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2002 DIGILAW 294 (JK)

Kunal Builders v. Union Of India

2002-09-10

B.L.BHAT, V.K.JHANJI

body2002
Per V. K. Jhanji, J (Oral): 1. This appeal is directed against order dated 5.7.2000 passed by learned Single Judge, whereby objections filed under Section 30 of the Arbitration Act by the appellants have been dismissed and in consequence thereof the Award given by the Arbitrator has been made Rule of the Court. 2. In brief the facts are that after adjudication of the disputes between the appellants and the respondent the Arbitrator Shri S. K. Rao, CSW, gave his ward dated 21-12-1995 and filed the same before the court. On receipt of the Award, vide order dated 16.4.1996 notice was issued tot he parties. On receipt of the notice for filing of the award in Court, Mr. D. C. Raina, Advocate, on 15.9.1996 put in appearance on behalf of the appellants herein and filed his Vakalatnama in the Registry. The case was listed before the learned Single Judge on 28.1.1997 when it was ordered that objections be filled subject to just exceptions and it was also directed that case be listed on a date to be fixed by the Additional Registrar. The objections on behalf of the appellants were filed on 27.2.1997. An objection was taken by the Union of India that objections filed under Section 30 of the J&K Arbitration Act, 2002, (1945 A.D) cannot be looked into because the same has been filed after expiry of prescribed period of limitation of 30 days from the date of notice of filing of the Award in the Court. It was submitted on behalf of the appellants that objections were filed within thirty days from the date their counsel had put in appearance in the Court and liberty was given by the Court to appellants to file objections. On the other hand, it was contended on behalf of the Union of India that under Article 158 of the J&K Limitation Act, 1995 (193 8 AD) read with IV Schedule of the J&K Arbitration Act, 2002 (1945 AD) the period of limitation for filing objections to set aside an award or to get an award remitted for reconsideration, is thirty days from the date of service of notice of filing of the award. It is contended that counsel for the appellants had put in appearance and filed his vakalatnama on 15.9.1996, after the notice of filing of the award in Court was served upon the appellants and objections filed thus were not within time. 3. The learned Single Judge on finding merit in the submission made on behalf of the respondents held that objections against the award were filed much after the period of thirty days and thus cannot be entertained. Accordingly, objections were not entrained and award was made rule of the Court. Hence the present appeal. 4. Learned counsel appearing on behalf of the appellants cited the case of Bharat Coking Coal Ltd. Vs. M/s L.K.Ahuja and Co., 2001 AIR SCW 912, where the Supreme Court opined that the delay in filing the objections to the award can be sought to be condoned by filing application under Section 5 of the Limitation Act, 1963 and the right to seek condonation of delay is not defeated by the scheme of the Arbitration Act (10 of 1940). 5. On the other hand learned counsel appearing on behalf of the respondent-Union of India submitted that the judgment cited by learned counsel for the appellants is not applicable to the facts of the present case. Firstly, that no application under Section 5 of the J&K Limitation Act, 1995 (!938 A.D.) was filed for condonation of delay in filing objections and secondly, the J&K Limitation Act, 1995 (1938 A.D) does not provide for extension of the period in case of applications filed under the J&K Arbitration Act, 2002(1945 A.D). 6. In order to appreciate the respective contention of learned counsel for the parties it is expedient to notice Section 5 of the Central Limitation Act, 1963 and also (the J&K Limitation Act, 1995 (1938 AD). Section 5 of the The Limitation Act, 1963 (Act 36 of 1965) and Section 5 of the J&K Limitation Act, 1995 (1938 AD) when just appositioned read as under: (The) Limitation Act 1963: "5. Extension of prescribed period in certain cases.- Any appeal of an application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908, 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. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." J&K Limitation Act. 1995 (1938 AD): "5. Extension of period in certain cases.- An appeal or an application for review of a judgment or for leave to appeal or an application to set aside an order of dismissal of a suit for plaintiffs default or an application to set aside an order of abetment of a suit or appeal or any other application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this Section." The IV Schedule annexed to the J&K Arbitration Act, 2002 (1945 AD) contains only two Articles of the J&K Limitation Act, 1995, i.e. Article 158 and Article 178, and it read as under: "158. Under the J&K Arbitration Act to Set aside an award or to get an award remitted for re-consideration Thirty days The date of service of the notice of filing of the award" " 178. Under the J&K Arbitration Act for the filling in court of an award. Ninety days The date of service of the making of an award" Section 14(2) of the J&K Arbitration Act, 2002 (1945 AD) which deals with giving of notice to the parties of the filing of the award in Court, reads as under:- "14. Award to be signed and filed. (1) ......... ........... ................... Ninety days The date of service of the making of an award" Section 14(2) of the J&K Arbitration Act, 2002 (1945 AD) which deals with giving of notice to the parties of the filing of the award in Court, reads as under:- "14. Award to be signed and filed. (1) ......... ........... ................... (2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in court, and the court shall thereupon give notice to the parties of the filing of the award." 7. The combined reading of the aforementioned provisions of the J&K Arbitration Act, Central and State Limitation Act as well as the IV schedule annexed to J&K Arbitration Act, makes it very clear that there is no provision in the J&K Arbitration Act or the Limitation Act applicable to the State of Jammu and Kashmir, for extension of the period in filing objections to the award beyond the prescribed period of limitation provided in Article 158 of the J&K Arbitration Act, 2002 (1945 A.D). It, therefore, follows that time prescribed under Article 15 8 of the J&K Limitation Act 1995 (1938 AD) cannot be extended by reference to section 5 of the J&K Limitation Act, 1995 (1938 AD) as that section applies only to certain specified applications and does not cover an application for enlarging the time in filing objections to the award beyond the prescribed period of limitation. 8. Reference in this regard may be made to the case of Madan Lal Vs. Sunder Lal and another, AIR 1967 Supreme Court, 1233, wherein the Supreme Court has held as under: - "(8) It is clear, therefore, from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mentioned in S.30 it must apply within 30 days of the date of service of notice of filing of the award as provided in Art. 158 of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in S.30 of the Act. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be batted by limitation." 9. The judgment in Bharat Cooking Coal Ltd. (supra) referred to by the learned counsel for the appellants will have no application to the facts of the present case, firstly, because no application under section 5 of the of the J&K Limitation Act 1995 (1938 AD) was maintainable and secondly, no such application was even filed by the appellants seeking condonation of delay in filing objections to the award filed in the court. The learned Single Judge has, therefore, committed no error in law in not entertaining the objections to the award being barred by time and in making award as rule of the court. In view of the above, we do not find any merit in this appeal and, therefore, dismiss the same with no order as to costs.