Mr. S.A.L. Roche vs Government of Goa

R.K. Batta, J.—Heard learned Advocates for the parties. Admit. With consent of the learned Advocates for the parties, the appeal is heard forthwith.

Learned Advocate Shri A.F. Diniz, for the appellant, relying upon number of authorities to which reference will be made at a later stage, has urged before me that the trial Judge erred in coming to the conclusion that the objections filed by the appellant were barred by limitation. He also placed before me facts of the case in support of his submissions.

On the other hand, learned Government Advocate Shri Bharne, urged before me that even before the award was filed in the Court, the appellant had sought release of the cheque vide his letter dated 9.8.94 and in pursuance of the said letter the cheque was released by the Department on 16.8.94 having accepted the amount, the appellant is not entitled to raise any objection against the award since his conduct disentitles him to raise any such objections. Relying upon paragraph 29 of the judgment of the Division Bench of this Court in Union of India Vs. M/s. Ajit Mehta and Associates, Pune and Others, he urged before me that Section 5 of the Limitation Act is not applicable to the facts and circumstances of the case. However, on facts, he admitted that the appellant was served notice for filing objections regarding the award on 19.9.94 and the period of 30 days limitation would run therefrom and the last date on which objections could be filed by the appellant was 18.10.94, but the appellant did not file objections and continued taking adjournments and the objections were filed only on 10.1.95 which is beyond the period of limitation.

I shall first deal with the contention of learned Advocate Shri Bharne that Section 5 is not attracted to the facts and circumstances of the case. As already stated he has placed reliance on para 29 of Division Bench of this Court in Union of India v. Ajit Mehta (supra) wherein it has been observed that admittedly the provisions of Section 5 of the Limitation Act did not apply to applications u/s 30 of the Arbitration Act. It appears that this finding was rendered on the basis of concession made by learned Advocates for the parties, but for this concession there is no discussion in this ruling on the question as to the applicability of Section 5 of the Limitation Act. Moreover, on the basis of the said concession it was further pointed out that hence if it is held that the present ground is not covered by the provisions of Section 30(c) it cannot be raised in this appeal since it would be barred by limitation. From this it is clear that the objection relating to limitation was raised for the first time in the appeal before the Division Bench and it is in this context that the observations of the Division Bench in para 29 have to be viewed. In my view the Division Bench ruling does not lay down any law as such on the question of applicability of Section 5 of the Limitation Act vis-a-vis Section 30 of the Arbitration Act.

Section 37(1) of the Arbitration Act 1940 provides that all the provisions of the Indian Limitation Act, 1908 (now Limitation Act, 1963) shall apply to arbitrations as they apply to proceedings in Court. Learned Advocate for the appellant has drawn my attention to a judgment of a Single Judge of this Court in Shri Vinod Shantilal Gosalia and Anr. v. Shri Anil Vassudev Salgaocar 1997 (1) GL.T., 239 wherein relying upon a Division Bench ruling of this Court in Purshottamdas Hassaram Sabnani Vs. Impex (India) Ltd., it was held that the time spent from the date on which a party gives notice to the other party to refer the matter to arbitration till the time certified copy of final order is given shall be excluded in computing the period of limitation. In coming to this conclusion reliance was placed on the observations of the Division Bench of this Court in Purshottamdas Hassaram Sabnani v. Impex (India) Ltd., (supra) to the following effect

The relevant section we have to consider is Section 37(1) and that Sub-section provides that all the provisions of the Limitation Act shall apply to arbitration as they apply to proceedings in Court.

Learned Advocate for the appellant had placed before me a ruling of the Apex Court in Binod Bihari Singh Vs. Union of India, in support of his contention that Section 5 of the Limitation Act applies to applications under consideration. In fact, this question was not dealt with by the Apex Court in the said ruling and there are no findings regarding the applicability of Section 5 of the Limitation Act.

