Calcutta High Court
Union Of India vs Nav Bharat Construction on 3 October, 2001
Equivalent citations: (2001)3CALLT452(HC)
Author: A.K. Ganguly
Bench: Asok Kumar Ganguly
JUDGMENT A.K. Ganguly, J.
1. Questions of some Interest have cropped up in the facts of the case which are briefly noted below.
2. For setting aside an award dated 12th September 2000, this application under Section 34 of Arbitration and Conciliation Act, 1996 thereinafter called ACA 96] was filed by Union of India on 6th February 2001. The award was passed by an Arbitral Tribunal consisting of three members. It is not in dispute that all the three arbitrators have given a unanimous award. The arbitrators were appointed by the General Manager. South Eastern Railway under order of this Court and they were (1) Rajat Mitra, Ex-D.R.M.. Kharagpur, S.E. Railway, presently working as C.T.E., E.R. Calcutta, (2) Sibaji Rakshit, Ex.F.A.& C.a.O./HQ. S.E. Railway, Calcutta, presently working as F.A. & C.A.O. CLW/CRJ and (J) Sri A.K. Patnaik, CPTM/ SER, Calcutta. Admittedly, the said award was served on the petitioner on 18th September, 2000. Three months time from 18th September 2000 expired on 17th December 2000. 30 days period from 17th December 2000 expired on 16th January 2001 and admittedly the application for setting aside was filed on 6th February 2001 which is after a delay of 20 days.
3. Now the question is whether this Court in view of the provisions of ACA 96 can condone the delay of 20 days in the filing of this application for setting aside the award.
4. The learned counsel for respondent submits that in view of the statutory provisions of ACA 96, the Court does not have the power of condonation of delay except in the manner provided under the proviso to Section 34(3) of ACA 96. The learned counsel submitted that on this aspect there is a departure from the provisions of Arbitration Act 1940 (hereinafter called AA 40). The learned counsel for the petitioner has however, submitted that the Court has the power of condonation of delay even under ACA 96 if the provision of Section 34 is read in harmony with provision of Section 43 of the ACA 96. Counsel for both the parties cited certain decisions in support of their contentions including and unreported judgment of a learned single Judge of this Court.
5. A few provisions of the ACA 96 have come up for consideration before this Court in course of argument in this case. Those relevant provisions are set out below. Section 34(3) which has come up for consideration is in the following terms :
"34(3). An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, If a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral Tribunal.
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months It may entertain the application within a further period of thirty days, but riot thereafter." [emphasised by Court]
6. Section 43(1) is also relevant in this connection and the same is also set out below:
"34(1). Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3)."
(emphasised by Court)
7. This Court is of the opinion that in this connection Section 5 has some importance and is set out below:
"5. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no Judicial authority shall intervene except where so provided in this Part."
8. Learned counsel for both the parties have referred to Section 43(1) and (2) which are also set out below:
"43(1). The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in Court.
(2)For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred in Section 21."
9. It may be noted that all these aforesaid provisions are contained in part I of the ACA 96.
10. Provision of Section 29(2) of Limitation Act 1963 is also relevant in this connection and is set out below:
"Section 29(2). Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (Inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
11. In this connection, the relevant provisions of AA 40 may be noted. Section 14(1). 14(2) and Section 30 of AA 40 are set out below:
"Section 14(1). When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.
Section 14(2). The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award."
"Section 30 An award shall not be set aside except on one or more of the following grounds, namely :-
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35;
(c) that an award has been improperly procured or is otherwise invalid."
12. The aggrieved person has a right to challenge an award whthin a period of 30 days from the date of service of the notice of filing of the award in Court. This period of thirty days has been provided not under AA 40 but under Article 119(b) of the Limitation Act.
13. Article 119(b) of Limitation Act is set out below:
"Article 119(b). Under the Arbitration Act, 1940- for setting aside an award Thirty The date of service or getting an award remitted days of the notice of filing for consideration. of the award."
14. But under Section 34 of ACA 96 a much longer time of three months is provided for setting aside an award in the Act itself. At the same time the power of the Court to condone the delay in the filing of such application beyond the period of three months has also been restricted to a period of 30 days.
15. Therefore the setting aside provisions including the period of limitation in respect of such provisions under ACA 96 are substantially different from those under AA 40.
16. The learned counsel for petitioner submitted that Section 5 of the Limitation Act applies to such proceedings and Court has the power to condone the delay in filing of an award filed even after the expiry of 30 days mentioned in the proviso to 34(3) of ACA 96. She further urged that to exclude the application of Sections 4 to 24 of the limitation Act to a proceeding for setting aside an award under ACA 96, there must be an express reference in the text of ACA 96. In the absence of such reference, it cannot be implied.
