Andhra HC (Pre-Telangana)
M/S Hyderabad Precision Mfg. Co. Pvt. ... vs 1.The Union Of India,Rep. By The Senior ... on 9 April, 2018
Author: T.Amarnath Goud
Bench: T.Amarnath Goud
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE T.AMARNATH GOUD
Civil Revision Petition No.4295 of 2017
09-04-2018
M/s Hyderabad Precision Mfg. Co. Pvt. Ltd., Hyderabad, Rep. by its Managing Director Revision Petitioner/Respondent No.1/Cl
1.The Union of India,Rep. by the Senior General Manager, Ordnance Factory Khamaria, O.F.K. Estate, Jabalpur, Madhya Pradesh
(R.2 not necessary) Respondents/Petitioner/Arbitrator
Counsel for Petitioner: Smt. N.Sasikala
Counsel for Respondent No.1:Mr. K.Lakshman,
Asst. Solicitor General
Counsel for Respondent No.2: ---
<Gist:
>Head Note:
? Cases referred:
1. Civil Appeal No.3313/2018, decided on 27-3-2018.
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE T.AMARNATH GOUD
Civil Revision Petition No.4295 of 2017
Order: (per V.Ramasubramanian, J.)
Aggrieved by the order of the Principal District Court,
Ranga Reddy, condoning the delay of 21 days in filing the
main petition under Section 34 of the Arbitration and
Conciliation Act, 1996, the award-holder has come up with
the above civil revision petition.
2. Heard Smt. N.Sasikala, learned counsel for the
petitioner. Mr. K.Lakshman, learned Assistant Solicitor
General of India, takes notice for the 1st respondent-Union of
India. The 2nd respondent was the sole Arbitrator and hence
notice to him is dispensed with.
3. In relation to the sale and supply of Fuse Empty for
23 mm Schilka Ammunition, made by the petitioner to the
Ordnance Factory of the Union of India, a dispute arose and
the matter was referred to arbitration by a sole Arbitrator.
The Joint Secretary to Government in the Department of
Public Enterprises was nominated as the sole Arbitrator.
However, the petitioner herein filed an application before this
Court under Section 11. The said application was allowed and
the 2nd respondent herein was appointed as the sole
Arbitrator.
4. The Arbitrator passed an award dated 22-10-2014
directing the Union of India to pay a sum of Rs.1,40,77,390/-
towards the price of the goods sold and delivered, together
with a sum of Rs.80,00,650/- towards interest up to the date
of the award and a sum of Rs.3,00,000/- towards costs.
Future interest was also awarded at the rate of 12% per
annum from the date of the award.
5. Claiming that the signed copy of the award passed on
22-10-2014 was received by them on 30-10-2014, the Union
of India filed an application in M.J.C.No.319/2014 on the file
of the X Additional District Judge at Jabalpur, Madhya
Pradesh, on 28-11-2014.
6. The petitioner herein objected to the jurisdiction of
the Jabalpur Court and hence the Union of India withdrew
the original petition with permission to file a fresh petition
before the competent Court at Hyderabad. The permission to
withdraw with liberty, was granted on 29-01-2016 and the
certified copy of the said order was delivered on 10-02-2016.
7. On 30-4-2016, the Union of India filed a fresh
petition in Arbitration O.P.(SR) No.8644/2016, on the file of
the Principal District Court, Ranga Reddy District, along with
an application in I.A.No.1490/2016 to condone the delay of
21 days in filing the O.P. This application was allowed by the
Court below, forcing the petitioner to come up with the above
revision.
8. The main contentions of the learned counsel for the
petitioner are:
(i) that the actual delay in filing a petition under
Section 34 was not 21 days, but beyond the condonable
period of 30 days under the proviso to
sub-section (3) of Section 34,
(ii) that at any rate, the District Court at Ranga Reddy
does not have jurisdiction to entertain a petition under
Section 34 and
(iii) that in any case, even the delay of 21 days was not
properly explained.
9. We have carefully considered the aforesaid
contentions.
10. There are no disputes with regard to the timeline of
events, which is as follows:
(i) The award was passed on 22-10-2014.
(ii) The signed copy of the award was received on
30-10-2014.
(iii) An original petition under Section 34 was presented
before the District Court, Jabalpur, on 28-11-2014, well
within the period of limitation prescribed for filing
an application under Section 34.
