A.M. Farooq, J.
1. This is an appeal filed under Section 37(1)(B) of the Arbitration and Conciliation Act 1996 hereinafter referred to as 'the Act' for short.
2. Brief facts of the case are that the appellant Company which is a public sector Undertaking of the Government of Karnataka had invited tenders by way of public notification for mining and transporting of ore from Ajjanahalli Mine to Ingaldal. The respondent's tender notification was accepted. The respondent was directed to commence the work from 26/5/1999. An agreement was entered into between the parties. Under the agreement the parties agreed to refer all disputes between them to arbitration and further agreed that the Court at Bangalore will have jurisdiction. As agreed when dispute arose between them it was referred to a sole arbitrator under the terms of the agreement. An award was passed by the arbitrator against the appellant on 15/3/2002. The appellant challenged the said award under Section 34 of the Act before the Civil Judge (SD), Chitradurga by filing a petition under Section 34 on 6/6/2002 that is within 90 days of the award.
3. Under Section 2(e) of the Act the jurisdictional Civil Court is the Prl. Civil Court of original jurisdiction in a District which means the District Court situated therein. According to the appellant because under the old Act of 1940 the Civil Court is the Court having jurisdiction in the subject matter of reference and considering the same the award was challenged before the Civil Judge (SD), Chitradurga. It is submitted that because of some other arbitration petitions were also pending before the Civil Judge (SD), Chitradurga, the appellant filed the petition there.
4. It is the further case of the appellant that after coming to know that the appropriate court to file the petition to challenge the award was the District Court Chitrdurga, the appellant filed an application under Order 7 Rule 10 CFC seeking return of the petition papers so as to present the same before the Hon'ble District Judge, Chitradurga. That the Civil Judge (SD) Chitradurga by an order dated 29/10/2002 directed return of the papers for presenting the same before the District Judge, Chitradurga and directed the parties to appear before the District Judge on 21/11/2002. It is the further case of the appellant that on 21 /11/2002 the respondent filed a preliminary objection raising objection to the jurisdiction of the District Judge, Chitradurga to entertain the petition. The District Judge Chitradurga by an order dated 3/2/2003 held that it had no jurisdiction to entertain the petition and accordingly returned the petition and the appellant thereafter presented the petition before the 6th Additional City Civil Judge, Bangalore on 18/2/2003. Along with the appeal the appellant filed application under Section 14 r/w Section 5 of the Limitation Act read with Section 43 of the Act praying to exclude the time taken by the appellant for prosecuting the proceedings bona fide before the two lower Courts which had no jurisdiction. The City Civil Court, Bangalore after hearing the parties has dismissed the petition as barred by time. It is now contended on behalf of the appellant that the lower Court has misconstrued the scope of Section 14 of the Limitation Act by holding that the same will not be applicable to a proceeding under Section 34 of the Act. Further it is contended that the lower Court was wrong in holding that to condone the delay in any suit or proceeding before the Civil Court the application has to be filed under Section 5 of the Limitation Act and not under Section 14. It was further submitted that the lower Court has not kept in mind the fact that the application filed was only re-filed and not a fresh filing and in such case Section 14 of the Limitation Act will be applicable. It was also contended that Section 29(2) of the Limitation Act does not exclude the applicability of Section 4 to 24 of the Limitation Act. It was submitted that the judgment relied upon by the lower court was not applicable to the facts and circumstances of this case.
5. The learned counsel appearing for the appellant cited several judgments mainly to contend that Section 14 of the Limitation Act. is applicable to the facts and circumstances of the case and under the said provision the period during which the proceeding was pending before the wrong court could be excluded and it could be held that the re-presentation made before the City Civil Court, Bangalore is in the time. On the other hand, Sri Subbarao, learned counsel appearing for the respondent supported the impugned order made by the lower Court and submitted that the lower Court has passed the order following the judgment of the Hon'ble Supreme Court and the Division Bench of this Court and hence the appeal has to be dismissed as having no merits.
