Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6168 of 2018 Petitioner :- M/S Braj Nandan Lal Punit Kumar Respondent :- M/S Shiv Trading Company And Another Counsel for Petitioner :- Anand Mani Tripathi Counsel for Respondent :- Azaz Ahmad
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Azaz Ahmad, learned counsel for the first respondent.
The petitioner-judgment debtor is before this Court assailing the order dated 21.7.2018 passed by District Judge, Hapur in Execution Case No.91 of 2012 (M/s Shiv Trading Company v. M/s Braj Nandan Lal Punit Kumar) by which the execution case has been allowed.
The record in question reflects that in the present matter an award was passed by the second respondent on 29.7.2001 against the petitioner and in favour of respondent no.1. A belated attempt was made by the petitioner to assail the same through objection under Section 34 of the Arbitration and Conciliation Act, 1996 along with application under Section 5 of the Limitation Act. By judgment and order dated 18.2.2017 the District Judge, Hapur has rejected the application filed by the petitioner under Section 5 of the Limitation Act to condone the delay in filing the said objection. The said order has been assailed in Matters Under Article 227 No.2742 of 2017 (M/s Braj Nandan Lal Punit Kumar v. M/s Shiv Trading Company & Anr.), which has been dismissed on 4.5.2017 with following observations:-
"Heard learned counsel for the petitioner.
The present petition has been filed by the petitioner challenging the judgment and order dated 18.02.2017 passed by the District Judge, Hapur by which he has rejected the application filed by the petitioner under Section 5 of the Limitation Act to condone the delay in filing objection under Section 34 of the Arbitration and Conciliation Act, 1996 against the arbitral award dated 27.07.2001.
The Court below in its order dated 18.02.2017 has held that there was complete notice of the arbitral award upon the applicant and the application under Section 34 of the Arbitration and Conciliation Act, 1996 was filed after a gap of 13 years and, therefore, such an application cannot be entertained.
On the last occasion when the matter was taken up, this Court had directed the learned counsel for the petitioner to ascertain whether the provisions of Section 5 of Limitation Act are applicable to an objection under Section 34 of the Arbitration and Conciliation Act, 1996.
Learned counsel for the petitioner has very fairly stated that there is a contrary decision of the Apex Court in the case of Union of India Vs. M/s Popular Construction Company, 2001 (8) SCC 470 wherein it has been held that Arbitration Act, 1996 is a special law and the provisions of Section 5 of the Limitation Act cannot be pressed into service to extend the period of limitation prescribed by the Arbitration Act, 1996.
In view of above, this Court finds no good reason to interfere with the order passed by the Court below.
The petition is dismissed."
This much is reflected from the record in question that at no point of time the aforesaid order has ever been assailed by the petitioner and as such this Court is of the considered opinion that for all practical purposes the arbitration award dated 29.7.2001; order dated 18.2.2017 passed by District Judge, Hapur rejecting the application under Section 5 of the Limitation Act as well as the order passed by this Court dated 4.5.2017 have attained finality. In such circumstances, this Court is not inclined to interfere in the matter under Article 227 of the Constitution of India. The judgement relied by learned counsel for the petitioner in Wellington Associates Ltd. v. Kirit Mehta, AIR 2000 SC 1379 as well as the judgment reported in (2002) 4 ICC 792 (Cal.) are not applicable in the present facts and circumstances of the case as the petitioner himself has not chosen to assail the aforesaid order dated 4.5.2017 passed by this Court, and as such this Court cannot come for rescue and reprieve of the petitioner.
Consequently, the writ petition sans merit and is accordingly dismissed.
Order Date :- 18.9.2018 SP/