S.B. Sinha, A.C.J.
1. The only question which arises for consideration in this appeal is as to whether the application for preferring an award is barred by limitation or not.
2. The fact of the matter lies in a very narrow compass.
3. An application under the provisions of Foreign Awards (Recognition and Enforcement) Act, 1961 (hereinafter called and referred to as the said Act) was filed in this Court on 18th December, 1998 by the appellant herein.
4. Mr. D. Banerjee, the learned Senior Counsel appearing on behalf of the appellant, however, submitted that keeping in view the scheme and purport of the Limitation Act, 1963 the intention of the Parliament appears to be that the provisions thereof have no application in relation to a foreign award as otherwise while using the word 'award' in Article 119 of the Schedule appended to the Act the words 'foreign award' would also have been mentioned. The learned counsel submits that if Article 119 of the Limitation Act has any application to such an award, the same would result in absurdity, inasmuch as, it is not possible for a person in whose favour a foreign award has been made to find out the country in which the properties of the person against whom the award has to be executed, is situated within a period of three months.
5. Mr. Dipankar Ghosh, the learned Senior Counsel appearing on behalf of the respondent, on the other hand, submitted that whether the application for foreign award dated lst March, 1985 be treated as an application or as a suit, the limitation thereof would be three years in terms of Articles 123 and 137, as the case may be.
6. Section 3 of the Limitation Act, 1963 provides that no Court shall take cognizance of a suit or an application which is ex facie barred by limitation. There are provisions in the Limitation Act itself which excludes some period in computing the period of limitation and/or for condonation of delay in filing application or appeal etc. before a Court of Law.
7. Limitation Act is a statute of repose. What is barred in terms of the provision of the Limitation Act is to initiate a proceeding before a Court of Law but the right of the parties remains intact.
8. The object of the Limitation Act, therefore, is that the Court shall not entertain any application, except in the case where there exists provisions for condonation of delay or exclusion of time for computing the period of limitation, or to allow a party to initiate a proceeding after the period prescribed under the Limitation Act is over. Such a provision has been made with a view to ensuring that one party to the lis does not suffer because of delay and laches on the part of the others.
9. The Newyork convention, inter alia, provides :
'Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.'
10. It is, therefore, evident that rules and procedure of the country where the award is sought to be filed would apply.
11. In C. Beepathuma and Ors. v. Velasari Shankaranarayana, reported in : [1964]5SCR836 , it is stated that the law of limitation is a procedural law.
12. In terms of the provisions of the Limitation Act, 1963 which would be applicable in the facts of this case if the proceeding has started as a suit then the suit would be a suit for enforcement of the foreign award. In such a situation the residuary article containing Article 113 of the Limitation Act shall apply. If the proceeding is started as an application, Article 137 would apply. In either case, the period of limitation prescribed for three years commencing the time when the right to sue accrues. As indicated hereinbefore, the foreign award was passed on Ist March, 1985 and soon thereafter the right to sue accrued to the appellant herein.
13. In Francesco v. Gorakkram, reported in AIR 1960 Bombay 91, upon which Mr. Banerjee placed strong reliance upon has no application in the present case. In that case the Court was concerned with applicability of Section 5 of the Arbitration (Protocol and Convention) Act, 1937. The question was discussed with reference to the provisions of Limitation Act, 1908. However, the position has since undergone a change after coming into force of the Limitation Act, 1963. Section 29(2) of the Limitation Act, 1963 reads thus :
'Section 29 . Savings.-...............................
(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 insofar as, and to the extent to which, they are not expressly excluded by such special or local law.'
14. The 1963 Act is materially different from 1908 Act.
15. Francesco v. Gorakhram, reported in AIR 1960 Bombay 91, is clearly distinguishable. The residuary Articles have been placed in the Schedule to the Limitation Act only because it was not possible for the Parliament to prescribe the period of limitation for each type of proceedings. Article 119 which refers to an award made under Arbitration Act, 1940, thus, cannot by any stretch of imagination be extended to a foreign award.