6. After hearing the learned counsel appearing for the parties the question for consideration are as to which court has got jurisdiction to entertain a petition filed under Section 34 of the Act in the facts and circumstances of the case and as to whether if it is found that the City Civil Court at Bangalore has got jurisdiction, then the question is as to whether the petition filed under Section 34 of the Act is in time and if not whether the provisions of Limitation Act could be resorted to in condoning the delay or as to whether Section 14 of the Limitation Act could be made applicable and the time taken by the appellants in filing the proceedings before other Courts could be excluded and the petition can be held to be in time.
7. The materials on record disclose that the parties have admittedly entered into an agreement at Bangalore dated 11/5/1999 which was executed at Bangalore. Under the agreement the courts at Bangalore will have jurisdiction. There were disputes between the parties which was referred to an arbitrator as per clause 13 of the agreement. The arbitrator passed the award on 15/3/2002. The arbitration proceedings were conducted at Bangalore and the award was made and published at Bangalore. It is also not disputed that under the agreement executed between the parties, the parties agreed that the Court situated within the city of Bangalore alone shall have jurisdiction to decide all disputes that may arise between the parties in respect of the contract.
8. The Hon'ble Supreme Court in M/S, PATEL ROADWAYS LTD., v. M/S PRASAD TRADING COMPANY, : [1991]3SCR391 held in para 8 & 9 as follows:
'8. Reliance has been placed by learned Counsel for the appellant on these two decisions and if it can be held that the Courts at Bombay also had jurisdiction in the two suits referred to above the judgments appealed against will have to be set aside on the basis of these decisions. The question, however, is as to whether in any of these two suits the courts at Bombay also had jurisdiction apart from the courts within whose jurisdiction the goods were entrusted to the appellant for purpose of transport. Having given our anxious consideration to the matter we are of the opinion that the Courts at Bombay in these two cases did not at all have jurisdiction and consequently the agreement between the parties conferring exclusive jurisdiction on courts at Bombay is of no avail.
9. Clause (a) and (b) of Section 20 inter alia refer to a Court within the local limits of whose jurisdiction the defendant inter alia 'carries on business'. Clause-(c) on the other hand refers to a Court within the local limits of whose jurisdiction the cause of action wholly or in part arises. It has not been urged before us on behalf of the appellant that the cause of action wholly or in part arose in Bombay. Consequently Clause (c) is not attracted to the facts of these cases. What has been urged with the aid of the Explanation to Section 20 of the code is that since the appellant has its principal office in Bombay it shall be deemed to carry on business at Bombay and consequently the courts at Bombay will also have jurisdiction. On a plain reading of the Explanation to Section 20 of the code we find as apparent fallacy in the aforesaid argument. The Explanation is in two parts, one before the word 'or' occurring between the words 'office in India' and the words 'in respects of and the other thereafter. The Explanation applies to a defendant which is a corporation which term, as seen above, would include even a company such as the appellant in the instant case. The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the Courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inasmuch as even if the defendant may not be actually carrying on business at that place, it will 'be deemed to carry on business' at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The words 'at such place' occurring at the end of the Explanation and the word 'or' referred to above which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation, it is not the Court within whose jurisdiction the principal office of the defendant is situate but the Court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction 'in respect of any cause of action arising at any place where it has also a subordinate office'.
In the present case, the evidence on record disclose that a part of the cause of action to institute a suit in respect of any dispute between the parties arise at Bangalore where the agreement was entered into and arbitration took place or Chitradurga where the mineral ore was lifted. It is not disputed that the parties to a dispute by agreement can always choose one of the places where a part of cause of action arose to be the specific place where a suit has to be filed. The Hon'ble Supreme Court in M/s. Angile Insulations v., M/s. Davy Ashmore India Ltd., : [1995]3SCR443 has held in para 5 as follows:
'5. So, normally that court also would have jurisdiction where the cause of action, wholly or in part, arises. But it will be subject to the terms of the contract between the parties. In this case, Clause (21) reads thus:
'This work order is issued subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, fall within the jurisdiction of the above Court only'
A reading of this clause would clearly indicate that the work order issued by the appellant will be subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, be instituted in a Court of competent jurisdiction within the jurisdiction of High Court of Bangalore only. The controversy has been considered by this Court in ABC Laminart Pvt. Ltd., v. AP Agencies, Salem, : [1989]2SCR1a . Considering the entire case law on the topic, this Court held that the citizen has the right to have his legal position determined by the ordinary Tribunal except, of course, subject to contract (a) when there is an arbitration clause which is valid and binding under the law, and (b) when parties to a contract agree as to the jurisdiction to which dispute in respect of the contract shall be subject. This is clear from Section 28 of the Contract Act. But an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy under Section 23 of the Contract Act. We do not find any such invalidity of Clause (21) of the Contract pleaded in this case. On the other hand, this Court laid that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves., the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreements'.
