Madras High Court
The State Of Tamil Nadu vs E.R.Sundaram on 8 July, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/07/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.R.P.(NPD)(MD) No.149 of 2009 and M.P(MD). Nos.1 and 2 of 2009 1.The State of Tamil Nadu Rep. by the Superintending Engineer, Public Works Department/W.R.O., Periyar Vaigai Basin Circle, 46, North Chithirai Street, Madurai. 2.The Executive Engineer, Public Works Department/W.R.O., Periyar Dam Special Division, Cumbum - 625 616. ... Petitioners vs. E.R.Sundaram ... Respondent PRAYER Civil Revision Petition filed under Article 227 of Constitution of India, against the order dated 06.07.2007 passed in S.R.No.2700 filed on 24.03.2006 in Unnumbered Arb.O.P.No. /2006 on the file of the Principal Sub Court, Madurai. !For Petitioners ... Mr.S.Ramasamy Additional Advocate General ^For Respondent ... Mr.S.Alagarsamy * * * * * :JUDGMENT
The revision has been filed against the judgment and decree in unnumbered Arb.O.P in SR.No.2700/ dated 24.03.2006 whereby the application filed by the petitioners has been dismissed as not maintainable.
2. The brief facts of the case are as follows:
Originally the petitioners herein filed an application before the Sub Court, Madurai challenging the award of the arbitrator dated 19.01.1998. The said Arb.O.P. filed in O.P.22 of 1998 was dismissed by the Principal Sub Court, Madurai and challenging the same an appeal was filed in C.M.A. No.1468 of 2001. The Hon'ble High Court has dismissed the said appeal by holding that the application filed in O.P. No.22 of 1998 before the Principal Sub Court, Madurai is not maintainable and thereby giving liberty to the petitioners to workout their remedy by filing application before the appropriate Court.
3. Thereafter, an application was filed on 24.03.2006 before the District Court, Madurai seeking to set aside the arbitration award. However the said application was dismissed by the Court below by holding that since Section 5 of the Limitation Act, 1963 is not applicable to the arbitration proceedings and the petition having been filed beyond the statutory period the same is not maintainable. Challenging the same, the present revision has been filed.
4. The Learned Additional Advocate General appearing for the petitioners submitted that it is no doubt true that Section 5 of the Limitation Act, 1963 is not applicable to the arbitration proceedings as held by the Hon'ble Supreme Court in the judgment reported in 2001 8 SCC 470 (Union of India vs. Popular Construction Co.). However, the learned Additional Advocate General further submitted that the Court below has not considered the applicability of section 14 of the Limitation Act, 1963 which provides that the period for which a party pursued wrong forum will have to be excluded. The Learned Additional Advocate General has relied upon the judgments reported in 2006 6 SCC 239 (State of Goa vs. Western Builders) and 2008 7 SCC 169 (Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others with Hatti Gold Mines Company Limited vs. Vinay Heavy Equipments) in support of his contention and argued that under those circumstances, the Court below will have to be directed to consider the applicability of Section 14 of the Limitation Act, 1963.
5. On the contrary, the learned counsel appearing the respondent submitted that the dispute has reached finality and the Hon'ble Supreme Court has clearly held that the petitioners are liable to deposit the interest at 18% p.a. before the execution Court. He further submitted that the respondent was also permitted to file a petition for withdrawal in pursuant to such deposit. Hence the learned counsel for the respondent submitted that the revision will have to be dismissed. I have considered the arguments by the learned Additional Advocate General appearing for the petitioners as well as the learned counsel for the respondent.
6. As rightly contended by the learned Additional Advocate General, the Court below has dismissed the application without even affording an opportunity to satisfy the Court about the applicability of Section 14 of the Limitation Act, 1963. It is no doubt true that Section 5 of the Limitation Act, 1963 would not be applicable to the arbitration proceedings. However in the present case the petitioners have approached the wrong forum in filing the petition before the Sub Court and thereafter filing the same before the Hon'ble High Court. Therefore, the question regarding the applicability of Section 14 of the Limitation Act, 1963 will have to be gone into. It is also seen that the judgment relied upon by the learned Additional Advocate General would clearly establish a fact that Section 14 of the Limitation Act is applicable to the arbitration proceedings. The question whether the said judgments are applicable to the present case and the further question as to whether the delay will have to be condoned or not will have to be seen on the facts of the case. Since the Court below has not considered this fact, this Court is of the opinion that the order of the Court below is liable to be set aside and the case is remanded to the Court below to decide the issue affresh in the light of the Section 14 of the Limitation Act, 1963. The Court below is directed to issue notice to the respondent and hear his objections before deciding the same. The Court below is directed to fix the date of hearing on 28.07.2009. The office is directed to send the copy of this order to the Trial Court immediately With this observation, the revision is dismissed. No costs. Consequently the connected miscellaneous petitions are closed.
cs To The Principal Sub Court, Madurai.