Limitation Act, 1963: ss.3, 5 and 14 – Arbitration Award – Appellant in order to assail award filed petition u/s.34 before Jaipur District Court – Objection by respondent that cause of action arose at Jodhpur – Jaipur District Court held the petition as not maintainable before it but exercised power under Or.7 r.10 and 10A and returned the petition to appellant with direction to appear before District Court Jodhpur on 2.4.2008 for presentation of petition and proceed with the matter – However, appellant presented the petition only on 10.4.2008 instead of specified date of 2.4.2008 – Respondent filed application under s.3 of Limitation Act before District Court, Jodhpur seeking rejection of petition on the ground of limitation – Appellant filed application under s.14 of Limitation Act seeking exclusion of time spent in the proceedings before District Judge, Jaipur – District Court Jodhpur dismissed the petition under s.34 of the Act, 1996 on limitation point – Appeal also dismissed by High Court – Hence instant appeal – Held: The petition filed under s.34 at Jaipur was within the period of limitation – Delay was for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Or.7 r.10 CPC – In that circumstance, even if the term “sufficient cause” as contained under s.5 of the Limitation Act is taken note, in the facts the same was not with reference to petition under s.34 of Act, 1996 for condonation of delay beyond the period prescribed under s.34(3) of Act, 1996 – District Court, Jaipur had ordered return of the petition for appropriate presentation and the date was fixed – The correctness of the said order was not assailed by the respondent seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide – In such circumstance, the issue of delay arose only in the context of delay of 8 days in re-presentation as permitted by Jaipur Court – Therefore, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to non-suit the appellant and deny consideration of proceedings under s.34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits was not justified – In that view, order on the application filed under s.14 and s.3 of the Limitation Act by the District Judge, Jodhpur was not sustainable – Consequently, the proceedings in Arbitration Application restored to the file of the District Judge, Jodhpur – Parties to appear before the said Court on 15.10.2019 – Code of Civil Procedure, 1908 – Or.7 r.10 and 10A – Arbitration and Conciliation Act, 1996 – s.34.
Allowing the appeal, the Court
HELD: 1. A perusal of Order 7 Rule 10A indicate that the re-presentation of the petition in the Court which is indicated in the order for return cannot be considered as a fresh filing in all circumstances when, it is returned to the plaintiff for such representation. In the instant case, though the appellant had not filed the application indicating the Court to which the petition would be re-presented and did not seek for fixing the date of hearing, the Court at Jaipur while ordering return of the petition after consideration of the application of the respondent under Order 7 Rule 11 CPC had indicated the Court to which it was to be presented and the date for appearance on 02.04.2008 for that purpose. Hence, it is not as if the proceeding came to an abrupt end when the petition was returned so as to consider the next filing as a fresh petition. In that circumstance when the time had been granted and date was fixed by the District Judge at Jaipur and if for any reason the re-presentation was not possible on that date, the course open to the appellant was to file an application under Section 148 of CPC before the Court at Jaipur which ordered for return and fixed the time for presentation in the Court at Jodhpur, seeking extension of time granted earlier. However, since the same was not resorted to by the appellant and the petition was re-presented before the District Court at Jodhpur with a delay of about 8 days from the date fixed for presentation and as no extension was also sought, condonation of such delay ought to have been sought. Since the petition was filed with delay and no other application had accompanied the petition, the respondent filed the application under Section 3 of Limitation Act which prompted a knee jerk reaction by the appellant in filing the application under Section 14 of the Limitation Act. The averments in the application was in the nature of an application seeking condonation of delay in re-presentation of the petition as against the date fixed by the Court for presentation in Jodhpur. [Paras 8-9][236-B-C, F-H; 237-A-C]
2. The condonation of delay sought was not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term “sufficient cause” as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note is that the application filed for excluding the time is under Section 14 of the Limitation Act. [Para 11][238-B-D]
3. Keeping in view the fact situation the petition is to be returned for presentation in appropriate court, the very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of this case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to non-suit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified. In that view, the order passed on the application filed under Section 14 and Section 3 of the Limitation Act passed by the District Judge, Jodhpur and the order passed by the High Court are not sustainable. They are accordingly, set aside. Consequently, the proceedings in Arbitration Application is restored to the file of the District Judge, Jodhpur. The parties shall appear before the said Court on 15.10.2019 as the first date for appearance without issue of notice/summons from that Court. [Paras 12-15][239-B-H]
Shri Amar Chand Inami v. Union of India (1973) 1 SCC
115 : [1973] 2 SCR 684 - relied on
Joginder Tuli v. S.L. Bhatia and another (1997) 1 SCC
502 : [1996] 7 Suppl. SCR 221; S. Ganesharaju (dead) through LRs. and Anr. v. Narsamma (dead) through LRs. and Ors. (2013) 11 SCC 341; Union of India v. Popular Construction Company (2001) 8 SCC 470 : [2001] 3 Suppl. SCR 619; Simplex Infrastructure Ltd. v. Union of India (2019) 2 SCC 455 : [2008] 5 SCR 1108;
M/s Consolidated Engineering Enterprises v. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169 - referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.