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2008 DIGILAW 82 (DEL)

U. P. INSTRUMENTS LTD. v. DELHI JAL BOARD

2008-01-25

HIMA KOHLI

body2008
JUDGMENT Hima Kohli, J. (Oral)-IA No. 986/2008 has been preferred by the petitioner under Section 5 of the Limitation Act for condonation of delay in filing the accompanying petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), against an arbitral award dated 26th May, 2006. 2. It is stated on behalf of the petitioner that the petitioner being under a bona fide mistake filed an application under Section 34 of the Act before the District Judge, Lucknow, being Misc. Case No. 215/2006 within the prescribed time. Vide order dated 22nd August, 2006, the District Judge held that the said Court did not have the territorial jurisdiction to decide the said application. Accordingly, the petition was returned to the petitioner to file the same before the competent Court. It is stated that thereafter the petitioners Counsel received the file back from the Lucknow Court on 20th October, 2006 and wrote a letter dated 24th November, 2006 to the petitioner, giving an opinion that the matter may be filed before this Court. A meeting was stated to have been held by the Directors of the petitioner on 13th December, 2006 wherein it was decided to file the present petition before this Court. 3. It is submitted that in the month of January 2007, the officers of the petitioner approached the Advocate at Delhi for taking necessary steps for filing the present petition. The Counsel engaged by the petitioner wrote a letter dated 16th February, 2007 to the petitioner asking the Department to procure certain documents but the said documents could not be furnished as the original file went missing. The missing file was stated to have been traced only in the month of April 2007 whereafter, the same was forwarded to the Counsel for the petitioner who started preparing the matter. But due to an accident of some members of his family, the Counsel could file the present petition only on 25th May, 2007. 4. Objections were raised by the registry with regard to the petition which were removed by the petitioner from time-to-time and the petition was refilled on 27th July, 30th July and 24th September, 2007. But due to an accident of some members of his family, the Counsel could file the present petition only on 25th May, 2007. 4. Objections were raised by the registry with regard to the petition which were removed by the petitioner from time-to-time and the petition was refilled on 27th July, 30th July and 24th September, 2007. It is stated that finally, the petition was returned by the Registry on 24th September, 2007 with the observation that the same was not maintainable on account of delay, whereupon an application for condonation of delay was drafted and got approved by the Department on 10th December, 2007 and was forwarded to the Counsel for filing the same. A delay of 274 days is stated to have occurred in filing the present petition, condonation of which is sought in this application. 5. The law is well settled on this issue. It is no longer res integra that in view of the provision of Sub-section (3) of Section 34 of the Act read with the Proviso which stipulates that an application for setting aside the award on the grounds mentioned in Sub-section (2) of Section 34 should be made within three months and the period can be further extended, the Court being satisfied that the applicant was prevented by sufficient cause from making the application within the period of three months, the period may be extended by a further period of 30 days, but not thereafter, applicability of Section 5 of the Limitation ct stands excluded. The words but not thereafter as used in the Proviso to section 34(3) of the Act amounts to an express exclusion within the meaning of section 29(2) of the Limitation Act, and therefore makes Section 5 of the imitation Act inapplicable to a petition filed under Section 34 of the Act. The w in this regard was discussed in detail by the Supreme Court in the case of popular Const. v. lioi, (2001) 8 SCC 470 , the relevant paras of which are produced as under: "Para 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). v. lioi, (2001) 8 SCC 470 , the relevant paras of which are produced as under: "Para 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 therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could retain 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." Para 16: Furthermore, Section 34(1) itself provides that recourse to a Court against an arbitral award may be made only by an application for setting aside such award "in accordance with" Sub-section 2 and Sub-section 3. Sub-section 2 relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application "in accordance with" that Sub-section. Consequently, by virtue of Section 34 (1), recourse to the Court against an arbitral award cannot be made beyond the period prescribed... Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Courts powers by the exclusion of the operation of Section 5 of the Limitation Act." 6. However, Counsel for the petitioner submits that in view of the fact that he petitioner had been prosecuting its remedies bona fide before a Court which lad no jurisdiction, the petitioner is entitled to exclusion of the time spent in the aforesaid litigation. No doubt, the aforesaid position has been upheld by the Supreme Court in the case of State of Go a v. M/s. Western Builders, reported as V (2006) CLT 407 (SC)==V (2006) SLT 511==JT 2006 (6) SC 125, wherein while referring to the judgments in the case of Popular Construction (supra), and National Aluminium Co. No doubt, the aforesaid position has been upheld by the Supreme Court in the case of State of Go a v. M/s. Western Builders, reported as V (2006) CLT 407 (SC)==V (2006) SLT 511==JT 2006 (6) SC 125, wherein while referring to the judgments in the case of Popular Construction (supra), and National Aluminium Co. Ltd. v. Pres steel & Fabrications (P) Ltd. & Anr. Reported as I (2004) CLT 63 (SC)==I (2004) SLT 336== (2004) 1 SCC 540 , & Nasiruddin & Ors. v. Sita Ram Agarwal reported as 11(2003) SLT 165==(2003) 2 CC 577, it was held as under: "Para 24: Therefore, in the present context also it is very clear to us that there is no two opinion in the matter that the Arbitration and Conciliation Act, 1996 does not expressly exclude the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite the commercial issue expeditiously. It is also clear in the statement of objects and reasons that in order to recognize economic reforms the settlement of both of domestic & international commercial disputes should be disposed of quickly so that countrys economic progress be expedited. The statement of objects and reasons also nowhere indicate that Section 14 of the Limitation Act shall be excluded. But on the contrary intendment of Legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of Sub-section (2) of Section 29 of the Limitation Act, its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting Sub-section 2 of Section 29 of Limitation Act with reference to other Acts like The Representation of People Act or the provisions of Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of Sub-section (2) of Section 29 of the Limitation Act that the provisions of Limitation Act shall stand excluded in Act of 1996 to the extend area which is covered by the Act of 1996. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of Sub-section (2) of Section 29 of the Limitation Act that the provisions of Limitation Act shall stand excluded in Act of 1996 to the extend area which is covered by the Act of 1996. In the present case under Section 34 by virtue of Sub-section 3 only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of Limitatic will stand excluded but there is no provision in the Act of 1996 which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so." 7. In the facts of the present case, even if the time consumed by the petitioner in prosecuting its remedies bona fide before the District Judge, Lucknow is excluded, the present petition still remains hopelessly barred by limitation. Admittedly, vide order dated 22nd August, 2006, the District Judge, Lucknow held that the said Court did not have the territorial jurisdiction to decide the application of the petitioner. It was then incumbent for the petitioner to have taken immediate steps to approach the concerned Court with haste. Instead, a perusal of the relevant dates referred to in the application shows that the petitioner took its own sweet time to file the accompanying petition under Section 34 of the Act in this Court. The petitioner has not furnished the date on which a certified copy of the aforesaid order was applied for and obtained. There is no explanation forthcoming from the petitioner as to what steps if any were taken between 22nd August, 2006 and 20th October, 2006, the date on which it is contended that the petitioners Counsel received the file back from Lucknow Court. Even after 20th October, 2006, it took over a month for the Counsel for the petitioner to advise the petitioner to approach the appropriate Court. The petitioner spent over a month thereafter to take a decision in the matter and chose to engage a Counsel in Delhi only in January 2007. 8. Even after 20th October, 2006, it took over a month for the Counsel for the petitioner to advise the petitioner to approach the appropriate Court. The petitioner spent over a month thereafter to take a decision in the matter and chose to engage a Counsel in Delhi only in January 2007. 8. Even after January 2007, right upto 25th May, 2007, when the petition was instituted in this Court, there is no satisfactory explanation put forward by the petitioner for the delay. To top it all, even when the petition was instituted in this Court, the same was not accompanied by an application seeking condonation of delay. As a result, the limitation kept running and the condonation of delay application came to be filed only on 21st January, 2008. Thus the accompanying petition under Section 34 of the Act is hopelessly barred by limitation. The petitioner has shown complete lack of diligence in prosecuting the present petition. Even if it is held that the petitioner is entitled to claim exclusion of time spent by it in prosecuting the petition before a Court which had no jurisdiction, by invoking the provisions of Section 14 of the Limitation Act, the petitioner does not stand to gain as the delay after 22nd August, 2006 onwards till 21st January, 2008 or even till 25th May, 2007 remains unexplained. The petitioner has failed to show any cause, much less sufficient cause for not filing the petition within the time prescribed. 9. In these circumstances, the application seeking condonation of delay in filing the accompanying petition under Section 34 of the Act is rejected since the provisions of Section 5 of the Limitation Act stand excluded in view of the provisions of Sub-section (2) [sic. 34(3)] of Section 34 read with the Proviso of the Act, and no latitude can be granted to the petitioner for seeking exclusion of time under Section 14 of the Limitation Act beyond 30 days from 22nd August, 2006, on the ground that the petitioner has not shown good faith by diligently prosecuting the petition. Consequently, the application as also the petition stand dismissed. Application dismissed.