17. The learned counsel also submitted that under Section 36 of ACA 96 the award becomes a decree and once it becomes a decree, it can be challenged in various ways either by initiating a proceeding for recalling it or for setting it aside. Since it becomes a decree enforceable under the Civil Procedure Code, it has all the trappings of a Civil Court proceedings and the provisions of Limitation Act must apply in full force since there is no express exclusion. On the other hand, the learned counsel urges that Section 43 of ACA 96 makes the provisions of Limitation Act clearly applicable. So the Court can, acting under Section 5 of Arbitration Act, condone the delay. The learned counsel for the petitioner in support of her contentions cited the decisions noted below:
1. Essar Construction v. N. P. Ramakrishna Reddy, repoted in .
2. Union of India v. Manager, Jain & Associates, .
3. Kushahlya Rani v. Gopal Singh, reported in AIR 1964 SC 26.
4. Bidyachanran Sukhla v. Khub Chand Baghal, .
5. Manguram v. Municipal Corporation of Delhi, .
6. Trustees of the Port of Madras, v. Mettur Chemical and Industries Ltd., Salem, reported in AIR 1967 Madras 109.
7. Miss Nirmala Chaudhury v. Bisheswar Lal, .
8. Transparent Parkers v. Arbitrator-cum-Managing Director and Anr., reported in 2000(3) Recent Arbitration Judgment 41.
9. An unreported judgment dated 8th September, 2000 of a learned single Judge in the case of Union of India v. Sanjeev Brothers.
18. Though reliance on five judgments at Item Nos. 3 to 7 was not placed by the learned counsel in the course of her oral submission but reference to these judgments has been made by the learned counsel in her written notes and since the question raised in this case is of some Interest, the Court proposes to deal with all those cases in the course of this judgment.
19. The learned counsel for the respondent on the other hand has relied on a number of cases which are noted below ;
1. Rajeev Sarda v. Executive Engineer H.P., PWD Theog. reported in 2000 Suppl. (Arbitration) LR 265, HP.
2. Commissioner of Sales Tax U.P. v. Parson Tools and Plants. Kanpur. .
3. Ramda Vejunandhal v. Hardas Bhat Parbat Bhat, .
4. Md. Ashfaq v. State Transoport Appellate Tribunal, U.P. .
5. Mukri Gopalam v. Cheppllat P. Aboobacker .
6. Puspa P. Mulchandani v. Admiral Radhakrishin Tahtlani (Retd.) reported in 2001(2) Arbitration Law Reporter 284.
7. Palkala Narayana Swami v. Emperor, .
20. The Court first proposes to consider the cases cited by the learned counsel for the petitioner.
21. Essar Corporation (supra) was a case decided under AA 40. From the facts in Essar Corporation (supra) it appears that disputes between the parlies were referred to three arbitrators who could not agree with each other. Two of them passed an award in favour of Essar and one in favour of Reddy.
22. Before the majority award was filed, Reddy made an attempt to have the minority award made a rule of Court by setting aside the majority award. That attempt failed. After the filing of the award, Essar initiated proceedings to have the majority award made a rule of Court under Section 17 of AA 40 and to that written objection was filed by Reddy.
23. Then two proceedings were filed by Reddy (1) one was for having the minority award made a rule of Court and the (II) other was for setting aside the majority award. With the second proceeding, an application for condonation of delay under Section 5 of the Limitation Act was filed. The second proceeding, filed as a suit, was converted Into an application for setting aside of the majority award under Section 30 of AA 40.
24. The trial Court did not condone the delay and dismissed the setting aside application. The High Court was then approached in revision and the High Court allowed the revisional application and condoned the delay and remanded the matter to the trial Court for a decision on merits.
25. Against that revisional order of High Court, appeal was taken to Supreme Court and it was urged that the High Court should not have interfered in revision with the order of the trial Judge. The apex Court held that the order of trial Judge rejecting the Section 5 application was appealable under AA 40 and the revisional application does not lie. But even then the apex Court did not set aside the High Court's order by directing a remand. The apex Court, for ends of Justice, exercised its power under Article 142 and gave its findings.
26. The relevant findings of learned Judges of the apex Court, for the purpose of this case are;
(I) A defence based on the plea of limitation in a setting aside proceeding is not a technical plea, (II) If an application under Section 30 of AA 40 is dismissed on the ground of limitation, the same amounts to a refusal to set aside an award, (III) A reading of Sections 39(I)(IV) and Section 17 of AA 40 together makes it clear that an order rejecting a setting aside application on grounds of delay is an appealable order.
27. In Essor Corporation (supra) It was never contended before the apex Court that Section 5 of Limitation does not apply to condone the delay in the filing of setting aside application under Section 30 of AA 40. In fact, it could not be so contended. The apex Court proceeded on the basis that Section 5 of the Limitation does apply to a setting aside application under Section 30 of AA 40 having regard to the provisions of Article 119(b) of Limitation Act. But the points which are at issue in the case at hand are totally different and could not have been considered by the Hon'ble Supreme Court. This Court is in respectful agreement with the ratio in Essar construction but the said judgment rendered on totally different facts and law has no application to the present case.