Thus there cannot be any doubt that when the parties agree to institute a suit or proceeding before one of the jurisdictional courts when part of cause of action arose at other places also then when such dispute arises the parties are bound to file the suit or proceeding in respect of such dispute in the specifically agreed place even though the suit or proceedings could have been filed in other places where the part of cause of action arose if the agreement was not there. The facts on record, clearly disclose that the courts at Chitradurga had also jurisdiction to entertain a suit in view of the cause of action, to entertain a petition filed under Section 34 of the Act. But in view of the agreement between the parties the appellant should have filed the suit only before the jurisdictional court at Bangalore.
9. Further it is not disputed that the award was made by the arbitrator on 15/3/2002 and thereafter in view of Sub-clause (3) of Section 34 an application for setting aside the award has to be made within 3 months from the date of receipt of the award or if a request has been made under Section 33 from the date on which the request had been disposed of by the Arbitral tribunal. Under the proviso to Sub-section (3) of Section 34 the jurisdictional court has been given power to condone delay of 30 days only after the three months period is over, if the applicant shows that the applicant was prevented by sufficient cause from making the application.
10. The Hon'ble Supreme Court in UNION OF INDIA v. M/S. POPULAR CONSTRUCTIONS CO, : AIR2001SC4010 has held in para 12, to 16 as follows:
'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.
13. Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. 'Even in a case where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation'.
14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge and 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'. This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms:
'5. Extent of judicial intervention.
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part.'
15. The 'Part' referred to in Section 5 is Part 1 of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act
16. Furthermore, Section 34(1) itself provides that recourse to a Court against an arbitral award may be only by an application for setting aside such award 'in accordance with' Sub-section (2) and Sub-section (3), Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application 'in accordance with' that sub section. Consequently by virtue of Section 34(1), recourse to the Court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of - Section 36 which provides that 'where the time for making an application to set aside the arbitral award under Section 34 has expired......... the award shall be enforced and the Code of Civil Procedure, 1908 in the same manner as if it were a decree of a Court'. This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to 'proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow'. Now, the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court's powers by the exclusion of the operation of Section 5 of the Limitation Act.'
11. A Division Bench of this Court in UNION OF INDIA v. M/S. POPULAR CONSTRUCTIONS CO, : AIR2001SC4010 while interpreting the provisions of Section 34 Sub-section (3) and its proviso held that a plain reading of the Section leaves no manner of doubt that the application has to be made within 3 months from the date of receipt of the award or from the date of disposal of the request under Section 33 by the Arbitral Tribunal and as per the proviso the Court is empowered to entertain an application under Section 34 for setting aside the arbitration award within a further period of 30 days and not beyond. Both the Hon'ble Supreme Court and the Division Bench of this Court have held that the expression or the crucial word 'but not thereafter' used in the proviso to Sub-section (3) would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act and thereafter would bar the application of Section 5 of the Act. These interpretations had become necessary in view of the scheme of the Act which intends to see that the disputes are settled within a short time and minimize the supervisory role of the Courts in arbitral process.
