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2002 DIGILAW 1763 (RAJ)

State of Rajasthan v. Jagdish Singh

2002-10-25

HARBANS LAL

body2002
JUDGMENT 1. - The instant civil misc. appeal under section 39 of the Arbitra- tion Act, 1940 (hereinafter called in short `the Act') is directed against the order dated 18.1.1993 passed by the learned Additional District Judge No. 1, Jodhpur in Civil Misc. Case No. 1-A/90. 2. The relevant facts are that the respondent-Jagdish Singh was granted a contract for constructing the Tar Road of Jodhpur - Shergarh - Phalsond Road from Km.117/0 to 124/0 on 24.1.1984. An agreement was also executed between the parties for the same. Clause 23 of the agreement provided that in case of any difference or objection or any other question between the parties in connection with their rights, duties and liabilities, the matter shall be referred for arbitration. Pursuant to the dispute arising between the parties, the matter was referred to arbitration. Shri Gulab Singh Bhandari was appointed as Sole Arbitrator on 14.9.1989. The award was filed in the Court of Additional District Judge No. 1, Jodhpur, on 27.8.1990. Notices were issued to the parties fixing the case for filing of objections against the award on 7.11.1990. On that day i.e. 7.11.1990, the Government Pleader put in appearance and prayed for time for filing objections which was granted and the matter was fixed for 15.1.1991, on which date, the objections were filed on behalf of the State Government. The matter was adjourned from time to time and was ultimately considered on 18.1.1993 and holding that the objections filed on behalf of the State Government were beyond the prescribed period of 30 days, the same were not taken into consideration and the award was made the rule of Court. Hence, this appeal. 3. It has been contended by the learned counsel for the appellants that the learned Additional District Judge has committed illegality in rejecting the objections solely on the ground of limitation ignoring that the time for filing objections was extended on 7.11.1990 by the Court on the request of learned counsel for the appellants. In this regard, he has cited the following cases : 1. Executive Engineer, Rural Engineering Division, Puri v. M/s. Construction India reported in AIR 1982 Orissa 18. 2. Union of India v. M/s. Builders Union reported in AIR 1981 Orissa 188. 3. Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab reported in JT 1995 (7) SC 429. 4. In this regard, he has cited the following cases : 1. Executive Engineer, Rural Engineering Division, Puri v. M/s. Construction India reported in AIR 1982 Orissa 18. 2. Union of India v. M/s. Builders Union reported in AIR 1981 Orissa 188. 3. Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab reported in JT 1995 (7) SC 429. 4. Learned counsel for the respondents has on the other hand argued on the strength of the case of Madan Lal (dead) by his legal representatives v. Sander Lal & Anr. reported in AIR 1967 SC 1233 that the period of limitation prescribed for filing objection under section 30 of the Act cannot be extended. If no such objection is filed within the prescribed period, the same cannot be treated as an application to set aside the award. 5. I have given my anxious and thoughtful consideration to the rival submissions made at the bar and have also perused the record as well as the authorities cited at the bar. 6. A bare perusal of the record makes it abundantly clear that the award was received in the Court from the arbitrator through post on 27.8.1990. It was directed to be placed in the Court on 7.11.1990 after issuing notice to the parties. On 7.11.1990, Mr. Nand Kishore Vyas, learned Additional Government Advocate appeared and sought time for filing objections against the award which was granted. As notice on the applicant was not served, it was directed to be issued again. The matter was posted for 15.1.1991 on which date, the objections for setting aside the award were filed on behalf of the State Government. A copy of the objections was furnished to the learned counsel for the appellant who sought time to file reply thereto and the matter was fixed for 16.2.1991. Thereafter, the matter continued to be adjourned from time to time. Ultimately, on 18.1.1993, the award was made rule of the Court after rejecting the objections filed on behalf of the State Government on the ground that the same were not filed within the prescribed period of 30 days. 7. Thereafter, the matter continued to be adjourned from time to time. Ultimately, on 18.1.1993, the award was made rule of the Court after rejecting the objections filed on behalf of the State Government on the ground that the same were not filed within the prescribed period of 30 days. 7. As indicated above, the contention of the learned counsel for the appellant is that the learned Court below having once granted the prayer made on behalf of the State Government for grant of time to file objections for setting aside the award, the Court must be deemed to have extended the period of limitation prescribed for filing of objections under section 30 of the Act. He has also submitted that the period prescribed u/Art. 158 of the Limitation Act, 1963 could be extended and the delay in filing the objections against the award of the arbitrator