Madhya Pradesh High Court
M.P. Poorv Kshetra Vidyut Vitran ... vs M/S Swastik Wires on 27 January, 2020
Author: Sujoy Paul
Bench: Sujoy Paul
A.A. No.79/2019
(1)
THE HIGH COURT OF MADHYA PRADESH
A.A. No.79/2019
(M.P. Poorv Kshetra Vidyut Vitran Co. Ltd. vs. M/s Swastik Wires and another)
Jabalpur, Dated: 27/01/2020
Shri Ankit Agrawal, Advocate for the appellants.
Shri Akhilesh Kumar Jain, Advocate for respondent
No.1.
Heard on IA No.11341/2019 for condonation of delay of 57 days.
2. At the outset, learned counsel for the respondents by placing reliance on the judgment of Supreme Court in Civil Appeal No.9244/2019 (M/s N.V. International Vs. State of Assam and others) urged that although no limitation is prescribed for an appeal to be preferred under Section 37 of Arbitration & Conciliation Act, 1996 (for short 'Arbitration Act'), as per this judgment, the limitation of appeal prescribed under Section 34 of the Act needs to be applied. Thus, the appeal must be filed within a maximum period of 120 days including the grace period of 30 days. In the instant case, the appeal is filed beyond the aforesaid maximum period and; therefore, IA may be dismissed.
3. Faced with this, learned counsel for the appellant placed heavy reliance on the three Judges' Bench judgment of Supreme Court reported in 2008 (7) SCC 169 (Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others). In the light of this judgment, it is urged that the Limitation Act, 1963 is applicable in the proceeding under Section 34 and 37 of the Act. This judgment A.A. No.79/2019 (2) is not taken note of by the Apex Court while passing the judgment of M/s N.V. International (Supra). In view of five Judges' Bench judgment of this Court in Jabalpur Bus Operators Association and others vs. State of M.P. and another, (2003) 1 MPHT 226, a previous Larger Bench decision will prevail over a subsequent decision of smaller strength. More so when previous judgment is not considered and taken note of in the subsequent judgment.
4. Shri Agrawal also placed reliance on a judgment of Bombay High Court reported in 2012 SCC OnLine Bom 1540 (Oil and Natural Gas Corporation Ltd. vs. Dynamic Corporation).
5. No other point is pressed by learned counsel for the parties.
6. We have heard the learned counsel for the parties at length and perused the record.
7. In Consolidated Engineering Enterprises(Supra), the issue which came up for consideration before the Supreme Court was whether the Limitation Act, 1963 is inapplicable to a proceeding to a Court under the Arbitration Act. In our view, Mr. Justice R.V. Raveendran opined that if Limitation Act is inapplicable to court proceedings under the said Act, there will be no limitation for filing an appeal under Section 37. If the Limitation Act is applicable, the period of limitation for appeals filed under Section 37 will be governed by Article 117 of the Schedule to the Limitation Act. After taking stock of well settled principle of law that the words "appeals" under the Code A.A. No.79/2019 (3) of Civil Procedure" occurring in Article 116 of the Schedule to the Limitation Act refer not only to appeals preferred under the CPC but also to appeals where the procedure for filing such appeals and the powers of the court for dealing with such appeals are governed by the Code. In the concurrent judgment, Mr. Justice Raveendran opined as under:
"The object of section 29(2) is to ensure that the principles contained in sections 4 to 24 of the Limitation Act apply to suits, appeals and applications filed in a Court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Limitation Act, except to the extent of express exclusion of the application of any or all of those provisions."
The Supreme Court held that the purpose of section 43(1) of the Arbitration and Conciliation Act, 1996 is not to make the Limitation Act inapplicable to proceedings before the Court but on the other hand to make the Limitation Act applicable to arbitrations. The Supreme Court has, hence laid down that the provisions of the Limitation Act, 1963 shall apply to all proceedings under the Arbitration and Conciliation Act, 1996 both in Court and in arbitration except to the extent expressly excluded by the provisions of the latter Act.
8. The Bombay High Court in Dinamic Corporation(Supra) opined as under:
7. In the judgment in ITI Ltd. v. Seimens Public Communications Network Ltd., (2002) 5 SCC 510 the Supreme Court held that an appeal under section 37(1) is not to any designated person but to a Civil Court and in such a situation the proceedings before A.A. No.79/2019 (4) the Court will have to be controlled by the provisions of the Code of Civil Procedure, 1908. The conferment of appellate power on the Civil Court under Part I of the Arbitration and Conciliation Act, 1996 would, it was held, also attract the provisions of the Code of Civil Procedure, 1908.
