Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
29. 08/2013 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE P.DEVADASS Civil Miscellaneous Appeal (MD)No.888 of 2013 and Civil Miscellaneous Appeal (MD)No.889 of 2013 and M.P.(MD) Nos.2 & 2 of 2013 C.M.A.(MD) No.888/2013 1.The Regional Chief Engineer, P.W.D./W.R.O., Madurai Region, Madurai. 2.The Executive Engineer, Korampallam Aru Basin Division, W.R.O./P.W.D., Thoothukudi - 2. 3.The Superintending Engineer, Thambraparani Basin Circle, W.R.O/P.W.D., Palayamkottai, Tirunelveli - 3. ... Appellants Vs 1.K.A.Thomas, Government Engineering Contractor, Karuottuputhempura House, Palakuzha Post, Kothattakulam, Muvatttupuzha, Kerela. 2.Er.S.S.Sankara Narayanan, M.E.M.I.E., Sole Arbitrator, Sole Arbitral Tribunal, Superintending Engineer, W.R.O./P.W.D., Parambikulam Aliyar Basin Circle, Pollachi. ... Respondents Civil Miscellaneous Appeal filed under Section 37(1) of Arbitration and Conciliation Act, 1996, to set aside the fair and decretal order, dated 31.01.2011, in Ar.O.P.No.221 of 2004 of the Principal District Judge, Thoothukudi. C.M.A.(MD) No.889/2013 1.The Superintending Engineer, W.R.O./P.W.D., Thambraparani Basin Circle, Palayamkottai, Tirunelveli - 2. 2.The Executive Engineer, W.R.O./P.W.D., Thambraparani Basin Division, Tirunelveli - 2. ... Appellants Vs 1.K.A.Thomas, Government Engineering Contractor, Karuottuputhempura House, Palakuzha Post, Kothattakulam, Muvatttupuzha, Kerela. 2.P.Velu, B.E., M.B.A., Sole Arbitrator, Sole Arbitral Tribunal, 681, Karpaka Nagar, K.Pudur, Madurai - 7. ... Respondents Civil Miscellaneous Appeal filed under Section 37(1) of Arbitration and Conciliation Act, 1996, to set aside the fair and decretal order, dated 31.01.2011, in Ar.O.P.No.65 of 2007 of the Principal District Judge, Thoothukudi. !For Appellants (in both the C.M.As.) ... Mr.A.K.Baskara Pandian Special Government Pleader ^For Respondent No.1 (in both the C.M.As.) ... Mr.K.Babu Thomas for Mr.P.Subbaraj :COMMON
JUDGMENT(Judgment of the Court was delivered by P.DEVADASS , J.) Since common legal issues are involved and common arguments are advanced both the C.M.As., were heard together and are being disposed of by this common Judgment.