28. The next Supreme Court judgment cited in the case of Union of India v. Jain & Associates is also under AA 40. The facts are that the arbitrator passed an award on 28.02.1986 and filed it before the High Court in 06.03.1997. Union of India received notice regarding filing of objection on 21.03.1997, 30 days from that date, expired on 21.04.1997 and the matter came up before the Court on 28.04.1997. On that date, it was orally stated before the Court on behalf of Union of India that an objection application under Sections 30 and 33 of AA 40 was under preparation and orally prayer was made for extension of time for filing the application. The Court rejected the prayer and passed a decree on the basis of the award under Section 17 on the same day.
29. Thereafter, on 05.05.1998 an application, for setting aside the decree and for condonation of delay in filing the application, was filed. On 25.09.1998 the application for setting aside was dismissed by the learned Single Judge. Then an appeal was filed by Union of India before a Division Bench where a question arose whether Order 9 Rule 13 of Code of Civil Procedure would be applicable in the present situation and whether a decree passed on the basis of an award could be treated as an ex parte decree in a case where objection under Sections 30 and 33 of AA 40 could not be filed. In view of conflicting decisions of the Division Bench of this High Court, the matter was referred to a Special Bench. The Special Bench dismissed the appeal and held that a decree passed in terms of Section 17 of AA 40 where objections under Sections 30 and 33 had not been filed, could not be taken to be an ex parte decree.
30. On appeal, the Supreme Court reversed the finding of the Special Bench and held that (1) since the Code of Civil Procedure was made applicable to arbitration proceedings under Sections 41 of AA 40, the opera-lion of Order 9 of the Code to such proceedings cannot be excluded. So in a proceeding initiated for making the award the rule of Court, provisions of the Code including Order 9 Rule 13 is applicable. (2) in the absence of objection application tendered by the party objecting to the award. Judgment pronounced under Section 17 of AA 40 was an ex parte decree. (4) in view Section 5. Limitation Act, 1963, on sufficient cause being shown, the delay in filing an application for setting aside the decree, could also be condoned. (3) If sufficient cause is shown for condoning the delay in filing an application for selling aside an award, the Court can condone the delay and set aside the award. So the Court also has the power to set side the decree by following the procedure under Order 9 Rule 13 of Code of Civil Procedure. (5] Even after a decree has been passed under Section 17 of AA 40, an application under Section 30 of AA 40 can be entertained provided sufficient cause is established. (6) in a case where setting aside application is rejected on the ground of delay. It would be an appealable order under Section 39(1)(VI) of AA 40. Here the Court relied on the earlier judgment in Essor Construction (supra).
31. It is clear from the aforesaid findings of the Court that questions, with which this Court is concerned in this case, were not and could not have been considered by the apex Court in Jain & Associates. The Court proceeded on the question of the applicability of the provision of the Code and provision of Order 9 Rule 13 thereof for setting aside a decree. The fact that Section 5 of the Limitation Act applies to condone the delay of a setting aside application filed beyond time was never doubted and it could not be doubted in view of the different statutory provisions of AA 40.
32. The next Supreme Court decision cited was in the case of Kushalya Rani v. Gopal Singh where the Supreme Court was considering the applicability of Section 5 of the Limitation Act to Section 417(3)(4) of criminal Procedure Code. 1898 which provided for leave to appeal against acquittal by private complainant. The learned Judges of Supreme Court held that Sub-section 4 of Section 417 of Criminal Procedure Code, 1898 is a special law within the meaning of Section 29(2) of Limitation Act. In that case, the learned Judges of Supreme Court made a distinction between an appeal to be filed by the State Government against acquittal and an appeal to be filed against acquittal by private complainant. In so far as an appeal to be filed by the State Government is concerned, the same would be dealt with by the general law laid down in the Limitation Act [Article 157] and to such an appeal Section 5 will be applied by its own force. But in so far as an appeal by a private complainant is concerned, the limitation was specifically laid down in Section 417(4) of the Code itself. The Hon'ble Judges of Supreme Court held that such a rule of 60 days is a special law which is specially provided in the Code and to such special law of limitation, Section 5 will not apply in view of Section 29(2) of the Limitation Act. 1908.(see para 7)
33. In this connection, the learned Judges of the Supreme Court explained the position relating to general law and special law in the context of Section 29[2) in paras 6 and 7 of the judgment. To my mind, those observations in the judgment run counter to the submissions made by the learned counsel for the petitioner and supports the contentions of the respondent. In the Instant case, also special period of limitation has been made applicable in the proviso to Section 34(3) of ACA 96. Therefore, the ratio in Kushalya Rani (supra) instead of supporting the petitioner's case, goes against it.
