Rajasthan High Court - Jaipur
State vs M/S Anand Enterprises on 9 September, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1352/2002
The State of Rajasthan, through Executive Engineer, Public Works
Department, Division Baran (Raj.)
----Appellant/Non-Claimant
Versus
M/s Anand Enterprises, House No. B 226 Civil Lines, Kota (Raj.)
----Respondent/Claimant
For Appellant(s) : Dr. V.B. Sharma
Ms. Charvi Patni
For Respondent(s) : Mr. S.C. Mittal
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Judgment
09/09/2022
Reportable
Instant appeal has been preferred by the appellant-State under Section 39 of the Arbitration Act, 1940 (for short 'the Act of 1940') against the impugned order dated 20.03.2002 passed by the Court of learned Additional District Judge No.2, Kota (Raj.) (for short 'the court below') by which the time barred objections filed by the appellant-State were rejected and award dated 22.04.1997 was made the rule of the court.
Brief facts of this case are that a tender for construction of jail building was allotted to the respondent under contract agreement No. 46/86-87 and the work was to commence from 08.10.1986 which was supposed to be completed on 07.10.1988. Certain disputes and differences arose between the parties with (Downloaded on 25/12/2022 at 07:36:43 AM) (2 of 12) [CMA-1352/2002] regard to the contract work, hence, the matter was referred to the Sole Arbitrator.
After hearing both the sides and appreciating the documents and evidence available on the record, the Sole Arbitrator passed an award on 22.04.1997.
After passing of the award, the matter was presented before the Court of learned Additional District Judge No.2, Kota for making the award as the rule of the court. Thereafter, notice was issued to the appellant-State and the service of notice was effected upon the appellant-State on 09.05.1997. Thereafter, time barred objections were submitted by the appellant-State on 15.12.1997 along with an application under Section 5 of the Limitation Act.
Although the court below was of the view that the objections were submitted by the appellant-State after the expiry of 30 days and the same were time barred as per Article 119 of the Limitation Act. The court below was also of the view that the reasons given in the said application for condonation of delay were not satisfactory even then, without accepting, allowing or deciding the said application, the objections were heard, considered and decided on merits against the appellant-State vide order dated 20.03.2002.
At the outset, counsel for the respondent submits that the court below could not have decided the objections taken by the appellant-State on merits without deciding the application filed under Section 5 of the Limitation Act. Counsel submits that award was passed on 22.04.1997 and thereafter, when the matter was referred to the court below for making the award as a 'rule of the court', then notices were issued and served upon the appellant- (Downloaded on 25/12/2022 at 07:36:43 AM)
(3 of 12) [CMA-1352/2002] State on 09.05.1997. Thereafter, delayed objections were
submitted on 15.12.1997 along with an application under Section 5 of the Limitation Act without giving any satisfactory reason for condoning the delay. Counsel submits that it is a settled proposition of law that until and unless the application filed under Section 5 of the Limitation Act is decided and allowed, the Court has no jurisdiction to entertain any appeal/ objections and pass the order on merits.
In support of his contentions, counsel has placed reliance on the judgment of this Court in the case of Smt. Marudhar Kanwar Vs. The Board of Revenue and Ors., reported in 2015 (1) WLC (Raj.) 687. Counsel submits that under these circumstances, the appeal filed by the appellant-State may be dismissed without entertaining the same on merits.
Per contra, learned counsel for the appellant-State submits that on account of the formalities required at the departmental level, delay has occurred which was explained by the appellant- State in application filed under Section 5 of the Limitation Act. Counsel submits that procedural lapse/delay should not be allowed to come in the way of deciding a cause/objections presented before the Court.
In support of her contention, counsel for the appellant-State has placed reliance on judgment of the Hon'ble Supreme Court in the case of State of Haryana Vs. Chandra Mani & Ors., reported in 1996 (3) SCC 132. Counsel submits that under these circumstances, interference of this Court is warranted.
Heard.
Considered the arguments advanced by counsel for the parties and perused the record.
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(4 of 12) [CMA-1352/2002] Perusal of the record clearly indicates that the award was passed by the Sole Arbitrator on 22.04.1997 and at relevant point of time, no objections were submitted by the appellant-State against the aforesaid award. It appears that when the matter was presented before the court below for making the same as a 'rule of the court' and the notices were issued and served upon the State on 09.05.1997, time barred objections were submitted against the award on 15.12.1997 along with an application under Section 5 of the Limitation Act after a lapse of more than 7 months. The court below was conscious enough about the period of limitation and also about the provision contained under Article 119 of the Limitation Act which envisages that under the Act of 1940, the period of limitation is 30 days for setting aside an award or getting an award remitted for reconsideration. Here in this case, the award was passed on 22.04.1997 after hearing both the sides. So the limitation to challenge the aforesaid award expired in the month of May, 1997. It appears that the appellant-State remained silent and did not raise any objection after passing of the award. When the matter was referred to the court below for passing the award as a rule of the court and notices were issued and served upon the appellant on 09.05.1997, it was only then the appellant-State submitted time barred objections after a lapse of seven months.
