Bombay High Court
Mrs. Pushpa P. Mulchandani & Ors. (All ... vs Admiral Radhakrishin Tahilani (Retd.) ... on 15 September, 2000
Equivalent citations: 2001(2)ARBLR284(BOM), 2001(1)BOMCR592, (2001)1BOMLR169, 2000(4)MHLJ819
Author: B. N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B. N. Srikrishna, J.
1. This review petition has been taken out by the petitioners for review of the judgment and order dated 23rd April, 1999 by which the chamber summons was dismissed with regard to the prayer clause (a) as regards amendments indicated in paragraphs (i), (ii), (viii), (ix) and (x).
2. By the judgment and order dated April 23, 1999. I took the view that the application made for impleading one Haresh Melwani was liable to be rejected and also held that Section 21(1) of the Limitation Act, 1963 could not enlarge the power of the Court with regard to condonation of delay which was considerably whittled down under the Arbitration and Conciliation Act, 1996 ("1996 Act").
3. Mr. Bulchandani, learned counsel for the review petitioners, contends that Section 141 of the Civil Procedure Code ("C.P.C.") enjoins that the procedure provided in the Code with regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The only proceedings excepted by the explanation are proceedings under Article 226 of the Constitution. He contends that, in the absence of a specific exception as to the application of the provisions of the Civil Procedure Code, Order I Rule 10 of the Code would squarely apply to the proceedings before the Court under the 1996 Act and, consequently, the Court was fully empowered under sub-rule (2) of Rule 10 of Order 1 to implead any party whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
4. Mr. Bulchandani relied upon section 43 of the 1996 Act to contend that the Limitation Act, 1963 applies to arbitrations as it applies to proceedings in the Court. It is, therefore, contended that Article 137 of the Third Schedule of the Limitation Act, 1963 would govern the limitation with regard to applications for which no period of limitation is provided elsewhere in the third division to the Schedule to the Limitation Act, 1963. It is urged that as with regard to the application made for impleading Haresh Melwani as a party to the arbitration petition no specific period of limitation has been prescribed under the third division of the Schedule to the Limitation Act, 1963, the period of limitation would be the one provided by the residuary article (Article 137), which is a period of three years. It is urged that the chamber summons taken out was very much within three years and, therefore, no objection could have been taken by the respondents thereto. Reliance is also placed on section 21 of the Limitation Act, 1963 to contend that the effect contemplated by sub-section (1) thereto would apply, that the omission to make Haresh Melwani a party to the arbitration petition was a mistake made in good faith and that the Court should permit addition of the said Haresh Melwani as a party respondent to the arbitration petition. Once that is done, by virtue of the proviso to sub-section (1) of section 21, the petition shall be deemed to have been instituted, even as far as Haresh Melwani is concerned, on the date on which the petition was presented to the Court.
5. Reliance was placed by Mr. Bulchandani on section 85(2)(b) of the 1996 Act to urge that even though the Arbitration Act, 1940 ("1940 Act") stood repealed by the 1996 Act, all rules made under the said enactment shall, to the extent they are not repugnant to the provisions of 1996 Act, be deemed to have been made and issued under the 1996 Act. Mr. Bulchandani also placed reliance on rules 776 to 789 framed by this Court in Chapter XLI of the Rules of the High Court of Judicature at Bombay on the Original Side (hereinafter referred to as "O. S. Rules"). He particularly emphasised rule 789 of the O. S. Rules which provides that, in cases not provided for in the rules the provisions of the C.P.C., the rules of the Court in suits and matters on the original side of the Court shall, mutatis mutandis, apply to all proceedings before the Court and in case of inconsistency between the provisions of the Code and the rules of the Court, rules of the Court shall prevail.
6. The judgment of the Gulam Abbas and others v. Mulla Abdul Kadar, (dead) Through his executors and others, was cited for contending that this Court has wide discretion in the matter of reviewing its judgments.
7. Rabindra Nath Biswas v. General Manager, N. F. Rly. and others, was cited in support of the submission that if the omission to implead a party was due to a bona fide mistake, the proviso to section 21(1) of the Limitation Act, 1963 would apply and the impleading of such a party even after the expiry of period of limitation would be deemed to relate back to the original date of the filing of the suit.