34. The next judgment was of Supreme Court in the case of Bidyacharan Sukha v. Khub Chand Baghel. In that case, one of the questions which is relevant for our purpose and which cropped up for consideration is whether the provision of Section 116A(3) of the Representation of People Act, 1951 as it stood then, is an exhaustive special provision attracting Section 29(2) of the Limitation Act. The Court considering this question held that the general provisions of Limitation Act are not excluded. The relevant provisions of Section 116A(3) of Representation of People Act are set out below:
"116-A(3). Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under Section 98 or section 99.
Provided lhat the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied lhat the appellant had sufficient cause for not preferring the appeal within such period."
35. Construing those provisions, the learned Judges of the Supreme Court held in para 27 at page 1112 of the report that Sub-section 3 of Section 116A of the Act does not speak of express exclusion. In order to make Section 29(2) of Limitation Act applicable, what is required is express exclusion.
36. Under the aforesaid provision of Sub-section 3 of Section 1 ISA of the Representation of People Act, High Court's power to entertain an appeal after the expiry of the period of 30 days is unlimited provided the High Court is satisfied that there was a sufficient cause for not preferring the appeal withtn the period of thirty days. High Court's power was not limited by statute as has been done under proviso to Sub-section 3 of Section 34 of ACA 96 by the words 'but not thereafter'. Therefore, the ratio in Vldyocharan Sukhla (supra) supports the contention of the respondent lhat in case of 'express exclusion', Section 5 of the Limitation Act will not apply.
37. In Manguram v. Municipal Corporation of Delhi (supra) again the Supreme Court considered the applicability of Section 5 of Limitation Act to an application for special leave under Section 417(3) of Criminal Procedure Code of 1898. In that context, the Supreme Court considered that the decision in Kaushalya Rani (supra) and learned Judges held that Kaushalya Rani would no longer govern the field after coming into effect of Limitation Act, 1963. The learned Judges of Supreme Court also held that the decision in Kushalya Rani (supra) was rendered on the provisions of Sub-section 2 Clause (b) of Section 29 of Indian Limitation act, 1908 which specifically excluded the applicability of Section 5. The learned Judges noticed that Section 29(2) of Limitation Act, 1963 are substantially different from the provisions of 29(2)(b) of Limitation Act. 1908. Therefore, the learned Judges held that cases which have come up after the enactment of Limitation Act, 1963, the ratio in Kaushalya Rant's case will have no application.
38. This Court falls to appreciate the relevance of the decision in Manguram to the facts of this case.
39. In the case of Trustees of the Port of Madras v. Mettur Chemical and Industries Ltd.. Salem (supra), the question which came up for consideration was whether Section 110 of Madras Port Trust Act, 1905 expressly excludes the applicability of Section 15(2) of the Limitation Act. Section 110 of Madras Port Trust Act is set out below:
"Section110. No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding."
40. It was contended on the basis of the said section that the suit must be filed within six months from the date of actual cause of action and the language of Section 110 is emphatic and no suit can be filed thereafter. In order to get over this bar, the plaintiff relied on Section 15(2) of the Indian Limitation Act, 1908.
41. Construing the aforesaid provisions, the learned single Judge held that Section 110 of the Madras Port Trust Act, merely provided a period of limitation different from that indicated under the Indian Limitation Act. But there is no 'express exclusion' of the applicability of Section 15(2) of the Limitation Act. In that view of the matter, it was held that the suit was maintainable. But in the Instant case, there is an 'express exclusion' in the proviso to Sub-section 3 of Section 34 of ACA 96. Therefore, this Madras Judgment is of no assistance to the petitioner in the context of the provisions considered in this case.
42. In the decision of Delhi High Court in Miss Nirmala Chowdhury's case (supra), the Court was considering the provision of Rule 3(a) Order 41 of the Code which was added by the 1976 amendment of Code of Civil Procedure. The said provision mandates, if after the expiry of the period of limitation, an appeal is presented. It must be with an application supported by an affidavit and setting out the facts constituting sufficient cause for not preferring the appeal within the time fixed. In Miss Ntrmala Chawdhury's case (supra) the appeal was filed beyond time. Therefore, in view of Rule 3(a), the appellant should have filed an application for condonation of delay along with the appeal. In that situation, the Court held that despite the provisions of Rule 3(a) of Order 41, the Court has the power to condone the delay under Section 5 of the Limitation Act and the power conferred by Rule 3(a) Order 41 of the Code is in addition to the power conferred by Section 5. The aforesaid questions are not present in this case. As such the decision in Nirmala Chowdhury's case rendered in the background of different statutory provisions has no application here.