16. The new Limitation Act is not confined only to applications made under the Code of Civil Procedure as was the position under the old Limitation Act. Reference in this connection may be made to Kerala State Electricity Board v. T.P. Kunhaliuonma, reported in : [1977]1SCR996 and Commissioner of Wealth Tax, Cal. v. U. C. Mehatal, reported in : AIR1995SC1925 .
17. In Patel Motibhai Naranbhai v. D.M. Fatal, reported in : [1996]1SCR239 , it has been held that Article 137 of the Limitation Act shall apply even in a case where an arbitrator files an award.
18. Both 1908 Act and 1963 Act consist of three divisions. Article 181 of 1908 Act occurred in the Third Division. The Articles (except Articles 158 and 183) preceding the residuary Article 181 dealt with applications under Code of Civil Procedure and, thus. Article 181 of the Limitation Act was construed as 'ejusdem generis'. However, so far as the 1963 Act is concerned the Third Division is sub-divided into two parts. Part-I deals with applications in the specified cases; whereas Part-II deals with other applications. Article 137 which is a residuary Article is in Part-II of the Third Division of 1963 Act and, thus, now it cannot be said that Article 137 should be read as a ejusdem generis with the article preceding thereto. Reliance placed by Mr. Banerjee to the provision of Section 37 and Section 46 of the Arbitration Act is misplaced. By reading the said provisions, no conclusion can be arrived at to the effect that the Limitation Act will have no application.
19. Section 37 refers to the applicability of the Limitation Act in relation to the proceedings before the arbitrator. It does not relate to an application made to a Court of Law.
20. In Wazir Chand Mahajan and Anr. v. Union of India, reported in : [1967]1SCR303 , the law is stated in the following terms :
'...................By the amendment made by the Arbitration Act 10 of 1940, Articles 158 and 178 were modified and in the articles for the expression 'under the Code of Civil Procedure, 1908' the words 'under the Arbitration Act, 1940' were substituted. The reason which persuaded the Courts from time to time to hold that the expression 'under the Code' must be deemed to be added in Article 181 did not continue to apply after the amendment of Articles 158 and 178. It may be recalled that the law relating to consensual arbitration, except in respect of cases governed by Arbitration Act, 1899, was enacted in Schedule II of the Code of Civil Procedure, 1908. By the enactment of Act 10 of 1940, Schedule II of the Code of Civil Procedure and the Indian Arbitration Act, 1899, were repealed and an Act dealing with all arbitrations was enacted, and it was found necessary on that account to amend Articles 158 and 178 so as to make them consistent with the legislative changes. The reason which persuaded the Courts to hold that the expression 'under the Code' was deemed to be added to Article 181 has now disappeared, but on that account the expression 'applications for which no period of limitation is provided elsewhere in this Schedule' in Articles 181 cannot be given a connotation different from the one which prevailed for nearly 60 years before 1940.
If Article 181 of the Limitation Act only governs applications under the Code of Civil Procedure for which no period of limitation is provided under the Schedule, an application under the Arbitration Act, 1940 not being an application under the Code of Civil Procedure, unless there is some provision, which by express enactment or plain intendment to the contrary in the Arbitration Act, will not be governed by that Article.'
21. Section 46 of the Arbitration Act excludes the applicability of Section 37 to statutory arbitration as the said Act does not exclude the applicability of the Limitation Act. On the contrary, as noticed hereinbefore, the New York Convention recognises the rules and procedures of this Act.
22. Section 3 of the Limitation Act, as noticed hereinbefore, contains a jurisdictional provision. If the application is barred by limitation, the Court has no jurisdiction to entertain the application. In this view of the matter, the application has rightly been dismissed by the learned Trial Judge, although this point was not argued before him.
23. We are, therefore, of the opinion that there is no substance in the appeal and the application which are accordingly dismissed but without any order as to costs.
M.H.S. Ansari, J.
24. I agree.