8. The learned counsel relied on Motilal Chamaria v. Lal Chand Dugar, in support of his contentions. This was a case arising under the 1940 Act, and relying on the provisions of section 37(1) in the 1940 Act, it was held that the provisions of the Indian Limitation Act, 1908 would apply to arbitration as they apply to proceedings in the Court and that, arbitration proceedings having been placed on the same footing as proceedings in the Court, all the provisions including section 3 of the Limitation Act are attracted to arbitration proceedings. This judgment takes the view that even before the enactment of India Arbitration Act, 1940, the Judicial Committee of the Privy Council had held in Ramduit Ramkissen Dass v. E. D. Sassoon and Co., that although the Limitation Act did not apply in terms to Arbitrations, the Judicial Committee of the Privy Council thought that in mercantile references, of the kind in question, it is an implied term of the contract that the arbitrator must decide the dispute according to the existing law of the contract and that every defence which would have been available in a Court of law can be equally proponed for the Arbitrator's decision unless such defence has been excluded by agreement. The Privy Council pointed out that taking any other view would mean that a claim for a breach of contract, which occurred about 20 or 30 years ago, need also be adjudicated under the arbitration clause. Thus, the Privy Council applied by analogy the provisions of the Indian Limitation Act including section 14 thereof to arbitration proceedings. This view of the Privy Council was carried forward when the Indian Arbitration Act was enacted and embodied in section 37(1) of the Indian Arbitration Act, 1940.
9. Citing Mohd. Usman v. Union of India, read with The Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma, it is contended by Mr. Bulchandani that the changes brought about in the 1963 Limitation Act with regard to the definitions of the words "applicant" and "application" as contained in section 2(a) and 2(d) of the 1963 Limitation Act, and the fact that Article 137 stands in isolation from all other articles in Part I of the third division, indicate that the limitation provided in Article 137 would apply to all petitions even under any special Act. The Supreme Court in the Kerala State Electricity Board case (supra) differed from the view taken by it in its earlier decision in Nityananda M. Joshi v. Life Insurance Corporation of India, and held that the alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act showed that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. The words "any other application" under Article 137 cannot be said, on the principle of ejusdem generis, to be applications under the Civil Procedure Code other than those mentioned in Part I in the third division of the Schedule to the Limitation Act, 1963. The Supreme Court held that 'any other application' under Article 137 would be a petition or any other application under any Act but it has to be an application to Civil Court.
10. The judgment of learned Single Judge of this Court in Abdul Gani Sumar v. Reception Committee of the 48th Indian National Congress, is relied upon to urge that the provisions of Order 1 Rule 8 would apply to petition for setting aside an award under section 14 of the Arbitration Act. Similarly, it is urged that the provisions of Order 1 Rule 10 would apply here with equal force.
11. On the authority of Ramchandra Aggarwal and another v. State of Uttar Pradesh and another, it is contended that the Supreme Court has reiterated its earlier view in Munshi Ram v. Banwarilal, that the expression "civil proceeding" used in section 141 of the C.P.C. is not necessarily confined to an original proceeding like a suit, or an application, but that it applies also to other proceedings. In this judgment, the Supreme Court analysed the provisions of section 24(1)(b) of the C.P.C. and held that the sweep of Section 141 of the C.P.C. was wide enough to include other proceedings such as proceedings arising out of a reference under Section 146(1) of the Code of Criminal Procedure. Hence, it is contended that there is no manner of doubt whatsoever that section 141 of the C.P.C. would squarely apply to arbitration proceedings.
12. Bikram Singh and others v. Ram Baboo and others, and Vineet Kumar v. Mangal Sain Wadhera, are relied upon to contend that the Courts ought to be liberal in the matter of granting applications for amendments. It is contended that the chamber summons taken out for an application to implead Haresh Melwani was within the time limit prescribed by Article 137 of the Limitation Act, 1963, that it had to be granted since the omission to implead Haresh Melwani was due to a bona fide mistake on the part of the petitioners and further that, when granted, it would relate back to the date of the petition. It is further contended that in the order dated 23.4.1999 the Court has taken an unduly narrow and restricted view of the provisions of the 1996 Act, which would make it unworkable. Hence, Mr. Bulchandani contends that there is a good case for reviewing my previous order dated 23.4.1999 and for allowing the amendment sought for by the chamber summons which has been rejected under an erroneous view of the law.
