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2000 DIGILAW 71 (HP)

SATISH KUMAR v. B. S. KOMAL

2000-04-03

R.L.KHURANA

body2000
ORDER 1. The present petition has been made under Section 28 of the Indian Arbitration Act; 1940 read with Section 151, Code of Civil Procedure, for extension of time for making the award by the Arbitrator. 2. The dispute between the parties was referred to arbitration. With the consent of parties Shri A. K. Goel, Advocate, was appointed as Arbitrator. On the elevation of Shri A. K. Goel as a Judge of this Court, Shri D. D. Sood Advocate, was appointed as an Arbitrator by the Court vide order dated 28.5.1997 passed in OMP No. 525 of 1996. The said Arbitrator entered upon the reference on 17.7.1997. The petitioner concluded his evidence on 22.9.1997 and the case was fixed for evidence of the respondents on 8.11.1997. Vide order date 22.9.1997 the Arbitrator, with the consent of the parties, extended the time for making the award by four months beginning from 28.9.1997. On 8.11.1997 the evidence of the respondents was not present and on a request having been made on their behalf, the case was adjourned by the Arbitrator to 21.11.1997. Even on this date, the evidence of the respondents was not present. Resultantly, the case was adjourned to 21.12.1997. The evidence of the respondents was again not present on 21.12.1997. The proceedings were, therefore, adjourned to 7.3.1998. While so adjourning the proceedings, the time for making the award was also extended with the consent of the parties till 28.5.1998. Neither the respondents nor counsel appeared before the Arbitrator on the date fixed, that is 7.3.1998. Consequently, the proceedings were adjourned to 23.5.1998 for the evidence of the respondents. On this adjourned date also neither the respondents nor their counsel appeared before the Arbitrator, when the following order came to be passed by the Arbitrator : "Present : Shri L. C. Kapoor learned counsel for the claimant Shri Satish Kumar, None for the respondents. Case was fixed for recording evidence of the respondents. Neither the counsel nor the respondent, is present. Under the circumstances, it is not possible to record the evidence. Learned counsel for the claimant submits that ex-parte proceedings should be taken against the respondents. However, I have contacted the respondents' counsel telephonically and I have been given to understand that by consent of both the parties that period of four months be extended for making the award which would be expired on 28.5.1998." 3. Learned counsel for the claimant submits that ex-parte proceedings should be taken against the respondents. However, I have contacted the respondents' counsel telephonically and I have been given to understand that by consent of both the parties that period of four months be extended for making the award which would be expired on 28.5.1998." 3. The proceedings were taken up by the Arbitrator on 27.6.1998 and the following order was passed : "Present : Sh. L. C. Kapoor learned counsel for the claimant along with Shri Satish Kumar. None for the Respondents. That the case was fixed for today. I understand that parties could agree to the time being extended. However, none is present for the respondents. I cannot take any unilateral action in the matter." 4. The proceedings before the Arbitrator rested there since the time for making the award stood expired on 28.5.1998. 5. The petitioner by virtue of the present petition has approached this Court for extension of time for making the award. 6. The respondents, while resisting the petition, have pleaded and contended that the petition suffers from delay and laches and is liable to be dismissed. The statutory period for making the award expired on 28.5.1998, while the present petition has been made on 10.6.1999, that is, after a lapse of about 13 months. No explanation has been offered for such delay. In support of his contention, the learned counsel for the respondents has placed reliance on the decision of the Delhi High Court in Ozech Ocean Shipping v. M.M.T.C. (AIR 1998 Delhi 402). 7. In the case before the Delhi High Court, the period for making the award expired on 25.8.1994 and an application for extension of time was made on 18.10.1995, that is, after about 14 months. In the absence of cogent reasons for the delay in making the application extension of time was refused and application was dismissed. 8. The learned counsel for the petitioner, on the other hand contended that vide a Section 37, Arbitration Act, 1940, the provisions of Limitation Act, 1963, have been made applicable to the proceedings under the Arbitration Act, Article 137, Limitation Act, 1963, would govern the present petition. Under Article 137, a period of three years have been prescribed for an application/petition for which no period of limitation has been specifically provided elsewhere under the Limitation Act, 1963. 9. Under Article 137, a period of three years have been prescribed for an application/petition for which no period of limitation has been specifically provided elsewhere under the Limitation Act, 1963. 9. In M/s. Mangat Ram Chauhan & Son's v. State of H.P. etc. (ILR 1980 HP 151), a question arose whether an application made, under Section 8 read with Section 20, Arbitration Act, 1940, would be governed by Article 137, Limitation Act, 1963. Taking note of the definition of the words "applicant" and "application" appearing in Clauses (a) and (b) respectively of Section 2, Limitation Act, 1963, it was held that Article 137 would be applicable to application made under Sections 8 and 20 of the Arbitration Act, 1940. 10. Following the same principle in the present case, Article 137, Limitation Act, 1963 would be applicable wherein the period of limitation has been prescribed as three years. Therefore, the present petition, having been made within such prescribed period of three years cannot be thrown out merely on the ground that the same has been made after about 13 months from the date when the right for making the same accrued to the petitioner. In the case before the Delhi High Court, Article 137, Limitation Act, 1963 was never considered and as such to my mind, it does not lay down a correct law. 11. Section 28(1), Arbitration Act, 1940, provides : "The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award." 12. A bare reading of the above provision shows that the Court has been given full discretionary power to extend time even after the expiry of the period and also after the award has been given. Such power can be exercised even by an appellate Court. (See : State of Punjab v. Hardyal (AIR 1985 SC 920 = 1985 Arb. LR 297.)). 13. Though the power of the Court to extend time is unlimited, it is well settled that such power has to be exercised with judicial discretion after taking into consideration all the circumstances of the case including the conduct of the parties. 14. (See : State of Punjab v. Hardyal (AIR 1985 SC 920 = 1985 Arb. LR 297.)). 13. Though the power of the Court to extend time is unlimited, it is well settled that such power has to be exercised with judicial discretion after taking into consideration all the circumstances of the case including the conduct of the parties. 14. A perusal of the record of the proceedings before the Arbitrator, copy of which has been placed on the record of the present petition, shows that the delay in the conclusion of the Arbitral proceedings cannot be attributed to the petitioner. Such delay is attributable only to the respondents who have failed either to produce evidence on the date(s) fixed or to put in appearance before the Arbitrator. 15. It has been held in M/s. Hindustan Steel Ltd. v. Amar Nath Sharma (AIR 1971 Orissa 288.) that discretion under Section 28, Arbitration Act, 1940, should not be exercised in favour of a party who himself has been negligent and guilty of dilatory tactics. 16. Since the respondents themselves have been guilty of dilatory tactics during the arbitral proceedings, they cannot be permitted to take advantage of their own wrongs by refusing to extend the time. 17. On the facts and circumstances of the present case, discretion is required to be exercised in favour of the petitioner by granting the extension of time. 18. Resultantly, the present petition is allowed and the time for making the award is extended till 31.7.2000. 19. Let a copy of this order be sent to the Arbitrator, Shri D. D. Sood, Senior Advocate for information and necessary action. Petition allowed.