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THE NATIONAL PROJECTS CONSTRUCTION CORP.LTD., SONEBHADRA versus M/S B.B.VERMA AND ANOTHER

High Court of Judicature at Allahabad

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The National Projects Construction Corp.Ltd., Sonebhadra v. M/S B.B.Verma And Another - FIRST APPEAL FROM ORDER No. 1362 of 2001 [2006] RD-AH 8016 (19 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                 RESERVED

First Appeal  From Order No. 1362 of 2001

The National Projects Construction

Corporation Ltd.  . . . . . . . . . . .  . . . . .  . . .  . . . .  .  . . . . .Appellant.

   Versus

M/S B.B. Verma and another  . . . . . . . . . . . . . . .  . . . .  . Respondents.

  ----

Hon'ble Yatindra Singh,J.

Hon'ble R.K.Rastogi,J.

       ( Delivered by Hon'ble R.K.Rastogi,J. )

----

1. This is an appeal against the judgment and decree dated 31.5.2001 passed by Sri Kaushlendra Yadav, then learned  Civil Judge ( Senior Division ), Sonbhadra in Civil Misc. Case no. 87 of 1999 M/S B.B. Verma  Vs. National Projects Construction Corporation Ltd. and another.

2. The facts giving rise to this appeal are that the plaintiff respondent no.1  had entered into a contract with the defendant appellant for construction of Roads,  Bridges and Nuliah Crossings for Rihand Super Thermal Power Station, Stage I, Rihand, STPP Unit. This agreement contained  an arbitration clause. Since some disputes arose between the parties, the plaintiff invoked this arbitration clause. Then the Chairman and Managing Director of the defendant-appellant appointed the defendant- respondent no.2  as the sole Arbitrator vide his letter dated 29.8.1986. The Arbitrator conducted the proceedings and gave his award on 29.6.1993. He also forwarded a copy  of that award  to the plaintiff-respondent no. 1  which was received by him on 10.7.1993. Then the plaintiff relying upon the statement of the parties made before the arbitrator on 28.5.1993 regarding jurisdiction of Delhi courts moved  an application on 16.7.1993 before the Delhi High Court  for making that award  the rule of the court. This application  was registered as original suit no. 1736 of 1993. The defendant-appellant filed his objections  against that award  under sections 30 and 33  of the Arbitration Act, 1940, which was registered as  I.A. no. 10040 of 1993. The  Single Judge of the Court  held by his order dated 18.7.1996 that the courts at Delhi had no jurisdiction to entertain the petition. Aggrieved with that order, the plaintiff filed  FAO (O.S.) no. 308 of 1996. That appeal was dismissed by a Division Bench of that Court  on 6.7.1999 and the   judgment of the Single Judge was affirmed providing that the petition should be returned to the plaintiff for  presenting it before the proper court. The petition was ultimately returned  back to the plaintiff's counsel on 24.8.1999. Then he moved  this application for making  the award  rule of the court in the court of the Civil Judge ( Senior Division) Sonbhadra on 4.9.1999. He also moved an application under sections 5 and 14 of the Limitation Act for condonation of delay in filing the application. It was stated in that application that the time which was spent in pursuing the application before the  Delhi High Court  should be excluded in  counting  the limitation and the application should be treated to be within time.

3. This application was registered as Misc. Case no. 87 of 1999 in the court of the Civil Judge (Senior Division ). He issued notice  of this application  to the defendant appellant as well as to  the Arbitrator, who had been impleaded as defendant no. 2. The defendant-appellant put in appearance  in the court of the Civil Judge  (Senior Division ) on 15.1.2000 and received copy of the application under section 5 of the  Limitation Act.  He also sought  several adjournments  to file objections, but no objection was filed  and on the date fixed  for hearing of the case the defendant appellant  remained absent, so the  court decided this case vide the judgment dated 31.5.2001 whereby  he condoned the delay in filing the application and also allowed the application for making the award rule of the court. Aggrieved  with that judgment and decree the defendant  no.1 filed this appeal.

4. We have heard learned counsel for the  defendant appellant  as well as  the plaintiff respondent no. 1.

5. The learned counsel for the  appellant made  the following two submissions before us:

(i) Application of the plaintiff was barred by time and  there was no justification to condone the delay under section 14 of the  Limitation Act.

(ii) The learned Civil Judge ( Senior Division ) after   allowing the application under section 14 of the   Limitation Act should have  provided one more   opportunity to the   defendant appellant  to file his          objections under sections 30 and 33 of the Arbitration Act, 1940 and since he did not  provide          any such opportunity ,the order passed by him should be set aside and the defendant appellant should be provided one more opportunity to file objections against the award and contest it on merits.

6. Now we  take up both the contentions of the defendant-appellant one by one.

7. First of all, we take up first  contention  of the defendant appellant.  The contention of the defendant appellant was that the Arbitrator's award was given on 29.6.1993 and  its notice was also given to  the plaintiff on 10.7.1993, and so the application for making it the rule of the court moved in the court of the Civil Judge ( Senior Division )  on 4.9.99 was time barred,  and there was no justifiable ground to condone the delay. He also referred to Article 119-(a) of the Limitation Act, which  provides that the  limitation for filing  the application to make the award rule of the court  is 30 days from the date of service of the notice  of the making of the award.  Now the question to be considered is whether the period spent by the plaintiff respondent in pursuing the  proceedings before the Delhi High Court is to be excluded or not while counting the  period of limitation.