(iv) On 29-01-2016, the Union of India was permitted by
the Court at Jabalpur to withdraw the original petition with
liberty to present the petition in the competent Court at
Hyderabad.
(v) On 30-4-2016, the Union of India filed the original
petition before the District Court, Ranga Reddy District.
11. The limitation for filing a petition under Section 34
is 3 months and the Court has the power to condone the
delay up to 30 days. Very recently, the Supreme Court
reiterated in Anilkumar Jinabhai Patel v. Pravinchandra
Jinabhai Patel , that the period of limitation prescribed
under Section 34(3) would commence only from the date of
delivery of the signed copy of the award, to the party making
the application for setting it aside. Therefore, there cannot be
a dispute about the fact that the limitation for filing a petition
under Section 34 would commence only on 30-10-2014, the
date on which the Union of India received a signed copy of the
award dated 22-10-2014.
12. In any case, there is no dispute about the fact that
the Union of India filed a petition under Section 34 before the
District Court at Jabalpur on 28-11-2014, which was well
within the period of limitation, both from the date of the
award and from the date of delivery of the signed copy of the
award. Therefore, the stop-clock stopped running on
28-11-2014.
13. However, on an objection raised by the petitioner
herein with regard to territorial jurisdiction, which was also
sustained by the District Court, Jabalpur, the Union of India
sought permission to withdraw the petition with liberty to
present it before the Court having jurisdiction. This
application for withdrawal with liberty was allowed on
29-01-2016. The certified copy of the said order was made
available on 10-02-2016.
14. Therefore, the question that would fall for
consideration is as to what happens to the period from
28-11-2014 to 10-02-2016. If this period from 28-11-2014 to
10-02-2016 is excluded, then the period of limitation may
have to be calculated in the following manner:
(i) Date of receipt of the signed copy of the award: 30-10-2014
(ii) Date of filing of the petition before the
Jabalpur Court: 28-11-2014
(iii) Number of days from 30-10-2014 to 28-11-2014: 29 days
(iv) Date of receipt of the certified copy of the
order of the Jabalpur Court: 10-02-2016
(v) Date of filing of O.P. before the District Court,
Ranga Reddy District: 30-4-2016
(vi) Number of days from 10-02-2016 to 30-4-2016: 80 days
(vii) Therefore, the number of days taken to
file the O.P. [Col.No.(iii)+Col.No.(vi) [80+29]: 109 days
(viii) The limitation for filing O.P.: 90 days
(ix) Therefore, delay in filing [109-90]: 19 days
15. The contention of the learned counsel for the
petitioner is that when the mistake was on the part of the
Union of India in filing a petition under Section 34 before
a Court which did not have jurisdiction, the Union of India
was not entitled to wait for the receipt of the certified copy of
the order of the Jabalpur Court dated 29-01-2016. Therefore,
according to the learned counsel for the petitioner, the period
from 29-01-2016 up to 10-02-2016 should not have been
excluded. If this period of 12 days from 29-01-2016 to
10-02-2016 is included in the total number of days, then the
Union of India will be guilty of presenting the original petition
before the Ranga Reddy District Court only on the 121st day
(109+12). A delay beyond 30 days cannot be condoned and
hence the presentation of the petition after the 120th day,
according to the learned counsel for the petitioner, made the
petition liable to be rejected.
16. But we do not think so. Though an Arbitral
Tribunal, is not bound, in the light of Section 19(1) of the Act,
by the Code of Civil Procedure or the Indian Evidence Act,
1872, the provisions of the Limitation Act, 1963 apply to
arbitrations as they apply to proceedings in Court. This is by
virtue of Section 43(1) of the Act.
17. By virtue of Section 12(2) of the Limitation Act,
1963, the day on which the judgment complained of was
pronounced and the time requisite for obtaining a copy of the
decree or order appealed from, is to be excluded while
computing the period of limitation. Similarly, under
Section 12(3) of the Limitation Act, the time requisite for
obtaining a copy of the judgment shall also be excluded,
where a decree or order is appealed from or sought to be
revised or reviewed. Therefore, on the analogy of
sub-sections (2) and (3) of Section 12, the Union of India was
justified in seeking the exclusion of the period from
29-01-2016 to 10-02-2016.
18. Similarly;, Section 14 of the Limitation Act, 1963
excludes the time during which a plaintiff or an applicant has
been prosecuting with due diligence, another civil proceeding,
whether in a Court of first instance or of appeal or revision,
where such proceeding is prosecuted in good faith, in a Court,
which from defect of jurisdiction is unable to entertain it.
