IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.11911 OF 2011 (AA) BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, SURVEY NO.13, NAGASANDRA VILLAGE, 14TH KM FROM BENGALURU – TUMKUR ROAD, BENGALURU – 560073, REPRESENTED BY PROJECT DIRECTOR, NHAI, PIU BENGALURU. …APPELLANT (BY SMT.SHILPA SHAH BY SINGHANIA AND PARTNERS, ADVOCATE) AND:
1. SRI.C.KRISHNAMURTHY, BOMMASANDRA JANATA COLONY, BOMMASANDRA, ATTIBELE, HOBLI, ANEKAL TALUKA.
2. THE DEPUTY COMMISSIONER AND ARBITRATOR, BANGALORE URBAN DISTRICT, BENGALURU.
3. SPL.LAND ACQUISITION OFFICER AND COMPETENT AUTHORITY, NH-4, SY.NO.678/3, NEERUBHAVI KEMPANNA LAYOUT, HEBBAL, BENGALURU – 560024. ...RESPONDENTS (BY R1 SERVED, AGA FOR R2, R3) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1) OF ARBITRATION AND CONCILIATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 24.02.2011 PASSED IN AS NO.125/2009 ON THE FILE OF VI ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT AS BARRED BY TIME FILED UNDER SECTION 34(2) OF THE ARBITRATION AND RECONCILIATION ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed for setting aside the impugned order dated 24.02.2011 passed in A.S.No.125/2009 by the VI Addl. City Civil Judge, Bengaluru City.
2. The learned trial Judge has dismissed the suit filed by National Highways Authority of India (NHAI) under Section 34(2) of the Arbitration and Conciliation Act, 1996, (for short ‘the Act’) for setting aside the impugned award dated 18.05.2009 passed by the respondent No.2 - Deputy Commissioner and Arbitrator, Bengaluru Urban District, Bengaluru, as barred by time.
3. The facts briefly stated are that, the Central Government exercising its power under Section 3-A (1) of the National Highways Act, 1956, had issued a notification under Section 3-D of the said Act dated 10.08.2006, acquiring the lands for the purpose of construction of elevated highway from Silk Board Junction to Electronic City. The Special Land Acquisition Officer fixed the market value @ Rs.140/- per sq.ft. The owner - respondent No.1 herein had challenged the award regarding fixation of the market value. The respondent No.2 without proper application of mind, passed the award for enhancing market value from Rs.140/- to Rs.300/- per sq.ft. Being aggrieved by the said award passed by respondent No.2, appellant-NHAI challenged the same in A.S.125/2009. Similar suits were also filed in respect of other lands.
4. The learned trial Judge, on hearing both parties, held that the suit is barred by limitation. Aggrieved by the said judgment, appellant-NHAI has preferred this appeal.
5. Reiterating the grounds urged in the appeal memorandum, learned counsel for the appellant would strenuously contend that the suit filed by the petitioner was well within time as the limitation starts from the date of receipt of the award and not from the date of passing of the award as per Section 34 (3) of the Act.
“Section 34 (3) of Arbitration Act reads as under:
34. Application for setting aside arbitral award.
(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.”
It is submitted that the four other suits filed along with the present suit were allowed and the matters were remanded for fresh adjudication after setting aside the award impugned therein. Respondent No.1 had challenged the said order before the Apex Court in SLP.AP No.15544/2015 vide order dated 31.08.2015. The Hon’ble Apex Court upheld the order passed by this High Court holding that the arbitral suit was not barred by time and further observed that since the suit was decided even on merits, this Court should have entertained the appeal instead of remanding the case to the trial Court.
6. It is an admitted fact that the appellant- NHAI had acquired the land belonging to respondent No.1; the respondent No.2 had passed the award enhancing the market value from Rs.140/- to Rs.300/- per sq.ft. and the said award was challenged before the trial Judge in A.S.No.125/2009.
7. The main contention of the counsel for the appellant/plaintiff is that the trial Court has committed an error in dismissing the arbitration suit as barred by limitation.
8. As could be seen from the impugned order and other records, the award was passed on 18.05.2009. The copy of the award was received by the appellant only on 31.08.2009. Thereafter, the suit was filed on 01.12.2010. In view of Section 34(3) of the Act, the prescribed limitation period is three months. Thus, it is evident that the arbitration suit was filed within a period of 90 days from the date of receipt of award.
9. In this case, it was specifically stated in the application under Section 34 of the Act, the copy of the award was received on 31.08.2009, nothing was produced to show that the award was received by the appellant prior to 31.08.2009. The language of Section 34(3) of the Act clearly goes to show that the limitation starts from the date of receipt of arbitral award. Thus, the finding given by the trial judge that the arbitration suit is barred by limitation is erroneous and not justified, when there was no cogent evidence to show that the copy of the award was made available to the appellant/plaintiff prior to 31.08.2009.
10. For the foregoing reasons this Court is of the opinion that the order of the trial judge cannot be sustained. Accordingly, appeal is allowed. The impugned judgment dated 24.02.2011 passed in A.S.No.125/2009 by the VI Addl. City Civil Judge, Bengaluru City, dismissing the suit as barred by limitation is set aside and the matter stands remanded to the learned Arbitrator for fresh adjudication.
The learned Arbitrator shall dispose of the matter on merits and in accordance with law.
Sd/- JUDGE BSR