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2009 DIGILAW 422 (CAL)

UNION OF INDIA v. Rahee Industries Ltd

2009-06-16

Sanjib Banerjee

body2009
JUDGMENT 1. THE issue involved and the relevant facts are almost identical and the two matters have been taken up together. 2. THE question that arises in both matters is as to whether the petition under section 34 of the Arbitration and Conciliation Act, 1996 in either case has been filed within the time permitted by the statute. Section 34 permits an award to be challenged within a period of three months from the date of receipt thereof or, upon furnishing sufficient explanation, within an extended period of thirty days thereafter. The 1996 Act, it is not in dispute, is a special Act and section 34 confers a right to a party to a reference subject to the condition as to the time imposed therein. The award in either case was made on January 31, 2007. Copies of the award were received by the petitioner in either case on February 17, 2007. Though earlier proceedings relating to either reference had been carried to this Court under section 9 of the 1996 Act (a fact which is not in dispute), the petitioner chose to file the petitions under section 34 of the 1996 Act before the district Court at Vaishali (Hazipur). 3. THE petitions remained pending in Hazipur till September 20, 2008 when the Hazipur Court found that it lacked territorial jurisdiction to entertain the petitions and it also noticed section 42 of the 1996 Act that precluded a party to a reference to carry subsequent proceedings under Part- I of the 1996 Act to any Court other than where the previous proceedings had been lodged. 4. THE respondent says that from the service copies of the petitions forwarded to it, it appears that the notice of motion in either case was taken out on March 12, 2010 in connection with the petitions under section 34 of the 1996 Act. THE petitioner, however, submits that the notices of motion were taken out another 24 days later and not on March 12, 2010. The respondent has set out the relevant dates in the affidavit in opposition filed in either case. On the basis of the admitted facts, it would appear that the awards were made the subject matter of the section 34 proceedings in the Hazipur Court about 71 days from the date of receipt thereof by the petitioner. The respondent has set out the relevant dates in the affidavit in opposition filed in either case. On the basis of the admitted facts, it would appear that the awards were made the subject matter of the section 34 proceedings in the Hazipur Court about 71 days from the date of receipt thereof by the petitioner. The respondent suggests that even if the time spent in the Hazipur Court is discounted in view of section 14 of the Limitation Act, 1963, it would be evident that the petitions have been filed in this Court at least 536 days or 560 days after the Hazipur Court order was made on September 20, 2008. 5. THE respondent relies on a judgment reported at (2001) 8 SCC 470 (Union of India v. Popular Construction Co. and another) reported at (2008) 7 SCC 169 {Consolidated Engineering Enterprise v. Irrigation Department). The respondent says that in view of section 29(2) of the Limitation Act, 1963 the provisions of section 34 of the Act would prevail and the respondent also refers to section 3(2)(c) of the said Act to suggest that the time would stop running in respect of matters which required a notice of motion to be taken out on such date that the notice of motion was presented to the officer authorised to receive it. 6. THE respondent says that since the Limitation Act is a statute of repose, the Court has no discretion in the matter and once it is noticed that the petitions have been filed beyond the time permissible under section 34 of the 1996 Act, the same have only to be dismissed. The respondent submits that though some argument has been made on behalf of the petitioner that the petitioner took time for obtaining the certified copies of the awards that had been filed in the Hazipur Court, such matter is of no relevance. The respondent claims that section 34 of the 1996 Act does not require either the original of the award received by the party seeking to challenge the same or a certified copy thereof to accompany the petition challenging the award. The respondent claims that section 34 of the 1996 Act does not require either the original of the award received by the party seeking to challenge the same or a certified copy thereof to accompany the petition challenging the award. The respondent asserts that the entire story as to the time taken in the Hazipur Court for obtaining the certified copies of the awards that were originally filed, is to deflect the attention from the gross laches on the part of the petitioner to carry the challenge within the prescribed period. 7. ON behalf of the petitioner it is submitted that a party should not be made liable for any lapse on advocate's part. The petitioner says that the petitioner was under the bona fide impression that the challenge had to be made in Hazipur. The petitioner says that the petitioner had not been advised that only this Court would have had authority to receive the section 34 petitions since the earlier section 9 petitions had been filed and disposed of in this Court. The petitioner submits that even after the Hazipur order was made on September 20, 2008, the petitioner had instructed advocates to expeditiously obtain certified copies of the order and/or the copies of the awards filed in the Court to enable the petitioner to institute the section 34 proceedings before this Court. The petitioner says that the delay was bona fide and despite the exercise of best diligence by the petitioner. 8. IN view of the judgments rendered in the Popular Construction and the Consolidated Engineering Enterprise cases, it is evident that the Court a receiving petition under section 34 of the 1996 Act has no choice in the matter in the sense that section 5 of the Act would not apply since section 34 proceedings are original proceedings. Further, notwithstanding the petitioner being eneitled to the exemption recognised by section 14 of the Limitation Act, there was inordinate delay between the Hazipur Court dismissing the petitions for lack of jurisdiction and the petitioner carrying the two petitions to this Court. Since it is evident that the petitions cannot be received and the Court cannot entertain the same, A.P. No. 154 of 2010 and A.P. No. 155 of 2010 are dismissed as being not maintainable and barred by the laws of limitation. There will be no order as to costs. Petitions dismissed.