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1999 DIGILAW 272 (HP)

RAJEEV SHARDA v. EXECUTIVE ENGINEER, HP PWD, THEOG

1999-12-09

SURINDER SARUP

body1999
JUDGMENT SURINDER SARUP, J. - This order will dispose of O.M.Ps. (Main) 26 and 27 of 1998 as common questions of law and fact arise in both. Briefly the facts are that two works of construction of High Altitude Training Centre at Shillaroo (sub-head : (i) construction of Sports Service Centre, including Medical Central, and (ii) construction of four numbers Staff Quarter) were awarded to Shri Rajeev Sharda Contractor by the Executive Engineer, HP PWD, Theog, vide separate letters dated 23.11.1989 and 15.9.1989 respectively. The first work was for a sum of Rs. 8,87,362 vide agreement No. 36 of 1989-90 between the parties and the second work was for a sum of Rs. 8,60,266 vide agreement No. 29 of 1989-90 between them. Subsequently, in respect of both these works some disputes arose regarding payments to be made to the Contractor. This resulted in the Contractor seeking arbitration as per the terms of both the contract agreements aforementioned. The proceedings ultimately culminated in two awards being made by the Arbitrator-cum-Superintending Engineer Arbitration, HP PWD, Solan, both dated 22nd of November, 1997. Being dissatisfied with the said awards, the HP PWD has filed objections under Section 34(3) of the Arbitration and Conciliation Act, 1996, (hereinafter to be called "the Act") in respect of both the Awards. Along with the objections, separate applications under Section 5 of the Limitation Act for condoning the delay in filing the same have also been moved by the Department aforementioned, both the applications, being supported by separate affidavits of Shri Rajinder Paul Malhotra, Superintending Engineer 2nd Circle, HP PWD, Shimla-3. These two applications are the subject-matter for consideration herein. Arguments have been addressed at length by the learned counsel for both the parties, namely, Shri J. S. Bhogal, learned counsel for the claimant-Contractor, and Shri Sanjay Karol, the learned Advocate General, on behalf of the Department. It has been submitted by Shri J. S. Bhogal that Section 34(3) of the Act has an overriding effect on the general law of limitation as incorporated in the Limitation Act, 1963. On the other hand it has been submitted by the learned Advocate General that the said Limitation Act, 1963, has been specifically made applicable insofar as the arbitration proceedings are concerned and Section 34(3) of the Act concerns only the exercise of suo motu powers by the Court. On the other hand it has been submitted by the learned Advocate General that the said Limitation Act, 1963, has been specifically made applicable insofar as the arbitration proceedings are concerned and Section 34(3) of the Act concerns only the exercise of suo motu powers by the Court. In order to appreciate the respective contentions of the learned counsel for the parties it would be appropriate to advert to Section 34 of the Act. Section 34 relates to application for setting aside arbitral award and sub-section (3) thereof is as follows : "(3) An application for setting aside my 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." According to Shri Bhogal, the said proviso is a complete bar to entertain any application for setting aside an arbitral award beyond the period of three months, except within a further period of 30 days thereafter if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months. This submission of the learned counsel is based on the expression "but not thereafter" which is the concluding portion of the said proviso. In support of his submission the learned counsel has placed reliance on The Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs. M/s. Parson Tools and Plants, Kanpur (AIR 1975 SC 1039). In that case the provisions of the U.P. Sales Tax Act, 1948, arose for consideration. Section 10 thereof was analysed and adjudicated upon by the Apex Court as follows : "Three features of the scheme of the above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third is that the Revising Authority has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown. As rightly pointed out in the minority judgment of the High Court, pendency of proceedings of the nature contemplated by Section 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but Section 10(3-B) of the Sales Tax Act, gives no jurisdiction to the Revising authority to extend the limitation, even in such a case, for a further period of more than six months." It is manifest that in the abovementioned case, while interpreting somewhat similar provisions of the U.P. Sales Tax Act, 1948, the Apex Court came to the conclusion that the Revising Authority therein had no discretion to extend the period of one year prescribed as limitation for filing an application for revision beyond a further period of six months, even on sufficient cause shown. In para 17 of the report in the abovementioned case the Apex Court held as follows : "(17) Thus, the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceedings on the analogy of Section 14(2) of the Limitation Act." In the case reported as Mohd. Ashfaq vs. State Transport Appellate Tribunal, U.P. and others (AIR 1976 SC 2161), also relied on by the learned counsel the proviso to sub-section (2) of Section 58 of the Motor Vehicles Act, 1939, was under consideration by the Apex Court. Ashfaq vs. State Transport Appellate Tribunal, U.P. and others (AIR 1976 SC 2161), also relied on by the learned counsel the proviso to sub-section (2) of Section 58 of the Motor Vehicles Act, 1939, was under consideration by the Apex Court. It requires that an application for renewal of permit should be made not less than 120 days before the date of expiry of the permit. Sub-section (3) thereof vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than 15 days. It has been held therein that thus where the application for renewal of permit was admittedly late by more than 15 days, the delay was not condonable and the R.T.A. was right in rejecting the application as time barred. This ruling also supports the contention of the learned counsel in the present case. In Vinod Gurudas Raikar vs. National Insurance Co. Ltd. and others (AIR 1991 SC 2156), the question for consideration was the effect of appeal of the old Motor Vehicles Act, 1939, by the new Motor Vehicles Act, 1988, and whether delay could be condoned. In that case the accident giving rise to the claim petition took place when the Act of 1939 was in force, but the claim petition was filed belatedly, even beyond the statutory period of six months provided under the Act of 1988. It as held in the circumstances that the question of condonation of delay must, therefore, be governed by the new law. The view of the High Court in that case that the same was governed by the new Act and delay for a longer period of six months could not be condoned, was upheld, by the Apex Court. Therefore, this authority on principle also supports the submission of Shri Bhogal. Lastly, reliance has been placed on Mer Pamda Vejunandbhai and etc. vs. Hardasbhai Parbatbhai and others (AIR 1992 Gujarat 122). In that case the Gujarat High Court came to the conclusion that the period to condone delay is restricted upto period of 12 months under Section 166(3) of the Motor Vehicles Act, 1988, and the applicability of Section 5 of the Limitation Act is excluded where delay is beyond a period of 12 months. In that case the Gujarat High Court came to the conclusion that the period to condone delay is restricted upto period of 12 months under Section 166(3) of the Motor Vehicles Act, 1988, and the applicability of Section 5 of the Limitation Act is excluded where delay is beyond a period of 12 months. This ruling also has a bearing on the facts of the instant case. At this stage it would not be out of place to mention that there is no dispute between the parties that the objections have been filed to the awards of the Arbitrator not only beyond the limitation of three months as provided under sub-section (3) of Section 34 of the Act, but is also beyond the further period of 30 days as envisaged in the proviso thereto. For sake of clarity be it stated that both the awards were rendered on 22nd November, 1997, while the arbitral awards were received on 3.12.1997 by the objector as stated in Para 2 of both the applications for condoning the delay. The objections as well as the applications in both the cases have been field on 21st and 23rd of April, 1998 respectively. In other words, the same are beyond the period of three months plus thirty days, as provided by Section 34(3) of the Act. The learned Advocate General, in support of the applications for condoning the delay, in addition to the submission referred in Para 5 hereinabove, has drawn the attention of this Court to the provision of Section 43(1) of the Act. The same is as follows : "43. Limitation : (1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in Court." Elaborating his submission, he has argued that Section 43(1) ibid comes into play, notwithstanding the bar created by Section 34(4) of the Act. According to his contention, the same is not to be treated redundant as otherwise it would be otiose. In order to appreciate the import of the submission made by the learned Advocate General, it would be appropriate to analyse Section 43(1) of the Act. It specifically lays down that the Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in Court. In order to appreciate the import of the submission made by the learned Advocate General, it would be appropriate to analyse Section 43(1) of the Act. It specifically lays down that the Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in Court. As rightly contended by Shri Bhogal, the said provision of the Act is applicable to arbitration proceedings only under the Act and cannot have the effect of over-riding the bar created by the proviso to Section 34(3) which precludes the Court from entertaining any application for setting aside the arbitral award made under the Act if it is moved after three months plus a further period of 30 days from the date on which the party so applying had received the arbitral award. This is owing to the expression "but not thereafter" occurring at the end of the said proviso. In the context of what has been stated in the preceding paragraph, it bears reiteration that the Court while interpreting the provisions of a statute has to so in a manner that it does not do violence to the language of the particular provision of that statute under consideration of the Court. No authority is required to be stated herein as this is the well settled law by now. Construed thus, there can be no other interpretation of Section 34(3) of the Act except that the application for setting aside the arbitral award can only be entertained within a further period of 30 days, beyond the prescribed limitation of three months, and that too after the Court is satisfied that the applicant was prevented by sufficient cause from making the application within that time, "but not thereafter". The fallacy in the submission of the learned Advocate General as regards the application of Section 43(1) of the Act to proceedings in Court, in addition to its application to arbitrations under the Act, is apparent from the interpretation of Section 37 of the Arbitration Act, 1940, which Section 37 is pari materia with Section 43(1) ibid. The same has been interpreted by the Madras High Court in the case reported as H. Chandanmull & Co. vs. Mohambal M. Mehta and others (AIR 1953 Madras 561), reliance on which has been placed on behalf of the