43. The judgment of the Supreme Court in the case of Transparent Parkers has been rendered on a totally different Issue. From para 3 of the said judgment, it appears that the only short question which the Supreme Court considered whether affidavit evidence is sufficient in support of an application for condonation of delay. The Supreme Court held "the affidavit evidence would have been sufficient evidence in support of the application for condonation of delay and if the other side wants the deponent to be present for cross-examination, it would obviously be open to the other side to make such a request".
44. The learned Judges emphasized that the dismissal of a condonation application on the ground that affidavit evidence is not maintainable is not correct. Therefore, the nature of evidence, which is acceptable to the Court in condonation proceedings, came up for consideration before the apex Court. That question is not even remotely relevant in this case.
45. In so far as the unreported judgment of a learned single Judge dated 8th September 2000 in the case of Union of India v. Sanjeev Brothers is concerned, the same will be separately dealt by this Court.
46. Now the Court will consider the cases cited by the respondent.
47. In Rajeev Sarda, the Court was considering a similar question which has fallen for decision here namely whether in view of the bar under the proviso to Section 34(3) of ACA 96, the Court can condone any period of delay in the filing of a setting aside application in view of Section 43 of ACA 96. The Court has answered the question in the negative in a rather well considered judgment. The learned Judge held that if the Court allows condonation of delay in a setting aside application filed beyond the Initial period of three months and the subsequent period of 30 days, the Court has to do 'complete violence' with the language of the statute and which is not permissible (see para 20).
48. In coming to the said conclusion, the learned Judge relied on various judgments of Supreme Court which have also been cited by the learned counsel for the respondent and which the Court proposes to discuss now.
49. In the case of Commissioner of Sales Tax. U.P., the scheme of Section 10 of U.P. Sales Tax Act came up for consideration. Under the said scheme, period of limitation has been prescribed and the one with which this Court is concerned here is the provision of Sub-section 3(B) of Section 10 which runs as follows:
"Section 10(3)(B). The application under Sub-section 3 shall be made within one year from the date of service of the order complained of, but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months."
50. The proviso to Section 34(3) of ACA 96 is in even more emphatic terms in view of the use of the words "but not thereafter". Those words are absent from Section 10(3)(B) extracted above. Even then the Supreme Court held in paragraphs 17 and 18 of the said judgment where the "legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the tribunal concern has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute". The said principles have been reiterated in para 18 by the learned Judges by saying that where the legislature clearly declares its Intent in the scheme and language of the statute it is the duty of the Court to give full effect to the same without scanning its wisdom or policy, and without adding or Implying anything which is not consistent with such expressed intent of the law-giver. This Court is of the view that the same principles should be applied in the interpretation of the proviso to Section 34(3) of ACA 96.
51. The next Supreme Court decision cited by the learned counsel for the respondent was in the case of Ashfaq v. State Transport Appellate Tribunal, U.P. In that case, the material statute which was considered for the purpose of the decision is the proviso to Sub-section 3 of Section 58 of Motor Vehicles Act, 1939 relating to renewal of permit. The said subsection is quoted below:
"Section 58(3). Notwithstanding anything contained in the first proviso to Sub-section (2), the Regional transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than fifteen days after the said last date and is accompanied by the prescribed fee."
52. Under Sub-section(2) of Section 58 an application for renewal of a permit after the last date specified in Sub-section(2), can be made if "the application is made not more than 15 days after the last date and is accompanied by the prescribed fee". The Supreme Court on a construction of the aforesaid underlined provision of Sub-section 3 of Section 58 held that the said sub-section vests in the Regional Transport Authority a discretion to entertain an application even if it is beyond the time but the delay should not be of more than 15 days. In other words the delay in making the application for renewal would be condonable only if it is not more than 15 days and that "expressly excludes the applicability of Section 5 in the cases where an application for renewal is delayed by more than 15 days." The Supreme Court observed that this provision may be harsh but this has been advisedly made for certain reasons [see para 8].
53. This Court is humbly of the view the said principle should be applied in the Interpretation of proviso to Section 34(3) of ACA 96.
54. The other Supreme Court Judgment on which reliance was placed was in the case of Mukri Gopalam v. Cheppllat P. Aboobacker. In that case the provision of Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration. The appellate authority constituted under Section 18 of the said Act, functions as a Court and the period of limitation was prescribed under Section 18 for filing of appeals. In connection with such period of limitation. It was held that the provisions of Sections 4 to 24 of the Limitation Act will apply since there is no specific exclusion.
55. Considering Section 29(2) of Limitation Act, the learned Judges held that in order to attract Section 29(2). two things are necessary. (1) There must be a provision for a period of limitation under any special or local law in connection with any suit appeal and application. (2) The said period of limitation under such special and local law should be different from the period prescribed by the schedule to the limitation Act.