2. Facts in brief: (1) P.W.D., invited tenders for (i) rehabilitation and modernisation of Kadamba by-pass Channel Spillover works; and (ii) rehabilitation and modernisation of North Main Channel both in Thambraparani System in Tuticorin District. For the sake of convenience, let us call them 'first contract work' and 'second contract work'. On 11.12.1998, first respondent offered his tenders. They were accepted. Separate agreements embodying the terms and conditions were executed between the first respondent and P.W.D. Officials. They contained arbitration clauses to resolve any dispute or difference, in case arises. After getting time extension, 1st respondent completed both the work. He received payments. In connection with both the work, 1st respondent raised disputes claiming certain amounts. Ultimately, with respect to both the contract work, separate Arbitrators were appointed. (2) With respect to the first contract work, the Sole Arbitrator, passed award directing the P.W.D. to pay the 1st respondent Rs.44,05,537/- with default interest. With respect to the second contract work, the Sole Arbitrator passed award directing the P.W.D. to pay him Rs.48,03,341/- with pendente lite interest at 18% p.a. From 1.11.2001 and future interest at 16% p.a. (3) Challenging the said award dated 12.7.2002, the appellants have filed Ar.O.P.No.149 of 2002 under Section 34 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'A & C Act') in the Sub-Court, Tuticorin and sought for setting aside the award. (4) Following are the sequence of events pertaining to the filing of Ar.O.P.No.149 of 2002 Sl. Date Events No.1 12.07.2002 Award passed. 2 04.10.2002 Appellants filed Application under Section 34 of A&C Act before the Sub- Court, Tuticorin. 3 03.02.2003 The Application returned to rectify the defects in 3 weeks. 4 04.02.2003 Application represented without curifying defects. 5 10.03.2003 Application returned to rectify the defect in one month. 6 22.09.2003 Application represented with 196 days of return on 10.03.1999. 7 21.10.2003 Application returned to represent after curifying the defect in one month. 8 31.10.2003 Application represented without curifying the defects. 9 03.11.2003 Application returned with direction to curifying the defects. 10 11.11.2003 Application represented without curifying the defects. 11 01.12.2003 Sub-Court numbered the Application as Ar.O.P.No.149 of 2003 and issued notice to the respondents. 12 07.06.2004 1st respondent filed counter questioning the jurisdiction of the Sub-Court to entertain the Application. 13 08.06.2004 Sub-Court transferred the Application to the Principal District Court, Tuticorin. 14 17.10.2004 In the Principal District Court, Ar.O.P.No.149 of 2003 was renumbered as Ar.O.P.No.221 of 2004. 15 12.12.2007 1st respondent submitted his written arguments. (5) Challenging the award dated 16.6.2003, appellants have filed application under Section 34 of A & C Act in the Sub-Court, Tuticorin and sought for setting aside the award. (6) Following are the sequence of events pertaining to the filing of Ar.O.P.No.65 of 2007 Sl. Date Events No.1 16.06.2003 Award passed. Signed copy delivered on 18.06.2003. 2 29.08.2003 Appellants filed Application under Section 34 of A & C Act in the Sub-Court, Tuticorin. 3 11.09.2003 Application returned to curify certain defects. 4 08.07.2004 Application represented without curifying the defects with 300 days of its return. 5 09.07.2004 Application returned to present before proper Court. 6 25.04.2005 Application presented before the Principal District Court, Tuticorin, after 259 days of its return on 09.07.2004. 7 27.04.2005 Application returned for rectifying the defects in one month. 8 28.04.2006 Application represented after 366 days of its return on 27.04.2005, without curifying the defects. 9 02.06.2006 Application returned to curify the defect in one month. 10 16.10.2006 Application represented without curifying the defects with a delay of 105 days. 11 07.11.2006 Application returned to curify the defect in one month. 12 05.12.2006 Application represented without curifying the defects. 13 16.12.2006 Application returned to curify the defects in 15 days. 14 29.01.2007 Application represented with a delay of 29 days without curifying the defects. 15 08.02.2007 Application returned to curify the defects in one month. 16 21.02.2007 Application represented with delay of 105 days of return on 16.10.2006. As per order in I.A.No.65 of 2007, delay condoned. Further delay of 13 days occurred in representation on 29.01.2007 condoned as per order in I.A.No.77 of 2007. 17 26.03.2007 Application numbered as Ar.O.P.No.65 of 2007 and as per order in I.A.No.78 of 2006, delay of 107 days occurred in representation was condoned. 18 12.12.2007 1st respondent submitted his written arguments. (7) The learned Principal District Judge, Tuticorin, took up the bar of limitation, examined it and concluded that as per Section 34(3) of A & C Act, the limitation period is 3 months with a grace period of 30 days, if sufficient cause is shown, however, the Ar.O.Ps. were since filed beyond the said period, dismissed them on 31.01.2011.
3. Aggrieved, the appellants have directed C.M.A.(MD) Nos.888 & 889 of 2013 as against the said Judgments and Decrees rendered in Ar.O.P.Nos.221 of 2004 and 65 of 2007 respectively.
