Freight Carriers (India) Pvt. Ltd. v. Union of India
2009-11-04
H.BARUAH
body2009
DigiLaw.ai
JUDGMENT H. Baruah, J. 1. By this application, condonation of delay of 336 days has occurred in filing the review petition No. 3 of 2009 has been prayed for. The review sought for is in respect of judgment and order dated 30.4.2008 passed by this Court in RFA No. 1 of 2007. 2. Before entering into the merit of this application it would be apposite for this Court to put in brief the facts leading to filing of this instant application and the same are accordingly projected as under: 3. A contract agreement was entered into on 13.8.1999 between the parties to this proceeding (M/s. Freight Carriers, India Private Ltd. and Union of India represented by the Secretary, Border Road Organization Development Board having its office at New Delhi) for transportation of cement, bitumen and steel from Guwahati to different work sites under Project Pushpak of Border Road Task Force with various terms and conditions there to. On account of hike of price of petrol and diesel, applicant made a request to the respondents to give benefit of hike in rates of petroleum products, a major component of transportation of goods by road. During the relevant period the price of petroleum products increased by 20 to 40 percent, 30% average was claimed by the applicant. No response was made by the respondents in regard to increase in price of the petroleum products for the first time. Having not received any favourable reply from the respondents, a second prayer was made which was, however, refused vide letter dated 21.6.2000. Even thereafter the application completed the work and final bill was prepared and payment received. After receipt of the final payment, the applicant initiated the process for referring the dispute to an arbitrator by letter dated 1.6.2001. The respondents declined to appoint an arbitrator which compelled the applicant to prefer an application before this High Court for appointment of Arbitrator under Section 11 of Arbitration and Conciliation Act, 1996. The High Court accordingly allowed the application and appointed Hon'ble Smt. Justice Meera Sharma (Retd.) by order dated 15.4.2002. The learned Arbitrator passed an award which on challenge under Section 34 of the Arbitration Act has been upheld by the learned Additional District Magistrate (Judicial), Aizawl. 4. Being aggrieved thereby the respondents herein filed an appeal before this Court which has been registered as RFA No. 1 of 2007.
The learned Arbitrator passed an award which on challenge under Section 34 of the Arbitration Act has been upheld by the learned Additional District Magistrate (Judicial), Aizawl. 4. Being aggrieved thereby the respondents herein filed an appeal before this Court which has been registered as RFA No. 1 of 2007. The said appeal was disposed of vide judgment and order dated 30.4.2008 by this Court. The applicant thereafter being dissatisfied with the judgment and order dated 30.4.2008 preferred an application before this Court (Principal Seat) under Section 115 read with Section 151 of the CPC which has been registered as Civil Revision Petition No. 182 of 2002. The matter was taken up by a division bench of this, Court and it, by an order dated 20th day of June, 2008 dismissed the application on the ground of jurisdictional error. Against that order a special leave petition (for short SLP) was filed before the Apex Court which has been registered as 17730 of 2008, which was, however, dismissed vide order dated 4.8.2008. Being failed thus, the applicant now filed a review petition before this Court for review of the judgment dated 30.4.2008 passed in RFA No. 1 of 2007 along with this application for condonation of delay of 336 days. 5. Mr. Somik Deb, learned Counsel assisted by Mr. B.N. Majumder, learned Counsel for the applicant and Mr. S.N. Meitei, learned CGC were heard at length. 6. Mr. Deb, learned Counsel for the applicant in support of the application submitted that the period spent in proceeding the applications before the High Court and the Apex Court may be excluded per provisions of Section 14 of the Limitation Act, 1963 since the applicant under misconsideration of law preferred an application under Section 115 read with Section 151 of the CPC before a division bench of this High Court. In order to eradicate/remove such misconception, the applicant again approached the Apex Court by filing the SLP as indicated above which was also refused by the Apex Court holding "no ground". 7. Being denied any relief by any of the forum as indicated above, the applicant was making endeavour to have a favourable decision in its favour and for that the applicant suddenly met Mr.
7. Being denied any relief by any of the forum as indicated above, the applicant was making endeavour to have a favourable decision in its favour and for that the applicant suddenly met Mr. B.N. Majumder, an advocate of Tripura who after long deliberation and after obtaining various documents pertaining to all proceedings agreed to file a review petition against the judgment dated 30.4.2008 passed in RFA No. 1 of 2007. It was argued by Mr. Somik Deb that for the purpose of preferring a review application against the judgment as indicated above the applicant had to run from pillar to post for obtaining necessary documents from the concerned Court/authority. This process, according to Mr. Somik Deb consumed much time which prevented the applicant to prefer the revision within the time limited therefore. It is submitted by Mr. Somik Deb that in paragraph 2.2 to 2.12 and paragraph 3, the entire exercise has been reflected. The facts averred in the paragraphs indicated above according to Mr. S. Deb are sufficient and cogent to condone the delay of 336 days. The applicant was, however, vigilant for his cause and accordingly since the date of dismissal of the SLP by the Apex Court applicant was looking for some solution to their cause which ultimately has been solved by the learned Counsel Mr. B.N. Mazumdar by filing an application for review. It was argued by Mr. Deb that there was no lapse on the part of the applicant nor he was negligent of his cause. Accordingly Mr. S. Deb urged this Court to condone the delay of 336 days in filing the connected revision application. Mr. Deb in the context of exclusion of time under Section 14 of the Limitation Act, 1963 relied on the decision of the case between State of Goa v. Western Builders reported in (2006) 6 SCC 239 . The Apex Court in the case (supra) held that the time spent in proceeding a case bona fidely in Court without jurisdiction can be excluded under the provision of Section 14 of the Limitation Act, 1963. In this connection paras 13 and 19 of the judgment in the case (supra) can be produced under: 13. Therefore, as general proposition the Limitation Act, 1963 applies but still the question is as to what extent.