12. In view of the Judgment of the Hon'ble Supreme Court and the Judgment of the Division Bench of this Court, the learned counsel appearing for the appellant did not argue that Section 5 of the Limitation Act is applicable. But what he contends is that the appellant has bona fide filed and prosecuted the applications under Section 34 in two different Courts before ultimately presenting the same before the agreed jurisdictional Court at Bangalore and hence Section 14 of the Limitation Act is Applicable and it should be held under Section 14 of the limitation Act that the appellant is entitled to exclude the time taken before the other Courts in prosecuting the matter before re-filing the same before the Court at Bangalore. Several Judgments were cited by the learned counsel appearing for the appellant to contend that Section 14 of the limitation Act should be applied to the facts of the case to exclude the time taken by the appellant in prosecuting the petition before a wrong Court.
13. The learned counsel cited the judgment of the Hon'ble Supreme Court in VIDYACHARAN SHUKLA v. KUBCHAND BAGHEL AND ORS., : [1964]6SCR129 where it is held that Section 12(2) of the Limitation Act does not say that the order mentioned therein shall be only such order as defined in the Civil Procedure Code and that if a statute provides for the making of an order and confers a right of appeal to an aggrieved party against that order within a prescribed time, then the time taken for getting the certified copy for filling an appeal is excluded under Section 12 of Limitation Act. In THAPAN KUMAR SADHUKHAN v. FOOD CORPORATION OF INDIA : (1996)6SCC100 , the Hon'ble Supreme Court has held that in a case where in a writ petition filed by a Municipal employee for arrears of salary before the High Court which refused to exercise its discretionary power under Articles 226 directing the petitioner to a civil suit, it was held that the petitioner diligently and bona fide pursued the writ petition before the High Court and hence the time when the petition was pending before the High Court needs to be excluded under Section 14 of the limitation Act.
14. In KHALEEL AHMED DAKHANI v. HATTI GOLD MINES LTD, : [2000]2SCR575 the Apex Court confirmed the Judgment and order passed by a learned single Judge of this Court where a direction was given to the lower Court to the effect that the lower Court cannot dismiss the suit if it had no jurisdiction to entertain suit but to return the same for the presentation to the proper court. What is rightly contended by the learned counsel appearing for the respondent is that the Supreme Court has approved the view taken by this Court that when a proceeding is filed bona fide and prosecuted in a wrong Court that Court shall not dismiss the suit but return the same for presenting it before the proper Court.
15. In NATIONAL ALLUMINIUM COMPANY LTD. v PRESS STEEL AND FABRICATIONS PVT. LTD, 2004 (I) ARB.LR 67 (SC) the Hon'ble Supreme Court held that Supreme Court is not the Court where an application to modify the award could be entertained. The Court held that it had not retained any power or control over the arbitration proceedings while appointing the arbitrator by consent of parties but merely recorded a submission of the parties in appointing a particular arbitrator and therefore the application filed before the Supreme Court was dismissed and a direction was given to the applicant to file his objection to the award before the competent Court and that if the same are filled within 30 days the delay in filing was directed to be condoned. That direction, in our view, was given under the extraordinary power of the Apex Court.
16. The other Judgment cited is : AIR1983Ker154 where a Division Bench of the Kerala High Court held that despite the Special provisions under Section 120 of the Major Port Trusts Act 1963 it does not mean that Section 15(2) of the Limitation Act does not govern the computation of limitation in such a case.
17. In HATTI GOLD MINES LTD., v. KHALEEL AHMED DAKHANI : ILR1999KAR4525 which was taken up to the Apex Court in Appeal and confirmed by the Apex Court this Court had held that when the question of jurisdiction of the lower Court to entertain an application Under Section 34 is required to be considered and even assuming that the lower Court ultimately comes to the conclusion that it had no jurisdiction, it cannot dismiss the application except to return the same for presentation before proper Court.
18. In S.T. COMMISSIONER, U.P. v. M.D. & SONS, : [1977]1SCR683 the Hon'ble Supreme Court held in the said case that despite the prescription of a special limitation under the UP Act itself for filing a revision petition, even then time spent for obtaining copy of the order is to be exculded.
19. In MAQBUL ARMED AND ORS. v. ONKAR PRATAP NARAYAN SINGH AND ORS. it was held that where there is a ground for excluding certain periods under Section 14 of the Limitation Act in order to ascertain what is the date of the expiration of the period, the days excluded from operating by way of limitation has to be added to what is primarily the prescribed period.
