IN THE HIGH COURT OF DELHI
Vikramajit Sen and Siddharth Mridul, JJ.
Appellants: Vishal Exports Overseas Ltd.
Vs.
Respondent: Hamburg Bulk Carriers
FAO (OS) No. 580 of 2009
Decided On: 10.02.2011
Arbitration and Conciliation Act, 1996 - Section 34 -- Limitation Act, 1963 -- Section 14 -- Objections/challenge to award -- Objections filed at Ahmedabad and refiled at Delhi -- Limitation would not run from the date of the order returning the plaint but from the date when the plaint was actually returned -- Impugned order set aside.
Vikramajit Sen, J.
1. This Appeal assails the Order dated 22.10.2009 passed by the learned Single Judge, which, in effect, rejected the Appellant's plea predicated on Section 14 of the Limitation Act, 1963. Although it has not been specifically stated so, the effect of the Order is that the Objections under Section 34 of the Arbitration & Conciliation Act, 1996 (A&C Act for short) preferred by the Appellant before us, stand dismissed. All the eventualities that would arise on an interplay between Section 34 of A&C Act and Section 5 and Section 14 of the Limitation Act, 1963 have been considered by the Division Bench in Bharat Sanchar Nigam Limited vs Haryana Telecom Ltd., 2010 VII AD (Delhi) 331 and Executive Engineer vs Shree Ram Construction Co., 2010 X AD(Delhi) 180. In Bharat Sanchar Nigam Limited, the Court noted that Objections were filed within the statutory period of ninety days and after excluding time spent in prosecuting these Objections in Courts which did not possess jurisdiction, the Objections would have to be heard on merits. A similar position obtained in Shree Ram Construction Co. The Court had the added advantage of relying on the decision of the Apex Court in Consolidated Engineering Enterprises vs Principal Secretary, Irrigation Department, 2008 VI AD(SC) 520 = (2008) 7 SCC 169. In this decision, their Lordships have reiterated that Section 14 of the Limitation Act has the effect of bestowing benefit of exclusion of time spent bonafide in a wrong Court, restricted, however, to the period prescribed by the A&C Act, namely, three months and thirty days. This brief analysis of the law should suffice since Bharat Sanchar Nigam Limited and Shree Ram Construction Co. have been reported in the Journals. Repeating the dialectics in those cases will only lead to prolixity of this Judgment.
2. The relevant facts are that an Award was published on 30.8.2002 and the copy of the same was served on the Petitioner on 31.8.2002. Objections under Section 34 were filed on 22.11.2002, palpably within the period of three months prescribed under the A&C Act. However, the Objections had been filed in the City Civil Court at Ahmedabad, Gujarat. A Preliminary Objection was taken by the Respondent before the City Civil Court, Ahmedabad, Gujarat pertaining to the territorial jurisdiction of that Court. Since the Objection was dismissed, the Respondent filed an Appeal in the High Court of Gujarat. This time around, they were successful. That Petition/Appeal was allowed on 3.11.2004 with the direction that "the Trial Court may return the plaint to the party for presentation of the same before the appropriate Court". The Respondent contends that the Appellant is entitled to exemption only to the period of three days which was spent in obtaining the Certified Copy plus five days in collecting the Certified Copy. The Appellant contends that limitation would commence running on 15.4.2005 when the Plaint was returned by the City Civil Judge, Ahmedabad, Gujarat to the Appellant for filing in the appropriate Court.
3. It will be important to record that the City Civil Court, Ahmedabad, Gujarat had, in Civil Miss. Application No. 628/2002, passed the Order on 30.3.2005, the operative part of which reads thus:
Civil Misc. Application No. 628 of 2002 be returned to the applicant alongwith all the original documents for presentation of the same before the appropriate court.
The applicant is hereby directed to present the application before the appropriate court on or before 15.4.2005 under the intimation to the opponent and the opponent has to remain present as soon as the application is presented before the competent court.
4. The question that arises is whether the period between 3.11.2004 and 15.4.2005 would qualify for exemption under Section 14 of the Limitation Act, 1963, even though the Appellant calculates this exemption to have come to an end on 7.4.2005, the date on which the Plaint was actually and physically returned to it. It is
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