NTPC LTD. Vs. M/S. INDIAN ENTERPRISES

JUDGEMENT

(1.) In this writ petition, the petitioners challenge the legality, propriety and correctness of the order-dated 26.9.2005 passed by the District Judge, Dhenkanal in Arb. Misc. Case (MJC) No.125 of 2002, wherein he refused to decide the maintainability of the case on the ground of limitation as a preliminary issue and ordered that all the issues would be heard together.

(2.) The petitioners were Opp.parties and the opp.party was the petitioner before the Court below. The fact leading to filing of this writ petition succincly stated is that the petitioner was awarded a contract work by opp.party No.1 for construction of Field Hostel No.IV at T.S.T.P.P., Kanhia. As dispute arose touching the claim arising out of execution of work, in terms of the agreement, it was referred to the Sole Arbitrator, who after examining the witnesses and perusing the documents passed an award on 16.6.2000. Being aggrieved with the said award the petitioner filed a case under Section 34 of the Arbitration and Conciliation Act, (hereinafter referred to as 'the Act') before this Court which was registered as M.J.C. Case No.210 of 2000, wherein, this Court vide order dated 19.4.2002 directed the petitioner to present the petition before the appropriate Court. Accordingly, the petitioner filed a petition under the same provision of the Act before the District Judge, Dhenkanal which was numbered as Arb. Misc. Case (MJC) No.125 of 2002 as mentioned earlier. While this case was subjudice, the Opp.parties therein filed a petition under Order XIV Rule-2 of C.P.C. to hear on the maintainability of the case on the ground of limitation, as preliminary issue. The learned District Judge vide order dated 26.9.2005 rejected the petition holding that since there was no material on record to know the date on which the petition was filed before the High Court and whether the petitioner was pursuing the case diligently there, evidence would be required in that regard and as such rejected the petition and ordered to take up all the issues together. Being aggrieved with the said order the opp.parties have filed the present writ petition.

(3.) Learned counsel for the writ petitioners submits that if the Court is of the opinion that a case may be disposed of on an issue of law relating to bar to the suit by law of Limitation, it should try that issue first. As per the provision contained under Section 34(3) of the Act, an application for setting aside an arbitral award ought to be filed within three months from the date of award. In terms of the proviso thereto, the Court may, in appropriate cases, entertain the application within a further period of 30 days, but not thereafter. In the case at hand, the arbitral award having been passed on 16.6.2000, the M.J.C. before the District Judge, Dhenkanal ought to have been filed at best within 15.10.2000 and not beyond that but it has been filed on 6.11.2002, after inordinate delay. He further submits that the period consumed in pursuing the writ petition against the arbitral award before this Court cannot be excluded in terms of Section 14 of the Limitation Act in view of the decision rendered by the Apex Court in the case of Union of India v. M/s. Popular Construction Co. AIR 2001 S.C. 4010 and the decision of this Court in M/s. Orissa Psciculture Development Corporation (O.P.D.C) Limited v. Indian Oil Corporation (IOC) Ltd, and Others 98 (2004) CLT 440. Accordingly he submits to set aside the impugned order and to direct the Court below to hear on the question of maintainability of the M.J.C. on the ground of limitation as preliminary issue.