56. In the instant case, both the conditions are satisfied. Here ACA 96 is certainly a special law. This possibly cannot be disputed. The period of limitation has been prescribed under Section 34(3) of ACA 96 read with the proviso. Firstly, a period has also been prescribed during which delayed application beyond the Initial period can be condoned. Secondly, the period of limitation under such special law is different from period prescribed by the schedule to the limitation Act. In such a situation, it will be deemed that provisions contained in Section 4 to 24 of the Limitation Act shall apply only in so far as and to the extent to which they are not expressly excluded by such special and local law.
57. In the Instant case, there is such express exclusion by prescription of a specific period and also in addition to that, by the words 'but not thereafter'.
58. The judgment in the case of Ramda Vejunandhai where learned Judge of Gujarat High Court held construed Section 166(3) of the Motor Vehicles Act, 1988 is to the same effect. The said section is set out below:
"Section 166(3). No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident.
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months If it is satisfied that the applicant was prevented by sufficient cause from making the application in time."
59. Construing the said provision, the learned Judge held if there is delay in filing the application beyond months from the date of the accident, the same cannot be condoned by the tribunal inasmuch as there is a bar under the aforesaid section. The learned Judge held that since it is a special law it overrides the general law of limitation and Section 5 of the Limitation Act will not apply.
60. The judgment of Bombay High Court in the case of Puspa P. Mulchandani constructing Section 34 of ACA 96 has reached the same conclusion as the judgment of Rajeev Sarda of Hlmachal Pradesh High Court. The learned Judge of Bombay High Court has held that ACA 96 is a self-operative code with regard to arbitration and conciliation. Section 34 of the said Act prescribes a period of limitation and the learned Judge held that in view of the proviso to Section 34(3) of ACA, 96, there is a clear intention of the legislature to exclude the provisions of Section 4 to 24 of the Limitation Act, 1963.
61. The unreported judgment in the case of Union of India v. Sanjib Brothers delivered on 08.09.2000 condoning the delay in filing a setting aside application under Section 34 of ACA 96 is causing some difficulties to this Court. It is a judgment of a Co-ordinate Bench by a learned Judge for whose judgments I have the highest regard. And I consider myself singularly unfortunate that Instead of following the judgment of His Lordship, I have to differ from it. But with great respect, I do so purely on questions of principles and for reasons which I will presently indicate.
62. First of all from that judgment in Sanjeeb Brothers dates do not clearly appear. It is clear that the award is dated 28th September 1999 and the same was received by the aggrieved party on 25th November 1999. But the date when the application for setting aside the award was filed in this Hon'ble Court does not appear from the judgment. If the same was filed within a period of three months and thirty days thereafter from the date of receipt of the award, this Court is of the view that condonation is permissible under proviso to 34(3) of ACA 96. But if the application was filed beyond the period of three months and thirty days, this Court is humbly of the view that the said judgment was rendered 'per incurlam'.
63. This Court finds that the learned Judge while condoning the delay proceeded on the following basis:
(a) Innumerable decisions of the Supreme Court laying down that the Court in exercising discretion under Section 5 of the Limitation Act Court should bear in mind that rules of limitation ought not to be used against the lawful rights of the parties. The learned Judge relied on the principles decided in .
(b) The learned Judge also relied on the decision in and applied the principles rendered therein while condoning delay in a setting aside proceeding to which the provisions of Section 34 of ACA 96 apply.
(c) The learned Judge was inclined to give marginal latitude to the Government in view of the decision of the Supreme Court in .
(d) The learned Judge while dealing with this question has held that broad principles of law shall be applicable "in the dispensation of justice in all matters, irrespective of the enactment under which the principle had been enunciated and applied".
64. In so far as the decision in Soorajmull Nagarmal v. Golden Fibre and Products, is concerned the same was delivered by construing the provisions of AA 40. The learned Judge held that in view of the provisions of Article 119(b) Limitation Act, 1963, Section 5 applies to application for setting aside an award. The learned Judge held that a liberal construction of the section has to be made in order to advance substantial justice. No one can dispute those propositions laid down in Soorajmull Nagarmal but the question is that the provisions of ACA 96 in respect of limitation relating to a setting aside proceedings are totally different from the provisions under AA 40. Therefore, in the context of totally different statutory provisions, principle rendered in Soorajmull Nagarmal does not call for any application in a case governed under ACA 96.
65. In N. Balkrishnan v. M. Krishnamurthy, the Supreme Court held that in connection with a Civil Suit where the trial Court has condoned the delay, the High Court in revision should not have taken a different attitude and in that connection the learned Judge made certain observations on the principles of Limitation Act, 1963 and held that the principle behind the said section is not to destroy rights. Those general observations can have no application to a case where the legislative Intent is totally different and where the entire matter relating to condonation of delay is covered by the provisions in the act itself.