In this connection paras 13 and 19 of the judgment in the case (supra) can be produced under: 13. Therefore, as general proposition the Limitation Act, 1963 applies but still the question is as to what extent. Section 14 of the Limitation Act which deals with exclusion of time spent in prosecuting the remedy before wrong forum bona fide reads as under: 14. Exclusion of time of proceeding bona fide in Court without jurisdiction: (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and its prosecuted in good faith in a Court which, from defect of jurisdiction or other case of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal of revision, proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or another cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of Order 23 of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. 19. There is no provision in the whole of he Act which prohibits discretion of the Court. Under Section 14 of the Limitation Act if the party has been bona fidely prosecuting his remedy before the Court which has no jurisdiction whether the period spent in that proceeding shall be excluded or not.
19. There is no provision in the whole of he Act which prohibits discretion of the Court. Under Section 14 of the Limitation Act if the party has been bona fidely prosecuting his remedy before the Court which has no jurisdiction whether the period spent in that proceeding shall be excluded or not. Learned Counsel for the respondent has taken us to the provisions of the Act of 1996; like Section 5, Section 8(1), Section 9, Section 11, Sub-sections 37, 39(2) and (4), Section 41, Sub-section (2), Sections 42 and 43 and tried to emphasis with reference to the aforesaid sections that wherever the legislature wanted to give power to the Court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the Court so as to enable to exclude the period spend in prosecuting the remedy before other forum. It is true but at the same time there is no prohibition incorporated in the statute for calculating the power of the Court under Section 14 of the Limitation Act. Much depends upon the words used in the statute and not general principles applicable. By virtue of Section 43 of the Act of 1996, the Limitation Act applies to the proceedings under the Act of 1996 and the provisions of Limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Act, 1996. Since there is no prohibition provided under Section 34, there is no reason why Section 14 of the Limitation Act (sic not) be read in the Act of 1996, which will advance the cause of justice. If the statute is silent and there is no specific prohibition then the statute should be interpreted which advances the cause of justice. Our attention was invited to various decisions of this Court but we shall refer to a few of them which have some relevance. 8. Taking aid of the ratio of the judgment Mr. Somik Deb emphatically submitted that the period spent in proceeding with the applications before the High Court as well as the Supreme Court can be excluded since the applicant was proceeding with the application before the High Court bona fidely, which however, does not have jurisdiction to entertain such application against the judgment and order dated 30.4.2008 passed by the Single Judge of this High Court.
In order to have the correct position of the law, the applicant against approached the Apex Court by filing the SLP as aforesaid which was also dismissed vide order dated 4.8.2008. The choice to wrong forum by the applicant culminated the SLP before the Supreme Court. Therefore, the period spent from 30.4.2008 to 4.8.2008 (96 days) is liable to be excluded under Section 14 of the Limitation Act. 9. The applicant, bona fide, appears to have approached this High Court by filing the application under Section 115 read with Section 151 of the CPC against the judgment and order dated 30.4.2008 passed in RFA No. 1 of 2007 by the learned Single Judge of this Court. The Division of this Court held that no such jurisdiction has been provided to entertain the impugned order passed under Section 37of the Limitation Arbitration and Conciliation Act by a learned single Judge. It held such order cannot be subjected to revisional jurisdiction. 10. Mr. S.N. Meitei, learned Counsel appearing for the respondents, however, put no resistance in the context of exclusion of the period spent in the High Court and the Supreme Court as well. His, however, raised a stiff objection in regard to other grounds as pleaded by the applicant in paragraphs 2.2 to 2.12 and 3 of the application. It was argued by him that the explanation rendered by the applicant in those paragraphs cannot be considered to be sufficient and cogent since the applicant was vigorously proceeding with the proceedings before every forum, therefore, the contention of the applicant that some more time had been consumed in procuring the relevant documents from different forum is unsustainable. Mr. Meitei argued that when the appellant was proceeding with all sincerity with all the proceedings before every forum, applicant must have the requisite documents in its power and possession or in other words every document should be retained to meet any eventuality. The time spent for collecting all necessary documents cannot be condoned inasmuch as the applicant was not at all vigilant of its own cause. Mr. Meitei, therefore, urged this Court to reject the application under Section 5 of the Limitation Act, 1963. 11.
The time spent for collecting all necessary documents cannot be condoned inasmuch as the applicant was not at all vigilant of its own cause. Mr. Meitei, therefore, urged this Court to reject the application under Section 5 of the Limitation Act, 1963. 11. Thus, having taken care off the facts and circumstances of the case, grounds pleaded and the law laid down by the Apex Court, I am of the considered view that the grounds incorporated in the application are sufficient and cogent. Applicant in view of the grounds indicated cannot be tainted with latches and negligence. Delay of 336 days in preferring the connected review petition may be condoned to go into the merit the of the review petition. 12. Delay of 336 days in accordingly condoned. Application stands allowed. 13. Misc. case stands disposed of.