Kerala High Court
Anas Abdul Khader vs Adul Nasar on 21 December, 2000
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. The petitioners are respondents 1 and 2 in a proceeding filed under S.34 of the Arbitration and Conciliation Act, which is presently pending before the District Court, Kozhikode.
2. The case was originally filed in the District Court, Kozhikode and it was later on found that in view of the intervention of the Arbitration and Conciliation Act in the place of the erstwhile Arbitration Act, the case was filed in the wrong forum and that it had no jurisdiction. The order directing re-presentation of the case before District Court reached this Court in C.R.P. No. 2232/99. It was found as per order dated 12.11.1999 that the order directing return was proper and correct. As regards Ihe contention that the proceeding was not initiated in the sub court in good faith, it was observed that the question need not be considered in the revision and that if it is raised before the District Court when the proceedings are re-presented, that can be considered there. As per a subsequent order passed in the same proceeding in C.M.P. No. 5324/99 it was clarified that the aspect of good faith, if raised as above, will have to be considered unhampered by any of the observations contained in the aforesiad order of this Court. Subsequently, the question was, in fad, raised before the District Court in connection with the condonation of delay. As per the order impugned in the present revision, the District Court found that the prosecution of the case before the Sub Court was, in fact, done in good faith and that there was no question of any delay, in so far as the period from 10.3.1999 till 27.10.1999 is liable to be excluded while computing the period of limitation.
3. Sri. K.T. Sankaran, who argued the case of the petitioner, repeated his stand that the proceedings were initiated in the Sub Court with full knowledge that the proceedings were before the wrong forum and that in the circumstances, there was no question of any extension. According to him, there is total delay of 139 days involved in the presentation of the case before the District Court and the District Court erred in finding that the proceedings were within time.
4. For a proper disposal of the matter reference to certain dates are necessary. The award in question was passed on 10.2.1999. Copy of the award was obtained by the first respondent on 18.2.1999. The presentation of the O.P. before the Sub Court, Kozhikode seeking to set aside the award was on 10.3.1999. It was on 31.8.1999 that the 1st respondent filed I. A. 4662/99 seeking return of the O.P. for presentation before the proper court. On 30.9.1999 the Sub Court allowed the petition. O.P. was represented in the District Court, Kozhikode on 27.10.1999.
5. It is not in dispute that under S. 34(3) of the Arbitration and Conciliation Act, 1996 an application for setting aside the award has to be made within three months from the date on which the party making that application had received the arbitral award or, if a request had been made under S. 33, from the dale on which that request had been aipsosed of by the arbitral Tribunal. The said period of limitation is subject to a proviso which prescribes that if the court is satisfied that the applicant was prevented by sufficient casue from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter.
6. S. 14(2) of the Limitation Act provides as follows:-
"14. Exclusion of time of proceeding bona fide on court without jurisdiction.
xx xx xx xx (2) In computing the period of limitation for any application, 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.
xx xx xx xx
7. S. 43 of the Arbitration and Conciliation Act, 1996 provides lhat Limitation Act shall apply to arbitrations as it applies to proceedings in court. A joint reading of the aforesaid provisions of the two Acts makes it clear that Limitation Act is applicable with regard to the consideration of the aspect of limitation with regard to the representation of the Arbitration O.P. in the District Court as involved in the present case.
8. Notwithstanding the persuasive arguments of Sri. K.T. Sankaran, I am not convinced that mere was any mala Fides on the part of the petitioners in the OP. in filing the same before the Sub Court. This aspect had already been referred to by me in the order in C.R.P. No. 2232/99. Even the Kerala Rules framed under the Act provided that the proper forum was the Sub Court and it was only as per the decision in Sulekha Clay Mines v. Union Union (2000 (1) KLT.691) that the matter was finally settled by setting aside the said rule and clarifying that the proper forum was the District Court. It was in the meantime lhat the presentation of the proceeding in the Sub Court and the subsequent return of the proceeding took place. The pendency of the proceeding before the wrong court in this case was hence certainly, devoid of mala fides and S. 14 of the Limitation Act applies.
9. The purport of S. 14(2) of the Limitation Act may now be considered. This Court found in Parameswaran v. Ramachandran (1986 KLT 982) that the real intention of S. 14 being to extend the period of limitation prescribed by the statute, what has to be done is to add that period during which the suit had been prosecuted with due diligence and in good faith in a Court, which either on account of lack of jurisdiction or other cause of a like nature, was unable to entertain it, to the normal period prescribed by the statute. In doing this computation of the period of limitation the re-presented suit is certainly not a continuation of the original suit. The period of limitation for the re-presented suit has to be determined as if it is a new and fresh suit. The period of limitation for this new suit will be the period prescribed for such suit, but excluding in its computation the period during which the earlier suit was prosecuted in the wrong court honestly and diligently. I respcctifully follow this decision.
10. The period of pendency of the proceeding in the Sub Court, Kozhikode in the instant case was from 10-3-1999 to 27-10-1999. The revision petitioners have a case that once the order for return is passed it was for the petitioner in O.P. to pursue the matter, get back the records and reproduce them and that the period from 30-9-1999 when the order for return was passed till 27-10-1999 when it was actually returned is not a period of bona fide litigation. Even accepting this contention for arguments' sake, it can be seen that there is no delay. The re-presentation in the District Court took place on 27-10-1999. Going by the dictum in Parameswaran's case (supra) the entire period from 10-3-1999 to 30-9-1999 atleast has to be excluded. That means the petitioners had time till 8-12-1999(3 months + 6 months and 20 days from 18-12-1999). If the limitation period is so construed it can be seen that the re-presentation on 27-10- !999 was well within the limitation period of three months allowed under S. 34 (3) of the Act. The impugned order, according to me, does no! warrant any modification.
11. The revision is without merit. It is accordingly dismissed.