8. With great respect, the judgment of the learned Single Judge in Oil and Natural Gas Corporation Ltd. v. Jagson International Ltd. (supra) proceeds on an erroneous premise when the Court holds that since Parliament had provided a specified period of limitation in respect of certain provisions of the Arbitration and Conciliation Act, 1996, no limitation would be applicable in respect of those provisions where a period of limitation is not specifically prescribed. The view of the learned Single Judge overlooks both the provisions of section 43(1) of the Arbitration and Conciliation Act, 1996 and section 29 of the Limitation Act, 1963. Section 43(1) which lays down that the Limitation Act, 1963 shall apply to arbitrations as it applies to proceedings in Court has been specifically held to mean that the Limitation Act, 1963 would apply to all proceedings under the Act of 1996 both in Court and in arbitration except to the extent excluded by the latter Act. The learned Single Judge, with respect, overlooked the fundamental position that if an appeal is provided by the Arbitration and Conciliation Act, 1996 to a Court that will be governed by the Code of Civil Procedure, 1908.
9. Article 116 of the Schedule to the Limitation Act, 1963 provides a period of limitation of 90 days when an appeal is under the Code of Civil Procedure, 1908 to the High Court from any decree or order and a period of limitation of 30 days when an appeal is to any other Court from any decree or order. Under Article 117 when the decree or order is of the High Court and an appeal is filed to the same Court, the period of limitation is of 30 days. The expression "order" for the purpose of Articles 116 and 117 must receive a broad construction. In a judgment of the Constitution Bench of the Supreme Court in Jaswant Sugar Mills Ltd. v. Laxmi Chand, AIR 1963 SC 677 the Supreme Court while construing the expression "order" for the purposes of Article 136 observed that a determination or an order must be judicial or quasi-judicial. A determination is an effective A.A. No.79/2019 (5) expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The Supreme Court observed that the expression "order" must also have a similar meaning though it does not operate to end the dispute. A Division Bench of the Allahabad High Court in the State of U.P. v. Mahendra Pratap Timamah, AIR 1956 Allahabad 585 has similarly held that the term "order" is general and comprehensive enough to include all kinds of orders including a "formal order". This observation was made in the context of the provisions of the Limitation Act, 1908.
The same view has been taken by a Division Bench of the Andhra Pradesh High Court in Divisional Forest Officer v. District Officer, AIR 2002 AP 224 in holding that the term 'order' in legal parlance would always indicate some expression of opinion which is to be carried out or enforced.
10. For these reasons, we are of the view that the judgment of the learned Single Judge in Oil and Natural Gas Corporation Ltd. v. Jagson International Ltd. (supra) does not reflect the correct position in law. The Appeal filed by the Applicant against an order of the learned Single Judge allowing a Petition under section 34 and setting aside an arbitral Award would be governed by Article 117 of the Schedule to the Limitation Act. Though the appeal was filed beyond the period of limitation prescribed, we find from the Affidavit in support that sufficient cause has been shown for condoning the delay having regard to the fact that at the relevant time the judgment of the learned Single Judge in Oil and Natural Gas Corporation Ltd. v. Jagson International Ltd. (supra) held the field.
9. The three Judges' Bench judgment of Apex Court in Consolidated Engineering Enterprises(Supra) was not cited before the Apex Court in the case of M/s N.V. International (Supra) (by a Bench of two Hon'ble Judges).
10. In Jabalpur Bus Operator's case (Supra), a five Judges' Bench of this Court opined as under:
A.A. No.79/2019 (6)"In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of judges, decision of earlier Bench is binding unless explained by the later Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches."
In the light of this judgment of this Court, we find substance in the argument of Shri Ankit Agrawal that previous judgment in the case of Consolidated Engineering Enterprises(Supra) needs to be followed. Thus, we are unable to agree with the argument advanced by Shri Akhilesh Jain that appeal cannot be entertained beyond a period of 120 days from the date of judgment including the grace period of 30 days.
11. In IA No.11341/2019, the appellant has mentioned the reasons which caused delay. In the administrative set up, the file travels from various hands for the purpose of taking decision to file an appeal which consumes time. Thus, the delay is unintentional. In our view, delay caused because of administrative reasons. The appellant has shown sufficient cause for belatedly filing this appeal. Thus, we deem it proper to condone the delay and allow the I.A. We order accordingly.
12. List for admission alongwith A.A. No.55/2019.
(Sujoy Paul ) (Mohd. Fahim Anwar)
Judge Judge
YS/
Digitally signed by YOGESH KUMAR SHRIVASTAVA
Date: 2020.01.29 14:33:02 +05'30'