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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 ..... to which provides misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction. This expression must take its colour and content from the just preceding expression, defect of jurisdiction . In the present case, the Writ Petition challenging the Award cannot be termed as defect of jurisdiction . There are much merit in the submission of the Counsel of Respondent No.1 that presuming Section 14 applies to the Arbitration Petition, the Arbitration Petition is not preferred within the prescribed period of limitation as the delay is of 166 days as the period between receipt of the Award and filing of the Writ Petition as well as the period between the rejection of the Writ Petition and filing of the SLP and the period between the dismissal of SLP and filing of the Arbitration Petition cannot be counted in the exclusion period under Section 14 of the Limitation Act. Thus, in any event the Arbitration Petition has been preferred beyond the permissible period of 120 days under Section 34 of the Arbitration Act. There are no merit in the present Interim Application for exclusion of the period of 1854 days from 5 th April, 2017 till 1st N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore this Court that they will adopt appropriate proceeding to challenge the Award and this has been recorded in the said order; (vii) On 24th May, 2020 the Applicant preferred the Special Leave Petition No.7375 of 2020 ( SLP ) before the Supreme Court of India challenging the Award and the said order dated 20th January, 2020 passed by this Court; (viii) The Supreme Court of India on 31st October, 2022 dismissed the SLP on the ground of the Applicant having sufficient remedy under the Arbitration Act to challenge the Award; (ix) The Applicant preferred the captioned Petition under Section 34 of the Arbitration Act challenging the Award on 23rd December, 2022. 3. The learned Counsel appearing for the Applicant has submitted that the applicability of Section 14 of the Limitation Act, 1963 to proceedings under Section 34 of the Arbitration Act is not in dispute. The only question which arises is, whether the provision of Section 14 of the Limitation Act, 1963 ought to be invoked in the present case. He has submitted that Section 14 of the Limitation Act contemplates exclusion of time which the Applicant has taken prosecuting with due diligence another civil proceeding in good faith a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the Applicant has accordingly submitted that the Applicant having prosecuted the Writ Petition as also the SLP in good faith would be entitled to exclusion of the period from 6th June, 2017 to 31st October, 2017 (1854 days) which includes intervening period taken for preparation and filing of the SLP before the Supreme Court. In this context, he has placed reliance upon the decision of the Delhi High Court in NHPC Ltd. Vs. BGS-SGS-SOMA JV MANU-DE/1247/2020 as well as the another decision of the Delhi High Court in National Seeds Corporation Ltd Ors., Vs. Ram Avtar Gupta, MANU- DE/5728/2023 8. The learned Counsel for the Applicant has submitted that the decisions relied upon by the Respondent are distinguishable on facts and therefore are not applicable. He has accordingly submitted that the period of 1854 days be excluded for the purpose of computing the period of limitation and consequent to exclusion of the above period, the delay of 21 days / 22 days be condoned and the Applicant be permitted to impugn the Award. 9. The learned Counsel appearing for the Respondent No.1 has submitted that the above Arbitration Petition challenging the Award dated 31st March, 2020 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay and not for exclusion of time spent in prosecuting the remedy before the wrong forum. Accordingly, such an Application was construed to be an Application under Section 5 and not an Application under Section 14 of the Limitation Act. The Supreme Court further held that the benefit of Section 14 cannot be extended as the party had engaged a group of Advocates to present their cause in the Delhi High Court (the Court which was alleged in that matter to be an incorrect forum) and from which it appears that the Appellants in that case were sure of the forum and they merely took a chance by filing a Petition in the Delhi High Court. He has submitted that under the present case also, the Applicant was represented by a group of lawyers in this Court and had asserted the stand that their Writ Petition was maintainable despite objections raised and judgments cited by the Respondent No.1. Therefore, the Applicants in the present case cannot get the benefit of Section 14 of the Limitation Act. 14. The learned Counsel for the Respondent No.1 has also referred to the decision of Supreme Court in Rabindra Nath Samuel Dawson Vs. Sivakasi Ors., (1973) 3 SCC 381 , wherein