Important Point—The mere filing of an application in wrong court would not prima facie show want of ‘good faith’. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party.

Admit. The learned Counsel for the respondent, waives service. Heard finally by consent of parties.

2. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (Act, for short), challenging the order dated 29.08.2016, by which the learned District Judge has rejected the application under Section 34 of the Act, filed by the appellant, as being barred by limitation.

3. The brief facts are that an agreement between the parties, containing an arbitration clause, was executed in Goa. The arbitration was to be conducted at Mumbai, as per the Rules, Bye-laws and Regulations of the Bombay Stock Exchange Regulations (Regulations, for short). As disputes and differences arose between the parties, the matter was referred to a panel of three Arbitrators, who rejected the claim of the appellant by an award dated 18.10.2010.

4. The appellant challenged the said award by filing an application under Section 34 of the Act before the learned District Judge at Barasat, West Bengal. That application was filed on 20.12.2010. On 09.12.2013, the District Court at Barasat directed return of the application for presentation to the proper Court. This order was passed in the absence of the appellant. On 01.03.2014, the appellant filed an application for recall of the said order, however, during the pendency of the application for recall, the appellant filed Miscellaneous Case No. 04/2014, with a prayer to return the application under Section 34 of the Act. The District Court Barasat (West Bengal), by an order dated 10.05.2016, returned the application for presentation to the proper Court. This order was passed by consent of the parties. Eventually, the appellant filed the application before the learned District Judge at Panaji on 17.05.2016, which was accordingly registered as Arbitration Petition No. 7/2016.

5. The respondent raised a ground of limitation. It was contended that the application was barred by limitation. According to the appellant, they were entitled to the exclusion of time, which was spent in prosecuting the application before the District Court at Barasat, West Bengal. In short, the exclusion was sought under Section 14 of the Limitation Act, on the ground that the appellant was bonafidely prosecuting the application before a wrong forum.

6. The learned District Judge has upheld the objection raised on behalf of the appellant, thereby dismissing the application, which order is subject matter of challenge in this appeal.

7. I have heard Shri Pangam, the learned Counsel for the appellant and Shri Ramani, the learned Counsel for the respondent. With the assistance of the learned Counsel for the parties, I have gone through the record and the impugned order passed.

8. It is submitted by Shri Pangam, the learned Counsel for the appellant that the appellant was bonafide prosecuting the application under Section 34 of the Act and for the matter of that, the subsequent application for recall, in a Court having no jurisdiction and as such, the time spent requires to be excluded. The learned Counsel has referred to the observations in para 17 of the impugned order, in which, the learned District Judge has observed that there is no explanation forthcoming from the appellant as to what the appellant was doing from 09.12.2013 till 19.08.2015, when the application being Miscellaneous Case No. 4/2014, for return of the application under Section 34 of the Act, was filed. It is submitted that during this period, the appellant was prosecuting the application for recall. It is thus submitted that the observations in para 17 are incorrect and on the basis of the same, the learned District Judge could not have held that the appellant has not exercised due diligence.

9. It is next submitted that if, the party acts on an advise of the Counsel, it cannot be made to suffer for any such wrong advise being tendered. Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Consolidated Engineering En