4. Learned Special Government Pleader contended that initially, the O.Ps., were filed in time, however, in a wrong Forum, namely, Sub-Court, Tuticorin, the Court has numbered them, later, on coming to know that it has no jurisdiction, transferred them to the Principal District Court, Tuticorin and they were duly received by the transferee Court. Had the learned Subordinate Judge not numbered them and transferred the O.Ps., in time to the Competent Court, namely, the Principal District Court, Tuticorin, opportunity of raising the plea of limitation would not have available to the 1st respondent. The learned Special Government Pleader contended that due to an act of Court, a litigant should not be made to suffer. Further, as per the provisions of the Limitation Act, in computing the period of limitation, the time taken in prosecuting the case in a wrong Forum has to be excluded. In this view of the matter, the view taken by the Trial Court that the O.Ps., are barred by time is not correct. The Trial Court should have rendered its findings on all aspects.
5. On the other hand, the learned counsel for the 1st respondent contended that A & C Act is a self contained Code. It is a Special Act. Provisions of Limitation Act is not applicable to it. A & C Act has its own provision for limitation. To set aside an arbitration award under Section 34 of A & C Act, Section 34(3) of the Act, prescribes a specific time limit of 3 months with a grace period of 30 days and not thereafter. This limitation period has been prescribed by a statute. It cannot be bypassed by the appellants going to a wrong Forum. Nor a Court could overlook it. The records of the case in the Sub-Court, Tuticorin, would clearly show that the written endorsements to curify the defects within specified time have not at all been adhered to by the appellants. Further, merely because it has been wrongly entertained, returned and represented by a Court of incompetent jurisdiction, the rigour of limitation incorporated in Section 34(3) of A & C Act cannot be diluted. Thus, the Ar.O.Ps., were rightly dismissed as barred by time.
6. In support of his contentions, the learned counsel for the 1st respondent cited the following rulings:- (i) UNION OF INDIA Vs. POPULAR CONSTRUCTION CO. [2001 (8) SCC470 (ii) UNION OF INDIA Vs. TECCO TRICHY ENGINEERS & CONTRACTORS [2005 (4) SCC239 (iii) STATE OF GOA Vs. WESTERN BUILDERS [2006 (6) SCC239 (iv) Y.STEEBACHEN Vs. STATE OF TAMIL NADU [AIR2007MAD. 240]. (v) CHENNAI CONTAINER TERMINAL (P) LTD. ETC., Vs. UNION OF INDIA & OTHERS [AIR2007MAD. 325 (DB)]. (vi) STATE OF MAHARASHTRA Vs. HINDUSTAN CONSTRUCTION CO. LTD., [2010 (4) SCC518 (vii) STATE OF H.P. & ANOTHER Vs. M/s. HIMACHEL TECHNO ENGINEERS & ANOTHER [2010 AIR SCW5950 (viii) STATE OF MAHARASHTRA AND OTHERS VS. ARK BUILDERS (P) LTD., [2011 (4) SCC616 (ix) BENARSI KRISHNA COMMITTEE AND OTHERS Vs. KARMYOGI SHELTERS (P) LTD., [2012 (9) SCC496 7. We have meticulously gone through the entire case records, perused the impugned Judgments of the Trial Court and the various decisions cited at the Bar.
8. In pursuance of the ".arbitration clause". in the agreements, Arbitrators were appointed to arbitrate the dispute/difference between the PWD and the Contractor with respect to both the contract works and the impugned awards, dated 12.7.2002 and 16.6.2003.
9. To set aside them on certain grounds, PWD had filed Original Petitions before the Sub-Court, Tuticorin, under Section 34 of the New A & C Act, 1996. Later, on the point of jurisdiction, they were transferred to the Court of learned Principal District Judge, Tuticorin, who has dismissed the Ar.O.P.Nos.221 of 2004 and 65 of 2007 on the point of limitation vide Section 34(3) of A & C Act.
