Himachal Pradesh High Court
Ajmer Vidyut Vitran Nigam Ltd vs Of on 20 September, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
OMP(M) No. 67 of 2022.
Reserved on: 14.09.2023
Date of Decision: 20.09.2023
_____________________________________________________________________
Ajmer Vidyut Vitran Nigam Ltd.
.........Petitioner.
Versus
of
Bansal Generation Ltd.
.......Respondent.
Coram rt
Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?
For the petitioner: Mr. Navlesh Verma, Advocate.
For the respondent: Mr. Rajeev Kumar Gupta, Advocate.
___________________________________________________________________________
Satyen Vaidya, J.
By way of instant application, a prayer has been made to condone the delay in filing the petition under Section 34 of the Arbitration and Conciliation Act 1996 (for short, 'the Act').
2. It is averred in the application that the Arbitral Award was passed by the Arbitrator on 06.07.2018 in Arbitration proceedings between the parties to the instant petition. The award was modified on the application filed under Section 33 of the Act and the subsequent award was announced on 03.11.2018. The petitioner herein applied for certified copy of the Award and received the same on 19.11.2018.
After due consultation and after seeking legal advice from their ::: Downloaded on - 20/09/2023 20:37:33 :::CIS -2- counsel, the petitioner filed a Writ Petition No. 1756 of 2019 against the Award passed by learned Arbitrator before Hon'ble High Court of Rajasthan. The date of filing of the writ petition is stated to be .
15.01.2019.
3. As per petitioner, the Writ Petition No.1756 of 2019 was disposed of by Hon'ble High Court of Rajasthan vide order dated 11.05.2022. The petitioner was permitted to withdraw the writ petition of with liberty to file an application under Section 34 of the Act and was also granted liberty to file application for condonation of delay. It was rt also observed that the Court concerned will decide the application of limitation as per available facts and law.
4. Thereafter, the petitioner has filed a petition under Section 34 of the Act before this Court on 16.06.2022 alongwith instant application.
5. It is further averred that the petitioner had approached the wrong forum on ill-advice by the counsel.
6. The application is being contested by the respondent. It is submitted that under Section 34(3) of the Act a petition can be filed within three months from the date of receipt of signed copy of Award.
A further period of 30 days can be extended by the Court on finding sufficient reasons. As per respondent, the limitation beyond the period prescribed under Section 34(3) of the Act cannot be extended. Section 5 of the Limitation Act was also not applicable for the purposes of ::: Downloaded on - 20/09/2023 20:37:33 :::CIS -3- extension of limitation. It is further submitted that the petitioner had voluntarily and willfully chosen to file the Writ Petition in Hon'ble High Court of Rajasthan, which was not at all maintainable. The fact that .
petitioner had approached the wrong forum on ill-advice of the counsel has also been disputed.
7. I have heard Sh. Navlesh Verma, Advocate for the petitioner and Sh. Rajeev Kumar Gupta, Advocate, for the respondent.
of
8. Learned Counsel for petitioner, in support of his claim, has sought benefit of section 14 of the Limitation Act. He has made rt reference to judgments passed by Hon'ble Supreme Court in the cases of State of Goa vs. Western Builders 2006, Volume 6 SCC 239, consolidated Engineering Enterprises vs Principal Secretary Irrigation Department and others (2008) 7 SCC 169 and Simplex Infrastructure Limited vs. Union of India (2019) 2 SCC 455.
9. It is well settled that Section 14 of the Limitation Act will apply to the proceedings under Section 34 of the Arbitration and Conciliation Act 1996. However, section 14 of the Limitation Act will have application where the proceedings instituted in the wrong forum are within the period of limitation prescribed under Section 34 (3) of the Act and secondly the mandatory conditions of said provision are fulfilled.
10. The modified Award in the facts of the instant case was passed by the Arbitrator on 03.11.2018. Petitioner had filed the writ ::: Downloaded on - 20/09/2023 20:37:33 :::CIS -4- petition before Hon'ble High Court of Rajasthan on 15.01.2019.