20. In VIDYACHARAN v. KHUBCHAND, : [1964]6SCR129 , the Apex Court was considering the question of limitation in filling an appeal under Section 116-A(1) of the Representation of the People Act 1951. The majority of the judges took a view that under the said Section by fiction the appeal is equated with an appeal filed under the CPC in the matter of not only the exercise of the powers, jurisdiction and authority but also in the matter of procedure to be followed from the date of receipt of the appeal to its final disposal. It held that the Representation of Peoples Act has prescribed the period of limitation different from the period prescribed by the First Schedule to the limitation Act within the meaning of Article 29(2) of the limitation Act It held, Section 12 of the Act is therefore attracted and the appellant is entitled to exclude the time taken for obtaining the copy of the order. The Hon'ble Supreme Court was of the view that even on the narrowest construction of the words 'different from those prescribed therefore in the first schedule' occuring in the opening part of Section 29(2), the exclusion of time provided for by Article 12 of the limitation Act would be permissible in computing the period of limitation for filing the appeal to the High Court.
21. In M/S. INDIA HOUSE v. KISHAN N LALWANI, : [2002]SUPP5SCR522 the Hon'ble Supreme Court held that by virtue of Sub-section (2) of Section 29 of the limitation Act, the provisions of Section 12 are applicable for computing the period of limitation prescribed by any special or local law. That the period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed for equitable considerations and at the same time full effect should also be given to those provisions which permit extension or relaxation in computing period of limitation such as those contained in Section 12 or 14 of the limitation Act. The Hon'ble Supreme Court held that the underlying purpose of the relaxation and extension provisions of the limitation Act is to enable a litigant seeking enforcement of his right to any remedy to do so effectively and harsh prescription of time-bar not unduly interfering with the exercise of statutory rights and remedies and that is why Section 12 has always been liberally interpreted. It further held that for excluding the time no application is required to be made seeking the benefit of the Sections since it is the statutory obligation on the Court the benefit where available. Thus the Hon'ble Supreme Court in the said case has held that even if a special statute prescribes limitation for preferring an appeal different from the one prescribed under the limitation Act, it cannot be said that the provisions of Section 12, 14 etc., which are powers givens to the Court to extend the time can be curtailed and further no separate application is necessary for seeking the exclusion of time under those provisions.
22. In DURGAPAL SINGH v. PANCHAM SINGH : AIR1939All403 a Full Bench of the Allahabad High Court held that the general provisions of Section 15 Of the limitation Act are intended to apply to periods of limitation prescribed in the Civil Procedure Code and are not confined in their operation to periods prescribed by the limitation Act or by the schedule under the CPC.
23. In ISLAMSHAW v. WALI MOHAMMED AIR 1971 All. 4731 it was held that under Section 14 of the limitation Act the plaintiff is entitled to the exclusion of time on return of plaint for presentation to proper Court from the date an endorsement of return made under Order 7 Rule 10(2) of the CPC.
24. In MUSLIM BANK v. HASSAN SHIRAJA, AIR 1951 Hyd. 57 it was held that Section 14 should be liberally construed.
25. Relying on the above cited judgments the learned counsel appearing for the appellant submitted that even though the provisions of Section 5 of the Limitation Act 1963 are not applicable to an application challenging an award under Section 34 of the Act and as Such there was no scope for assessing the sufficiency of the cause for the delay beyond the period prescribed in the proviso to Section 34(3) and despite the express exclusion within the meaning of Section 29(2) of the limitation Act, it cannot be said that neither Section 12 nor Section 14 of the limitation Act is not applicable.
26. In our view, there is much force in what is contended by the learned counsel appearing for the appellant that Sections 12 & 14 of the limitation Act which deal with exclusion of time in legal proceedings can be applicable even in an arbitration proceeding under the Act. Section 12 of the Limitation Act reads as follows:
12. Exclusion of time in legal proceedings:-
(1) in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.'