10. The contention of the appellant/P.W.D. is that in computing the period of limitation prescribed under Section 34(3) of A & C Act, the period during which, the P.W.D. has prosecuted the Ar.O.Ps. in a wrong Forum has to be excluded.
11. However, the contention of the contractor is that since Section 34(3) of A & C Act itself is an in-built limitation period, namely, three months plus 30 days grace period, the provisions of Limitation Act, 1963 is not applicable to Section 34(3) of A & C Act. Thus, the learned Principal District Judge, Tuticorin, has rightly dismissed them as barred by time.
12. The idea behind the concept of Arbitration is that in the matter of terms and conditions of the contract, any dispute or difference between the parties to the agreement has to be expeditiously solved by a neutral person without the intervention of regular Courts, so that time and money may be saved and this is very useful in commercial contracts and Government contracts, where technical aspects are involved as the regular Courts are not having the expertise in those matters.
13. There is marked difference between the Old Arbitration Act, 1940 and the New A & C Act, 1996. Under the Old Act, the Award of the Arbitrator gets sanctity only when it has become the rule of the Court. Thus, the awards are filed in the Court to get its seal of approval. However, under the New A & C Act 1996, such a provision has been dispensed with. Under the New A & C Act, after the expiry of the period prescribed for setting aside the award, the award becomes immediately enforceable without any further act of the Court. Admittedly, the provisions of the New A & C Act, 1996 applies to the awards in question in these appeals.
14. It is apposite here to notice Section 34(3) of A & C Act, wherein an in-built limitation period has been prescribed for filing application for setting aside the arbitral award. It runs as under:- ".34. Application for setting aside arbitral award.- (1) - (2) * * * (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.". (emphasis supplied by us) 15. Thus, Section 34(3) prescribes a limitation period of three months (not 90 days) from the date of receipt of copy of the arbitral award or the extended period as provided under Section 33 of the Act plus a grace period of 30 days (not one month) [See STATE OF H.P. & ANOTHER Vs. M/s.HIMACHAL TECHNO ENGINEERS & ANOTHER (2010 AIR SCW5950]..
16. In UNION OF INDIA Vs. POPULAR CONSTRUCTION CO. [2001 (8) SCC470 with regard to the object behind prescribing a time limit in Section 34(3) of A & C Act, the Hon'ble Apex Court observed as under:- 14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an Award is absolute and un- extendable by Court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need ".to minimise the supervisory role of courts in the arbitral process (Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996). .....".
17. Section 5 of Limitation Act, 1963 provides for condonation of delays. Particular numbers of days of delay has not been prescribed. However, on ".sufficient cause". being shown, the delay could be condoned. It is not the length of delay, but, substance involved in seeking condonation of delay matters.
18. The question whether Section 5 of Limitation Act, 1963 applies to applications to set aside the arbitral award filed under Section 34 of A & C Act directly came before the consideration of the Hon'ble Supreme Court in UNION OF INDIA Vs. POPULAR CONSTRUCTION CO., [2001 (8) SCC470.
19. The Hon'ble Apex Court held as under:- ".12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.".
20. The view that to Section 34 (3) of A & C Act Section 5 of Limitation Act is not applicable is the consistent view of the Courts. [See UNION OF INDIA Vs. TECCO TRICHY ENGINEERS & CONTRACTORS (2005 (4) SCC239 (3-Judge Bench), STATE OF GOA Vs. WESTERN BUILDERS [2006 (6) SCC239 and STEEBACHEN Vs. STATE OF TAMIL NADU (AIR2007MADRAS240]..
21. Now, question arises whether the entire provisions of the Limitation Act, 1963, is not applicable to applications filed under A & C Act, 1996 or only Section 5 of Limitation Act, 1963 alone is not applicable to these applications. Further, in calculating the limitation period prescribed in Section 34(3) to A & C Act whether the period during which the applications were prosecuted under a bonafide mistake before a wrong Forum is required to be excluded vide Section 14 of Limitation Act, 1963 directly came before the consideration of the Hon'ble Apex Court in STATE OF GOA Vs. WESTERN BUILDERS (2006 (6) SCC239.
