Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 64 (KAR)

GULBARGA UNIVERSITY v. MALLIKARJUN S. KODAGALI

2005-01-31

A.M.FAROOQ, B.S.PATIL

body2005
B. S. PATIL, J. ( 1 ) IN this appeal, the appellant-Gulbarga University is challenging the order passed by the Court below dismissing the petition filed under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short ). Though this matter is listed for orders today, with the consent of the learned Counsels for the parties, we have taken up this matter for final hearing. ( 2 ) THE proceedings before the Court below were initiated by the appellant herein seeking to set aside the award passed by the arbitrator, the second respondent herein who has held, that the appellant herein was required to pay certain sum of money, to the respondent 1-contractor as against the work executed by him. The twin contentions raised by the appellant before the Court below stating that there was no arbitration clause in the agreement entered into between the parties and that there was no dispute that was arbitrable consequently no award in the eye of law was passed by the Arbitrator were not found favour by the Court below. It is in this background the appellant has come up before this Court assailing the order dismissing his petition filed under Section 34 of the Act. The Court below has dismissed the application on the ground that the petition filed was barred by limitation and the appellant was not entitled for the benefit under Section 34 (3) of the Arbitration Act. ( 3 ) WE have heard the learned Counsel for the appellant Sri N. B. Bhat and learned Senior Counsel Sri G. S. Vishweshwara who has appeared for the respondent's Counsel. The only point that arises for consideration in this appeal is: "whether the proceedings initiated under Section 34 of the arbitration and Conciliation Act of 1996 are within time?" 3-A. The main contention urged by the learned Counsel for the appellant is that soon after the execution proceedings were initiated by the contractor-respondent 1 seeking to execute the award passed by the arbitrator, the appellant-University approached this Court by filing crp No. 3719 of 2000 (Gulbarga University, Gulbarga v Mallikarjun), wherein a specific contention was taken contending that there was no award in the eye of law passed by the Arbitrator which can be executed. This contention of the University was upheld and the CRP was allowed on 30-11-2001 by setting aside the execution proceedings. This contention of the University was upheld and the CRP was allowed on 30-11-2001 by setting aside the execution proceedings. Aggrieved by this order passed by this Court, the respondent 1 contractor preferred a civil Appeal No. 2758 of 2002 before the Apex Court and on 5-11-2003 (Mallikarjun v Gulbarga University), the Apex Court while setting aside the order passed by this Court held that the adjudication made by the Arbitrator was in the nature of an award and the same could be executed and the execution proceedings could go on. It is thereafter that the appellant herein invoked Section 34 of the Act and presented this petition on 8-12-2003. ( 4 ) THE appellant's plea before the Court below stating that the petition filed under Section 34, was within time, having regard to the time taken in prosecuting the matter particularly in the face of the decision of this Court in CRP No. 3719 of 2000 holding that there was no award passed in the eye of law, was within time as per Section 34 (3) was not accepted. ( 5 ) REFERRING to the observations made by the Apex Court, the Court below has negatived the contentions of the appellant. In this regard the learned Counsel for the appellant Sri Bhat has contended that the legal character of the document, namely the adjudication made by the superintendent Engineer was finally adjudicated as an award only after the passing of the judgment by the Supreme Court. Elaborating this contention he contends that once the High Court held that is was not an award, it was not open for him to move an application under Section 34 before the Court below and therefore as long as his application is within 3 months from the date the Apex Court held that the adjudication was in the nature of an award, his petition ought to have been entertained. He further contended, placing reliance on the judgment of the Apex court in Raj Kumar Dey and Others v Tarapada Dey and Others, that the maxims 'actus curiae neminem gravabit and lex non cogit ad impossibilia' are very much applicable to the facts of this case inasmuch as on account of the act of this Court, namely the declaration made by this Court holding that the adjudication made by the Superintendent engineer was not an award, he was precluded/prevented from invoking the jurisdiction of the Court below under Section 34. It is his other limb of the argument that no man can be compelled to do what is impossible of being performed. At the relevant point of time when the limitation is taken to have been running against him from the date of the notice of the alleged award passed by the Arbitrator, there was no award in the eye of law and that the said position in fact found favour by this Court and hence it was not possible for him to invoke Section 34 to move the court below against a non-existent award, he contends. ( 6 ) ON the contrary, the learned Senior Counsel appearing for the respondent has contended that the aforesaid arguments either regarding saving of the