19. As a matter of fact, the proper procedure that ought
to have been followed by the Jabalpur Court was to return the
application filed by the Union of India under Section 34 to
enable them to represent it in the Court having jurisdiction.
If this procedure had been adopted by the District Court,
Jabalpur, the Court would have taken recourse to Order VII,
Rule 10 CPC. In such an event, the Union of India would have
been granted a specific period of time, say ten days or two
weeks for presentation of the petition before the appropriate
Court having jurisdiction.
20. It must be remembered that an application under
Section 34 is to be accompanied by a signed copy of the
award. The signed copy of the award was with the District
Court, Jabalpur till 29-01-2016. Therefore, unless and until
the certified copy of the order dated 29-01-2016 along with
the original records had been returned to the Union of India,
they could not have presented a fresh petition under Section
34 before the jurisdictional Court. It is the stand taken by the
Union of India that the original petition, the signed copy of
the award and order dated 29-01-2016 were delivered to them
only on 10-02-2016. Therefore, the contention that the Union
of India ought to have filed the original petition under
Section 34 in a Court at Hyderabad on 30-01-2016 itself,
does not merit acceptance. The Union of India was right in
seeking to exclude the period from 29-01-2016 up to
10-02-2016 while computing the period of limitation. Hence,
the first contention of the petitioner is rejected.
21. The second contention of the petitioner is that it is
only the Principal District Court in Hyderabad and not the
District Court in Ranga Reddy District that had jurisdiction to
entertain the petition under Section 34. This contention is
primarily based upon the Affidavit filed by the Union of India
before the Court in Jabalpur. In the Affidavit filed before the
Court in Jabalpur seeking withdrawal of the petition under
Section 34, the Union of India stated that they had no
objection with regard to the contention that the Courts in
Hyderabad alone have jurisdiction. Therefore, it is contended
by the learned counsel for the petitioner that the District
Court at Ranga Reddy District did not have jurisdiction to
entertain the petition under Section 34.
22. But it is contended by Mr. K.Lakshman, learned
Assistant Solicitor General, that the entire cause of action
arose within the jurisdiction of the District Court, Ranga
Reddy District and that the petitioner herein is also located in
Ranga Reddy District within the jurisdiction of the District
Court at Ranga Reddy District.
23. But unfortunately, neither of the parties produced,
either before the District Court at Ranga Reddy or before this
Court, a copy of the Arbitration Agreement. From the material
available on record, the only thing that could be gathered is
that in terms of the Arbitration Agreement, the Union of India
appointed a Joint Secretary to Government in the Department
of Public Enterprises as the sole Arbitrator. But the petitioner
herein moved an application before this Court under
Section 11 and got the 2nd respondent appointed.
24. Though in view of Section 42, only the Court to
which an application under Part-1 had been moved alone will
have jurisdiction over the arbitral proceedings and all
subsequent applications arising out of that agreement, the
High Court of Judicature at Hyderabad does not have original
jurisdiction to entertain an application under Section 34.
Therefore, the parties are obliged to move the application
under Section 34 only before the Principal Civil Court of
original jurisdiction of the District having jurisdiction to
decide the questions forming the subject matter of the
arbitration, if the same had been the subject matter of a suit.
If this principle that could be culled out from the definition of
the word Court under Section 2(1)(e) is applied, the Union of
India was right in moving the application before the District
Court at Ranga Reddy. Section 42 will have no application, in
the sense that the Principal City Civil Court, Hyderabad,
cannot be taken to be the Court where the first application
was filed. The first application was filed under Section 11(6)
before the High Court. Hence, the second contention of the
learned counsel for the petitioner also does not merit
acceptance.
25. The third contention of the learned counsel for the
petitioner is that even the delay of 21 days is not properly
explained.
26. But we do not think so. The present revision is filed
under Article 227 of the Constitution of India. The jurisdiction
of this Court under Article 227 is more restricted than its
revisional jurisdiction under Section 115 CPC. Therefore,
we do not wish to interfere with the exercise of jurisdiction by
the Court below in condoning the delay of just 21 days.
Hence, the civil revision petition is liable to be dismissed,
accordingly, it is dismissed. The miscellaneous petitions,
if any, pending in this revision shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
________________________ T.AMARNATH GOUD, J. 09th April, 2018.