the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court dated 20th January, 2020 that the Court suffers from lack of jurisdiction. It is imperative for a Court which the party claims to suffer from defect, to render a finding to that effect. A different Court cannot render a finding that the earlier proceedings suffer from defect of jurisdiction. He has further submitted that the terms any other causes of like nature in Section 14 of the Limitation Act necessarily relates to something analogous to the preceding words from defect of jurisdiction . To expand the term, as sought by the Applicant, would entail in doing violence to the statute. He has placed reliance upon the decision of the Supreme Court in Zafar Khan Ors., Vs. Board of Revenue UP, 1984 (Supp) SCC 505 in this context. 19. The learned Counsel for the Respondent No.1 has also placed reliance upon the decision of the Supreme Court in Deena Vs. Bharat Sing, (2002) 6 SCC 336 at Paragraph 13 wherein the Supreme Court has held that in order to claim benefit under Section 14 of the Limitation Act, the ingredients there are required to be met. These ingredients are (a) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (b) The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February, 2022 was excluded which is a total number of 53 days, cannot be counted in exclusion. Further, the period between 1st November, 2022 till 22nd December, 2022 i.e. day after dismissal of the SLP till one day prior to the filing of the Petition under Section 34 before this Court which is a total period of 52 days cannot be counted in exclusion. Thus, the delay in filing the Petition is 166 days. 23. The learned Counsel for Respondent No.1 has submitted that assuming that the Applicant is entitled to for exclusion of the period spent in prosecuting in a bonafide manner and with due diligence, still the Petition under Section 34 is preferred after a period of 166 days i.e. beyond the permissible period of 120 days for filing of a Petition under Section 34 of the Arbitration Act. 24. The learned counsel for the Respondent No.1 has submitted that the decision of Delhi High Court in NHPC Ltd. BGSSGS Soma JV (Supra) relied upon by the Applicant is of no assistance as in that case, the Applicant did not submit to the Court that they will adopt appropriate proceedings and then challenge the order of the Court before the Supreme Court. Therefore, preparation time cannot be excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on that day. This Court had also recorded the judgments on maintainability of the Writ Petition challenging the Arbitral Award which had been cited by the Counsel for Respondent No.1. Despite this objection taken by Respondent No.1 on the maintainability of the Writ Petition, the Applicant/Petitioner continued to prosecute the Writ Petition. Thus, in my view, this cannot be a prosecution of the proceeding with due diligence and / or in good faith. 28. Further, this is apparent from the statement made by the Counsel on behalf of the Applicant after the dismissal of the Writ Petition by this Court that the Applicant would adopt appropriate proceedings to challenge the Award under Section 34 of the Arbitration Act. Instead of adopting the appropriate proceedings, the Applicant instead chose to challenge the order dated 20th January, 2020 passed by this Court dismissing the Writ Petition. This in my view certainly cannot be bona-fide prosecution of the proceedings. 29. The decision of the Supreme Court in Ketan Parekh (Supra) relied upon by the Counsel for the Respondent No.1 is apposite. In that case also, there was no averment that the prosecution before the earlier Court i.e. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Supreme Court in Zafar Khan (Supra) Defect of Jurisdiction has been construed as well as other cause of like nature and explanation (c) to Section 14 has also been referred to which provides misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction. This expression must take its colour and content from the just preceding expression, defect of jurisdiction . In the present case, the Writ Petition challenging the Award cannot be termed as defect of jurisdiction . In fact, this Court in JSW Steel Ltd. (Supra) has held that the Writ Petition challenging an Award cannot be termed as Defect of Jurisdiction . 33. I further find much merit in the submission of the Counsel of Respondent No.1 that presuming Section 14 applies to the Arbitration Petition, the Arbitration Petition is not preferred within the prescribed period of limitation as the delay is of 166 days as the period between receipt of the Award and filing of the Writ Petition as well as the period between the rejection of the Writ Petition and filing of the SLP and the period between the dismissal of SLP and filing of the Arbitration Petition cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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