VISHAL EXPORTS OVERSEAS LTD Vs. HAMBURG BULK CARRIERS

JUDGEMENT

(1.) This Appeal assails the Order dated 22.10.2009 passed by the learned Single Judge, which, in effect, rejected the Appellant's plea predicated on Section 14 of the Limitation Act, 1963. Although it has not been specifically stated so, the effect of the Order is that the Objections under Section 34 of the Arbitration & Conciliation Act, 1996 (A&C Act for short) preferred by the Appellant before us, stand dismissed. All the eventualities that would arise on an interplay between Section 34 of A&C Act and Section 5 and Section 14 of the Limitation Act, 1963 have been considered by the Division Bench in Bharat Sanchar Nigam Limited -vs- Haryana Telecom Ltd., 2010 7 AD(Del) 331 and Executive Engineer -vs- Shree Ram Construction Co., 2010 10 AD(Del) 180. In Bharat Sanchar Nigam Limited, the Court noted that Objections were filed within the statutory period of ninety days and after excluding time spent in prosecuting these Objections in Courts which did not possess jurisdiction, the Objections would have to be heard on merits. A similar position obtained in Shree Ram Construction Co. The Court had the added advantage of relying on the decision of the Apex Court in Consolidated Engineering Enterprises -vs- Principal Secretary, Irrigation Department, 2008 6 AD(SC) 520. In this decision, their Lordships have reiterated that Section 14 of the Limitation Act has the effect of bestowing benefit of exclusion of time spent bonafide in a wrong Court, restricted, however, to the period prescribed by the A&C Act, namely, three months and thirty days. This brief analysis of the law should suffice since Bharat Sanchar Nigam Limited and Shree Ram Construction Co. have been reported in the Journals.

(2.) The relevant facts are that an Award was published on 30.8.2002 and the copy of the same was served on the Petitioner on 31.8.2002. Objections under Section 34 were filed on 22.11.2002, palpably within the period of three months prescribed under the A&C Act. However, the Objections had been filed in the City Civil Court at Ahmedabad, Gujarat. A Preliminary Objection was taken by the Respondent before the City Civil Court, Ahmedabad, Gujarat pertaining to the territorial jurisdiction of that Court. Since the Objection was dismissed, the Respondent filed an Appeal in the High Court of Gujarat. This time around, they were successful. That Petition/Appeal was allowed on 3.11.2004 with the direction that the Trial Court may return the plaint to the party for presentation of the same before the appropriate Court . The Respondent contends that the Appellant is entitled to exemption only to the period of three days which was spent in obtaining the Certified Copy plus five days in collecting the Certified Copy. The Appellant contends that limitation would commence running on 15.4.2005 when the Plaint was returned by the City Civil Judge, Ahmedabad, Gujarat to the Appellant for filing in the appropriate Court.

(3.) It will be important to record that the City Civil Court, Ahmedabad, Gujarat had, in Civil Miss. Application No.628/2002, passed the Order on 30.3.2005, the operative part of which reads thus:-