claimant-Contractor by his learned counsel. The same has been interpreted by the Madras High Court in the case reported as H. Chandanmull & Co. vs. Mohambal M. Mehta and others (AIR 1953 Madras 561), reliance on which has been placed on behalf of the claimant-Contractor by his learned counsel. It has been held therein as follows : "The matter has to be decided on an interpretation of the language of Section 37(1). Whatever force there might have been in the contention of the appellant if Section 37(1) had stopped with the words "apply to the arbitrations", it is wholly untenable in view of the words that follow namely, "as they apply to proceedings in Court". The section makes a sharp distinction between arbitrations and proceedings in Court. Whatever justification there might be for considering an application to set aside an award in a Court as an arbitration proceeding, there can be none for holding it to be not a proceeding in Court. In the context, therefore, the word "arbitration" should be limited to proceedings before the arbitrations; and an application to set aside an award being a proceeding in Court, cannot be held to be an arbitration proceeding. Moreover, Section 37(1) is intended to apply to proceedings in arbitration the provisions of the Limitation Act which would otherwise be inapplicable. But even apart from Section 37(1), Article 158 in terms applies to an application to set aside an award. On the construction of the section, therefore we are of opinion that "arbitration" referred to in Section 37(1) cannot include a proceeding taken in Court for setting aside the award." In fairness to the learned Advocate General he has cited a number of rulings at the time to hearing. Reliance has first been placed by him on the case of The Commissioner of Sales Tax, Uttar Pradesh, Lucknow (supra), more particularly Paras 11, 12 and 13 of that report. On going through the same this Court finds that the observations contained therein do not advance the case of the applicant herein for condoning the delay. He has also cited Directorate of Enforcement vs. Deepak Mahajan and another ((1994) 3 SCC 440). Stress has been laid on the observations in the said authority regarding keeping in view the cardinal principle of law that 'every law is designed to further the ends of justice but not to frustrate on the mere technicalities'. He has also cited Directorate of Enforcement vs. Deepak Mahajan and another ((1994) 3 SCC 440). Stress has been laid on the observations in the said authority regarding keeping in view the cardinal principle of law that 'every law is designed to further the ends of justice but not to frustrate on the mere technicalities'. In the present case, however, the fact remains that the language of the statute is such that it precludes this Court from extending the period of limitation beyond that provided and referred to above, notwithstanding the fact that sufficient cause may have been shown by the applicant for doing so. In the case of State of Tamil Nadu vs. Kodaikanal Motor Union (P) Ltd. ((1986) 3 SCC 91), the observations on which reliance has been placed by the learned Advocate General are contained in Para 17 of the report. On going through the same this Court finds that to accept the argument advanced by him in the context of the statutory provisions herein, would tantamount to make something out of it which is not there and would thus be doing complete violence to its language, which is not permissible. He then referred to the case of Madras and Southern Manaratta Ry. Co. Ltd. vs. Bezwada Municipality (AIR 1944 PC 71). A bare perusal of the same would show that it has no application to the present case. Similarly, the case of Madhu Gopal vs. VI Additional District Judge and other (AIR 1989 SC 155), is also distinguishable on facts. In the case Tahsildar Singh and another vs. State of U.P. (AIR 1959 SC 1012), the Apex Court was seized of the interpretation of Section 162 of the Code of Criminal Procedure, (1898). Recourse was had on the cardinal rule of construction of the provisions of a section with a proviso as contained in Maxwell's Interpretation of Statutes. The general observations contained therein have no hearing insofar as the present case is concerned. On going through the other case law cited by the learned Advocate General before this Court, namely, J.K. Industries Ltd. and others vs. Chief inspector of Factories and Boilers and others ((1996) 6 SCC 665), Prasanta Kumar De Chowdhury and others vs. Tapas Kumar Das (AIR 1981 Calcutta 332), K. M. Nanavati vs. The State of Bombay (now Maharashtra) (AIR 1961 SC 112) and The King vs. Dominion Engineering Co. Ltd. (AIR 1947 PC 94), this Court finds that the law laid down therein and the observations made have no application to the facts and provisions of law in the instant case. Adverting to the initial submission of the learned Advocate General, referred to in Para 5 hereinabove, to accept his contention that Section 34(3) of the Act concerns only the exercise of suo motu powers by the Court, would tantamount to reading something more into it than is contained therein, which is not permissible under the law. For the reasons recorded above, the applications under consideration are clearly beyond the statutory period of three months as provided by Section 34(3) of the Act. Not only that, the same have been made even beyond the further period of 30 days during which this Court could have entertained them on being satisfied that the applicant was prevented by sufficient cause from making the same, as per the proviso thereto. Therefore, in view of the bar created therein, this Court has no jurisdiction to entertain the same. They are consequently dismissed. But in view of the circumstances and the purely legal issues involved, there will be no order as to costs. Petition dismissed.