13. Mr. Bulchandani placed reliance on Bastar Transport and Trading Co. Jagdalpur and another v. Court of Wards, Bastar and another, to contend that by virtue of section 141 of the Civil Procedure Code, arbitration proceedings will be governed by the Civil Procedure Code and under Order 1 Rule 10 of the C.P.C. the Court has ample power to add the name of any person who ought to have been joined either as petitioner or respondent and whose presence before the Court would be necessary to enable the Court to effectually and completely to adjudicate upon and settle all the questions involved in the suit.
14. In reply, Mr. Chagla cited the judgment of the Nagpur High Court in Kawalsingh Akbar v. Baldeosingh Akbar, which takes the view that an award is binding on the parties since it is the result of a solemn agreement which is binding on the parties and, if a party wishes to avoid the effect of the award, he must strictly comply with the provisions of law. The judgment noticed the case of Ebrahim Kassam v. Northern Indian Oil Industries Ltd., in which objection to the award was filed in time but the additional ground on which the award was sought to be set aside was taken after the period of limitation. The Court held that the application to take additional grounds should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. It was also held that section 5 of the Indian Limitation Act does not apply to the proceedings under the Arbitration Act and cannot, therefore, be invoked.
15. To similar effect are the observations of the Supreme Court in Bijendra Nath Srivastava (Dead) through LRs. v. Mayank Srivastav and others, where what was sought to be brought on record, for the first time, by way of amendment was an issue which was beyond the limitation. The Supreme Court held that such amendment could not be treated as one merely giving better particulars of what had been earlier pleaded in the original petition and, therefore, the amendment had to be rejected if it was beyond the period of limitation.
16. Respondents rely on Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, and contend that, though the question of impleadment of the party is to be decided on the touchstone of Order 1 Rule 10, which provides that the necessary and proper party may be added, in the light of the clear language of the rule, it is not open to the petitioner to contend that Haresh Melwani ought to be added only if his presence is necessary to enable the Court to decide the matter effectually. Mr. Chagla, learned Counsel for Respondents, pointed out that, even according to the petitioners, Haresh Melwani, though a party to the arbitration agreement dated 26.12.1996, is not a necessary party. The award confers no benefits on Haresh Melwani and Haresh Melwani would in no way be prejudiced or affected if the petition is allowed and the award is set aside. Even according to Mr. Bulchandani Haresh Melwani could be called a proper party, but not a necessary party. In the circumstances, Mr. Chagla contends, even assuming Order 1 Rule 10(2) applies to the proceedings, the Court ought not to exercise its discretion for the judgment of the Supreme Court in Ramesh Hirachand Kundanmal (supra) clearly holds that the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The person must be directly or legally interested in the answer in the action i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. He contends that even on the contention of Mr. Bulchandani, no such test is answered positively in favour of Haresh Melwani. Haresh Melwani's presence, even according to Mr. Bulchandani, would make no difference, nor would take away any benefits which may have accrued to him. In these circumstances, Mr. Chagla contends that the chamber summons has been rightly dismissed and there is no need for the order dated 23.4.1999 being reviewed.
17. All the judgments that Mr. Bulchandani relied upon pertain to the inter-play between the provisions of the Civil Procedure Code, Limitation Act, 1963 and the provisions of the 1940 Arbitration Act. The important question, however, is : Whether the same principles of law would hold good after the 1996 Act was brought into force? The answer to this question would resolve most of the doubts sought to be created by Mr. Bulchandani.
18. The Act of 1996 is to consolidate and amend the law relating to arbitration as indicated in the preamble of the Act. The Statement of Objects and Reasons given in the Arbitration and Conciliation Bill, 1995, makes it amply clear that the Act was intended to consolidate the law relating to arbitration and conciliation and model it in accordance with the recommendations of the United Nations Commission on International Trade Law's (UNCTRAL). Model Law on International Commercial Arbitration adopted in 1985. Paragraph 4 of the Statement of Objects and Reasons gives a list of nine objectives which are sought to be achieved by the Bill. A careful perusal of those objectives suggests that the intention appears to be to make the Arbitration Act of 1996 a self-contained Code without need to look elsewhere for dealing with the issues of arbitration and conciliation.
