STATE OF KERALA Vs. SIVAN PILLAI

JUDGEMENT

(1.) This appeal is filed by the respondents against the judgment and decree in OP (Arb.) No. 24 of 1985 of the Sub Court, Thodupuzha. The respondent in the appeal is the contractor who had undertaken the 'work of improvements of Thodupuzha-Velambannoor Road Part.2 and 3 balance work under contract agreement No. 29/EE/ 79-80 dated 22.6.1979'. The respondent failed to complete the work within the stipulated period. Therefore, the contract was terminated on me risk and cost of the contractor on 6.3.1982. Later, the supplemental agreements were executed whereby the period of completion was extended on the specific undertaking that the work would be carried out at the original rate as per the original agreement. Later, certain disputes were raised by the respondent and those disputes were referred to the Chief Engineer (Arbitration) for adjudication. After the enquiry, an award was passed by the arbitrator on 21.8.1986 and the same was notified to the parties. The original award and connected documents were produced in court. The respondent filed an application LA. No. 1321 of 1986, before the Court below praying for passing a judgment and decree in terms of the award. However, the appellants filed an objection on 5.4.1986 seeking to set aside the award or to remit it for fresh disposal. Since the said objection was filed after the expiry of the period prescribed in that behalf, a petition for condonation of delay was also filed under S.5 of the Limitation Act. By the said petition, the appellants have prayed to condone the delay of 48 days in filing the objection. The said petition was rejected by the Court below on the ground that the Court below has no jurisdiction to fix the date beyond thirty days for filing the objection. Thereafter, it passed a decree in terms of the award. The said judgment and decree are under challenge.

(2.) Heard the Government Pleader for appellants and the counsel for the respondent

(3.) The prime question that falls for consideration in this appeal is whether the Court below is justified in holding that it has no jurisdiction or power to extend the period of limitation prescribed for filing objection under S.33 of the Arbitration Act, 1940. Art, 119(b) of the Limitation Act, 1963 prescribes that for setting aside an awarder getting an award remitted for reconsideration, the applicant shall move the Court within a period of thirty days from the date of service of notice of the filing of the award in court. If the said application is not filed within the aforesaid period it is not maintainable. In this context, the question for determination is whether an application under S.33 of the Arbitration Act can be filed after the expiry of the period prescribed in Art.119(b) of the Limitation Act, 1963 with a petition for condonation of delay under S.5 of the said Act. S.5 of the Limitation Act applies in the case of any appeal or any application, other than an application under any of the provisions of O.21 of the Code of Civil Procedure, 1908. Such application may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. In the present case, the application under S.5 filed by the appellant was dismissed not on the ground that the applicant has not made any 'sufficient cause' for condoning the delay but purely on the basis that the Court has no jurisdiction or power to entertain an application under S.5 of the Limitation Act.