Bombay High Court
Leaf Biotech Pvt. Ltd vs The Municipal Corporation Of The City Of ... on 16 September, 2010
Author: S.J. Vazifdar
Bench: S.J. Vazifdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.10 OF 2010
WITH
ARBITRATION PETITION NO.45 OF 2008
Leaf Biotech Pvt. Ltd. ....Applicant
....Petitioner
V/s.
The Municipal Corporation of the City of Nashik ....Respondent
Mr.Sachin S. Punde for the Applicant/Petitioner.
Mr.M.L. Patil for the Respondent.
CORAM : S.J. VAZIFDAR, J.
DATE : 16TH SEPTEMBER, 2010.
ORAL JUDGMENT :-
1. The above petition has been filed under section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996, Act). The civil application has been taken out for condonation of delay of about four months in presenting the petition.
2. It is necessary to determine the Article in the Schedule to the Limitation Act, 1963 applicable to an application/petition under section 11 of the 1996, Act. In my opinion, the period of limitation for an application under section 11 of the 1996, Act would be governed by Article 137 and not Article 113 of the Limitation Act, 1963. Although both Articles prescribe a period of limitation of three years, section 5 of the Limitation Act can be ::: Downloaded on - 09/06/2013 16:26:02 ::: 2 cap10-10 invoked only with respect to applications including those that fall under Article 137 but not to suits including those that fall under Article 113.
3. The Schedule to the Limitation Act does not provide a period of limitation for an application under section 11 of 1996, Act. In the Schedule, Article 113 falls under "FIRST DIVISION - SUITS". It then falls under Part X of the "First Division" which has only Article 113. The heading of Part X is "SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD". Article 113 reads :-
Description of suit Period of limitation
ig Time from which period
begins to run
113. Any suit for which Three years When the right to sue
no period of limitation is accrues
provided elsewhere in
this Schedule
Thus Article 113 is a residuary Article only for suits.
4. A petition/application under section 11 of the 1996, Act is not a suit. Nor can it be equated to a suit. It is an application. It therefore falls under the "THIRD DIVISION" of the Schedule which deals with "APPLICATIONS", and under PART II thereof which deals with "0THER APPLICATIONS". Part II contains only Article 137 which reads :-
PART II- OTHER APPLICATIONS Description of Period of limitation Time from which period application begins to run
137. Any other Three years When the right to apply application for which no accrues.
period of limitation is provided elsewhere in this division There being no period of limitation prescribed for it, an application under section 11 of the 1996, Act falls under Article 137.
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5. In that view of the matter, the provisions of section 5 of the Limitation Act would be applicable, in the event of the Applicant/Petitioner making out a case thereunder.
6. I am satisfied that in the present case, there is more than adequate reason for condoning the delay of about four to five months in filing this application.
7. Disputes and differences having arisen, the petitioner invoked the arbitration clause being clause 11 of the 1996, Act in the agreement which admittedly was entered into between the parties. The reference is to the sole arbitration of the Municipal Commissioner of the Respondent and his decision is to be final and binding on both the parties. Despite several letters, the Municipal Commissioner did not confirm whether or not he intended entering upon the reference. Not having received a response to its earlier letters, the petitioner by a letter dated 18.5.2006, once again requested the Municipal Commissioner to confirm that he would act as a sole arbitration. Thus for a period of two and half years, the Municipal Commissioner of the Respondent did not do anything in the matter. In these circumstances, it would be unjust and unfair to the Applicant to dismiss the application without condoning the delay which has not prejudiced the Respondent.
8. In the circumstances, the Civil Application is made absolute in terms of prayer (A).
9. It was contended that prior to this petition, the petitioner had filed Arbitration Petition No.39 of 2007. By an order dated 17.10.2008, the petitioner was permitted to withdraw the same with liberty to file a proper ::: Downloaded on - 09/06/2013 16:26:02 ::: 4 cap10-10 and detailed petition stating the disputes. It was contended that the details to the extent contemplated by the order dated 17.10.2008 have not been furnished.
10. I do not agree. The quantum of the claim has been set out. The correspondence referred to and/or annexed to the petition indicates the disputes between the parties. This is sufficient compliance for a petition under section 11 of the 1996, Act.
11 The Arbitration Petition is therefore, disposed of by appointing the present Municipal Commissioner of the Respondent to act as a sole arbitrator. As the matter has been pending unnecessarily for a long time, the Municipal Commissioner of the Respondent is requested to dispose of the reference as expeditiously as possible.
The Arbitration Petition is accordingly disposed of.
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