19. A significant fact which strikes one is that there is no section in the 1996 Act corresponding to Section 41 of the 1940 Act. The intention of the 1996 Act appears to be to steer clear of the earlier position, namely, that the provisions of the Code of Civil Procedure, 1908 would apply to all proceedings under the Arbitration Act subject to the provisions of the Act and Rules made thereunder. On the contrary, there is internal evidence in the 1996 Act which tends to suggest that the intention is to make it a self-contained Code. Reference may be made to Section 9 of the 1996 Act. Section 9 deals with the power of the Court to make interim measures for (i) appointment of a guardian pendente lite for a minor or a person of unsound mind (ii) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement, (iii) securing the amounts in dispute in the arbitration, (iv) the detention, preservation or inspection of any property or thing which is the subject-matter or the dispute in arbitration, or authorising for any of the said purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence, (v) issuing interim injunction, (vi) appointment of a Receiver, (vii) such other interim measure of protection as may appear to the Court to be just and convenient. In my view, these provisions in Section 9 indicate an intention on the part of the Legislature to make the 1996 Act a self-contained-self-operative Code with regard to the subject-matter of arbitration and conciliation. If the intention was to apply the provisions of the Code of Civil Procedure to arbitration under the 1996 Act, then there was no reason for the Legislature to specially enact section 9 in the 1996 Act dealing with the interim measures for all the said powers would have been available in the different orders in the Schedule to the Civil Procedure Code. I am thus fortified in my opinion that the 1996 Act is enacted to make the law a self-contained Code and that the provisions of the Civil Procedure Code are not applicable, unless specifically made applicable.
20. The necessary corollary of this conclusion would be that the rules made under the Arbitration Act, 1940 (i.e. Rules 772 to 789) of the High Court O. S. Rules would not have application to arbitrations under the 1996 Act. It is precisely for this reason that fresh rules 803A to 803F have been made by amendment in the High Court O. S. Rules. Reliance on Rule 803 by Mr. Bulchandani is of no avail for rule 803 does not apply to the proceedings under the 1996 Act. In fact, Note No. 1 of Rule 803F of the High Court O. S. Rules, is revealing as it states :-
"(1) Proceedings filed under the Repealed Acts and pending before the High Court (O. S.) shall be governed by the existing Rules i.e. Rules 772 to 803 of the High Court (O. S.) Rules.
The proceedings instituted under the Arbitration and Conciliation Act, 1996 shall be governed by the newly framed Rules i.e. Rules 803A to 803F of High Court (O. S.) Rules."
I am, therefore, of the view that the contention of Mr. Bulchandani that by virtue of Section 85(2)(b) of the 1996 Act all the rules made earlier, to the extent of non-repugnancy, would continue to apply to the proceedings under the 1996 Act, has no substance and must be rejected. In my considered view, after the coming into force of 1996 Act, in all proceedings governed by the 1996 Act, the provisions of the Civil Procedure Code would apply only to the extent specifically made applicable. The High Court has been invested the powers under section 82 of the 1996 Act to make rules consistent with this Act to all proceedings before the Court under the 1996 Act. When the High Court carried out this exercise it was quite cognizant of Chapter XLI of the High Court (O. S.) Rules containing rules 772 to 789 dealing with the arbitrations under the 1940 Act, and yet, a separate Chapter XLIII-A was added containing rules 803A to 803F to govern the proceedings under the 1996 Act and the note referred to hereinbefore was added. These circumstances preclude the contention of Mr. Bulchandani based on section 85(2)(b) of the 1996 Act being accepted. It is also significant that in the rules framed under the 1996 Act there is no rule corresponding or equivalent to rule 789.
21. The contention of Mr. Bulchandani based on section 21 of the Limitation Act also appears to be unsound. In the first place, Section 21 of the Limitation Act, 1963 applies to suits. In the Limitation Act, 1963, "suit" has been specifically defined in section 2(1) as not including an appeal or an application. Section 2(b) of the Limitation Act of 1963 defines the expression "application" as including a petition. Thus, on a conjoint reading of the Limitation Act, the 1996 Act and the rules made thereunder, I am of the view that the provisions of Section 21 would not apply to proceedings under the 1996 Act which are commenced by petitions which are excluded from the definition of 'suit' as defined under section 2(1).
