Rajasthan High Court - Jodhpur
M/S Arihant Trading Company vs Arb. Cum Regi., Co. Society, & Anr on 28 August, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 346 / 2017
M/s. Arihant Trading Company, Through Partner/manager Hastimal
Choudhary S/o Guneshlal, R/o Bhilwara Raod, Gulabpura, District-
Bhilwara (raj.)
----Appellant
Versus
1. Arbitrator Cum Registrar, Co-operative Society, Rajasthan,
R/o Nehru Sahkar Bhawan, 22- Godown, Circle, Jaipur.
2. Rajasthan State Co- Operative Spinning & Ginning Mills
Federation Ltd., R/o Nehru Sahkar Bhawan, 22- Godown, Circle,
Jaipur.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Sandeep Saruparia.
For Respondent(s) : Mr. C.P. Trivedi.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment Reportable 28/08/2017 This appeal is directed against the order dated 1.9.2016 passed by the Additional District Judge No.1, Bhilwara ('the trial court'), whereby, the application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act'), has been rejected as barred by limitation.
On a dispute between having arisen between the appellant - Firm and Rajasthan State Co-operative Spinning & Ginning Mills Federation Ltd. ('the Federation'), the matter was referred to Arbitrator, who delivered his award on 23.12.2008.
Feeling aggrieved, the appellant- Firm filed appeal before the Rajasthan State Co-operative Tribunal, Jaipur ('the Tribunal') on 13.1.2009.
(3 of 6) [CMA-346/2017] As the Tribunal was not constituted a writ petition against the award dated 23.12.2008, was filed before the Bench at Jaipur on 11.3.2009. Whereafter, the said writ petition was withdrawn on 29.10.2009 and the proceedings before the Tribunal were also withdrawn on 27.11.2009.
After withdrawing the proceedings filed before the Tribunal as well as the High Court, the present application under Section 34 of the Act, were filed on 02.01.2010.
Alongwith the application another application under Section 5, 12 and 29 of the Limitation Act, 1963, ('the Limitation Act') was filed seeking condonation of delay/exclusion of time in filing the application under Section 34 of the Act.
The applications were opposed by the Federation by filing reply.
The trial court after hearing the parties came to the conclusion that under provisions of Section 34(3) of the Act, the limitation provided is three months, as per proviso to Section 34(3) of the Act, the maximum period for which the delay can be condoned, is 30 days, provisions of Section 5 of the Limitation Act are not applicable and consequently, dismissed the application filed by the appellant seeking condonation of delay/ exclusion of time.
It is submitted by learned counsel for the appellant that the trial court dismissed the application primarily on the ground that provisions of Section 5 of the Limitation Act are not applicable to an application under Section 34 of the Act, no affidavit of any counsel was filed and no bonafide reason has been indicated for (4 of 6) [CMA-346/2017] seeking condonation of delay. It is submitted that the finding recorded by the trial court regarding non-applicability of the provisions of Section 5 of the Limitation Act, may be justified in view of judgment of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Company:2001(8) SCC 470, however, the trial court has not considered the application in terms of provisions of Section 14 of the Limitation Act, which provisions are clearly attracted in the present case and reliance was placed on the law laid down by Hon'ble Supreme Court in the case of State of Goa v. Western Builders : 2006(6) SCC 239 and Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors.: 2008 (7) SCC 169.
It was submitted that if the time spent by the appellant in wrongly prosecuting the remedy before the Tribunal/ High Court is excluded, the application would be within limitation as the application has been filed within 3 months as prescribed by provisions of Section 34(3) of the Act and, therefore, the order impugned passed by the trial court deserves to be set aside.
Learned counsel appearing for the Federation supported the order impugned. It was submitted that trial court was justified in rejecting the application filed by the appellant as admittedly application was filed under Section 5 of the Limitation Act, which has no application to the provisions of Section 34 of the Act and that the reasons indicated for exclusion of time also are apparently not bonafide and, therefore, the appeal filed by the appellant deserves to be dismissed.
I have considered the submissions made by learned counsel (5 of 6) [CMA-346/2017] for the parties and have perused the material available on record.
So far as the applicability of provisions of Limitation Act are concerned, the provisions of Section 5 of the Limitation Act, have been held to be inapplicable beyond the period of 30 days after the limitation as prescribed under Section 34(3) of the Act expires as laid down by Hon'ble Supreme Court in the case of Popular Construction Company (supra), however, the law as laid down regarding Section 5 cannot be ipso facto made applicable for the purpose of applicability of Section 14 of the Limitation Act.
Section 14 of the Limitation Act provides for exclusion of time spent in proceedings bonafide in Court without jurisdiction. Hon'ble Supreme Court in the case of Western Builders (supra) while dealing with the subject-matter inter alia laid down as under:-
"26. As a result of the above discussion we are of the opinion that the view taken by the court below excluding the applicability of Section 14 in this proceeding is not correct. We hold that Section 14 of the Limitation Act, 1963 is applicable to the Arbitration and Conciliation Act, 1996. We set aside all the judgments/orders and remand all these cases back to the trial court/District Court for deciding the application under Section 14 of the Limitation Act on merit after hearing both the parties and in case the delay is condoned then the case should be decided on merits after hearing all the parties concerned. All the appeals are allowed."
Again in the case of Consolidated Engineering Enterprises (supra), the principle laid down in the case of Western Builders (supra) was reiterated and the requirements for exclusion of time under Section 14 of the Limitation Act, have been explained in detail.
(6 of 6) [CMA-346/2017] In view of the law expressly laid down by Hon'ble Supreme Court, it is now well settled that provisions of Section 14 of the Limitation Act, are applicable to applications under Section 34 of the Act.
In the present case, the trial court, while deciding the application filed by the appellant though titled besides under Section 5, under Section 14 and 29 of the Limitation Act as well, has not dealt with the required aspect of the matter as to whether the appellant was entitled to exclusion of time spent before Tribunal/High Court under Section 14 of the Limitation Act, whether the proceedings contested by him before the Tribunal/ High Court were bonafide and were prosecuted with due diligence. In view thereof, the order passed by the trial court cannot be sustained.
Consequently, the appeal filed by the appellant is allowed, the order dated 1.9.2016 passed by the trial court is set aside and the matter is remanded back to the trial court to hear and decide the application filed by the appellant under Section 14 of the Limitation Act in terms of the parameters laid down by Hon'ble Supreme Court in the case of Popular Construction Company (supra).
The parties shall appear before the trial court on 11.9.2017. The trial court is directed to deal with the matter as expeditiously as possible.
(ARUN BHANSALI) J.
Sumit-116