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2017 DIGILAW 950 (KER)

Prembushan v. Thulasidas

2017-06-28

SATHISH NINAN, V.CHITAMBARESH

body2017
ORDER : V. Chitambaresh, J. 1. Is there any period of limitation for filing an appeal under S. 37(1)(c) of the Arbitration and Conciliation Act, 1996 ('the Act' for short) against an order refusing to set aside an arbitral award under S. 34 thereof? The issue arises in the wake of the objection raised by the Registry in numbering the Arbitration Appeal in the absence of an application for condonation of delay. The appeal has been filed in this Court on 13.6.2017 against the order dated 16.10.2015 in O.P. (Arbitration) No. 755/2014 on the file of the Court of the District Judge. The appellant however maintains that no period of limitation is specified under the Act to maintain an appeal and that he has explained the delay in the application for stay itself. It is true that S. 37 of the Act is silent as regards the period of limitation for filing an appeal against an order setting aside or refusing to set aside an arbitral award under S. 34 thereof. But the Kerala Arbitration and Conciliation (Court) Rules, 1997 ('the Rules' for short) framed under S. 82 of the Act by this Court throws light on the issue; Rule 11 of the Rules is as follows: "11. In matters not provided for in these Rules, the provisions of the Code of Civil Procedure, 1908, the Kerala Civil Rules of Practice, 1971 and the Circular orders issued by the High Court of Kerala from time to time shall mutatis mutandis apply to all proceedings under the Act including appeals." The period of limitation for filing an appeal under the Code of Civil Procedure, 1908 to this Court from any decree or order is ninety days from the date of the decree or order under Article 116(a) of the Limitation Act, 1963. It axiomatically follows that the period of limitation for filing an appeal under S. 37 of the Act against an order refusing to set aside an arbitral award is ninety days. This view finds support in Shiv Raj Singh v. Shri Ram Transport Finance Co. Ltd. ( AIR 2011 Raj. 20 ) wherein Rajasthan Arbitration Rules, 2003 was called in aid. 2. This view finds support in Shiv Raj Singh v. Shri Ram Transport Finance Co. Ltd. ( AIR 2011 Raj. 20 ) wherein Rajasthan Arbitration Rules, 2003 was called in aid. 2. The words 'appeals under the Code of Civil Procedure, 1908' occurring in Article 116 of the Limitation Act, 1963 apply wherever the procedure for filing of such appeals and its disposal is governed by the Code of Civil Procedure, 1908. The concurring judgment of Mr. Justice R.V. Raveendran in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors., (2008) 7 SCC 169 has clarified the position thus: "41. Article 116 of the Schedule prescribes the period of limitation for appeals to the High Court (90 days) and appeals to any other court (30 days) under the Code of Civil Procedure, 1908. It is now well settled that the words 'appeals under the Code of Civil Procedure, 1908' occurring in Article 116 refer not only to appeals preferred under the Code of Civil Procedure, 1908, but also to appeals, where the procedure for filing of such appeals and powers of the court for dealing with such appeals are governed by the Code of Civil Procedure. (See: decision of the Constitution Bench in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 )" 3. There is no prohibition against the application of the Code of Civil Procedure, 1908 to a proceeding arising out of the Act before a civil court (See: I.T.I. Ltd. v. Siemens Public Communications Network Ltd., (2002) 5 SCC 510 ). It cannot therefore be inferred that the Code of Civil Procedure, 1908 is not applicable to an appeal under the Act even if Rule 11 is absent in the statute book. There is also no express exclusion of application of any provision of the Limitation Act, 1963 to proceedings under the Act except in the case of departures specifically mentioned. The Act does not prescribe the period of limitation for various proceedings except where it intends to prescribe a period different from what is prescribed in the Limitation Act, 1963. Consolidated Engineering Enterprises' case (supra) has explained the concept lucidly thus: "42. The AC Act is no doubt, a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. Consolidated Engineering Enterprises' case (supra) has explained the concept lucidly thus: "42. The AC Act is no doubt, a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. The AC Act does not prescribe the period of limitation, for various proceedings under that Act, except where it intends to prescribe a period different from what is prescribed in the Limitation Act. On the other hand, S. 43 makes the provisions of the Limitation Act, 1963 applicable to proceedings-both in court and in arbitration-under the AC Act. There is also no express exclusion of application of any provision of the Limitation Act to proceedings under the AC Act, but there are some specific departures from the general provisions of the Limitation Act, as for example, the proviso to S. 34(3) and sub-sections (2) to (4) of S. 43 of the AC Act." The above decision has been followed in Oil & Natural Gas Corporation Ltd. v. Dinamic Corporation (2012 (Suppl.2) Arb. LR 462 (Bom.) (D.B.)) and also recently by the High Court of Meghalaya. S. 43 of the Act not only makes the Limitation Act, 1963 applicable to arbitrations (which otherwise would apply only to courts) but also reiterates that the same applies to proceedings in court. We therefore sustain the objection of the Registry and hold that the memorandum of arbitration appeal filed beyond ninety days from the date of the order refusing to set aside an arbitral award is barred by limitation. We however adjourn the appeal by a period of two weeks to enable the appellant to cure the defect by filing appropriate application for condonation of delay if he so desires. The clarity of submission of Mr. Paulose C. Abraham, Advocate as amicus curiae is noteworthy.