66. The question of granting latituted to the Government in view of the fact that the Government machinery moves a little slow is the ratio in the case of State of Haryana v. Chandra Mani and Ors., . But the question of granting marginal latitude to the State Government will arise only in a case whether the Court has a discretion to condone the delay and in the said process it can- exercise its discretion following the guidelines in Chandra Mani's case where the applicant is the State. But here beyond a certain time namely three months and thirty days, Court has no power to exercise its discretion in a matter of condonation of delay.
Therefore, the principle in Chandra Mani's case is clearly not attracted.
67. The opinion of the learned Judge that Court can apply the broad principles of law to a case regardless of the statutory enactment under which the principle has been enunciated is a proposition which is against the basic principle of construction and statutory Interpretation. It is not possible for this Court to accept the principles of condonation of delay under AA 40 or under other law as a binding precedent of the Interpretation of a totally different provisions of Section 34 of ACA 96. In fact a combined reading of the provisions of Section 34(3) with the proviso of ACA 96 and Section 29(2) of the Limitation Act makes the position so clear and enohatlc that the Court must give effect to the clear language of the statue and need not worry itself with broad principles decided in other cases under different statutory provisions. Lord Atkln's dictum in a situation like this is axiomatic. The learned Judge in Pakala Narayana Swamy v. Emperor, held at page 51 of the report.
68. "When the meaning of the words is plain, it is not the duty of Courts to busy themselves with supposed Intention."
69. In fact, it does not appear from the judgment in Sanjeeb Brothers that the learned Judge considered various sub-sections of Section 34 and specially the Import of the proviso to Sub-section 3 of Section 34 of ACA 96 along with Section 29(2) of Limitation Act while condoning the delay in the case of Sanjeeb Brothers.
70. Therefore, this Court has no hesitation in coming to the conclusion that the decision in Sanjeeb Brothers was rendered 'Per Incuriam'. A decision is rendered, 'Per Incuriam', when the Court either by ignorance or forgelfulness omitted to consider earlier decision on the point or the provisions of the governing statute (Morelle Ltd. v. Wakeling, reported in 1995(1) AER 708 at718). In the Instant case, the provisions of the governing statute unfortunately were not discussed in the judgment and the decision, with great respect, is erroneous.
71. Now the question is one of propriety and judicial discipline. Whether I can, as a Judge of a Co-ordinate Bench, differ with the judgment of another learned Judge of a Co-ordinate Bench. I am humbly of the view that if the Judge subsequently deciding similar questions is convinced that the earlier judgment of a Co-ordinate Bench is erroneous, the Judge is at liberty to respectfully differ from the earlier view taken by another learned Judge.
72. On this question of propriety and discipline if I may seek support from some judgment of ancient vintage rendered by Sir George Jessci, M.R. in Osborne v. Rowlett.
"When I first had the honour of sitting here, I used to think myself bound by any decision of a Vice-Chancellor that was twenty years old; but the Court of Appeal in one instance held that I was not so bound. 1 then reconsidered my position, and thought I was not bound by any decision of a Court of co-ordinate authority, accordingly I have since frequently declined to follow such authority."
[Section 1880 (13) Chancery 774]
73. In a later case, Gathercole v. Smith, the learned Master of the Rolls again took a similar view as follows:
"That the Court of queen's Bench, Common pleas and Exchequer followed each other's decision was a matter of courtesy. The Vice-Chancellors did not consider themselves bound by each other's decisions. I have differed frequently from Courts of co-ordinate Jurisdiction."
[See 17 Chancery 1]
74. Relying on those judgments Acting Chief Justice Asutosh Mookherjee, while presiding over a Division Bench of this Court in the case of Virjiban Dass Moolji v. Biseswar Lal Hargovind, reported in AIR 1921 Calcutta 169, elaborated those principles even further. At page 171 of the report the learned Judge explained the position so elegantly that I must quote it in some detail. The learned Judge said "No doubt, when a decision of a single Judge on the original Side of this Court is produced before another Judge, he is bound to treat it with respect, and ordinarily to follow it, if it is applicable to the circumstances of the case before him. But this does not imply that he cannot examine the matter and that it is not competent to him to take a contrary view, if he is convinced that the decision is erroneous.
The answer to the question, what regard is to be had to an earlier decision of a Court of co-ordinate jurisdiction, must depend upon a variety of circumstances. One important factor is the length of time during which it has stood unchallenged. Another factor, possibly of great importance, is whether the decision gives adequate reasons for the conclusion embodied therein. But the position is Indefensible on principle, that although a Judge may feel absolutely convinced that the decision produced before him is erroneous in law, he is still bound to decide against his own opinion. To take such a view is to hold that the Judge may be reduced to an automation by the production of an earlier judgment." [Underlined by Court]
75. Those incisive observations made by the learned Judge hold good still today and. In fact, have been followed by a rather recent Division Bench of this Court in the case of Pieco Electronics and Electricals Ltd. v. Tribani Devi, .
