State of Orissa Vs. Purusottam Pradhan - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this position has been well settled in a number of judicial pronouncements of this court.b.k. behera, j.1. in this appeal arising out of the order dated 24-3-1982, passed by mr. h. mohapalra, the learned subordinate judge at rourkela, dismissing misc. case no. 26 of 1982, registered on an application made by the state of orissa raising objection to the acceptability of the award under section 33, arbitration act, 1940, in title suit no. 46 of 1981, passed by mr. niranjaa misra, superintending engineer, p. h. circle, sambalpur, the grounds taken by the learned additional government advocate at the time of addressing this court are that there was no valid reference because there was no dispute between the parties and the arbitrator had no jurisdiction to award interest. it has been submitted on behalf of the respondent that the learned subordinate judge had carefully considered these objections and had rejected the application.2. the appointment of the arbitartor was dot challenged then and this question was agitated only after the submission of the award. no misconduct on the part of the arbitrator in the course of the proceeding had been alleged in the application made by the state. a dispute arose and both the parties submitted to arbitration. no ground has been made out that no valid reference had been made.3. unless the payment of interest has been prohibited by the agreement, it is open to the arbitrator to award interest. this position has been well settled in a number of judicial pronouncements of this court. (see air 1980 orissa 74, executive engineer, rural engineering organisation, khurda v. d. n. senapati; air 1981 orissa 160, state of orissa v. qokulachandra kanungo, (1981) 52 cut lt 451, state of orissa v. j. n. choudhury; (1982) 53 cut lt 526: (air 1982 orissa 166), secretary, works department, government of orissa, bhubaneswar v. ghanshyam sahu; and air 1982 orissa 275, state v. j. n. choudhury). it has not been shown that the grant of interest or any part thereof by the arbitrator was in excess of his jurisdiction or was contrary to law.4. i notice from the record of title suit no. 46 of 1981 that after dismissing the misc. case on 24-3-1982 and after hearing both the sides, judgment has been pronounced on 31-3-1982 decreeing the suit in terms of the award.5. i do not see any force in either of the two contentions raised on behalf of the state in this appeal arising out of the order passed in the miscellaneous case.6. in the result, therefore, the appeal fails and is dismissed with costs. hearing fee is assessed at rs. 100/-,