22. Dealing with these questions in WESTERN BUILDERS (supra), the Hon'ble Apex Court observed as under:- ".10. We are primarily concerned with sub-section (3) of Section 34 read with proviso. Reading of sub-section 3 along with the proviso of Section 34, it clearly transpires that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 should be made within 3 months and the period can be further extended on sufficient cause by another period of 30 days & not thereafter that means so far as application for making setting aside the award the period of limitation has been prescribed in sub- section (3) i.e. 3 months but it can be extended for another period of 30 days on sufficient cause be shown to the satisfaction of court. Therefore, the applicability of Section 5 of the Limitation Act stands excluded & the application for condonation of delay upto a period of 30 days can be made by the court and not beyond that. Therefore, it was submitted that there is no scope for applicability of Section 14 of Limitation Act in these proceedings by virtue of sub-section (2) of Section 29 of the Limitation Act.
11. Sub-section (2) of Section 29 of the Limitation Act reads as under - ".
29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.".
12. That means if special period of limitation has been prescribed for making application for any condonation of delay or for any other purpose then that period of limitation prescribed under the special law shall prevail and to that extent the provisions of Limitation Act shall stand excluded. To this extent there is no dispute. But the question is whether there is any provision to cater for present controversy or not. The Limitation Act applies to the arbitral provisions because of Section 43 of the Arbitration and Conciliation Act, 1996. Section 43 reads as under: ".43.Limitation.- (1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in Court. (2) For the purposes of this section and the Limitation Act, 1963 (36 of 1963) an arbitration shall be deemed to have commenced on the date referred in section 21. (3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, it if is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.". (4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.".
13. Therefore, as general proposition Limitation Act, 1963 applies but still question is as to what extent. Section 14 of Limitation Act which deals with exclusion of time spent in prosecuting the remedy before wrong forum bona fide reads as under: ".14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligences another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted on the ground that the first suit must fail by reasons of a defect in the jurisdiction of the court or other cause of a like nature.".
14. The question is whether Section 14 of the Limitation Act has been excluded by this special enactment i.e. Arbitration and Conciliation Act, 1996. Section 43 of the Arbitration and Conciliation Act, 1996 clearly says that The Limitation Act, 1963 shall apply to arbitration as it applies to the proceedings in court.
15. Therefore, general proposition is by virtue of Section 43 of the Act of 1996 The Limitation Act 1963 applies to the Act of 1996 but by virtue of sub- section (2) of Section 29 of the Limitation Act, if any other period has been prescribed under the special enactment for moving the application or otherwise then that period of limitation will govern the proceedings under that Act, and not the provisions of the Limitation Act. In the present case under the Act of 1996 for setting aside the award on any of the grounds mentioned in Sub-Section (2) of Section 34 the period of limitation has been prescribed and that will govern. Likewise, the period of condonation of delay i.e. 30 days in proviso.
16. But there is no provision made in The Arbitration and Conciliation Act, 1996 that if any party has bona fidely prosecuted its remedy before the other forum which had no jurisdiction then in that case whether the period spent in prosecuting the remedy bona fidely in that Court can be excluded or not. As per the provision sub-section (3) of Section 34 which prescribes the period of limitation (3 months) for moving the application for setting aside the award before the court then that period of limitation will be applicable and not the period of limitation prescribed in schedule under section 3 of the Limitation Act, 1963. Thus the provision of moving the application prescribed in Limitation Act, shall stand excluded by virtue of sub-section (2) of Section 29 as under this special enactment the period of limitation has already been prescribed. Likewise the period of condonation of delay i.e. 30 days by virtue of proviso.
