Union of India (UOI) vs C.S. Vijayachandran

K.K. Usha, J.—When the appeal came up for admission, we heard the learned Counsel for the Appellant as well as the learned Counsel for the Respondent. The appeal is against the order passed by the Principal Sub Judge, Thiruvananthapuram in O.P. (Arb.) No. 196 of 1995. The petition was filed for passing a decree in terms of the award. The Petitioner contended that since the objection was filed by the Respondent beyond 30 days after acceptance of notice from the Court, the objection cannot be treated as a petition to set aside the award.

The trial court took the view that Section 5 of the Limitation Act is not applicable to the proceedings under the Arbitration Act and therefore the objection filed beyond the period of 20 days cannot be looked into. In coming to the above conclusion the trial court placed reliance on a Bench decision of this Court in State of Kerala v. Sivan Pillai 1997 (1) KLT 556 . We are afraid that the trial court has committed an error in holding that Section 5 of the Limitation Act is not applicable to the provisions of the Arbitration Act. The Bench decision relied on by the trial court was found as not good law by a Full Bench of this Court in its judgment dated 31st March 1998 in C.M.P. No. 3131/97 in M.F.A. No. 724/97. The Full Bench upheld the view taken in an earlier Bench decision State of Kerala v. Madhusoodanan Pillai 1994 (1) KLT 268. In a later decision, State of A.P. v. Chandrasekhara Reddy and Ors.), the Supreme Court has taken the view that in appropriate cases the Court has jurisdiction to condone the delay in filing the objection by invoking Section 5 of the Limitation Act.

In the present case the learned Counsel for the Appellant made available before us a certified copy of the proceedings, from which it is seen that the case was being posted for return of notice from 6th December 1995 to 2nd September 1996. On 10th September 1996 there was no sitting. The case then posted for objection and arguments on 20th September 1996. The objection had been filed on 19th September 1996. Thereafter the case was again posted for objection and argument on 16th October 1996. The above would show that there is justification in the contention raised by the Appellant that the objection was not filed within 30 days, since it was under the bona fide impression that it need file the same as per the proceedings in the Court. Taking into consideration all the facts and circumstances of the case, we are inclined to accept the explanation offered by the Appellant to excuse the delay in filing the objection. We, therefore, condone the delay and take the objection to file.

In the light of the above, the appeal is allowed and it is sent back for fresh consideration by the trial court on merits. We make it clear that we have not made any observation on the merits of the case. The trial court will consider the matter afresh on merits after hearing both sides untrammelled by the observations made on the merits of the case in the judgment under attack. The parties shall appear be fore the Court of Principal Sub Judge, Thiruvananthapuram on 13th December 1999. The Sub Court shall dispose of the matter within a period of two months therefrom.