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Judgment
K.S. Rakhra, J.—Heard Sri Mohan Singh, learned counsel for the petitioner, Sri Sudeep Seth, learned counsel for the opposite party No.2, learned standing counsel for opposite party No.1 and 3. The opposite party No.4 wrongly numbered as ''5'', in the array of parties, is the Additional Registrar (Admn.) by name. Also perused record.
The petitioner who is Central Printers Cooperative Society Limited, who are MultiState Cooperative Society, claim to have supplied stationery articles worth Rs.1068600.80 to the opposite party No.2 against their oral order. They claim that the price of the articles so supplied, has not been paid to them. The opposite party No.2 who is a District Cooperative Bank Limited, took stand that the stationery as alleged by the petitioners, was not supplied to them at all nor any order with regard to such supply was placed.
Since the dispute had arisen, it was referred to the Central Registrar under Section 74 of the MultiState Cooperative Societies Act, 1984 for resolution. The Central Registrar had referred it to the Additional Registrar (Admn.) for arbitration vide order dated 24.7.1999. The said Arbitrator, vide his award dated 31.5.2003, rejected the claim of the petitioner as not established and proved. While doing so, all relevant material was discussed and taken into consideration.
The petitioners are challenging this award on the ground that it is an exparte award and no opportunity has been given to them to place their case before the Arbitrator. The contention of the opposite party No.2 is that the award is not an ex parte award and that, full opportunity was given to the parties to adduce evidence. The petitioners had participated in the proceedings and the award itself says that several dates were fixed for hearing in the matter and the petitioners appeared on some dates but on 27.2.2003, which was the date fixed, the petitioner got the matter adjourned to 24.3.2003 and on that date also, the petitioners failed to appear. The petitioners claim that they had sent a request for adjournment on 22.3.2003.
The opposite party no.2 has filed copies of two letters dated 6.3.2002 and 15.7.2002 sent by the petitioner to the aforesaid Arbitrator accusing him of causing unnecessary delay in the matter. The letters stated that entire evidence has been placed before the Arbitrator and the Arbitrator was supposed to give an award within three months and that without any reason, the Arbitrator was delying the proceedings. The petitioners urged that the Arbitrator should give an award immediately. The letter dated 6.3.2002 also stated that final argument in the matter have already been made before the Arbitrator and that the petitioners are no more in a position to appear before the Arbitrator time and again. In the letter dated 15.7.2002 again, the petitioners drew attention of the Arbitrator to the fact that the matter was being unnecessarily delayed. It was stated that the Arbitrator may give an award after examining the material already placed on record.
The main objection which has been raised by Sri Sudeep Seth against the writ petition is that the writ petition is not maintainable. Firstly, the award was not an ex parte award and secondly that the award has become final. It could have been challenged under Section 34 of the Arbitration and Conciliation Act, 1996 for which three months time for making an application under Section 34 of the said Act was available to the petitioner and this time could be extended by 30 days on the satisfaction of the Court i.e., principal Civil Court of original jurisdiction.
Admittedly, the MultiState Cooperative Societies Act, 1984 has been replaced by the MultiState Cooperative Societies Act, 2002. Section 126 of the MultiState Cooperative Societies Act, 2002 in subsection (6) states that save as otherwise provided in this Act any legal proceeding pending in any Court or before the Central Registrar or any other authority at the commencement of this Act shall continue to be in that Court or before the Central Registrar or that authority as if this Act had not been passed. The effect of this in the present case is that the reference which was made to the Central Registrar on 24.7.1999 had to be continued before the Arbitrator when 2002 Act came into force. In view of this, the award could be given by the Arbitrator in the year 2003 as it has been given now on 31.5.2003. In the 2002 Act, there is provision for settlement of disputes under Chapter IX. Section 84 thereof, deals with reference of disputes and subsection (5) of it says that save or otherwise provided under this Act, the provision of Arbitration and Conciliation Act, 1996 shall apply to all Arbitrators under this Act as if proceedings for Arbitration were referred for settlement or decision under the provisions of Arbitration and Conciliation Act, 1996. Thus, reading the above provisions together, the award given by the opposite party No.3 shall be deemed to be an award given in an arbitration proceedings under the Arbitration and Conciliation Act, 1996. That being so, Section 34 of the aforesaid Arbitration and Conciliation Act has to be seen. The said section provides for making an application for setting aside an arbitration award. An application for setting aside the award can be made before the