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2012 DIGILAW 809 (UTT)

Union of India v. Ved Prakash Arora

2012-12-28

B.S.VERMA

body2012
JUDGMENT B.S. Verma, J. 1. This appeal is directed against the judgment and order dated 22.8.2012 passed by District Judge Haridwar in Misc. Case No. 11 of 2003, Union of India vs. M/s. Ved Prakash Arora whereby the objection U/34 of the Arbitration and Conciliation Act, 1996 has been rejected on the ground of limitation. 2. Brief facts of the case giving rise to this appeal are that a dispute raised by the respondent was referred to the arbitrator pursuant to agreement No. C.A. C.W.E./R.K.E./74 of 1990-91 for which the application was made on 2-8-1996 to refer the dispute to the arbitrator and Col. Sri A.K. Jain, Chief Engineer, Bareilly Zone, Bareilly was appointed arbitrator on 10-9-1998. This fact is not in dispute that the Arbitration and Conciliation Act, 1996 was enforced on 22.8.1996. The Apex Court in the judgment of M/s. Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd. AIR 2001 SC 2293 , has held that the Arbitration and Conciliation Act enforced on 22-8-1996 is in continuation of ordinance issued earlier and deemed to have been effective from 25-1-1996 i.e. when first ordinance came into force. Therefore, the proceedings ought to have been initiated under the new Act. The award was made by the arbitrator on 31-5-1999. The appellant instead of filing objection U/S 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, filed objections before the Civil Judge (S.D.). An application 6-C was filed by the respondent before the Civil Judge (S.D.) Roorkee to this effect that the learned Civil Judge has no jurisdiction to hear the objections under the new Act and the learned Civil Judge after hearing both the parties allowed the said application vide order dated 22-10-2001 and ordered to return the objections to the appellants/ objectors to present the same before the competent court. Thereafter the objections were taken back by the appellants on 16-7-2003 and were filed before the District Judge on 18-7-2003. The learned District Judge after hearing the appellant as well as the respondent rejected the objections as time barred and it has been held that Section-5 and Section-14 of Limitation Act are not applicable to the provision of Section 34 of the Arbitration and Conciliation Act, 1996. 3. I have heard learned counsel for the parties and perused the record. 4. 3. I have heard learned counsel for the parties and perused the record. 4. Sri Vikas Pande, learned Standing Counsel appearing on behalf of the appellants has contended that the finding of the learned District Judge is a perverse finding, in view of judgment of Apex Court State of Goa vs. Western Builders, (2006) 6 SCC 239 , provision of Section 14 of Limitation Act would apply in the case at hand. He also contended that the learned District Judge has also not given benefit of Section 5 of the Limitation Act. 5. The question before the learned District Judge was whether provision of Section 5 of Limitation Act is applicable and benefit of section 14 of the Limitation Act can be extended to the appellants or not. In view of the law laid down by the Apex Court in the case of Union of India vs. M/s. Popular Construction Company, decided on 5-10-2001, provision of Section 5 of the Limitation Act is not applicable, but in view of law laid down in Western Buildings case (supra) provision of Section 14 of the Limitation Act is applicable to the objection U/S 34 of the Act. In Western Builders case it has been held in para-26 by the Apex Court as below:- “As a result of the above discussion we are of the opinion that the view taken by the court below excluding the applicability of Section 14 in this proceeding is not correct. We hold that Section 14 of the Limitation Act, 1963 is applicable in (sic to) the Arbitration and Conciliation Act, 1996. We set aside all the judgments/orders and remand all these cases back to the trial court/District Court for deciding the application under Section 14 of the Limitation Act on merit after hearing both the parties and in case the delay is condoned then the case should be decided on merits after hearing all the parties concerned. All the appeals are allowed. No order as to costs.” 6. Section 14 of the Limitation Act deals with exclusion of time spent in prosecuting the remedy before wrong forum bonafidely. 7. Now it is to be seen whether the appellant is entitled to benefit of Section 14 of the Limitation Act or not. All the appeals are allowed. No order as to costs.” 6. Section 14 of the Limitation Act deals with exclusion of time spent in prosecuting the remedy before wrong forum bonafidely. 7. Now it is to be seen whether the appellant is entitled to benefit of Section 14 of the Limitation Act or not. The appellants had filed the objections in wrong forum i.e. Civil Judge (S.D.) and since the Civil Judge (S.D.) has passed an order to return the objections on 22-10-2001 and the objections after taking back from the court of Civil Judge on 16-7-2003, were filed by the appellants before the District Judge on 18-7-2003. The objections U/S 34 of the Act should have been filed within a period of four months from the date of award. The only benefit could be given to the appellants to file the objections before the District Judge from the date of order of Civil Judge, i.e. 22.10.2001, minus the period already consumed in filing the objection before the Civil Judge (S.D.). The objections were filed before the Civil Judge (S.D.) on 20-7-1999, i.e. in one month and twenty days of passing of the award i.e. 31-5-1999. The limitation was four months, therefore, the time left with the appellants to file the objections before the District Judge was two months and ten days, after the date 22.10.2001 when the Civil Judge (S.D.) has allowed the application 6-C/2 and directed the appellants to file objections before the appropriate court. Therefore, in view of the judgment Western Builders (supra), after giving the benefit of Section 14 of the Limitation Act also the objections are time barred. I find no illegality in the order impugned in holding that Section-5 of the Limitation Act is not applicable in filing objection U/S 34 of the Arbitration and Conciliation Act, 1996 and thus the objections have been filed beyond the time prescribed in Section 34 of the Arbitration and Conciliation Act, 1996. 8. So far as the finding in respect of Section 14 of the Limitation Act given by the learned District Judge is concerned, the same is a perverse finding as discussed in the earlier part of this order. 9. The appeal lacks merit and is dismissed at the admission stage.