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TMI Blog2023 (12) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication which are as under: (i) The Award was passed by the Facilitation Council on 31st March, 2017; (ii) On 5th April, 2017, the Applicant is stated to have received the Award; (iii) The Applicant filed a Writ Petition No.7899 of 2017 on 6 th June, 2017 challenging the Award before this Court; (iv) An Affidavit-in-Reply was filed by the Respondent No.1 on 4th November, 2017 opposing the Writ Petition. The issue pertaining to maintainability of the Writ Petition was raised in the Reply and the Petitioner was also put to notice of the existence of an alternate remedy as a bar to entertain the Writ Petition; (v) On 20th June, 2019 an order was passed by this Court recording the preliminary objection of the Respondent No.1 based on the decision of the Supreme Court in SBP & Co. Vs. Patel Engineering (2005) 8 SCC 618; (vi) This Court dismissed the Writ Petition by order dated 20th January, 2020 in view of the law laid down by Supreme Court in Patel Engineering (supra). It is relevant to note that the Petitioner undertook before this Court that they will adopt appropriate proceeding to challenge the Award and this has been recorded in the said order; (vii) On 24t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Filing and prosecution of the SLP before the Supreme Court against the order dated 20th January, 2020 is an extension of the foregoing. He has submitted that had the Applicant not filed an SLP, filing of the Writ Petition could legitimately be said to have been "chance litigation" and would thus fall outside the purview of Section 14. However, since the proceedings were taken to its logical conclusion by the Applicant, the Applicant is entitled to the benefit of Section 14. 6. The learned Counsel for the Applicant has submitted that though the Applicant agreed to avail appropriate remedy against the Award, under the advice of its advocates, the Applicant believed that an SLP would at the relevant point in time be the appropriate remedy in respect of the impugned Award and accordingly proceeded to file an SLP before the Supreme Court which came to be disposed of by order 31st October, 2022. The Applicant prosecuted said SLP in good faith as the record would demonstrate. Further, it is pertinent to note that the SLP is not summarily dismissed. 7. The learned Counsel for the Applicant has accordingly submitted that the Applicant having prosecuted the Writ Petition as also the SLP in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under Section 14 of the Limitation Act. 12. The learned Counsel for the Respondent No.1 has submitted that the Petitioner after dismissal of the Writ, had submitted that it would adopt the appropriate proceedings to challenge the Award and this has been recorded in the said order dated 20th January, 2020 dismissing the Writ Petition. However, instead of the Applicant/Petitioner adopting the appropriate proceedings i.e. under Section 34, the Applicant/Petitioner preferred an SLP. This certainly cannot be said to be bonafide prosecution of proceedings. 13. The learned Counsel for the Respondent No.1 has referred to the decision of the Supreme Court in Ketan V. Parekh Vs. Special Director, Directorate of Enforcement & Anr., (2011) 15 SCC 30 at Paragraphs 1, 8, 9 and 10 for facts and the law laid down in Paragraphs 31 to 34. The Supreme Court had held that there is no averment that the prosecution before the earlier Court i.e. Delhi High Court was made before the wrong forum and was made with due diligence and in good faith. It was also noticed that the prayer was for condonation of delay and not for exclusion of time spent in prosecuting the remedy before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the instant case, the Applicant has not been exercising due diligence and good faith. The Respondent No.1 put the Applicant twice to notice that the appropriate remedy to challenge the Award is under Section 34 of the Arbitration Act. First time in the Affidavit in Reply to the Writ Petition and second time, on 20th June, 2019, at the hearing of the Writ Petition and which is recorded in the said Order. However, despite putting the Applicant to notice, the Applicant continued pursuing the Writ Petition. Thereafter, the Applicant preferred an SLP challenging the dismissal of the Writ Petition and which in turn was dismissed on the ground of having appropriate remedy under the Arbitration Act to challenge the Award. 18. The learned Counsel for the Respondent No.1 has submitted that the Writ proceedings cannot be said to be a proceedings suffering from "Defect in Jurisdiction" or "Any other causes of like nature". He has submitted that it was not as if the Writ Court could not interfere but it chose not to interfere on account of existence of an alternative remedy. There is no finding in the order of this Court dated 20th January, 2020 that the Court suffers from lack of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenging Award cannot be termed as "defect of jurisdiction". The judgment does not lay down any proposition that supports the Petitioner's case. In that case, the Writ Court interfered with an Award on account of inherent lack of jurisdiction. The Court was not concerned with facts which can even remotely relate to the facts of the present case. 22. The learned Counsel for the Respondent No.1 has submitted that strictly without prejudice to the above submissions, assuming that the Applicant is entitled for exclusion of period spent in prosecuting the Writ Petition, still the Petition under Section 34 is not referred within the prescribed period of limitation. He has submitted that the period between two dates i.e. date from receipt of the Award i.e. 5th April, 2017 till date of filing of the Writ Petition i.e. 5 th June, 2017 which is a total of 61 days cannot be counted in exclusion. Further, the period between the date of rejection of the Writ Petition by this Court i.e. 20th January, 2020 till 14th March, 2020 i.e. stoppage of period of limitation, based on the order of Supreme Court where limitation from 14th March, 2020 till 28th February, 2022 was excluded which is a total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Section 14 of the Limitation Act requires certain necessary ingredients to be met for it to be applicable. Firstly, the Applicant is required to prosecute with due diligence another civil proceeding. Secondly, the Plaintiff is to prosecute the civil proceeding in good faith. Thirdly, the Court in which the proceeding is prosecuted suffers from "defect of jurisdiction" or "other cause of a like nature". It is only then that the time for prosecution of such proceeding is to be excluded. In my view, these ingredients have not been met in the present case. 27. The Applicant chose to challenge the Award by filing the Writ Petition on 6th June, 2017. The Respondent No.1 had at the outset in his Affidavit-in-Reply to the Writ Petition objected to the Writ Petition on the ground that an appropriate remedy was available under Section 34 of the Arbitration Act. Further, the Respondent No.1 yet again took the objection of maintainability of the Writ Petition on ground of appropriate alternative remedy available under Section 34 of the Arbitration Act on 20th June, 2019 when this Court had considered the Writ Petition and which has been recorded in the said order passed on that day. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge the decision by filing an SLP. 31. I also find much merit in the submission of learned Counsel for Respondent No.1 that there is no due diligence exercised by Applicant/Petitioner. It is not the contention of the Applicant/Petitioner that it had prosecuted the Writ Petition with "due diligence". The burden to show due diligence is on the party seeking benefit of Section 14 of the Limitation Act. Further, the Applicant's case would not fall within the parameter of "been prosecuted with due diligence in good faith". Under the definition of "Good Faith" in Section 2(h) of the Limitation Act - nothing is deemed to be done in good faith which is not done with due care and attention. 32. In my view, the Applicant in the present case has failed to exercise due diligence and good faith. Further, the proceedings adopted by the Applicant viz. the Writ proceedings cannot be said to be proceeding suffering from "defect of Jurisdiction" or "any other causes of like nature". It is not the submission of the Applicant/Petitioner that the Writ Court cannot interfere with the Arbitral Award. In the present case, the Writ Court chose not to interfere on account of alternate remedy. In the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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