22. Mr. Bulchandani relied on section 29 of the Limitation Act to contend that the provisions of sections 4 to 24 of the said Act would apply, unless expressly excluded, in all cases where any special or local law prescribes the period of limitation different from the one prescribed under the Limitation Act, 1963. He relied upon Article 119 in the third division, Part I of the Schedule to the Limitation Act, 1963 and contended that it is only under clauses (a) and (b) of Article 119 that the period of limitation for filing in the Courts of an award and for setting aside an award or getting an award referred to arbitration are indicated. According to him, the 1996 Act is a special law on the subject of arbitration and, insofar as the limitation for setting aside an award is concerned, section 34(3) prescribes a different period of limitation, namely, three months. Consequently, by virtue of section 29(2) of the Limitation Act, the provisions of sections 4 to 24 of the Limitation Act would apply since they are not expressly excluded by the 1996 Act. The contention undoubtedly is attractive, prima facie. But, upon critical examination, the contention breaks down. It is true that there is no provision in the 1996 Act which in express words declares sections 4 to 24 of the Limitation Act, 1963 as excluded from application to proceedings in arbitration and conciliation governed by the 1996 Act. But, as rightly contended by Shri Chagla, the exclusion need not be in so many words. The exclusion can also be a matter of direct implication from the law itself.
23. Mr. Chagla, cited the judgment of the Supreme Court in Ravula Subba Rao and others v. Commissioner of Income Tax, Madras, as an authority in support of the proposition canvased by him. In Ravulu Subba Rao and others (supra), the Supreme Court was concerned with the provisions of Income Tax Act, 1922. The Act provided that, in order to be eligible to the benefits of provisions 23(5)(a), a firm had to be registered under Section 26-A in accordance with the conditions laid down in that section and the rules framed thereunder. Rule 6 required that the application under section 26-A should be personally signed by the partner. It was contended before the Supreme Court that in common law what could be legally done by a person could always be done by an authorised agent and therefore, an application under section 26-A could be signed by an authorised agent or a power of attorney holder of the partner and there was no need for the partner to personally sign such an application. The maxim qui facit per alium facit per se was pressed into service. Rejecting this contention the Supreme Court held that the issue had to be decided by having regard not only to the language of section 26-A but also to the character of the legislation, the scheme of the Act and the nature of the right conferred by the scheme. The Supreme Court emphasised that, as declared in the preamble of the 1922 Act, the Act was one intended to consolidate and amend the law relating to income-tax and, therefore, the provisions of the Indian Income-Tax Act, 1922 had to be construed as forming a Code complete in itself and exhaustive of the matters dealt with therein. It is only on this basis that the true scope of section 26-A and the rules framed thereunder could be ascertained. It was pointed out that the registration under the Act conferred on the partners a benefit to which they would not have been entitled to but for section 26-A. Such a right being a creation of the statute could be claimed only in accordance with the statute which conferred it. A person who sought relief under section 26-A should bring himself strictly within its terms before he could claim the benefit under it. In other words, according to the Supreme Court, the right was regulated solely by the terms of the statute and it would be repugnant to the character of such a right to add to those terms by reference to other laws. The Supreme Court said, "The statute must be construed as exhaustive in regard to the conditions under which it can be claimed." On a conjoint consideration of the question with reference to the character of the legislation, the scheme of the statute and the nature of the right conferred by Section 26A, the Supreme Court held that the conclusion was irresistible that rules of common law allowing a person to act through a duly authorised agent were not intended to be saved, and that the right to apply for registration under that section was to be determined exclusively by reference to the prescriptions laid down therein.
24. In my order dated 23.4.1999, I had already highlighted the import of the words "but not thereafter" occurring at the end of the proviso to sub-section (3) of Section 34 of the 1996 Act. The Limitation Act, 1963 does not in terms prescribe any limitation for an application to set aside an award. This is obviously so for section 34 itself has prescribed the limitation in sub-section (3), the limitation being a period of three months from the date on which the party making that application had received the arbitral award, or if a request has been made under section 33, from the date on which such a request has been disposed of by the Arbitral Tribunal. The proviso to sub-section (3) enables the Court to entertain such an application if satisfied that the applicant was prevented by sufficient cause from making the application, but provides that such an application can be entertained only within a further period of 30 days, but not thereafter. The intention of the Legislature is obvious. As I have already held by my previous order dated 23.4.1999 the intention is to expedite arbitration proceedings. The Legislature has, therefore, provided in clear terms that after a period of three months and 30 days, the Court has no power to condone the delay in the presentation of the application. This, in my opinion, is a clear indication of the intention of the Legislature to exclude the provisions of sections 4 to 24 of the Limitation Act, 1963.
