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SUPREME COURT OF INDIA
K.G. BALAKRISHNAN, CJI., J.M. PANCHAL, J.
CONSOLIDATED ENGG.ENTERPRISES — PETITIONER:
Vs.
PRINCIPAL SECY. IRRIGATION DEPTT. & ORS. — RESPONDENT:
CASE NO.: Appeal (civil) 2461 of 2008
(Arising out of SLP(C) No.10311 of 2005)With CIVIL APPEAL NO. 2462 OF 2008
(Arising out of SLP(C) No.15619 of 2005)
Decided : 03/04/2008
Civil Procedure Code , 1908 - Order 21 - Rule 1 - Order XXIII - Rule 2 - order VII - Rule 10A – Constitution of India - Article 119 - Article 116 - Arbitration and Conciliation Act, 1996 – Section 43 , 33 , 37 and 34 - Limitation Act, 1963 - Section 21 , 2 , 4 to 24 , 3 , 29 . 6 , 12 and 14 - D.P. Sales Tax Act – Section 10 - U.P. Sales Tax Rules - Rule 68 - Appellant is an enterprise engaged in civil engineering construction as well as development of infrastructure - It entered into an agreement with respondent for construction of earthen bund, head sluices and draft channel - During subsistence of contract, disputes arose between parties - Therefore, appellant invoked Arbitration clause of agreement pursuant to which disputes were referred to sole arbitrator for adjudication - Sole arbitrator made his award in favour of appellant - Feeling aggrieved by said award, respondents preferred an application to set aside award as contemplated in court of learned Civil Judge Rural District - Said application was registered as A.C - It was realized by respondents that an application for setting aside award should have been filed before learned Principal District Judge, Bangalore District - Therefore, respondents submitted an application in Court of learned Civil Judge, with a request to transfer application made for setting aside award to court of learned Principal District Judge – Held , In Parson Tools2 this Court did not hold that was excluded by reason of wording - This Court was considering an appeal against Full Bench decision of Allahabad High Court - Two Judges of High Court had held that time spent in prosecuting application for setting aside order of dismissal of appeals in default, could be excluded when computing period of limitation for filing a revision by application of principle underlying - Minority view of third Judge was that revisional authority did not act as a court but only as a Revenue Tribunal and therefore Limitation Act did not apply to proceedings before such Tribunal, and consequently, - Decision of Full Bench was challenged by Commissioner of Sales Tax before this Court, contending that Limitation Act did not apply to tribunals, and was excluded in principle or by analogy - This Court upheld view that Limitation Act did not apply to tribunals, and that as revisional authority was a tribunal and not a court, Limitation Act was inapplicable - This Court further held that period of pendency of proceedings before wrong forum could not be excluded while computing period of limitation by applying - This Court, however, held that by applying principle underlying period of pendency before wrong forum may be considered as a sufficient cause for condoning delay, but then having regard extension on that ground could not extend beyond six months - Observation that pendency of proceedings of nature contemplated , may amount to a sufficient cause for condoning delay and extending limitation and such extension cannot be for a period in excess of ceiling period prescribed, is in light of its finding that of Limitation Act was inapplicable to revisions - These observations cannot be interpreted as laying down a proposition that even where of Limitation Act in terms applied and period spent before wrong forum could therefore be excluded while computing period of limitation, pendency before wrong forum should be considered only as a sufficient cause for extension of period of limitation and therefore, subjected to ceiling relating to extension of period of limitation - As Court are concerned with a proceeding before a court to which applies, decision in Parson Tools2 which related to a proceeding before a Tribunal to which did not apply, has no application – Appeal allowed
JUDGMENT:
1. Leave granted.
2. The instant appeal is directed against judgment dated April 4, 2005 rendered by the Division Bench of the High Court of Karnataka at Bangalore in Misc. First Appeal No.4465 of 2003, by which, decision dated October 24, 2002 passed by the learned District Judge, Bangalore Rural District, Bangalore in A.S. No.2 of 2000 dismissing the application submitted by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act. for short) as time barred has been set aside and the matter is remanded to the District Court with a direction to proceed further with the matter in accordance with law.
3. The appellant is an enterprise engaged in civil engineering construction as well as development of infrastructure. It entered into an agreement dated January 20, 1989 with the respondent for construction of earthen bund, head sluices and the draft channel of the Y.G. Gudda tank. During the subsistence of the contract, disputes arose between the parties. Therefore, the appellant invoked Arbitration clause No.51 of the agreement pursuant to which the disputes were referred to the sole arbitrator for adjudication. The sole arbitrator made his award on April 10, 1999 in favour of the appellant.
4. Feeling aggrieved by the said award, the respondents preferred an application dated July 5, 1999 to set aside the award as contemplated by Section 34 of the Act in the court of learned Civil Judge (Senior Division), Ramanagram, Bangalore Rural District. The said application was registered as A.C. No.1 of 1999. It was realized by the respondents that an application for setting aside the award should have been filed before the learned Principal District Judge, Bangalore District (Rural). Therefore, the respondents submitted an application on July 26, 2000 in the Court of learned Civil Judge (Senior Division), Ramanagaram with a request to transfer the application made for setting aside the award to the court of learned Principal District Judge (Rural), Bangalore.
5. The learned Civil Judge (Senior Division), Ramanagaram passed an order directing return of the suit records for presentation before the proper court. The respondents collected the papers from the court of learned Civil Judge (Senior Division), Ramanagaram and presented the same in the court of learned Principal District Judge, Bangalore (Rural) on August 21, 2000. The present application for setting aside the award, filed by the respondents, was numbered as A.S. No.2 of 2000.
6. The District Court framed preliminary issue for determination which was as under:
Whether the defendant proves that the present suit is barred by the limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996. The respondents examined one witness and produced certain documents whereas on behalf of the appellants one witness was examined. After appreciating the evidence and hearing the learned counsel for the parties, the learned District Judge held that the suit /application for setting aside the award, was time barred and dismissed the same by his judgment dated October 24, 2002.
7. Thereupon the respondents invoked appellate jurisdiction of the High Court of Karnataka at Bangalore by filing Misc. First Appeal No.4465 of 2003 under Section 37 of the Act. The issue, namely, whether the provisions of Sections 12 and 14 of the Limitation Act, 1963 are applicable to an application filed under Section 34 of the Act was pending for consideration in other matters also. The appeal filed by the respondents was, therefore, taken up for hearing with other matters.
8. The Division Bench of the High Court of Karnataka was of the view that the learned District Judge, Bangalore Rural District, Bangalore committed an error in holding that Section 14 of the Limitation Act was not applicable to an application submitted under Section 34 of the Act and, therefore, the time taken during which the respondents had been prosecuting in the court of learned Civil Judge (Seni
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