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2006 DIGILAW 612 (MP)

Union of India v. Sevay Steel Industries

2006-04-27

P.K.JAISWAL

body2006
ORDER 1. In this appeal preferred under section 39 of the Indian Arbitration Act, 1940 (for short "the Act"), the appellants are challenging the judgment and decree dated 19.1.2004 passed by 10th Additional District Judge (Fast Track Court) Gwalior in Case No. 21/2003, whereby he has directed the award passed by the Arbitrator to be made rule of Court on the ground that the objection filed by the appellants under section 30 of the Act was filed beyond limitation of thirty days and no application for condonation of delay was filed. 2. Brief facts of the case are that an unreasoned award was passed by the sole arbitrator on 21.4.2003. On 28.7.2003 the copy of the award was supplied to the learned counsel for the appellants and time was granted to the appellants to file objections and fixed the case for 14.8.2003. On 14.8.2003 no objection was fi1ea by the appellants. The appellants after expiry of 30 days, on 30.8.2003 filed an objection before the trial Court. The trial Court by impugned judgment made the award rule of Court, without consideration the objection of the appellants on the ground that objection was filed after expiry of statutory period of 30 days and there is a delay of three days in filing the objection and no application for condonation of delay was filed along with the objection, and therefore, the trial Court relying on the decision of this Court in the case of Rameshwar v. Union of India [ 2000 (2) JLJ 61 ] has held that objection filed under section 30 of the Act was barred by limitation and passed the judgment in terms of the award. 3. It is contended by Shri V.K. Sharma, Asstt. Solicitor General that learned trial Court acted illegally and committed grave error in making the rule of Court by not considering the objections though there is enough material to show that requisite amount for setting aside the ex parte award under section 30 of the Act, were available. Shri Sharma also contended that had the objection been considered in proper perspective, the appellants would have been able to show apart from other things certain legal misconducts, which could have weighed with the Court for nullifying the award. 4. Shri Sharma also contended that had the objection been considered in proper perspective, the appellants would have been able to show apart from other things certain legal misconducts, which could have weighed with the Court for nullifying the award. 4. Shri K.N. Gupta, Learned Senior Advocate appearing on behalf of the respondent has supported the judgment passed by the learned Additional District Judge and submitted that he has rightly refused to entertain the objection as no objection was filed within a period of 30 days which is prescribed for making any such application under Article 119 of the Limitation Act, 1963. He also contended that if the appellants want for setting aside the award on any of the grounds mentioned in section 30 of the Act, they must apply within 30 days of the date of service of notice of filing of award. 5. In the case of Essar Construction v. N.P. Rama Krishna Reddy [2000 (6) SCC 1994], the apex Court after referring to various provisions of the Act in para 32 and 33 has expressed the view as under: "32. Apart from the decision not being relevant to the issue before us, it is entirely distinguishable in law. Section 5 of the Limitation Act, 1963 is now applicable to all applications under the Arbitration Act, provided that the delay is sufficiently explained, there is no such compulsion on the Court to reject an application filed beyond the prescribed period of limitation nor is there any question under section 30 beyond the period of limitation. 33. We therefore conclude that the order of the Senior Civil Judge rejecting the application of the respondent under section 5 was appealable under the 1940 Act. The application under section 115 of the Code therefore did not lie. Despite the fact that this issue was neither raised before nor considered by the High Court, we cannot take a blinkered view of the situation in law. Had the issue been raised, it would have been open to the High Court to have converted the revision petition into an appeal." Similar view is taken by the apex Court in the case of Union of India and others v. Manager, M/s. Jain and Associates [AIR 200 I SC 808]. 6. Had the issue been raised, it would have been open to the High Court to have converted the revision petition into an appeal." Similar view is taken by the apex Court in the case of Union of India and others v. Manager, M/s. Jain and Associates [AIR 200 I SC 808]. 6. Recently the Division Bench of this Court in the case of Union of India v. M/s. Poorti Metal Industries [2005 (2) Vidhi Bhasvar 15 = 2005 (2) MPLJ 474 ] in para 9 has held that: "The distinction makes the position quite vivid. Once we have held that section 5 of Limitation Act is applicable, the question that remains is terms and conditions. Mr. Rao, learned counsel appearing for the respondent made a feeble submission that no application for condonation was filed. Ms. Nair controverted the same. However, Mr. Rao has submitted that if an application is filed seeking condonation of delay within specified time from the date of order before Additional Judge, it may be condoned by heavy costs be imposed. Mr. Rao appearing for the respondent left it to the discretion of this Court. In view of the aforesaid, we are inclined to direct that if the application for condonation of delay is filed within a period of four weeks from today, the same shall be condoned by the rule making Court subject to payment of Rs. 15,000/- to the respondent by way of Bank Draft. If the delay is eventually condoned on being satisfied on the compliance of terms and conditions the learned Judge shall proceed according to the law and dispose of the proceedings within four months therefrom." 7. On the other hand learned counsel for the respondents drew my attention to the decision of the apex Court in the case of Ragho Singh v. Mohan Singh and others [ (2001) 9 SCC 717 ], in which the appeal was filed beyond time by 10 days, but an application under section 5 of Limitation Act for condonation of delay was not filed. The appellate Court allowed the appeal. Against which revision was filed before the Board of Revenue, which was dismissed. The appellate Court allowed the appeal. Against which revision was filed before the Board of Revenue, which was dismissed. Against the said order the Patna High Court allowed the writ petition by holding that the appeal which was filed beyond time for I a days ought to have been dismissed on the ground of limitation as no application was filed for condonation of delay as contemplated by section 5 of Limitation Act. The apex Court dismissed the S.L.P. by holding that condonation of delay is not permissible in absence of any application for condonation of delay. In the instant case the facts are totally different and therefore the decision cited by the learned counsel for the respondents will not be applicable in the present facts and circumstances of the case. It is also contended by the learned senior counsel that the respondents that once the judgment and decree in terms of the award was passed then it became enforceable by lapse of 30 days and the same cannot be set aside thereafter. In support of the said contention he placed strong reliance on the decision of the Division Bench of this Court in the case of Modern India Construction Co. Ltd. (M/s.) v. Labour Court [1993 (I) MPWN SN 32], wherein the award was passed under the Industrial Disputes Act, 1947 and therefore, the said decision will also be not applicable in the present facts and circumstances of the case. 8. In view of the law laid down by the apex Court in the case of Essar Construction (supra) and Manager M/s. Jain and Associates (supra) as well as the law laid down by the Division Bench of this Court in the case of M/s. Poorti Metal Industries (supra), there can he no trace of doubt that section 5 of Limitation Act would be applicable to file an objection under section 30 and 33 of the Act. 9. In view of the aforesaid, I am inclined to direct that if the application for condonation of delay is filed within a period of six weeks from today, the same shall be decided in accordance with law after inviting objections from the respondents. If the delay is condoned then the learned trial Court will decide the objections filed by the appellants on 30.8.2003 in accordance with law. 10. If the delay is condoned then the learned trial Court will decide the objections filed by the appellants on 30.8.2003 in accordance with law. 10. In the result the appeal is allowed and judgment and decree dated 9.1.2004 passed by the learned Additional District Judge is set aside the matter is remitted to him for doing the needful keeping in view the directions mentioned above. In view of the peculiar facts and circumstances of the case, there shall be no order as to costs.