Learned Advocate for the appellant had placed before me a number of authorities of various High Courts in support of his contention in respect of applicability of Section 5 of the Limitation Act to the proceedings u/s 30 of the Arbitration Act. In Soorajmull Nagarmal v. Golden Fibre and Products AIR 1969 Calcutta, 381 it has been laid down :-

Even in a case where decree upon award has been passed u/s 17 of the Arbitration Act, if the applicant can satisfy the Court that such decree should be set aside on grounds appearing sufficient to the Court, the Court has jurisdiction to set aside such a decree in its inherent jurisdiction for ends of justice. But whether the Court would set aside such decree would depend on the question as to whether the Court could extend the time for making an application u/s 30 of the Arbitration Act for setting aside the award ; and even if the Court could extend such time, whether the Court would extend the time in the particular case.

Formerly an application for setting aside an award could not be admitted after the prescribed period of thirty days (Article 158 of the Limitation Act, 1908). Now under the 1963, Limitation Act, Section 5 applies to all applications except those under Order 21 of the Civil Procedure Code. On sufficient cause, application u/s 30, for setting aside an award may be admitted by Court even after the period of 30 days as prescribed under Article 119(b) Limitation Act, 1963 as from date of service of notice u/s 14(2). But sufficient cause within the contemplation of Section 5 must be a cause which is beyond the control of the party invoking the aid of the section. The cause for delay in making the application which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of Section 5 of the Limitation Act.

The other rulings upon which reliance has been placed by learned Advocate for the appellant in support of his contention is Union of India (UOI) Vs. Builders Union, Government of Andhra Pradesh Vs. Durgaram Prasad, J.P. Stores v. Food Corporation of India AIR 1996 Ori 1132 : 1986 (81) CL.T. 227 : 1996 (2) Arb L.R. 208 and State of Karnataka v. Naueena Constructions, Gulbarga and Anr. 1995 A.I.H. 4511. The Division Bench of the Andhra Pradesh High Court in Government of A.P. v. Durgaram Prasad (supra) held that the provisions of Section 5 of the Limitation Act can be invoked to extend the time for filing objections beyond the stipulated period to the award passed by the Arbitrator in view of Section 37 of the Arbitration Act. In this judgment this question was discussed in detail with reference to Section 5 and Section 29(2) of the Limitation Act and the conclusion arrived at is that Section 5 of the Limitation Act comprehends a wide sweep and applies to all applications before the Court save the application under Order 21 of Civil Procedure Code.

In fact. Section 37 of the Arbitration Act is crystal clear on this aspect and I am of the opinion that Section 5 of the Limitation Act is attracted to proceedings u/s 30 of the Arbitration Act, 1940.

The next question to be determined is whether the appellant has shown sufficient cause for condoning delay, if any. An application for condonation of delay was filed by the appellant on 8.11.95. However, it has to be borne in mind that the appellant was served in respect of the filing of the award in the Court on 19.9.94 and it is an admitted position that objections could be filed by the appellant within thirty days of 19.9.94 which means that the objections could have been filed till 18.10.94. On 21.9.94 the appellant sought time to file objections and the matter was adjourned for the purpose of filing objections 23.10.94. Again on 23.10.94 the appellant sought adjournment to file objections which was granted till 10.1.95 and the objections were actually filed on 10.1.95. It appears that none of the applications for adjournment seeking time to file objections was objected by the State. This means that the Court had by granting adjournments extended the time for filing objections till 10.1.95 and the objections were in fact filed on 10.1.95. Therefore, even if it is held that the objections were belated, the said objections were filed in pursuance of the adjournments for extension of time granted by the Court which were not objected by the State. Learned Advocate Shri Diniz on facts had relied upon Union of India v. Builders Union (supra) in support of his contention that even if the objections were filed beyond limitation there was sufficient cause to justify condonation of delay. In these circumstances, the impugned order of the trial Judge that the objections filed were hopelessly barred by the law of limitation cannot be sustained and the said finding in the facts and circumstances of the case have to be set aside.

For the aforesaid reasons, the impugned order is set aside. The trial Judge shall now examine the objections filed by the appellant and deal with the matter in accordance with law. In the facts and circumstances there shall be no order as to costs.