It is to be seen that in the present case the plaintiff received notice of the award  on 10.7.1993 and he moved an application before Delhi High Court for making it rule of the court on 16.7.1993.  The case remained pending in the Delhi High Court and on 18.7.96 it was held by a Single Judge of  the Court  that  the case was  beyond territorial jurisdiction of the court ,and when the appeal filed against  that judgment was also dismissed then on the application of the plaintiff the petition under section 14 of the Arbitration Act along with  concerned documents was returned  back to him on  24.8.19099, then it was filed by the plaintiff  in the court of the Civil Judge ( Senior Division ) Sonbhadra on 4.9.1999. If the period from 16.7.1993 to 24.8.1999 is excluded  from the limitation period, the period spent by  the plaintiff from  10.7.1993 to 16.7.1993   is  six days and  the period from  24.8.1999  to   4.9.1999 is 11 days and the total of 6+11 days comes to 17 days only. Thus the application shall be treated to be  within limitation period of  thirty days  if the aforesaid period from 16.7.1993 to 24.8.1999 is excluded.

8. Now the question to be determined is whether the aforesaid period  from 16.7.1993 to 24.8.1999 is to be excluded  or not. It will be useful to go through section 14 of the Limitation Act, 1963, which runs as under:

"14.   Exclusion of time  of proceeding bona fide  in Court without jurisdiction :- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence  another civil proceeding, whether in a Court of first instance or of appeal  or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it.

(2) In computing the period of limitation for any appli- cation, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect  of jurisdiction or other cause of a like nature, is unable to entertain it.

(3)  Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub- section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under  rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the  jurisdiction of the Court or other cause of a like nature."

9. In the present case the plaintiff  spent  the time from 16.7.1993 to 24.8.1999 in pursuing the case in the Delhi High Court  on the basis of the assumption that  in view of the agreement between the parties  the courts at Delhi had jurisdiction in the matter. However,  this contention was not  accepted by the Single Judge of the Court  nor by the Division Bench in the appeal filed by the plaintiff against the order of the Single Judge. The appeal was dismissed by the Division Bench of Delhi High Court on 6.7.1999, but in pursuance of that order the plaintiff could not get  the application returned back soon thereafter, and so he had to  move a fresh application in this regard which was registered as Civil Misc. Application no. 3044 of 1999.  It was decided by the Delhi High Court on 20.8.1999 and the following order was passed:

" Office is directed to ensure that the order dated 6th July, 1999 is complied with forthwith. It is clarified that it is office of this Court which has not yet returned the papers to the petitioner. Clarified  that the delay is on part of Court and petitioner is not to be blamed for any delay till the papers are returned.

Application stands  disposed of."

10. In view of the aforesaid order passed by the Division Bench of the Delhi High Court  as well as the provisions of section 14 of the Limitation Act, the  entire period  from 16.7.1993 to 24.8.1999  is to be excluded, and after exclusion of the above period, the application moved by the plaintiff respondent  in the court of the Civil Judge ( Senior Division) shall  be treated to be within time. We, therefore, reject the contention of the appellant  that the application was time barred.

11. Now we take up the second contention of the appellant. His contention is that after allowing the application under section 14 of the  Limitation Act, the court should  have allowed  him fresh  opportunity to file his objection against the award and since it has not been done by the court,  the order passed by it is bad, and so his appeal should be allowed,  and he should be provided a fresh opportunity to file his objection against the award.

12.  It is, however, to be seen that according to Article 119 (b) of the   Limitation Act, 1963,  the limitation period for filing  objection against the award  is thirty days from the date of service of the notice of  filing of the award. In the present case, when the above application was filed by the plaintiff, its  notice was sent  to the defendant-appellant. It is not  clear from the record as to on which date the  notice was served upon him, but he appeared in the court  of the Civil Judge ( Senior Division ) on 15.1.2000, as is apparent from the order sheet  of that date. The date  26.2.2000 was fixed  in the case  on the above date.  On 31.1.2001 the defendant moved an application ( paper no. 28 Gha) for time to file written statement. The application was not opposed by the plaintiff and it was allowed.  However,  no written statement was filed  and so a fresh application bearing paper no. 29 Gha for time  to file written statement was moved on 31.3.2001. This application was also not opposed and it was allowed. Thereafter the defendant appellant moved  another application ( 30 Gha ) on 17.4.2001 praying for time to file written statement. This application was opposed and so it was ordered to be put up for order on 18.4.2001. On 18.4.2001 one more application for time to file  the written statement was moved, which is paper no. 31 Gha. It was stated  in that application that this time last opportunity for filing written statement  may be given. This application was opposed  but it  too was  allowed by the court.