Perusal of the application filed by the appellant-State under Section 5 of the Limitation Act indicates that the delay has occurred on the basis of procedural formalities which were required to be completed at the departmental level.
Their Lordships of Hon'ble Supreme Court in two recent judicial pronouncements have deprecated this practice on the part (Downloaded on 25/12/2022 at 07:36:43 AM) (5 of 12) [CMA-1352/2002] of the State authorities in sitting over the matter and filing appeals after inordinate delay and coming forth with the only excuse of the matter having remained pending in the Office from one table to another. In the case of State of Madhya Pradesh & Ors. Vs. Bherulal, reported in 2020 SCC Online SC 849, it was found that the appeal was filed by the State with the delay of 663 days and the cause shown for an inordinate delay in that case was due to unavailability of documents, the process of arranging documents and also a reference to bureaucratic process works. In the aforesaid factual context, Their Lordships of the Supreme Court, referring to its earlier decision, observed as below-
"3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107).This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors.v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:
"12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take (Downloaded on 25/12/2022 at 07:36:43 AM) (6 of 12) [CMA-1352/2002] advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!"
In another decision, in the case of Government of Maharashtra (Water Resources Department) V. M/s. Borse Brothers Engineers and Contractors Pvt. Ltd., 2021 SCC Online SC 233 also, in the factual context of long delay of 75 days, the explanation was found to be short of any sufficient cause. The explanation in the aforesaid case was noted in para 65 of the said judgment as below -
"65. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court's judgment was obtained by the respondent on 27.04.2019, the appeal was filed only on 09.09.2019, the explanation for delay being:(Downloaded on 25/12/2022 at 07:36:43 AM)
(7 of 12) [CMA-1352/2002] "2. That, the certified copy of the order dated 01/04/2013 was received by the appellant on 27/04/2019. Thereafter the matter was placed before the CGM purchase MPPKVVCL for the compliance of the order. The same was then sent to the law officer, MPPKVVCL for opinion.
3. That after taking opinion for appeal, and approval of the concerned authorities, the officer-in-charge was appointed vide order dated23/07/2019.
4. That, thereafter due to bulky records of the case and for procurement of the necessary documents some delay has been caused however, the appeal has been prepared and filed to pursuant to the same and further delay.
5. That due to the aforesaid procedural approval and since the appellant is a public entity formed under the Energy department of the State Government, the delay caused in filing the appeal is bonafide and which deserve[s] to be condoned."
This Court finds that no satisfactory explanation was given by the appellant-State while filing an application under Section 5 of the Limitation Act.
Now the issue which remains for consideration of this Court is "whether the court below was right in entertaining the time barred objections filed by the State without deciding the application filed under Section 5 of the Limitation Act or not?"
It is a well settled principle of law that until and unless the delay in filing appeal/objections is condoned, the matter cannot be heard on merits.
This Court in the case of Smt. Marudhar Kanwar (supra) has dealt with this issue in para Nos. 28 and 29 as under:-
"28. In view of the above circumstance also, even as per the judgment in the case of Bhag Mal & Ors. Vs. Kunwar Lal & Ors., reported in 2010(2) WLC (SC) Civil 443 the reasoning given by Hon'ble Supreme Court for distinguishing the judgment in the case of Sneh Gupta Vs. Devi Sarup & Ors., reported in (2009) 6 (Downloaded on 25/12/2022 at 07:36:43 AM) (8 of 12) [CMA-1352/2002] SCC 194 would apply and the respondents are not entitled to seek any benefit of the said judgment as well.
29. In that view of the matter, in the absence of any application seeking condonation of delay and, more particularly, any order passed by the District Collector condoning the delay, the District Collector had no jurisdiction to entertain the appeal and pass judgment on merits."