period of limitation or with regard to the principle embodied in the legal maxims mentioned above are not available to the appellant in view of the decision rendered by the Apex Court between the parties to this dispute which is in the case of Mallikarjun. The learned Senior Counsel draws our particular attention to the observations made in paragraphs 22, 23, 24 and 25 of the said decision and contends that the findings recorded by the Apex Court would clearly show that the adjudication and determination made by the superintendent Engineer was an award and the same was passed after affording fair and reasonable opportunity to the appellant herein. That, immediately after passing of the award when the certified copy of the same was not given, a writ petition was filed by the respondent herein for a direction to the Arbitrator to issue a certified copy of the award and in that proceedings the appellant-University did not take up any contention stating that the Superintendent Engineer did not act as an arbitrator or the decision arrived at by him was not an award. The Apex court has further clearly held that if at all it was the contention of the university that the award made by the Superintendent Engineer was without any authority or beyond his jurisdiction, they would have filed appropriate application in tenns of Section 34 of the Act. In paragraph 25 of the said judgment, the Apex Court has proceeded to even direct the executing Court to proceed with the execution of the award. ( 7 ) THE Court below while dealing with the question of limitation has referred to and relied upon the observations and directions issued by the apex Court in the aforementioned decision. The argument now canvassed by the learned Counsel for the appellant stating that the legal character of the determination made by the Superintendent Engineer as an award was pronounced for the first time when the Apex Court decided the said issue, is not acceptable inasmuch as the perusal of the said judgment of the Apex Court would not give any such indication. On the other hand, the Apex Court has held that the determination was very much an award and the same was done in accordance with law. The fact that the Executing Court was directed to proceed with the execution of the award would itself close the doors for any such argument for the appellant to contend that the period of limitation for presenting an application under Section 34 must commence only from the date when the Supreme Court passed the order in the civil appeal and until then the period of limitation did not start. Even otherwise, any declaration or finding regarding the character or nature of a transaction/document will date back to the date of the transaction itself, as the finding/declaration only brings out and explains the legal character of the document and does not ascribe such character for the first time to the said transaction. ( 8 ) THE learned Counsel for the respondent has further drawn out attention to yet another relevant fact which needs to be noticed here. In the proceedings initiated before this Court in CRP No. 3719 of 2000 there was no order staying the award. The interim order of stay was only with regard to stay of the execution proceedings. ( 8 ) THE learned Counsel for the respondent has further drawn out attention to yet another relevant fact which needs to be noticed here. In the proceedings initiated before this Court in CRP No. 3719 of 2000 there was no order staying the award. The interim order of stay was only with regard to stay of the execution proceedings. It is also further brought to our notice that the award of the Arbitrator having been passed on 30-7-1999 and notified immediately, the period of four months ended on 29-10-1999. Even the extra period of 30 days for which the court could have exercised its jurisdiction to extend the time by condoning the delay also got ended on 29-11-1999. The interim order was obtained in the CRP on 24-10-2000 much after the expiration of the period of limitation prescribed. In this view of the matter, it has been rightly contended by the learned Counsel for the respondent that there were no proceedings initiated nor were pending until the expiration of the statutory period of limitation prescribed under Section 34 and therefore the question of exclusion of any time on the ground that the proceedings were being prosecuted before different forums did not arise. ( 9 ) THE learned Counsel for the respondent has drawn our attention to the decision in the case of Union of India v M/s. Popular Construction company. In the said decision, the Apex Court has clearly laid down that the provisions of Section 5 of the Limitation Act, 1963 are not applicable to an application filed challenging the award under Section 34 and as such there was no scope for assessing sufficiency of the cause for the delay beyond the period prescribed in the proviso to Section 34. ( 10 ) IN the light of this judgment and in the facts and circumstances of the case as adverted to above, we are of the clear view that the petition filed before the Court below under Section 34 was clearly barred by time and the findings arrived at and conclusions reached by the Court below while dismissing the petition on that ground, does not call for any interference as it does not suffer from any infirmity in law. Hence, we pass the following: order the appeal filed is devoid of merits and hence the same is dismissed. --- *** --- .