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J&K High Court · body

2003 DIGILAW 308 (JK)

Syal Industries v. Executive Engineer

2003-10-09

Y.P.NARGOTRA

body2003
Whether delay caused in filing application U/s 30/33 of Arbitration Act can be condoned u/s. 5 of the Limitation Act?, is the question arising for determination. 2. After filing of the award notice was ordered to be issued on 20.7.2000. Respondents in their application for condonation of delay have stated "the applicants thus were never aware of the filing of the award in the court till a notice was received from the Registry of the Court. Application was filed for issuance of copy on 31.5.2001. " From the averments made in the application thus it can be assumed that notice of filing of the award was received by the respondents somewhere before 31.5.2001. Application u/s. 30/33 AA has admittedly been filed on 29.10.2001. Article 158 of 3rd Division of the Limitation Act prescribes 30 days period from the date of service of notice of filing of the award for filing applications under J&K Arbitration Act to set aside the award or to get the award remitted for reconsideration. Applicant-respondent herein thus admittedly have filed application u/s. 30/33 AA seeking setting aside of the award after expiry of 30 days. The delay caused in filing the said application is sought to be condoned u/s. 5 of the Limitation Act. Section 5 of the Limitation Act reads as follows:-- "5. Extension of period in certain cases-An appeal or an application for a 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 a decree passed ex-parte in an original suit or appeal or an application to bring the heirs of the deceased party on the record or an application to set aside an order of abatement 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." 3. 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." 3. From the bare reading of the section it transpires that period of limitationunder section 5 can be enlarged only in cases of appeals,applications for review of the judgment or for leave to appeal or in an application to set aside an order of dismissal of a suit for plaintiffs default or in an application to set aside a decree passed ex-parte in an original suit or appeal, or in an application for bringing the heirs of the deceasedparty on the record or in application for setting aside an orderof abatement ofsuit orappeal and also to an application to which this section is made applicableby oran enactment for the time being in force.This section has no application to other applications. 4. The question whether delay can be condoned u/s. 5 of Limitation Act in applications filed u/s. 30/33 AA came up for consideration before this court in KLJ 1989 366 and 1991 KLJ41.In 1989 KLJ 366 learned counsel for the respondents raised the contention that provisions of Sec. 5 of the Limitation Act are not applicable to the application for setting aside an award on the grounds mentioned in Sec. 30 A. A.and reliance was placed on a Division Bench judgment of this court rendered in Gian Kour v. Atma Singh(1978 J&KLR 516) inwhich it has been held:-- "The next question which falls for determination is whether or not respondent No. 1 could claim benefit of section 5 of the Limitation Act.If the answer to this question is in negative then surely the hurdle of limitation in the way of respondent No. 1 would be inseparable,there being no other provision of law under which extended period of limitation could be claimed.On its terms section 5 does not apply to an application for setting aside an award. But these provisions may be made applicable to such applications as well by or under any other enactment as provided in the section itself. The only provision in regard to limitation under the Act is contained in section 37. But these provisions may be made applicable to such applications as well by or under any other enactment as provided in the section itself. The only provision in regard to limitation under the Act is contained in section 37. It is now well settled that section 2 of the Limitation Act cannot apply to applications for setting aside an award on grounds mentioned in section 30 of the Act even if the provisions of section 37 are brought into aid. (See Chandanmull and Co. v. Mohambal M. Mehta and Ors. AIR 1953 Mad 561; Hastimal MLICHAN Bora and Ors v. Hitalal Moti Chand Mutha AIR 1954 Bombay 243 and Ganesh Chandra Misra v. Artatrana Misra and Ors. AIR 1965 Orissa 17). UnderIndian Limitation Act of 1963, however,provisions of section 5 have now been made applicable to such applications. " 5. This court accepted the contention of the learned counsel for the Respondents and held:-- "The application of the petitioner for seeking condonation of the delay in filing the objections or treating the objections to the award filed by the arbitrator within time having been filed under no provision of law is liable to be rejected." This Court further repelled the contention of the learned A.A.G. that as no period of limitation is prescribed for filing objections to an award, his objections,though filed after a period of 30 days may be treated within time. The court held:-- "It is truethat no specific period limitation is prescribed for filing objections to the arbitration application and it is equally true that no provision has been made for filing of such objections to the award. If a party wants an award to be set aside on the grounds mentioned in Sec. 30 it has to file an application under Art 158 of the Limitation Act and if no such application is filed within the time specified, the courtshave no option but to pass a decree in terms of the award. The Supreme Court in Madan Lal v. Sunder Das, (AIR 1967 SC 133) held: "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 Section 30 it must apply within 30 daysof 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 the Act. It may beconceded that there is no special form prescribed for making such 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 barred by limitation." The objection of the respondents being based upon the grounds specified in section 30 of Act,therefore,cannot be taken into consideration for setting aside the award of the arbitrator." In 1991 KLJ 41 this court had the occasion toconsider the question as to from which point of time the period of limitation for filing an applicationfor setting aside the award has to commence, when there was nothing to show on which date the actual notice issued u/s. 14 was served upon a party. It was held. "In the absence of the actual notice served upon the petitioner, the date of the service of the notice has to be ascertained from the conduct of the party and the period of limitation in such a case would commence from the date of the factum of the filing of the award in the court and not from any subsequent date." 6. In view of the afore mentioned judgments of this court the law on the point stands well settled.Art. 158 of the Limitation Act prescribes a limit of 30 daysfrom the date of service of the notice of filing of the award for filing application to set aside the award or to get the award remitted for reconsideration. This period of limitation prescribed cannot be extended by an application under the provisions of Sec. 5 of the Limitation Act as the same has no application in view of the fact that Arbitration Act is a special enactment to which Sec. 5 has not been made applicable by any provision contained therein. This period of limitation prescribed cannot be extended by an application under the provisions of Sec. 5 of the Limitation Act as the same has no application in view of the fact that Arbitration Act is a special enactment to which Sec. 5 has not been made applicable by any provision contained therein. Learned counsel for the respondents-applicants being confronted with this situation has fairly conceded that the provisions contained in Sec. 5 of the Limitation Act has no application to the application filed u/s 30 AA for setting aside the award but he has argued that for challenging the award u/s 33 there is no limitation and therefore, application u/s 33 AA would still be maintainable. 7. I am not in agreement with the learned counsel on this aspect also. The only provision prescribing limitation for filing an application for setting aside an award or to get the award remitted for reconsideration is enacted under Art. 158 of the Limitation Act. This Act does not make any distinction between an application u/s. 30 or Sec. 33 A. A. Therefore, it is ex-facie clear from the bare reading of Art. 158 that it applies to application filed u/s. 30 as well as 33 of Arb. Act,once the object of such application is to seek setting aside of the award or remission of the award for reconsideration. 8. Since section 5 of the Limitation Act does not apply to the application u/s. 30/33 AA and there is no other provision in the Arbitration Act whereby period of limitation prescribed under Art. 158 of the Limitation Act can be enlarged, the application of the applicants-respondents for condonation of delay is found to be without any provision of law and, therefore, on this ground alone is liable to be rejected. 9. Accordingly the application of the applicants-respondents seeking condonation of delay in filing application u/s. 30/33 Arb. Act is dismissed.