The said Section deals with exclusion of time taken to get certified copies of the relevant orders. It cannot therefore be argued that when a specific period is prescribed under a statute as Limitation for instituting a proceeding, it cannot be said that the applicant cannot take advantage of Section 12 of the limitation Act. Suppose the applicant is required to get a certified copy from a Court for filling a petition of appeal, even if a period of limitation is prescribed for filling the matter under the special enactment, the applicant is entitled to deduct the time taken in getting the certified copy or other required documents from the Court.
27. Under Section 43 of the Act, the Limitation Act 1963 is made applicable to arbitrations as it applies to proceedings in Court. THE KERALA HIGH COURT IN ANAS ABDUL KHADEER v. ABDUL NASAR, 2001(2) Recent Arbitration Judgment 124 reported in 2001(2) Recent Arbitration Judgment 124 has held that Section 43 provides that the Limitation Act shall apply to Arbitrations as it applies to proceedings in Court and that a joint reading of the aforesaid provisions of the two Acts makes it clear that limitation Act is applicable with regard to consideration of the aspect of limitation with regard to representation of an arbitration petition before the jurisdictional Court. Section 14 of the Limitation Act provides for exclusion of time of proceeding bona fide in a Court which had no jurisdiction. The effect of the said Section is to extend the period of limitation prescribed by the period during which the suit or proceedings has to be prosecuted with the diligence and in good faith which from defect of jurisdiction or other cause of a like nature is unable to entertain it.
28. This Court in Hatti Gold Mines Co., Ltd., v., Khaleel Ahmed Dakhani : ILR1999KAR4525 had held in similar circumstances that when a Court which had no jurisdiction to entertain a matter, receives the same and allows it to lie over for some time it cannot dismiss the application even if it holds that it had no jurisdiction. But it had to return the matter under order VII Rule 10 CPC to the party for presentation before the proper Court. As already stated this view taken by this Court was upheld by the Supreme Court when the above matter was taken in a special leave petition and it is reported in : [2000]2SCR575 Khaleel Ahmed Dakhani v., Hatti Gold Mines Co., Ltd., Sri Subarao, learned counsel appearing for the respondent contended that if such view is taken it will be contrary to the judgment of the Hon'ble Supreme Court in Union of India v., M/s. Popular Constructions Ltd., : AIR2001SC4010 and the Division Bench judgment of this Court in M/s. Turn Key Constructions Pvt. Ltd. v. Mrs. V.R. Vijur and Ors. reported in : ILR2001KAR4666 . We are not inclined to accept the said submission of the learned counsel. In those cases the Hon'ble Supreme Court as well as the Division Bench of this Court held that when the specific period is mentioned in Section 34(3) and the proviso to the Section specifically provides that the application could be entertained even after the period of 90 days if the same is filed within further period of 30 days but not thereafter, was interpreted by the Hon'ble Supreme Court and this Court to hold that Section 5 of the Limitation Act was not applicable to extend the time specifically provided. That none of the two judgments say that the entire Limitation Act cannot be made applicable to a proceeding under the Arbitration Act.
29. The learned counsel further pointed out that in view Section 5 of the Act there is a prohibition for applying the provisions of Section 14 because it amounts to intervention by the Court which is prohibited under Section 5. This argument also cannot be accepted. Section 12 and Section 14 of the Limitation Act are provisions which enable the parties to exclude the time taken by the Court to grant the copies of necessary orders ects., Therefore, we are clearly of the view that the provisions of Sections 12 and 14 of the Limitation Act are clearly applicable even to a proceeding filed under the Arbitration Act.
30. However, it was argued by Sri Subbarao that even assuming that Section 14 of the Limitation Act is applicable the appellants have not shown that they were bona fide and in good faith with due diligence were proceeding with the petitions before the wrong Court. He submitted that the way the appellants have conducted the proceedings in the Courts which had no jurisdiction show that they have been deliberately filed in wrong courts and proceeded with in order to harass his client and to protract the proceedings. In rebuttal, the learned counsel appearing for the appellant submitted that the facts and circumstances of the case could be considered to find out whether the appellant has deliberately filed the proceedings in wrong Courts and that the appellant was not bona fide proceeding with the matter.