25. Mr. Bulchandani, contended that under section 29(2), the intention to exclude the provisions of sections 4 to 24 of the Limitation Act, 1963 can be gathered only if there were express words of exclusion. Since there are no express words of exclusion. Mr. Bulchandani contends that the provisions of sections 4 to 24 of the Limitation Act, 1963 would continue to apply. The judgment of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, and Mohd., Ashfaq v. State Transport Appellate Tribunal U. P. and others, provide a clear answer to the contention.
26. In Hukumdev Narain Yadav's case (supra) the Supreme Court was concerned with an election petition under section 81 of the Representation of People Act, 1951. The issue was whether a petition which could not have been filed on a particular day because the Court was closed on that day and filed on the next day was barred by limitation. The Supreme Court in its judgment categorically rejected the identical contention saying :-
"....... It is contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
Again, the Supreme Court says vide paragraph 18 :
"It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29(2) of the Limitation Act says, because it provides that Sections 4 to 24 (inclusive) shall apply only so far as, and to the extend to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law ..... The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petition and their trial to ascertain whether it is a complete Code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Sec. 29(2) of the Act."
The Supreme Court took the view that the Representation of People Act was a self-contained Code and, therefore, the provisions of section 5 of the Limitation Act did not govern the filing of the election petition and the appeal and sections 4 to 24 of the Limitation Act were excluded from application.
27. In Mohd. Ashfadq (supra), the Supreme Court was concerned with the interpretation of section 58 of the Motor Vehicles Act, 1939. This section provided that a motor vehicle permit could be renewed on an application provided the application for renewal was made, (a) in case of a stage carriage permit or a public carrier's permit, not less than one hundred and twenty days before the date of its expiry; and, (b) in any other case, not less than sixty days before the date of its expiry. Sub-section (3) of the Act provided. "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." It was contended before the Supreme Court that by virtue of section 29(2) read with section 5 of the Limitation Act, the Regional Transport Authority had discretion to condone the delay in making an application for permit even if it was done beyond the period prescribed in section 58 as long as there was good cause for it. The Supreme Court repelled the contention and pointed out that section 58(3) granted only a restricted discretion to the Regional Transport Authority to entertain an application for renewal made beyond the prescribed time limit as long as it was within 15 days from the expiry of such period, provided there was sufficient cause for the delay. Interpreting the section, the Supreme Court was of the view that if the application for renewing the permit was made beyond time by more than 15 days, the Regional Transport Authority was not entitled to entertain it or in other words it shall have no power to condone the delay. The Supreme Court said, "delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days." The Court pointed out that even though provision may seem harsh, it had been deliberately so made by the Legislature taking into account the nature of the application and the consequences that would arise if such applications were inordinately delayed.
28. Upon a conspectus, I am of the view that there is no substance in the contention of Mr. Bulchandani. Notwithstanding that the 1996 Act contains no specific words of exclusion, an examination of the scheme of the Act would suggest that the intention is to exclude the application of the provisions of sections 4 to 24 of the Limitation Act. This is clearly evidenced by the words "but not thereafter" used at the end of the proviso to sub-section (3) of section 34.
29. Mr. Chagla further contended that an application for setting aside the award under section 34 of the 1996 Act has to be made within the limitation prescribed by the Act. This necessarily means that all grounds on which the award is sought to be set aside have to be taken in the petition itself. It is, therefore, not permissible for the Court to permit an amendment of the petition, that too after the period of limitation prescribed in the section has expired. That would tantamount to entertaining a fresh petition beyond the period of limitation. Madan Lal (dead) by his legal representative v. Sunder Lal and another, is pressed into service in support of the proposition that an objection to the award which has been filed after the period of limitation cannot be treated as an application to set aside the award if it is filed beyond limitation. The contention is justified and needs to be upheld.
30. Upon careful consideration, I am of the view that there is neither need nor scope for reviewing the order dated 23.4.1999 already made by me. Even after carefully considering the additional contentions urged by Mr. Bulchandani, I am not persuaded to hold that there is any case made out for review. Hence, the Review Petition is without substance and must fall. It is hereby dismissed.
31. The petitioners to pay a sum of Rs. 1000/- to each of the respondents as costs.