IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.39483 OF 2016 (GM-RES) BETWEEN:
M/S. EAGLE MPCC (JV) NO 16, S C S COMPLEX SOUTH CAR STREET, NAMAKKAL DISTRICT TIRUCHENGODU – 637211, (TAMIL NADU) REP. BY ITS SOLE PROPRIETOR MR. U.R. SUBRAMANIAM.
… PETITIONER (By Mr. ASHOK HARNAHALLI, SR. COUNSEL A/W Mr. K.S. HARISH, ADV.) AND:
1. THE UNION OF INDIA BY ITS CHIEF ADMINISTRATIVE OFFICER (CONSTRUCTION) SOUTH WESTERN RAILWAY NO 18, MILLERS ROAD BANGALORE – 560046.
2. SRI VIJAY AGRAWAL/PRESIDING ARBITRATOR CHIEF TRACK ENGINEER, SOUTH WESTERN RAILWAY, 1ST FLOOR, GMS BUILDING, CLUB ROAD, KESHWAPUR, HUBLI – 580023.
3. SRI MANOJ JOSHI / ARBITRATOR, DIVISIONAL RAILWAY MANAGER, GUNTAKAL DIVISION, SOUTH CENTRAL RAILWAY, GUNTAKAL - 515801 ANDHRA PRADESH.
4. SRI RAJU KANCHARLA / ARBITRATOR FA & CAO (G) SOUTH WESTERN RAILWAY CLUB ROAD, KESHWAPUR, HUBLI - 580023 KARNATAKA STATE.
5. EAGLE EARTH MOVERS REP. BY ITS SOLE PROPRIETOR MR. U.R. SUBRAMANIAM S/O MR. RAMASAMY R/AT. #14, S.C.S. COMPLEX SOUTH CAR STREET TIRUCHENGODU NAMAKKAL DISTRICT-637211 TAMILNADU.
6. M.P. CONSTRUCTION CO.
REP. BY ITS SOLE PROPRIETOR MR. M. PADMANABAN S/O MR. P. MANICKAM AGED ABOUT 53 YEARS #10, JAI NAGAR, 3RD STREET ARUMBAKKAM, CHENNAI-600106.
(By Mr. SATISH KUMAR N, ADV, FOR C/R1 … RESPONDENTS V/O DATED 29/11/2016 R2 – R6 ARE DELETED) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN A.S.25003/2015 ON THE FILE AND SET ASIDE THE ORDER DATED 30.06.2016 PASSED BY THE LEARNED DISTRICT JUDGE XII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN A.S.25003/2015 ANNEX-C AND CONSEQUENTLY DISMISS THE APPLICATION OF THE R-1 FILED FOR CONDONATION OF DEALY & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. Ashok Harnahalli, learned Senior counsel along with Mr.K.S.Harish, learned counsel for the petitioner.
Mr.Satish Kumar.N, learned counsel for the Ceveator/respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition, a pure question of law arises for consideration on admitted facts viz., whether the respondent shall be entitled to benefit of Section 4 of the Limitation Act, 1963 if an objection is filed beyond the period of limitation of 90 days as provided under proviso to Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short).
4. The facts leading to filing of this writ petition lie in a narrow compass. An award was received by the respondent on 14.05.2015. Section 34(3) of the Act reads as under:
34 Application for setting aside arbitral award. —(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if— (a) the party making the application furnishes proof that— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India.
Explanation. —Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
5. The period of limitation of three months as provided in proviso to Section 34(3) of the Act expired on 14.08.2015. The respondent thereafter could have filed an objection upto 13.09.2015 i.e., within a further period of thirty days. However, the objection could not be filed on 13.09.2015 as the same was Sunday and therefore, the objection was filed on the next day i.e., 14.09.2015. In the aforesaid proceeding, the petitioner raised an objection that the objection preferred by the respondent is barred by limitation. However, the Trial Court held that since 13.09.2015 was a Sunday therefore, the objection, which was filed on 14.09.2015 was within the period of limitation. In the aforesaid factual background, the petitioner has approached this Court.
6. Learned Senior Counsel for the petitioner submitted that the issue involved in this petition is no longer res integra as the same is covered by a decision of the Supreme Court in ‘ASSAM URBAN WATER SUPPLY AND SEWERAGE BOARD VS. SUBASH PROJECTS AND MARKETING LIMITED’, (2012) 2 SCC 624. On the other hand, learned counsel for the respondent submitted that the aforesaid decision has no application to the fact situation of the case.
7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. The Supreme Court in the case of ‘ASSAM URBAN WATER SUPPLY AND SEWARAGE BOARD, supra in paragraphs 12, 13 & 14 has held as under:
12. Section 4 of the 1963 Act reads as under:
“4.Expiry of prescribed period when court is closed.—Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
Explanation.—A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”
The above section enables a party to institute a suit, prefer an appeal or make an application on the day the court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed.
13. The crucial words in Section 4 of the 1963 Act are “prescribed period”. What is the meaning of these words?
14. Section 2(j) of the 1963 Act defines:
“2. (j) ‘period of limitation’ [which] means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act;”
Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside an arbitral award is three months. The period of 30 days mentioned in the proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the “period of limitation” and, therefore, not the “prescribed period” for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the “period of limitation” or, in other words, the “prescribed period”, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.
8. Thus, in view of aforesaid enunciation of law, it is evident that the respondent was not entitled to the benefit of Section 4 of the Limitation Act, 1963 in the fact situation of the case as the objection was filed beyond the prescribed period. The impugned order dated 30.06.2016 is therefore quashed and set aside and the objections preferred by the petitioner is allowed and it is held that the objection preferred by respondent is barred by limitation under proviso to Section 34(3) of the Act.
In the result, the petition is allowed.
Sd/- JUDGE SS