13. Thereafter one more application (paper no. 32 Gha ) for time to file written statement was moved on 19.4.2001. It was opposed by the plaintiff and so the court fixed 30.5.2001 for its disposal. On that  date one more application (33 Gha) for adjournment on personal ground of the counsel of the defendant-appellant was moved.  The application was allowed and 31.5.2001  was fixed for  hearing of the case. On that date  the defendant-appellant  did not appear and so the case was heard exparte   in his absence and it was decided.

14. Now it is to be seen  that in the present case the defendant no.1 put  in appearance  on 15.1.2000 and thereafter repeated opportunities were given by the court to him upto 31.5.2000 to file his written statement, but he did not do so. The limitation period prescribed for filing objection against  the award is one month from the date of service of the notice  of the filing of the award  which is to be counted  in the present case from 15.1.2000, the date on which the defendant-appellant appeared  in the court. The court  gave him sufficient time of more than one  year and four months. This  time was granted ignoring the time limit   fixed under Article 119(b) of the Limitation Act, which is thirty days only. The appellant's contention  is that he should have been granted fresh time after allowing the application under section 14 of the Limitation Act, but it is to be seen that Article 119(b) of the  Limitation Act  does not provide  for any such  relaxation.  According to clause  (b) of the aforesaid Article,  entire objections are to be filed within  thirty days and there is no such provision that  at  first the objections regarding  limitation  are to be filed and then the objections on  merits  are to be filed. The defendant appellant  had prayed for time to file written statement  in his each application, which goes to show that he wanted to file objections on merits and not on the application under section 14  of the Limitation Act only.  As such when  the defendant had failed to file his objections even after grant of the aforesaid period  which was in excess of the statutory period prescribed in Article 119(b) of the Limitation Act, there was no question of granting   further time to the defendant-appellant  after  allowing the application under section 14 of the Limitation Act.  Any such order passed by the  court  would have been illegal in view of the  specific requirement of  filing objection within thirty days of the notice of  filing  of the award. In the present case, the defendant shall be treated to have  received  this notice on 15.1.2000 when he appeared in the court. The limitation period  is to start from the date of notice of filing of the award  and not from the date of registration of the case  after condoning delay under section 14 of the Limitation Act.As such no order could be  legally passed on 31.5.2000 for allowing further time to file written statement or objection in violation of Article 119(b) of the Limitation Act.

15. The learned counsel for the plaintiff-respondent cited before us  a ruling of  Hon'ble Supreme Court rendered in 'N.S. Ningashetty and others Vs. K.S. Ningasheety' reported in 1962 SCR page 551 in which it has been held  that communication by the court to the parties  or their counsel of the  information that the award has been filed is sufficient compliance  of the requirement  of sub section 2 of section 14 of the Arbitration Act and in that case no fresh notice in writing is required  to be given to the parties by the court  on filing of the award.  He further submitted that whenever  an award has been filed in the court, and no objection against that award  is filed by either party, a decree is to be passed in terms of the award  under section 17 of the Arbitration Act  even without application of either party for making  it rule of the court. In support of this contention he cited before us a ruling of Hon'ble Supreme Court in Champa Lal Vs. Sammrath Bai A.I.R. 1960 SC 629 in which it has been held that the law of limitation applies to applications made by the parties and not  to the filing of the award by the Arbitrator. He also cited a ruling of this Court in  'Battu Lal Nikhara Vs. Bhartiya Khadya Nigam' reported in 1986 A.L.J. 799 in which the same  view has been taken.

16. The learned counsel for the defendant-appellant cited before us  a ruling  of  Nagpur Bench of Bombay High Court  in  the case 'Kawalsingh Abkar Vs. Baldeosingh Abkar' reported in AIR 1957 Nagpur 57, in which it has been held that section 5 of the Limitation Act  has no application to the petitions   under the Arbitration Act.  His contention was that in the present case the plaintiff has referred to  both sections 5 and 14 of the  Limitation Act  in his application for condonation of delay. It is correct that  delay in filing the application under section 14 of the Arbitration Act can be condoned only under section 14 of the Limitation Act and section 5 has no application, but if the essential requirements  of section 14 of the  Limitation Act  have been mentioned in the application and that section has also been referred, it is immaterial that there is superfluous reference of section 5 of the  Limitation Act  also, and the application shall not be treated  to be bad by reference  of section 5 of the Limitation Act. In this ruling also it has been held that no notice  in writing  of filing of the award is necessary and such a notice is required in that case only where the parties are  absent, but if the parties are present in court and have knowledge of filing of the award, objection is to be filed within the  limitation period of 30 days irrespective of the fact  that no notice in writing has been given. This ruling does not render any  help to the appellant.

17. The position in this way is that there was no necessity for the court to give any more opportunity to the defendant-appellant  to file his objection against the award after  allowing  the application under section 14 of the  Limitation Act nor any such time could be  granted in view of the specific provisions of  Article 119 (b) of the  Limitation Act. The appeal in this way has got  no force  and it is liable to be dismissed.

18. No other point was  pressed before us.

19. The appeal is, therefore, dismissed with costs to the plaintiff respondent no.1. The judgment and decree  of the learned Civil Judge ( Senior Division ) Sonbhadra  are  hereby confirmed .

Dated:19.4.2006

RPP.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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