31. The facts as already stated earlier are that under an agreement entered into between the appellant and the respondent the dispute between them was as agreed referred to arbitration at Bangalore. The arbitration proceedings were held at Bangalore and an award was passed in the said proceedings by the arbitrator at Bangalore. The entire proceedings under the Arbitration took place at Bangalore. It is not disputed by the appellant that an application to set aside the award made by the arbitrator ought to have been filed at Bangalore, but admittedly the application was filed by the appellant before the Civil Judge (SD) Chitradurga.
32. It is now not disputed by the appellant that under Section 2(e) of the Act, the principal Civil Court of original jurisdiction where the petition should have been filed is the City Civil Court at Bangalore.
33. It is the case of the respondent that they filed the application under Section 34 of the Act before the Civil Judge (SD) Chitradurga and thereafter before the Prl. District Judge Court at Chitradurga by mistake and therefore the time taken in prosecuting the proceedings before the wrong forum could be condoned under Section 14 of the Limitation Act. Section 14 of the Limitation ACT 1963 reads as follows:
'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 diligence 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 of 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 case of Civil Procedure, 1908, the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.'
The principle embodied in the provision is protection against the bar of limitation in respect of a proceeding instituted bona fide and diligently and trying his beet to get his ease tried on meats but failing through the Court being unable to try his case for lack of jurisdiction. The purport of Section 14(2) is to extend the period of limitation prescribed by the statute and what has to be done is to add the period during which the suit had been prosecuted with due diligence and in good faith in a court, which either on account of lack of jurisdiction or other cause of a like nature was unable to entertain it, to the normal period prescribed by the statute. Section 14 in clear terms States that the time that could be excluded in computing the period of limitation is the time where the party to the proceedings prosecutes the proceeding in good faith and with due diligence. Therefore in order to take advantages of the section and exclude the time spent during the proceedings in a wrong court that proceeding should be with due diligence and in good faith.
34. Thus in order to get the benefit of Section 14 of the Limitation Act the appellant has to show that the appellant was bona fide, in good faith and with due diligence prosecuting the case before the wrong forum. The appellant is a well-known public sector undertaking of the Govt. of Karnataka. What is now submitted on behalf of the appellant is that after obtaining the award from the arbitrator at Bangalore the appellant challenged the same under Section 34 of the Act before the Civil Judge (SD), Chitradurga. It is stated that under the old Act the arbitration awards were being challenged before the Civil Judge (SD), Chitradurga and therefore the appellant after making enquires bona fide believed that the petition should be filed before the Civil Judge (SD) Chitradurga. It is also stated that other arbitration cases were also pending in that Court and that is also one of the reasons for filing the petition there.
35. It is further submitted on behalf of the appellant that during the proceedings before the Civil Court (SD) Chitradurda appellant came to know that the appropriate Court to file a petition under Section 34 of the Act was the District Judge, Chitradurda and hence he filed an application before the Civil Judge (SD) Chitradurga under order 7 Rule 10A CPC seeking permission of the Court to return the papers for presentation before District Judge, Chitradurga and immediately after the order was passed by the Civil Judge (Sr. Dn.) on his application permitting the appellant to present the same before the District Judge Chitradurga, the appellant presented the papers before the District Judge, Chitradurga without any loss of time.
36. It is further contended that the respondent again took up a preliminary objection before the District Judge, Chitradurga with regard to its jurisdiction and contended that it is the City Civil Court, Bangalore which has got jurisdiction. It is stated that the District Judge, Chitradurga upheld the objection of the respondent and returned the case papers once again to be presented to the proper Court and according to the appellant legal opinion was taken and the petition was presented before the City Civil Judge, Bangalore along with an application Under Section 14 r/w Section 5 of the Limitation Act and Section 43 of the Act.