Therefore, the filing of writ petition was within the period of limitation prescribed under Section 34 (3) of the Act. The petitioner had .
withdrawn the writ petition from Hon'ble High Court of Rajasthan on 11.05.2022 and filed the instant proceedings before this Court on 16.06.2022. A copy of order passed by Hon'ble High Court of Rajasthan on 11.05.2022 in Civil Writ Petition No. 1756 of 2019 of reveals that the same was issued and delivered on 13.05.2022.
11. The benefit of Section 14 of the Limitation Act could be rt availed by the petitioner, if it could show firstly that the prosecution of proceedings before wrong forum was bona fide and secondly it was pursued with due diligence.
12. During the course of hearing of this petition the petitioner was called upon to file the affidavit of the counsel, who allegedly had advised the petitioner in the matter. In compliance, petitioner during submitted an affidavit of the counsel. The contents of the affidavit of the counsel belies the claim of petitioner. The relevant extract of the affidavit is reproduced as under:-
"2. That in regard with respect to the directions of the Hon'ble High Court it is respectfully submitted that the AVVNL sought opinion from the undersigned on the point that "as to whether a writ petition can be filed for the waiver of deposit of 75% of disputed amount as provided under Section 19 of Micro, Small and Medium Enterprises Development Act, 2006 in order to avail the remedy available under Section 34 of Arbitration and Conciliation Act, 1996.::: Downloaded on - 20/09/2023 20:37:33 :::CIS -5-
3. That in this regard on the basis of the documents provided by the AVVNL and based upon the facts and circumstances the undersigned vide opinion letter dated 21.11.2018 provided the opinion by which it was opined that "Now, the question on which the specific opinion .
has been sought is whether a writ petition is maintainable against the Arbitral Award passed by the learned Arbitration Tribunal, for the waiver of the pre- condition of depositing the 75% of the amount which has been awarded by the learned Tribunal, in terms of Section 19 of the Act of 2006. In this regard it is opined that the remedy which has been prescribed under the Act of 1996 is to approach the District & Sessions Judge, under Section 34 of the said Act, in order to challenge of the award dated 06.07.2018, passed by the Tribunal For that the Nigam has to deposit 75% of the amount awarded in favour of the claimant, as per Section 19 (3) of the Act of 2006. However a chance can be taken by rt filing a writ petition before the Hon'ble High Court, with the prayer for waiver of deposition of 75% of the awarded amount, on the count that the Nigam is a company controlled by the State Government and also on the count that the entire amount related to the agreement for supply of transformers has been paid to the M/s Bansal Generation Limited, however with bit delay, that to for the reason that entire agreed number of transformers were not Supplied by the firm. It can also be pointed out that the present awarded amount is only towards the interest and not the actual payment under the agreement". Copy of the opinion letter 21.11.2018 is enclosed herewith and marked as Annexure-1.
4. That from the perusal of the opinion granted by the undersigned nowhere it has been reflected that the opinion was given to file the writ petition before the Hon'ble Rajasthan High Court, it was only mentioned to file writ petition before the Hon'ble High Court. It was obvious that the petition was to be filed at the place of jurisdiction".
13. Thus, as per the counsel, he had advised the petitioner to take a chance by filing Writ Petition in the High Court for the relief in respect of the pre-condition to deposit 75% of disputed amount as per Section 19 of MSME Act 2006.
::: Downloaded on - 20/09/2023 20:37:33 :::CIS -6-14. It is nowhere stated by the Counsel that his advice for the petitioner was to assail the Arbitral Award by way of writ petition before the High Court. In such circumstance, both the requirements of .
Section 14 of the Limitation Act i.e. the bona fide in prosecuting the proceedings before wrong forum and due diligence are clearly missing.
Petitioner is a Public Sector Undertaking and cannot avail the benefit of ignorance. It can also be seen that even though the copy of order of dated 11.05.2022 passed by the Hon'ble High Court of Rajasthan was delivered to the petitioner on 13.05.2022, it still took more than one rt month to approach this Court.
15. In the above discussed circumstances, the petitioner cannot avail the benefit of Section 14 of the Limitation Act and in absence thereof the petition under Section 34 of the Act filed by the petitioner in this court is beyond limitation, which cannot be condoned.
16. In result, there no merit in the petition and the same is dismissed.
September 20, 2023 (Satyen Vaidya),
(tarun) Judge
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