17. Therefore, by virtue of sub-section (2) of section 29 of the Limitation Act what is excluded is the applicability of Section 5 of the Limitation Act & under Section 3 read with Schedule which prescribes the period for moving application.
18. ...
19. There is no provision in whole of the Act which prohibit discretion of the court. Under section 14 of the Limitation Act if the party has been bona fidely prosecuting his remedy before the court which has no jurisdiction whether the period spent in that proceedings shall be excluded or not. Learned counsel for the respondent has taken us to the provisions of the Act of 1996; like section 5, section 8(1), section 9, section 11 sub-section (4), (6), (9) and sub-section (3) of section 14, section 27, sections 34, 36, 37, 39 (2) (4), section 41, sub-section (2) section 42 & 43 and tried to emphasis with reference to the aforesaid sections that the legislature wherever wanted to give power to the Court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the court so as to enable to exclude the period spent in prosecuting remedy before other forum. It is true but at the same time there is no prohibition incorporated in statute for curtailing the power of the court under Section 14 of the Limitation Act. Much depends upon the words used in statute & not general principles applicable. By virtue of section 43 of the Act of 1996, the Limitation Act applies to the proceedings under the Act of 1996 and the provisions of Limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Act, 1996. Since there is no prohibition provided under Section 34, there is no reason why Section 14 of Limitation be read in Act of 1996, which will advance the cause of justice. If statute is silent and there is no specific prohibition then statute should be interpreted which advances the cause of justice. .....
20. .....
21. In National Aluminum Co. Ltd. vs. Pressteel & Fabrication (P) Ltd. and Another reported in 2004 (1) SCC540 In that case unilateral appointment of the arbitrator under the Arbitration Act 1940 was challenged. This Court in the said appeal after hearing the parties appointed a sole arbitrator. Before the sole arbitrator both the parties by consent agreed that the proceedings should be governed by the provisions of the Arbitration and Conciliation Act, 1996. The arbitrator proceeded on that basis and gave a final award. That final award was challenged. The question arose whether the proceeding shall be governed by the 1940 Act or of 1996 Act?. And which is the appropriate Court. The dispute prolonged for nearly 16 years. This Court dismissed the appeal and held that in the present case proceedings should go on under the provisions of the Act, 1996 though the dispute arose prior to coming into force of the Act 1996, the appropriate forum for challenging the award under Section 34 was Principal Civil Court of original jurisdiction as contemplated under Section 2(e) of the Act, 1996.
22. However, with regard to delay in filing objection before the principal civil court of original jurisdiction , this Court directed that the petitioner shall file objection for setting aside the award before the Court concerned within 30 days from this date, the delay in regard to filing of the petition as contemplated under Section 34 of the Act, 1996 shall be condoned by the said Court since the time consumed was bona fide in prosecution of its remedy.
23. The exact observation of this Court is as under: ".This application fails and the same is dismissed with a direction to the applicant to file its objections to the award before the court concerned and if the same are filed within 30 days from this date, the delay in regard to the filing of the objections as contemplated under Section 34 of the 1996 Act shall be condoned by the said Court since the time consumed was in bona fide prosecution of the application in a wrong forum.".
24. .....
25. Therefore, in the present context also it is very clear to us that there is no two opinion in the matter that the Arbitration and Conciliation Act, 1996 do not expressly excluded the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite the commercial issue expeditiously. It is also clear in the statement of objects and reasons that in order to recognize economic reforms the settlement of both of domestic & international commercial disputes should be disposed of quickly so that country's economic progress be expedited. The statement of objects and reasons also nowhere indicate that Section 14 of the Limitation act shall be excluded. But on the contrary intendment of legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of sub-section (2) of section 29 of the Limitation Act, its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub-section 2 of section 29 of Limitation Act with reference to other Acts like The Representation of Peoples Act or the provisions of Criminal Procedure Code where separate period of limitation has been prescribed. We need not over- burden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of section 29 of the Limitation Act that the provisions of Limitation Act shall stand excluded in Act of 1996 to the extend area which is covered by the Act of 1996. In the present case under section 34 by virtue of sub-section 3 only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days To this extent the applicability of section 5 of Limitation will stand excluded but there is no provision in the Act of 1996 which excludes operation of section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so.
