different proceedings under the said Act. 6. In view of the discussion herein above, we are of the view that the Court below has no jurisdiction or power to entertain a petition under Section 5 of the Limitation Act for condoning the delay in filing an application to set aside an award under Section 33 of the Arbitration Act. In the result, the impugned judgment and decree are confirmed. The appeal is accordingly dismissed. No order as to costs. Appeal dismissed.