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Himachal Pradesh High Court · body

2002 DIGILAW 279 (HP)

BRIJENDER SINGH v. STATE OF H. P.

2002-09-30

A.K.GOEL

body2002
JUDGMENT Arun Kumar Goel, J.—The applicant/objector has filed application under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure for condonation of delay in filing the objections under Section 34 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as "the Act of 1996". 2. Record of the case shows that the applicant was allotted the work "Improvement of narrow and sub-standard reaches of Shimla-Wangtoo road NH-22 section Km. 212/O to 236/O (Widening of road C/o R/Wall & B/ Wall, C. D. work in Km. 212/O to 236/O)." 3. For execution of this work, agreement No. 18 of 1989-90 was entered into between the parties. It appears that since disputes had arisen between the parties, therefore, the matter was referred to Arbitrator-cum-Superintending Engineer, H.P. P.W.D. Solan. Parties had been appearing before the said Arbitrator. Record of the proceedings of the Arbitrator was sent for. 4. In this behalf, it may be appropriate to notice that the address on which the applicant was being served was "M/s. Brijendra Singh and Company, 14 Guru Teg Bahadur Nagar, College Road, Ropar, (Punjab)." After the award was made by the Arbitrator, the same was despatched to the applicant. Address on the registered cover wherein the award was forwarded is as under: "M/s. Brijendra Singh and Company, 14, Guru Teg Bahadur Nagar, College Road, Ropar (Punjab)-140001." 5. This was received back undelivered. There is an endorsement on the award to the following effect:— Award has been received back from the respondent-firm and we may keep it in record. Submitted, please. Sd/- 13.9." 6. In the aforesaid background, objections under Section 34 of the Act of 1996 have been filed by the objector/applicant alongwith application under Section 5 of the Limitation Act. Award as per record of the Arbitrator in the instant case is dated 14.9.1998. It was despatched on that very date by the Arbitrator to both the parties. This is clear from record of the Arbitrator. 7. With a view to seek condonation of delay in filing the objections, ground set up is that the applicant/ objector had come to Shimla in connection with some other case to Kanwar Kuldip Singh, Senior Advocate. On way back, enquiry was made from the office of respondents and also from the Arbitrator. 7. With a view to seek condonation of delay in filing the objections, ground set up is that the applicant/ objector had come to Shimla in connection with some other case to Kanwar Kuldip Singh, Senior Advocate. On way back, enquiry was made from the office of respondents and also from the Arbitrator. Then for the first time on 11.4.2002 he came to know that the award stands pronounced on 14.9.1998. It is in this background that the objections have been filed alongwith an application for condonation of delay. 8. When a reference is made to the provisions of Section 34 of the Act of 1996, it is clear that the limitation cannot be extended. On a perusal of Section 34 of the Act of 1996, it is held that Section 5 of the Limitation Act does not apply to the objections under Section 34 of the Act of 1996. 9. The matter regarding exclusion of Section 5 of the Limitation Act is no more res integra in view of the decision of the Supreme Court of India^ in the case of Union of India v. Popular Construction Co., (2001) 8 Supreme Court Cases 470. What was held and is relevant for the purpose of the present case is extracted hereinbelow:— "7. There is no dispute that the 1996 Act is a "special law" and that Section 34 provides for a period of limitation different from that prescribed under the Limitation Act. The question then is—is such exclusion expressed in Section 34 of the 1996 Act? The relevant extract of Section 34 reads:— "34. Application for setting aside arbitral award.—(1)—(2) * * * (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." 8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. 9. *** *** *** *** 10 *** *** *** *** 22 *** *** *** *** 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 thereafter 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. 10 *** *** *** *** 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 an unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 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 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. 15. The "Part" referred to in Section 5 is Part I of the 1995 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act." 10. This Court in the case of State of Himachal Pradesh v. M/s. Kataria Builders, O.M.P. (M) No. 85 of 2000 as well as in O.M.P. (M) No. 84 of 2002 has also taken similar view. 11. This Court in the case of State of Himachal Pradesh v. M/s. Kataria Builders, O.M.P. (M) No. 85 of 2000 as well as in O.M.P. (M) No. 84 of 2002 has also taken similar view. 11. Faced with this situation, Shri M.M. Vaid, learned Counsel for the applicant/objector submitted that his client has been condemned unheard to his disadvantage. He was never made aware of the proceedings i.e. of making the award by the Arbitrator as per law. 12. This is an argument which has been raised simply to be rejected. Reason being that the applicant/objector was attempted to be served on the address as given by him to the Arbitrator. His correct address being as noted hereinabove was not disputed by Mr. Vaid. Envelope in which the award was despatched is there on record. Postal endorsement on it is not wet. Thus, the registered cover was kept by the postal authorities for a few days before returning it to the sender (Arbitrator). 13. Plea that the objector/applicant was not aware of the award till 11.4.2002 cannot be accepted. Reason being that as a prudent litigant it was for him to keep track of his case. This is also such a plea which cannot be accepted on its face value nor there is any substance in it. 14. In view of the aforesaid facts and circumstances and Section 5 of the Limitation Act being inapplicable, O.M.P. (M) No. 18 of 2002 is hereby rejected. As a consequence of it, objections filed under Section 34 of the Act of 1996 are ordered to be consigned to the record room. 15. O.M.P. (M) No. 18 of 2002 as well as the main petition both stand disposed of, in the aforesaid terms. Disposed of.