MAHARASHTRA STATE CO OPERATIVE COTTON GROWERS MARKETING FEDERATION LIMITED Vs. RALLI BROS AND CONEY LIMITED U K

JUDGEMENT

(1.) ON 4th July, 1986, the petitioner No. 1 (who was then the sole petitioner) filed this petition under section 33 of the Arbitration Act. 1940, impugning the original Award dated 3rd May, 1985 made by respondents Nos. 2 and 3 Arbitrators appointed under the Bye-laws of the East India Cotton Association Limited as well as the Appellate Award dated 7th February, 1986 made by the Board of Directors of the said Association in the appeal as permissible under the Bye-laws of the said Association. The impunged Awards were in terms made against petitioner No. 2 alone and not against the petitioner No. 1. However, the petitioner No. 1 filed this petition impugning the above-referred Awards its capacity as alleged successor in business of the petitioner No. 2. Even the notice of filing of the Appellate Award was served by this Court on the petitioner No. 2. By several affidavits filed on behalf of the respondent No. 1 in whose favour the impugned Awards were made as aforesaid, it was inter alia contended that the petitioner No. 1 had no locus standi to file this petition and petitioner No. 2 alone could file petition to set aside the Award. On 7th April, 1987, the petitioner No. 1 made an application to this Court duly supported by joint affidavit of authorised representatives of both the petitioners seeking leave of the Court to amend the petition by impleding the petitioner No. 3 as a co-petitioner and by making of certain consequential amendment. The said application was opposed on behalf of the respondent No. 1 inter alia on the ground that the respondent No. 1 could not be deprived of the right which had accrued to the respondent No. 1by reason of lapse of time resulting from non-filing of the petition by the petitioner no. 2 within the period of limitation. By an order date 29th January, 1988, the said application was rejected by Pendse, J. By an order dated 23rd February, 1989 passed in Appeal No. 1609 of 1988, a Division Bench of our Court consisting of Desai and Kantharia, JJ. , dismissed the appeal preferred by the petitioner No. 1. Being aggrieved by the order of the division Bench of this Court dated 23rd February, 1989 referred to hereinabove, the petitioner No. 1 preferred a Special Leave Petition to the Honble Supreme Court of India. Arising out of Special Leave Petitions Nos. 3531-32 and 3543 of 1989, Civil Appeals Nos. 2147-2199 of 1989 were decided by the Honble Supreme Court by its order dated 30th March, 1989. In the said order, the Honble Supreme Court noted the contention that the petitioner No. 1 had filed the petition seeking to set aside the Award claiming to be the successor of the "marketing Federation", In the above-referred order, the Honble Supreme Court observed that it was not necessary for into to go into the question as to whether the petitioner No. 1 herein was the successor to the business of the Marketing Federation or not and whether the petitioner No. 1 was entitiled to challenge the impugned Awards or not. By the said order, the Honble Supreme Court observed that this Court had considered the application for amendment too technically. By the aboverefferred Order, the Honble Supreme Court set aside the order, passed by that learned Single Judge as well as the Division Bench and allowed the application of the petitioner No. 1 seeking amendment of the petition by impeding the petitioner No. 2 as a co-petitioner. The Honble Supreme Court directed that the matters be seen back to this Court for disposal in accordance with law. On or about 11th April, 1989, the amendment was carried out and the petitioner No. 2 was impleded as co-petitioner in this petition.

(2.) AT the hearing of the petition, the respondent No. 1-Company raised a preliminary objection to the effect that the petitioner No 1 Cotton Growers Marketing Federation had no locus standi to amend the petition. The respondent No. 1-Company contended that the petitioner No. 2-Co-operative Marketing Federation must be deemed to have instituted this petition on 30th March, 1989 when the Honble Supreme Court granted the application for amendment seeking to implead the petitioner No. 2 as party petitioner or, in alternative, on 7th April, 1987 when an application for amendment of the petition seeking to implead the petitioner No. 2 was made to this Court. On the above footing, the respondent No. 1-Company raised another preliminary objection to the effect that the petition was barred by law of limitation, as it was not filed by the petitioner No. 2-Co-operative Marketing Federation (who alone could file the petition) within a period of 30 days from the date of service of the notice of the filing of the Award on it. Relying upon section 21 of the Limitation Act. 1963, or the principles embodied in the said section, the respondent No 1. Company contended that the petition must be deemed to have been instituted by newly joined petitioner only on the date of joinder of newly added petitioner as a party petitioner to the petition. It was also highlighted on behalf of the respondent No. l-Company that no order was passed by the Honble Supreme Court under the proviso to section 21 of the Limitation Act. 1963, to the effect that the newly added petitioner should be deemed to have become a party petitioner to the petition from an anterior date or from the date when the petition was originally filed by the petitioner No. 1 Cotton Growers Marketing Federation. The respondent No. 1 -Company contended that in the absence of an express order to the above effect, no such order could be implied from mere fact of granting of application for amendment. The respondent No. 1-Company contended that section 21 of the Limitation Act, 1963, was applicable not merely to proceedings initiated by plaint but also substantive proceeding initiated by petition in the nature of plaint. The respondent No. 1 -Company contended that the expression suit as used in section 21 of the Limitation Act, 1963, be construed widely.

(3.) THIS matter was on my Board for final hearing on 18th September, 1990 when it was partly discussed on the question of limitation. The learned Counsel for the petitioners then applied for a short adjournment for taking out a Chamber Summons inter alia seeking condonation of delay. On 21st September, 1990, the petitioners took out Chamber Summons No. 998 of 1990 inter alia for the following reliefs :---