37. There is no dispute that the parties have entered into an agreement on 11/5/1999 and under the said agreement the parties agreed that any dispute between them shall be referred to arbitration and accordingly dispute arose and the same was referred to a sole arbitrator, who made an award on 15/3/2002. Admittedly the arbitration proceedings were held at Bangalore and the award was made at Bangalore. The parties had admittedly agreed that it is the Courts at Bangalore which will have jurisdiction to decide any dispute between the parties. Such agreement it is already held following the Judgment of the Apex Court is valid. When the parties under the agreement specifically agree to adjudicate all their dispute before a Court at Bangalore where a part of cause of action arose there appears to be absolutely no material produced to show that the appellant could have gone and filed a case in respect of the said agreement at Chitradurga and that too not in a Court as defined under the Act. As defined under Section 2(e) of the Act a petition under Section 34 of the Act could be filed only in a Principal Civil Court of original jurisdiction. There is absolutely no reason at all for confusion regarding the definition of the Court. The Court is clearly defined as the Principal Civil Court of original jurisdiction of the concerned district. The appellant is a big established Government company having sufficient legal assistance and it is very difficult to believe that the appellant was told to file a petition at Chitradurga and that too in a Court other than the Principal Civil Court of original jurisdiction. We do not think that any counsel could have interpreted Section 2(e) of the Act to say that the Principal Civil Court of original jurisdiction could be a lower Court when a District Court was there. We could have understood if the appellants have at least filed the petition before the District Court, Chitrdurga. But that they have not done so. Therefore the filing of the petition before the Civil Judge (SD) at Chitradurga appears to be not in good faith. The Arbitration Act especially the new Act and the proceedings under the Act are specifically enacted to see that the disputes are settled as quick as possible and when that is the intention, if a party takes recourse to such laziest method of going to a Court which has no jurisdiction without proper verification and without taking legal advise it can never be said that the petition was instituted in good faith.
38. Further it is important to note that before the Civil Judge (SD) at Chitradurga the respondent took objections to the jurisdiction of the Court. At that stage it was the bounden duty of the appellants to have got a legal opinion from some good source before proceeding to file an application for return of the papers for presenting before a proper Court. Even that has not been done by the appellant. The petition was returned by the Civil Judge (SD) at Chitradurga and thereafter no efforts were appeared to be made by the appellant to get a clear opinion as to where the petition has to be filed. Instead of filing a petition before the Prl. Civil Court of original jurisdiction at Bangalore as agreed, the appellant went to the District Court, Chitradurga and filed it there. The explanation given is that the cause of action arose within the jurisdiction of Chitradurga Court or that the respondent did not specifically contend before the other Court that the petition has to be filed before the Bangalore Court. Those reasons cannot be a ground to bold that the petition was tiled and prosecuted diligently and in good faith. When a petition is filed under the Act and when the intention of enacting the Act is to see that the disputes are settled without least intervention from the Court and in a speedy manner, it was incumbent on the part of the appellant to seek, proper legal advise and prosecute the matter diligently and in good faith before the competent Court as agreed by them.
39. As already observed the appellant could have taken advantage of Section 14 of the limitation Act only if the petition was filed and prosecuted in good faith and with due diligence. From the facts and circumstances as already discussed and from the various circumstances, we are of the view that the appellant has deliberately filed the application at Chitradurga and that too in a Court which does not come under the definition of Principal Civil Court under the Act, in order to harass the respondent and to make the respondent to go all the way from Bangalore to Chitradurga despite agreeing to institute the proceedings at the Court in Bangalore where admittedly a part of the cause of action arose. The appellant has deliberately done it so that the proceedings could be prolonged and any payment to be made under the award could be delayed. Thus we are of the view that the appellant has not been able to show that it has prosecuted the proceedings at Chitradurga in good faith and with due diligence. Thus advantage of Section 14 could be taken only when the proceedings are prosecuted in good faith and bona fide in a Court without jurisdiction and when due diligence in prosecuting the proceedings is not proved, we are of the view that the appellant is not entitled to exclude the time spent in prosecuting the petition before the Courts at Chitradurga.
40. Thus even though we have held that Section 12 & 14 of the limitation Act are applicable to a proceeding under the Act, we have found that the appellant has not prosecuted the matter in the other Courts with due diligence and in good faith and hence the appellant cannot claim exclusion of time taken by them in prosecuting the matter in wrong Courts. The appeal, therefore dismissed with costs.