HMP ENGINIRS LIMITED Vs. RALLIS INDIA LTD

JUDGEMENT

(1.) The petitioners by the present motion seeks condonation of delay in filing petition before this Court under the proviso to Section 34 of the Arbitration and Conciliation Act, 1996, in respect of the proceedings which were earlier filed before Delhi High court and which papers were returned to the petitioners herein for filing before the appropriate Court. The petitioner wants that period to be excluded for computing the period of limitation under Section 34 of the Act of 1996. The issue of law which arises for determination in this matter is whether the time taken in prosecuting a proceedings, between the same parties before a competent Court can be excluded for the purpose of computing period prescribed by Section 34 (3) of the act of 1996 to challenge an award.

(2.) A few facts and dates may needed to be set out to answer the issue which has arisen. At the outset, it may be pointed out that in so far as application of Section 5 of the Limitation Act is concerned, the matter is no longer res integra having been decided by the Apex Court by its Judgment in Union of India v. Popular Construction Co. (2001) 8 SCC 470 : (AIR 2001 SC 4010). The question really is whether the judgment applies only to Section 5 and would not cover proceedings under Part III, namely exclusion of time as also other provisions. The award came to be passed on 31 -10-2001. Petitioner challenged the award by filing a petition on 20-12-2001 within the period prescribed under Section 34 of the Act of 1996 before the High Court of Delhi. An application was moved for seeking correction to the Award before the learned arbitrator. The award came to be corrected by order dated 22-12-2001. Another application was made for correction of the award which was allowed by order dated 29-12-2001. The awards as corrected both on 22-12-2001 and 29-12-2001 have not been challenged nor was any application moved for amendment before the High Court of Delhi where the challenge was made to the Award dated 31 -10-2001. The Respondent herein raised an objection before the Delhi High Court that it had no jurisdiction to entertain the petition because it was not the Court within the meaning of Section 2 (e) of the Act of 1996. On hearing parties, an order came to be passed on 18-4-2002 holding that the Delhi High Court would have no jurisdiction and pursuant to that returned the papers to the petitioners to present the proceedings before the competent forum. The papers were returned to the petitioners on 18-5-2002. After the papers were returned, the petition was presented before this Court on 22-8-2002. An application for condonation of delay has been filed on18-12-2002.

(3.) On behalf of the petitioner, their learned counsel contends that as the award was amended by Orders dated 22-12-2001 and 29-12-2001 and as the papers were returned-on 18-5-2002 the period of limitation to challenge the award would commence only from 18-5-2002 and even if there be a delay of few days that is within the permissible period under the proviso to Section 34 (3) namely 30 days period after the expiry of three months which the Court can condone on cause being shown. It is contended that the cause shown is sufficient and in these circumstances, this Court ought to condone the delay. On the issue whether time taken before Delhi High Court can be excluded, it is contended that the judgment of the Apex court in Popular Construction Company (AIR 2001 SC 4010 (supra) must be restricted to section 5 of the Limitation Act, which is the provision in so far as extension of limitation but would not apply to the provision of Section 14 which is the provision for exclusion of time. It is set out that in applying the law, the ratio of the judgment must be called out from what is in issue before the Apex Court. That alone would constitute the ratio decidendi of the judgment. That alone would be the law binding on this Court. The judgment of the Apex Court on Section 5 of the limitation Act, 1963 ipso facto cannot apply to the provisions like Section 12 of the same act. It is contended that those are provisions which do not extend time but only provide for exclusion of time in certain situation. Once limitation commences, what Section 34 does is to limit the period, within which challenge has to be made and for that purpose the provisions pertaining to exclusion of time are not excluded, considering both Section 34 of the Act of 1996 and Section 29 of the limitation Act. Pointing to Section 43 of the act of 1996, it is pointed out that provisions of Limitation Act are made applicable to proceedings before the Arbitral Tribunal. The provisions of Limitation Act by operation of law apply to all proceedings before a Court. As an illustration, it is pointed out that ordinarily time taken for certified copy, based upon which appeal has to be filed is excluded, if it is not to be excluded then in a case where a certified copy is not issued to the" party beyond the prescribed period, that time cannot be excluded and the remedy of the party would be defeated. A party thus would be deprived of challenging the order in appeal which otherwise under Section 37 the party has a statutory right. On behalf of the Respondents, their learned counsel contends that the contention of the petitioner that limitation commenced on 18-5-2002 is factually incorrect. Limitation would commence on 31-10-2001 itself. The only question would be whether the period during which the proceedings were pending before Delhi High Court can be excluded. Learned counsel contends that the judgment of the Popular Construction Company (AIR 2001 SC 4010) (supra) will have to be held to apply to such a situation also considering that in that case Apex Court has held that provisions of Sections 4 to 27 are excluded by virtue of Section 29 of the Limitation Act, as Section 34 of the Act of. 1996 provides special period of limitation. In other words, it is a special law. If this be the position, it is contended that the petition before this Court is hopelessly barred by limitation and as such cannot be entertained. Alternatively it is submitted that even if it is assumed that time can be excluded then factually also the petition is beyond the period prescribed by Section 34 of the Act of 1996. Considering that limitation commences on 31 -10-2001 and the petition was filed only on 20-12-2001, papers were returned on 18-5-2002 and was lodged in this Court on 22-8-2002. Dealing with the other aspect of the matter, namely of commencement of limitation from the date of the amended award considering Section 33, it is contended that even if it is held that challenge can be based on the amended award, then limitation would commence on 22-12-2001 and 29-12-2001 respectively and the time taken when the award was under challenge cannot be excluded. In these circumstances, also the petition is barred by limitation.