Even the Allahabad High Court in the case of Parbhu and Anr. Vs. Deputy Director of Consolidation, Ghazipur & Ors., reported in 2012 SCC OnLine All 4029, while taking into consideration various judgments of Hon'ble Apex Court has held that without condoning the delay, no matter can be heard on merits. The relevant paras No. 7 to 14 are reproduced as under:-
"7. Here in this case, the revisions were accompanied with applications under section 5 of the Limitation Act, for extending the period of limitation in preferring the revisions. Section 3 of the Limitation Act provides bar of limitation subject to provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Meaning thereby, if the limitation has been provided for approaching the Court and that period has expired, in that circumstance, section 5 of the Limitation Act will to rescue of those who approaches the Court after expiry of the period of limitation, by making an application under Section 5 of the Limitation Act for extending the period of limitation or to condone the delay in approaching the Court. Once an application is filed for condonation of delay extending the period of limitation, then general principles has to be followed in consonance with the provisions contained under Order 41 Rule 3A of the Code of Civil Procedure, wherein it is provided that if the appeal is filed beyond the period of limitation, then it has to be accompanied with an application for condonation of delay and the Court dealing with such matter can reject the application if the delay is not satisfactorily explained and in case the Court finds that there is some substance, then, in that eventuality, notice has to be issued to otherside for having his version for disposal of section 5 (Downloaded on 25/12/2022 at 07:36:43 AM) (9 of 12) [CMA-1352/2002] application and in no case, without issuing notice and without condoning the delay, the appeal can be decided. Although, in the Act, the provisions of Order 41, Rule 3-A of C.P.C. are not made applicable but I am of the view that the same analogy should be adopted here also.
8. Here in this case, admittedly, the revision was barred by time and it was accompanied with an application for condonation of delay, therefore, unless the delay was condoned, the revisions could not have been decided on merit as in the eye of law, unless the delay is condoned, there could be no revision.
9. The view taken by me finds support from the decision of the Apex Court in Noharlal Verma v. District Co-operative Central Bank Ltd. Jagdalpur, (2008) 14 SCC 445 : (AIR 2009 SC 664), where the Apex Court has held as under:--
"32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation a Court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under:
"3. Bar of Limitation.-- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence." Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in the absence of such plea by the defendant, respondent or opponent, the Court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation."
10. In V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao, (2005) 4 SCC 613 : (AIR 2005 SC 4138), following observation has been made by the Apex Court.
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20. "The mandate of Section 3 of the Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact mat limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation."
11. In the case of Sneh Gupta v. Devi Sarup, (2009) 6 SCC 194, in paragraph 70, the Apex Court has held that in absence of any application for condonation of delay, the Court has no jurisdiction in terms of S. 3, Limitation Act, 1963 to entertain the application filed for setting aside of decree after expiry of period of limitation.
12. In (2001) 9 SCC 717 : (2001 AIR SCW 2351), Ragho Singh v. Mohan Singh, the Apex Court has held as under:--
(6) "We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, mere was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs."
13. In view of foregoing discussions, the controversy can be summarized as under:--
(i) When the statute provides limitation for approaching the Court and a person approaches the Court after the expiry of the period of limitation, then he has to approach the Court along with an application under Section 5 of the Limitation Act praying extension of period of limitation or to condone the delay in approaching the Court.(Downloaded on 25/12/2022 at 07:36:43 AM)
(11 of 12) [CMA-1352/2002]
(ii) Once the application under Section 5 of the Limitation Act is filed and unless the delay is condoned, no order can be passed on merit.
(iii) The delay cannot be condoned without having the version of otherside and for that, otherside is required to be noticed and heard.
14. Here in this case, admittedly, the revision was filed along with an application for condonation of delay and without condoning the delay, the revision has been decided, therefore the Deputy Director of Consolidation has erred in deciding the revision on merit without condoning the delay and the impugned order dated 4.10.2012 passed by him cannot be sustained, hence, it is hereby quashed. The writ petition succeeds and is allowed."
Thus this Court has no hesitation to say that whenever any person approaches the Court after expiry of the period of limitation then he is duty bound to submit an application under Section 5 of the Limitation Act for condonation of delay. Once such application is filed, the matter cannot be heard on merits and no order can be passed unless the delay is condoned. Here in this case the objections raised by the appellant-State were heard and decided by the Court on merits without condoning the delay. Such approach of the court below was not correct.
Even otherwise also, there is no merit in the objections taken by the appellant. The Arbitrator has taken into consideration each and every submission advanced by the parties before him, including appreciation of evidence in proper manner before arriving at the decision to pass the impugned award. Thus, the findings recorded by the Arbitrator is based on evidence.
In view of the discussion made hereinabove, instant appeal is having no substance and accordingly stands dismissed. (Downloaded on 25/12/2022 at 07:36:43 AM)
(12 of 12) [CMA-1352/2002] Stay application and all pending application(s), if any, also stand dismissed.
Record of the court below be sent back forthwith.
(ANOOP KUMAR DHAND),J Ritu/11 (Downloaded on 25/12/2022 at 07:36:43 AM) Powered by TCPDF (www.tcpdf.org)