76. 'He knoweth not the law who knoweth not the reason thereof is certainly a saying which is relevant in the present context and may be kept in mind while construing the provisions of ACA 96.
77. It cannot be disputed that the provisions of ACA 96 in many significant areas have made a marked departure from the provisions of AA
40. The preamble to ACA 96 would show that the same is based on UNCITRAL model laws as in view of the globalisation of economy it was thought necessary to have a uniform model law to achieve 'uniformity of the law of arbitral procedures'. The recitals in the preamble truly reflect the statements of Objects and Reasons in the Arbitrator and Conciliation Bill 1995. One of the reasons for enacting ACA 96 is that it is widely felt that the 1940 Act, which contains the general law of arbitration has become outdated
78. Therefore, bill was introduced for enacting a complete code relating to law of arbitration both on the International and domestic level and in order to make it more 'responsive to contemporary requirement' so arbitration laws of our country do not remain 'out of tune' with wide ranging economic reforms.
79. In the statements of objects and reasons several objects of the bill have been put forward. But the one with which this Court is concerned now is Clause (V) of those objects. It is "to minimize the supervisory role of Courts in arbitral process".
80. Section 5 of ACA 96 quoted above, has been enacted to achieve the said object. This section is totally based on Article 5 of UNCITRAL model laws which is set out below:
"In matters governed by this law. no Court will intervene except where so provided in this law."
81. In view of this new feature of ACA 96, a desired balance has been struck between the Independence the arbitral process and power of Intervention granted to Court by the Act. The purpose of Section 5 of ACA 96 is thus to achieve a certainly to ensure minimum extent of judicial intervention and to inspire confidence in the minds of the parties on the autonomy of the arbitral process subject to the limited intervention of Courts provided under the Act.
82. Part 1 of ACA 96 contains 10 chapters in 43 Sections. Out of 43 Sections limited judicial intervention is only allowed in the following sections:
1. Section 8
2. Section 9
3. Section 11
4. Section 14
5. Section 27
6. Section 34
7. Section 37
8. Section 39
9. Section 41
10. Section 43.
83. It is thus clear and may be pointed out at the risk of repetition that provisions of ACA 96 are fundamentally different from those of AA 40. That is possibly why in Sundaram Finance Ltd. v. NEPC India Ltd., , the learned Judge in para 9 of the judgment held:
"The 1996 Act is very different from the Arbitration Act, 1940. The provisions of the Act have, therefore, to be interpreted and construed independently and in fact reference to 1940 Act may actually lead to misconstruction. In other words the provisions of 1996 Act have to be interpreted being uninfluenced by the principles underlying the 1940 Act. In order to get help in construing these provisions it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act."
84. Therefore, the ratio of the decisions on the issue of condonation of delay under AA 40 cannot apply to the present case.
85. In ACA 96. keeping in view the objective of Section 5 therein, the legislature has made its Intention amply clear in Section 34 which is in two parts, namely Sub-section (2) and (3). Section 34(1) provides that an arbitral award can be set aside only by an application in accordance with Sub-sections (2) and (3). So both the parts must be complied with.
86. Sub-section (2) of Section 34 deals with the substantive part namely the grounds for setting aside an award. Here also the expression used in Sub-section (2) is 'only if'. This expression has been deliberately used to narrow down the grounds. The Court is however not concerned with the grounds for setting aside award in this case.
87. The Court in this case is concerned with the procedural parl which is provided under Sub-section (3). The same intention of restricting Court's Interference beyond a maximum time fixed by the statute is expressed by the words 'but not thereafter'. So there can no doubt that the statutory intention has been articulated very categorically to the extent of 'expressly' excluding the provisions of Sections 4 to 24 of the Limitation Act. There can no doubt that 34(3) of ACA 96 is a Special Law providing for a period of limitation different from the one under the schedule to Limitation Act. In such a case Sections 4 to 24 of the Limitation Act can apply subject to an express exclusion by such special or local law. Here there is an express exclusion by the special law by the expression 'but not thereafter'.
88. By no method of reasoning the Court can or should ignore this express intention of the statute. If the Court, ignoring these statutory provisions, holds that on the strength of Section 5 of Limitation Act, Court can extend the period of limitation beyond the further period of thirty days' mentioned in the proviso to 34(3) of ACA 96, the Court will have to do 'complete violence' with the words of the statute. Thus a Court cannot do by ignoring the fetter on its power Imposed under a statutory provision.
89. So for the reasons aforesaid the Court follows the views taken by the Himachal Pradesh High Court in Rqjeev Sarda and also the views of Bombay High Court in Puspa P. Mulchandani. Unfortunately this Court, with great respect, cannot accept the views taken by a learned single judge of this Court in Sanjib Brothers.
90. This setting aside application having been filed beyond the period mentioned in 34(3) read with the proviso cannot be entertained by the Court and is dismissed.
There will be no order as to costs.
91. Application dismissed