26. As the 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 in the Arbitration and Conciliation Act, 1996. .....".
23. Thus, it is very clear that the provisions of Section 14 of Limitation Act, 1963, applies to the period of limitation prescribed in Section 34(3) of A & C Act. So the period, during which bonafidely the applications were prosecuted by a party in a wrong Forum is required to be excluded in calculating the period of limitation period prescribed in Section 34(3) of A & C Act, namely, three months plus 30 days grace period from the date of receiving the copy of the arbitral award or from the date as extended under Section 33 of the Act.
24. Now, cleared of the legal position relating to limitation aspects in dealing with an application to set aside the arbitral award filed under Section 34 of A & C Act, we shall deal with the Appeals before us.
25. With respect to the two items of work as between the contractor and the P.W.D., two separate agreements containing arbitration clauses were executed.
26. As per Section 2(e) of A & C Act, 1996, in the Districts, ".Court"., means the Principal District Court, when there is no Principal District Court, then it is District Court of the District. So, in the Districts, applications under Section 34 of A & C Act have to be filed before the said Court.
27. However, in the case before us, originally, with respect to the award dated 12.07.2002, the application under Section 34 of A & C Act was wrongly filed before the Sub-Court, Tuticorin. On 8.6.2004, the Court having found that it has no jurisdiction, transferred the Ar.O.P. to the Principal District Court, Tuticorin. Subsequently, it was numbered in the Principal District Court as Ar.O.P.No.221 of 2004. With respect to the award dated 16.6.2003, originally, Ar.O.P. under Section 34 of A & C Act was wrongly filed before the Sub-Court, Tuticorin. On 9.7.2004, it was directed to be presented before the Principal District Court, Tuticorin and subsequently, the learned Principal District Judge, Tuticorin, numbered it as Ar.O.P.No.65 of 2007.
28. Since Section 14 of Limitation Act, 1963, applies to Section 34(3) of A & C Act, in calculating the limitation period prescribed in Section 34(3), the period during which the said setting aside applications under Section 34 of A & C Act were bonafidely prosecuted in a wrong Forum, namely, Sub-Court, Tuticorin, have to be excluded. However, in his impugned Judgments, dated 31.01.2011, in dealing with the limitation question, the learned Principal District Judge, Tuticorin, had not adverted to this aspect. The learned Judge decided the limitation issue mainly with reference to applicability of Section 5 of Limitation Act to Section 34(3) of A & C Act and concluded that the applications are barred by time. Such view of the learned Principal District Judge, Tuticorin, is erroneous. Only after considering the entitlement to deduct the period as mentioned in Section 14 of Limitation Act, 1963, the limitation issue has to be decided. After such consideration, in case the setting aside applications are in time, then the learned Principal District Judge, Tuticorin, has to consider the applications on merit. But, the learned Principal District Judge, Tuticorin, having not followed this, the impugned Judgments passed by him in both the Ar.O.Ps. are vitiated.
29. In view of the foregoings, the two Civil Miscellaneous Appeals are allowed. The Judgments and Decrees of the learned Principal District Judge, Tuticorin, dated 31.01.2011, passed in Ar.O.P.No.221 of 2004 and Ar.O.P.No.65 of 2007, are set aside. Both the Ar.O.Ps. are remanded back to the learned Principal District Judge, Tuticorin. The learned Judge will consider the limitation question in the light of the provisions of Section 14 of Limitation Act, 1963 and in case if he finds the Arbitration Applications are in time, decide both the Ar.O.Ps. on merits in accordance with law at an early date. No costs. Consequently, the connected Miscellaneous Petitions are closed. smn2 To 1.The Principal District Judge, Thoothukudi. 2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.