COMMISSIONER M P HOUSING BOARD Vs. MOHANLAL

JUDGEMENT

(1.) Applicants, the authorities of Housing Board have filed this revision under Section 115 of the Code of Civil Procedure being aggrieved by the order dated 4.7.2012 passed by the Xth Additional District Judge, Bhopal in Arbitration Case No. 45/2011, whereby in the proceeding of the respondent filed under Section 34 of the Arbitration & Conciliation Act 1996, in short "The Act" by allowing the application of the respondent filed under Section 14, r/w Section 5 of the Limitation Act, the period spent by it under the bonafide advise in prosecuting some proceeding before some other forum has been excluded in assessing the period of limitation in filing the aforesaid proceedings under Section 34 of the Act. The applicants' counsel after taking me through the averments of the petition as well as impugned order, by referring Sub Section (2) of Section 14 of the Limitation Act, so also Sub Section (3) of Section 34 of the Act argued that the alleged other proceeding was not prosecuted by the respondent bonafidely for the same prayer before other appropriate forum and, therefore, the respondent was not entitled to extend the benefit of exclusion of the period in limitation to file the proceeding under Section 34 of the Act. In continuation he said that contrary to the above mentioned provision of Limitation Act as well as of the Act, the impugned order has been passed by the trial court under the wrong premises. As such the provision of Section 14 of the Limitation Act was wrongly taken into consideration to exclude the alleged period from limitation.

(2.) In continuation by referring the order dated 13.9.2011 passed by the Coordinate Bench of this Court in Arbitration Case No. 135/2010, (Ann. R-1), the proceeding filed by the respondent under Section 11(5) of the Act for appointment of the Arbitrator, said that such earlier proceeding was filed before this Court for appointment of Arbitrator and not for challenging the award passed by the Arbitrator. In such premises, it could not have been deemed that the respondent was prosecuting the proceeding against the award of arbitrator before the wrong forum with the same prayer, as prayed in the impugned proceeding of Section 34 of the Act. Consequently, the respondent was not entitled to get the benefit of exclusion of the period in limitation to file such proceeding and prayed for admission and allowing this revision. In support of his contention he also placed his reliance on the following reported cases:-

(3.) Responding the aforesaid arguments, Shri Shekhar Sharma, learned counsel for the respondent by justifying the impugned order said that in view of aforesaid earlier order of this court passed in Arbitration Case No. 135/2010, (Ann. R-1), so also in view of the principle laid down by the Apex Court in the matter of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and others, 2008 7 SCC 169, the impugned order does not require any interference at this stage. In continuation by referring the aforesaid order, Annexure R-1, he said that undisputedly after passing the order on dated 11.11.2010 by the authorities of the applicants, the respondent has come to this court with the aforesaid Arbitration Case No. 135/2010 for appointment of Arbitrator but on consideration the aforesaid order dated 11.11.2010 passed by the authorities itself was held to be arbitration award by this court in such arbitration case and pursuant to that on such technical ground his arbitration case for appointment of Arbitrator was not allowed. It was observed that if the respondent is aggrieved by the adjudication of its dispute by the aforesaid award, he can now challenge the same in accordance with law. So in any case the impugned proceeding being filed by the respondent under Section 34 of the Act alongwith the impugned application in compliance of the aforesaid observation of this court, the Arbitration Court has not committed any error in allowing its application and excluding the period spent by the respondent in prosecuting the aforesaid Arbitration case before this Court and prayed for dismissal of this revision.