STATE OF ORISSA Vs. DURGA CHARAN ROUTRAY

JUDGEMENT

(1.) The aforesaid ARBA No. 25 of 2006 has been filed by the State of Orissa represented through its concerned officers assailing the order of the learned District Judge, Mayurbhanj in Misc. Case No. 28 of 2006 arising out of Arbitration Misc. Case No. 222 of 2006 declining to condone the delay in filing the aforesaid Arbitration Misc. Case. This ARBA was also filed after the prescribed period of limitation with a petition under Section 5 of the Limitation Act for condonation of delay. With consent of learned counsel for both sides the ARBA and the Misc. Case both were heard together. Misc. Case No. 50 of 2006 has been filed before this Court to condone the delay in filing the said ARBA. With consent of learned counsel for both sides the ARBA along with Misc. Case was heard for final disposal.

(2.) The sole question for consideration in this case is whether Section 5 of the Limitation Act would be applicable to condone delay in filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the '1996 Act'.

(3.) Before delvjng into the said question, it would be prudent to pay a bird's eyeview at the facts of the case in brief. The respondent in the ARBA, a contractor, entered into a contract with the State of Orissa for execution of the work "Construction of Earth Dam of NESA Irrigation Project" under Khadkhai Irrigation Division at Rairangpur in the district of Mayurbhanj. It is pertinent to mention here that the Executive Engineer, Khadkhai Irrigation Division, present appellant No. 2, had signed the agreement with the respondent-contractor on behalf of the Governor of Orissa in respect of the said work. During execution of the work, certain disputes cropped up between the parties. On the basis of a petition filed before this Court, the Hon'ble Chief Justice, vide order dated 14-9-2001 passed in MJC No. 222 of 2001, appointed Shri Justice P. C. Misra, a retired Judge of this Court, as the sole Arbitrator. The Executive Engineer-appellant No. 2 throughout participated in the proceedings before the Arbitrator for self and on behalf of the State. After conclusion of the proceeding, the Arbitrator passed an Award on 28-9-2005, a copy of which was duly served on the Executive Engineer on 5-10-2005. Thereafter on 6-2-2006 an application under Section 34 of the 1996 Act before the learned District Judge, Mayurbhanj, Baripada which was registered as Arbitration Misc. Case No. 222 of 2006 by the State and others. Along with the said Arbitration Misc. Case, a petition was filed under Section 5 of the Limitation Act, registered as Misc. Case No. 28 of 2006, with a prayer to condone the delay in filing the petition under Section 34 of the 1996 Act. mainly on the ground that the copy of the Award passed by the Arbitrator on 28-9-2005 was received by the Executive Engineer concerned on 5-10-2005. After receipt of the copy of the Award, the Executive Engineer intimated about the same to the concerned Superintending Engineer and other concerned authorities who in turn sought legal advice. After that the Arbitration Misc. Case under Section 34 was filed with a delay of thirty-four days, the prescribed period of limitation being ninety days from the date of the award.