principal Civil Court of original jurisdiction on the specified grounds within three months from the date of making of award. Subsection (3) of Section 34 of the Arbitration and Conciliation Act, 1996 makes a provision in this regard. The proviso attached thereto says that the Court may, if satisfied that the applicant was prevented by sufficient cause for making the application within the said period of three months, entertain the application with a further period of 30 days, but not thereafter. Subsection (2) of Section 34 of the Arbitration and Conciliation Act, 1996 mentions grounds on which the award can be challenged. Clause (3) thereof provides that an award can be challenged on the ground that the party, making application for setting aside the award, was not given proper notice in respect of appointment of Arbitrator or of the arbitration proceedings or was otherwise unable to present his case. Thus, the present petitioner could have challenged the award under the aforesaid provisions before the principal Civil Court of original jurisdiction in accordance with the provisions contained in Arbitration and Conciliation Act, 1996. This has not been done. Section 35 of the said Arbitration Act attaches finality to arbitration awards and Section 36 provides that after the time for making an application to set aside the award under Section 34 has expired, the award would be executable as a decree of the Civil Court. Section 37 of the Arbitration and Conciliation Act, 1996 makes an order passed under Section 34 of the Act to be an appealable order.
In view of the aforesaid legal position, the course open to the petitioner was, to have challenged the award by making an application under Section 34 of the Arbitration and Conciliation Act, 1996.
Learned counsel for the petitioner argued that this writ petition was filed because four months time available to the petitioner for challenging the award in accordance with the provisions of the Arbitration and Conciliation Act, 1996 had lapsed on account of wrong legal advice being given to the petitioner. The petitioners were advised to file a review petition and they have been pursuing the said course on account of which, they could not make an application under Section 34 of the Arbitration and Conciliation Act, 1996. The argument is that the writ petition should be entertained in view of these circumstances.
In support of his argument the learned counsel for the petitioner has referred to para14 of the writ petition wherein it has been mentioned that the review application was preferred by the petitioner on 17.10.2003 before the opposite party No.1. He has also referred to Annexure12 to the writ petition, which has been claimed to be a review petition. It has been stated therein that the petitioner had earlier through a registered letter dated 9.6.2003, requested the Arbitrator to rehear and review the order.
After considering the submission of the learned counsel for the petitioner, this Court is not inclined to give any advantage to the petitioner on this score. Firstly, as per averments in para14 of the writ petition, the review application itself was made on 17.10.2003 i.e., after expiry of 3 months plus 30 days time provided under Section 34 of the Act for making an objection for setting aside the arbitration award. Secondly, there was no provisions for review and thirdly, just sending a letter to the Arbitrator after making award, to rehear or recall the award, has no legal sanctity and is not a legal proceeding on the basis of which any advantage can be claimed by the petitioner.
Learned counsel for the petitioner then pleaded that the petitioner may be relegated to the remedy under Section 34 of the Arbitration and Conciliation Act, 1996 with the direction that the same would not be rejected on the ground of limitation. This also cannot be accepted. When the Legislature has fixed time for doing of some act or seeking certain remedy, the act can be performed or remedy can be sought only within that period. Where the provisions of the Limitation Act apply, in appropriate cases, the time prescribed for by the Legislature for doing the act, can be extended if so permitted under the law. In the Arbitration and Conciliation Act, 1996, the provisions of Limitation Act have been applied to arbitration proceedings by virtue of Section 43 but this applies only to the proceedings between making of reference and delivery of award. The arbitration proceedings conclude after delivery of award and, therefore, there is specific provision made under Section 34 about limitation for setting aside an award and the time schedule has been prescribed therefore. This has to be strictly observed in light of the fact that proviso to subsection (3) of Section 34 clearly states that time on sufficient ground could be extended by the Court for thirty days but not thereafter. There is thus, clear bar that an application under Section 34 of the Act could not be entertained after time prescribed under subsection (3) of Section 34 of the Act has expired.
This Court, therefore, would not make any observation in this regard. However, it shall be open to the petitioner to seek whatever remedy is available to him under law but in view of the aforesaid circumstances of the case, the writ petition has no force and is accordingly dismissed.
(Petition dismissed)