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Bombay High Court

Shri. Ashwin Neema vs Mangalam Clothes (Pvt.) Ltd. & Ors on 17 April, 2009

Author: Anoop V. Mohta

Bench: Anoop V. Mohta

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              IN THE HIGH COURT OF JUDICATURE AT BOMBY

                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                    
                  ARBITRATION PETITION NO. 207 OF 2009
                                      WITH




                                                   
                   NOTICE OF MOTION NO. 1376 OF 2009
                                        IN
                      ARBITRATION PETITION 207 OF 2009




                                         
    Shri. Ashwin Neema
                            ig                               Petitioner.

           Vs.
                          
    Mangalam Clothes (Pvt.) Ltd. & Ors.                      Respondents.
            


    Mr.R.R.Naik i/by M/s. Saxena & Co. for the Petitioner.
         



    Mr. S.K.Jain i/by M/s. S.K.Jain & Associates for Respondent No.1.

                       CORAM : ANOOP V. MOHTA, J.

DATED : 17TH APRIL, 2009.

P.C.

1. The Petitioner has challenged the Arbitral Award dated 11/10/1999. The Petitioner challenged the said award by Arbitration Case No.20 of 2000 on 18/01/2000 before the District Judge, Indore.

The said order was passed after giving full opportunity to the parties ::: Downloaded on - 09/06/2013 14:31:42 ::: 2 including the Petitioner.

2. The Petitioner has filed this Petition in February, 2009 on a foundation that the Petitioner got the knowledge of dismissal order dated 24/04/2004, only on receiving the summons on 02/01/2009, as the Respondents have filed execution Petition pursuance to the said award. The Petitioner therefore, applied for the Certified Copy on 3rd January, 2009 of the order dated 24/04/2004 passed by the learned District Judge, Indore. He got the copy on 6th January, 2009 and therefore, this Petition.

3. The Apex Court has declared that the provisions in Section 34 (3) has to be construed strictly. The time limit so prescribed is absolute and unextendable. (State of Goa Vs. Western Builders (2006) 6 SCC 239). Section 14 of the Limitation Act provides exclusion of period. (Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department & Ors., (2008) 7 S.C.C.

169. In the case of Shakti Tubes Limited Vs. State of Bihar & Ors., (2009) 1 S.C.C. 786, it is held that the Provisions of Section 14 of the Limitation Act is applicable to the proceedings under Section 34 of the Act. The fact and circumstances has to be seen. It does not apply automatically.

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4. The submission that he got the knowledge of dismissal order on 02/01/2009 is not acceptable in view of the order sheet Exhibit "F" of the matter (Page 52). The Petitioner's advocate has full knowledge of the order.

5. Even otherwise, that itself cannot be the reason to condone the delay. In view of clear and mandatory provisions of Section 34(3) of the Arbitration Act the Apex Court as observed above. The submission based upon Section 5 of the Limitation Act, cannot be extended in such matter.

6. I see there is no reason or sufficient cause made out by the Petitioner to condone the delay. Section 14 of the Limitation Act in the present facts and circumstances of the case, is also not of any assistance. The explanation, whatsoever, cannot be taken note of after expiry of the statutory period of limitation. Even the pendency of the complaint against the Advocate for professional misconduct, cannot protect or sufficient reason to condone the delay of this nature.

7. In view of this, the Petition is dismissed on the ground of delay, itself. The Notice of Motion is also disposed of accordingly. No costs.

(ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 14:31:42 :::