GOVERNMENT OF ANDHRA PRADESH Vs. DURGARAM PRASAD

JUDGEMENT

(1.) THE appellant is the petitioner-plaintiff. THEse appeal and Revision arise out of proceedings under Sections 30 and 33 of the Arbitration Act to set aside the award dated 31-3-1979 in the matter of arbitration pertaining to the disputes arising out of a contract No. 27/CFB/65 dated 22-5-1965 relating to the construction of Arts and Science College at Siddipet in Medak district and Sections 14 and 17 of the Arbitration Act to receive the award dated 31-3-1979 and make it rule of Court. THE 1st respondent is a firm of contractors and in view of the disputes raised with regard to the contract the 2nd respondent was appointed as arbitrator to adjudicate the disputes between the parties. THE arbitrator made and signed the award dated 31-3-1979 allowing certain claims in favour of the 1st respondent. THE award was filed into court by the 1st respondent with a prayer that it may be made a rule of the Court and decree may be passed in terms of the award and the petition is filed to set aside the award. THE reasons in support of the petition for setting aside the award need not be traversed in this appeal as the subject-matter of this appeal is confined to the question with regard to the applicability of Section 5 of the Limitation Act. THE respondent filed the written statement denying the allegations and contentions and also stated that he petition is not filed within the period of limitation prescribed under Art. 119 (b) of the Limitation Act and it cannot be treated as an application to set aside the award and the Court has no power to extend the period of limitation and permit the Chief Engineer to file objections beyond the period of limitation. THE issue that was considered is whether the defendant filed the objections to the award within the period of limitation and this was tried as a preliminary issue. THE essential facts culminating in this issue may be stated: THE arbitrator made and signed the award on 31-3-1979 and issued notices of the same to both the parties. THE award was signed by the arbitrator on 31-3-1979 and on 14-4-1979 the petitioner requested the arbitrator to cause the award to be filed into court or in the alternative authorise him to file the same in his behalf. THE arbitrator by his letter dated 16-4-1979 authorised the petitioner to file the award into court and delivered the award into court and delivered the award to the petitioner. THE original award dated 31-3-1979 pertaining to the contract was filed into court along with the petition on 21-4-1979. After registering the petition, the court ordered notice to the respondents for their appearance on 22-7-1979. THE notice was ultimately returned after service with endorsement that it was served on 5-7-1979. THE learned Government Pleader represented that a copy of the award was not furnished to him either by the arbitrator or by the petitioner and he could not get a copy of the same from the court and therefore applied to the court for furnishing the certified copy of the same. THE said application was filed on 24-7-1979 and later on the certified copy was obtained on 18-8-1979 and objections were filed on 7-9-1979. It is also represented by the Government Pleader that the Court extended the time to file the counter up to 27-9-1979 and therefore the counter was filed within the time. THE period of limitation prescribed for filing application for setting aside the award is 30 days from the date of service of notice of filing the award. THE Government Pleader contended that the copy of ht e award was not supplied to him and the time taken by him to obtain a copy of the award should be excluded while computing the period of limitation. After computing the time taken for obtaining certified copy, it was calculated that the time taken by the 1st respondent who filed the application for cancellation of the award was one month and 17 days and this is beyond the period of 30 days limitation prescribed under Art. 119 of the Limitation Act after excluding the time in accordance with Section 14 (4) of the Limitation Act. THE court below held tha the provisions of Section 5 of Limitation Act cannot be invoked and the court has no power to extend the time for filing the objections beyond the period stipulated under Art. 119 (b) of the Limitation Act and the order passed by the Court extending the time for filing the objections up to 27-9-1979 is of no consequence and the court cannot look into the said objections. In this view it is held that O. S. 140/1979 for cancellation of the award dated 31-3-1979 is made rule of the Court and the decree is passed in terms thereof is O. S. 133/1979.

(2.) THE learned Government Pleader contended that Section 5 of the Limitation Act 1963 is applicable in the circumstances as Section 5 is wide in its sweep and by its own force applies and the Court has jurisdiction to extend the time in its discretion. THE learned counsel fore respondents contended that Section 37 of the Arbitration Act totally excluded the applicability of Section 5 of the Limitation Act and as such the court has no discretion to extend the time and the time stipulated under Article 119 (b) of the Limitation Act should be adhered to and the extension sought for is not valid. It is further contended that Section 37 of the Arbitration Act provides for the applicability of provisions of Limitation Act, 1908 and in the absence of substitution of provision regarding applicability of Limitation Act, 1963 the question of invoking the provisions of new Limitation Act does not arise.

(3.) THE learned counsel for the respondent heavily leaned upon the decision of the Madras High Court in Chandanmull & Co. v. Mohambal, AIR 1953 Mad 561. In this case the notice of the filing of the award was served on the appellant. THE appellant did not file the application to set aside the award within 30 days prescribed under Art. 158 of the Limitation Act. On the reopening of the High Court after summer recess the appellant filed application under Section 5 of the Limitation Act for condonation of delay in filing the application to set aside the award and the question arose whether Section 5 of the Limitation Act is applicable. THE Division Bench consisting of Rajamanner, C. J. and Venkataramaiyar, J. held that Section 5 of the Limitation Act, 1908 is not applicable. It was noticed that before the Arbitration Act of 1940 the law was well settled that the Court has no power under Section 5 of the Limitation Act to extent time prescribed under Art. 158 of the Limitation Act. Construing the amplitude of Section 37 of the Arbitration Act which provides for the applicability of the provisions of the Limitation Act, 1908 to arbitrations as they apply to proceedings in Court, it is held as follows at page 562:- "In the context, therefore, the word "arbitration" should be limited to proceedings before the arbitrators; and an application to set aside an award being a proceeding in Court, cannot be held to be an arbitration proceeding. Moreover, Section 37 (1) is intended to apply to proceedings in Arbitration the provisions of the Limitation Act which would otherwise be inapplicable. But even apart from Section 37 (1), Art. 158 in terms applies to an application to set aside an award. On the construction of the section, therefore we are of the opinion that "arbitration" referred to in Section 37 (1) cannot include a proceeding taken in court for setting aside the award." It is further held as follows at page 562:-