9911796707
TMI Blog2006 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... s same question of law involves in these appeals The basic question which involves in these appeals is applicability of Section 14 of Limitation Act, 1963 in The Arbitration and Conciliation Act, 1996. However in order to appreciate the controversy involve in these appeals it is necessary to give few facts for that purpose the facts given in the C.A. No. 1457 of 1004 are taken into consideration. A dispute arose between M/s. Western Builders Bito s Compound The State of Goa, represented by The Executive Engineer, Works Division XX (PHE), Public Works Department, Fatorda, Margoa, Goa. Mr. P.K. Mohan, Ex- Executive Engineer, Goa P.W.D. residing at House No. 1505, Dr. Rego Bag, P.O. Barbolim Complex, Goa 403202 was appointed as the Sole Arbitrator. He gave an award on 7 th February, 1995 in favour of claimant and against the State of Goa and directed that the claimant is entitled to a sum of Rs. 89763/- and he further directed the State to pay simple interest on Rs. 75553/- from 4th January, 1993 at the rate of 15% per annum. This interest was payable till the date of decree of the award and till payment whichever is earlier. Aggrieved against this award, a petition was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round a common question of law arises in all these appeals, whether Section 14 of the Limitation Act, 1963 is applicable to the Arbitration Act, 1996 or not. The learned counsel for the appellant has submitted that since the Arbitration proceedings are of civil nature in view of Section 43 of 1996 Act Limitation Act 1963 is applicable to the Act of 1996. Learned counsel for appellant submitted that in the Arbitration and Conciliation Act, 1996 there is no provision which prohibit the applicability of the Limitation Act 1963 therefore wherever it is not prohibited by Act, 1996 the provisions of Limitation Act, 1963 may be made applicable mutatus mutandi. As against this, learned counsel for respondent has submitted that this is special enactment legislature in its wisdom has provided for every eventuality and therefore the operation of Limitation Act is ousted by virtue of Sub-section (2) of Section 29. In this connection our attention was invited to Section 34 of the Act which lays down the ground on which award can be set aside period within which it can be set aside. Therefore, it is a complete code in itself and the operation of Section 14 Section 5 of Limitation Act s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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. (4) On receipt of an application under subsection (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award." We are primarily concerned with sub-section (3) of Section 34 read with proviso. Reading of sub-section 3 alongwith 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded 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. 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. Whenever two enactments are overlapping each other on same area then courts should be cautious in interpreting those provisions. It should not exceed the limit provided by statute. The extent of exclusion is however, really a question of construction of each particular statute general principles applicable are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subs-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." National Aluminum Co. Ltd. vs. Pressteel Fabrication (P) Ltd. and Another reported in 2004 (1) SCC 540. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 overburden 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