could be condoned. In this regard, he has referred to the case of Executive Engineer, Rural Engineering Division, Puri (supra), the facts of which are akin to the present case. In that case, the award was received by the Court on 21.3.1980. Notice was directed to be issued on 27.3.1980. On 21.4.1980, an application was made by the State for grant of time to file objection and the time was extended till 6.5.1980. On 3.5.1980, objections were filed. The subordinate Judge proceeded on the footing that under section 30 of the Act, the period of limitation for filing the objection was 30 days. Since the objection was filed on 3.5.1980, it was beyond the aforesaid prescribed period of 30 days. So, the objection could not be and was not considered. But in that case, it was held that in the circumstances indicated above and in view of change brought about in Section 29 of the new Limitation Act, it must follow that a Court has jurisdiction to extend the time and to condone the delay in filing an objection beyond 30 days. It was further held that by granting time to file objection, the Court did extend the time for filing of the objections. Therefore, the objection filed on 3.5.1980 which was a combined one both under Sections 30 & 33 of the Act was not out of the time in so far as it related to objections tenable under section 30 of the Act. Therefore, the objection filed on 3.5.1980 which was a combined one both under Sections 30 & 33 of the Act was not out of the time in so far as it related to objections tenable under section 30 of the Act. As the learned subordinate Judge omitted to entertain the objections raised under section 30 of the Act on the ground that the objection was beyond time and there was no adjudication of the matter on merits in relation to the objections raised under section 30 of the Act, the judgment of the learned subordinate Judge was set aside and the matter was remitted to him for fresh disposal by treating the objections under section 30 of the Act within time and tenable in law. 8. In the case of Commissioner of Income Tax, Jullundur (supra), Section 139(2) of the Income Tax Act, 1961, which was deleted w.e.f 1.4.1989, was under consideration. It was held by the Hon'ble Apex Court that the said section was a procedural provision. The limit of 30 days prescribed was not intended to be final as discretion was given to the I.T.O. to extend that date. it was also argued on behalf of the revenue that the period once having expired, no application for extension of period could be made after the expiry of the prescribed period or the extended period but their lordships of the Apex Court disagreeing with the contention held that the proviso to Section 139(2) does not imply that at the time of making the application, the time allowed should not have expired. Though the Civil Procedure Code by itself does not apply to the proceedings under the Income Tax Act, but, there was no reason why a principle evolved for doing justice to a party to the proceeding should not be called in aid to while interpreting a procedural provision contained in the Act. In this connection, their Lordships of the Hon'ble Apex Court also made reference to Section 148 of CPC which provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 9. 9. The principle of law which could be deduced from the aforesaid authorities, is that the period of 30 days prescribed u/Art. 158 of the Limitation Act for filing objections under section 30 of the Act may be extended by the Court and in a case where the Court itself grants time for filing objection on the request of the parties, it cannot later refuse to entertain the objections on the ground of bar of limitation. 10. In the case of Madan Lal (supra) relied upon by the learned counsel for the respondents, the moot question involved in the present appeal has not been considered. The principle of law laid down in this authority is that the objections under section 30 of the Act must be filed within the period of limitation and if the same are not filed within that prescribed period, they shall be treated to be barred by limitation. There cannot be and are not two opinions about this principle of law laid down in the aforesaid authority but the facts of this case are distinguishable from the facts of the present case and, therefore, the principle of law laid down in this authority cannot be applied to the facts of this case. The learned Court below has not considered the authority in this perspective. The facts of the authorities relied upon by the learned counsel for the appellants being akin and similar to the facts of the present case, the principle of law laid down therein applies to this case. Thus, looking to the facts of the present case, it is obvious that the learned Court below has committed illegality in not considering the objections filed on behalf of the appellants and, therefore, the impugned order deserves to be set aside. 11. In the result, this appeal is allowed and the impugned order dated 18.1.1993 passed by the learned Additional District Judge No. 1, Jodhpur in civil misc. case No. 1-A/90 is set aside and the matter is remitted to the learned Court below with a direction to consider the objections filed on behalf of the appellants treating them to have been filed in time.Appeal allowed. *******