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Judgment
Pratap Krishna Lohra, J.—The appellants have laid this appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, ''Act of 1996'') challenging the impugned order dated 10th of October 2014 passed by Addl. District and Sessions Judge No. 4, Jodhpur Metropolitan. By the order impugned, the learned Court below has rejected the application of the appellants under Section 34 of the Act of 1996 for setting aside arbitral award on the ground of limitation.
The facts, apposite for the purpose of this appeal, are that the first respondent was appointed as dealer of the appellant-Corporation for sale of petroleum products. The retail outlet of the first respondent was inspected and samples were collected. During laboratory examination, it was revealed that the products have excessive sulphur contents and High Speed Diesel is also adulterated. Noticing these omissions in the petroleum products, the appellant-Corporation issued show cause notice to the first respondent. Assailing the show cause notice, first respondent preferred a writ petition before this Court wherein on behalf of appellants an application under Section 8 of the Act of 1996 is filed. This Court, while allowing the said application, permitted the appellant-Corporation to appoint arbitrator for deciding the dispute and disposed of the writ petition. In terms of the orders passed by this Court, the Corporation appointed second respondent as sole arbitrator. Before the sole arbitrator, first respondent submitted its claim which was replied by the appellants. After submission of reply, the sole arbitrator directed the appellant-Corporation to make necessary investigation about previous TT retention of sample of the first respondent. On thorough investigation, it was revealed that the sample was not in consonance and conformity with the Marketing Discipline Guidelines which were in vogue at the relevant point of time. Taking into account this aspect, the sole arbitrator passed the award on 15th April 2013 favouring cause of the first respondent.
Being aggrieved by the arbitral award, appellant-Corporation filed an application under Section 34 of the Act of 1996 before the District and Sessions Judge, Jaipur. The case was subsequently transferred to Addl. District Judge No. 4, Jaipur. The application under Section 34 of the Act of 1996 filed by the appellant-Corporation was opposed by the first respondent on merits as well as on the ground of lack of territorial jurisdiction. Considering the genuine objection of the first respondent, the Addl. District Judge No. 4, Jaipur returned the application of the appellant-Corporation under Section 34 of the Act of 1996 by order dated 21st of April 2014 for its presentation before the Court of competent jurisdiction. Pursuant to the order of Addl. District Judge No. 4, Jaipur, dated 21st April 2014, appellant-Corporation submitted its application/objections before the learned Court below on 22nd of May 2014. Along with the objections under Section 34 of the Act of 1996, the appellants also preferred an application under Section 14 of the Limitation Act seeking extension of time for the interregnum it has pursued remedy bona fide before Addl. District Judge No. 4, Jaipur. The learned Court below after hearing the rival submissions found that application under Section 34 of the Act of 1996 is barred by limitation and consequently dismissed the same.
Mr. O.P. Mehta, learned counsel for the appellants submits that the learned Court below while rejecting the application of the appellants under Section 34 of the Act of 1996 as barred by limitation has not properly construed the provisions contained in sub-section (3) of Section 34 of the Act of 1996. Mr. Mehta has vehemently argued that the appellants have bona fide pursued remedy before the Court at Jaipur and therefore for the interregnum when proceedings remained pending before that Court, the benefit of Section 14 of the Limitation Act ought to have been extended to the appellants by the learned Court below. According to Mr. Mehta, while construing the application, the learned Court below has not appreciated the facts in right perspective and as such impugned order cannot be sustained. Lastly, Mr. Mehta would contend that the language employed under sub-section (3) of Section 34, if properly construed then it would reveal that in such proceedings provisions contained under Section 14 of the Limitation Act can be invoked and the period, during which a party has pursued remedy before a wrong forum bona fide, is liable to be excluded. In support of his contentions, Mr. Mehta has placed reliance on following legal precedents:
"(1) M/s. Consolidated Engineering Enterprises v. Principal Secretary (Irrigation Department) and Ors. [AIR 2009 SC (supp) 396].
(2) State of Himachal Pradesh and Another Vs. Himachal Techno Engineers and Another,
(3) Coal India Limited and Another Vs. Ujjal Transport Agency and Others, .
(4) Ram Ujarey Vs. Union of India, .
(5) Tirumareddi Rajarao and Others Vs. The State of Andhra Pradesh and Others, ."
Per contra, learned counsel for the first respondent Mr. Shah submits that the impugned order passed by the learned Court below is just and proper which calls for no interference. Learned counsel for the respondent would contend that there is no quarrel in the legal position that in proceeding under Section 34 of the Act of 1996, provision contained in Section 5 of the Limitation Act is not applicable and only Section 14 can be invoked for limited purpose provided the aggrieved party has shown its bona fide for pursuing remedy before the wrong forum. Elaborating his submission in this behalf, Mr. Shah submits that the learned Court below has taken note of Section 14 of the Limitation Act and even after excluding the period during which proceedings remained pending before the Jaipur Court, it has found that application under Section 34 is barred by limitation and consequently no interference with the impugned order is called for. In support of his contention, Mr. Shah has also placed reliance on M/s. Consolidated Engineering Enterprises (supra), on which the appellants have placed reliance.
I have heard learned counsel for the rival parties, perused the impugned order as well as the application under Section 14 of the Limitation Act and given my thoughtful consideration to the arguments advanced at Bar.
The crucial issue that has cropped up in the matter hovers around interpretation of sub-section (3) of Section 34 of the Act of 1996. Complete text of sub-section (3) of Section 34 of the Act of 1996 reads as under:
"(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." 8. A glance at sub-section (3) of Section 34 of the Act of 1996 makes it crystal clear that an aggrieved party can lay an application for setting aside arbitral award within three months from the date of receipt of the arbitral award. Proviso to sub-section (3) of Section 34 of the Act of 1996 further allows an extended period of 30 days if the Court is satisfied that the applicant was prevented by sufficient cause from making appropriate application within the prescribed period of three months. As such, after expiry of three months from the date of receipt of the arbitral award, an aggrieved party can also avail 30 days'' period at the discretion of the Court if the Court is satisfied that party was prevented by sufficient cause from making application within the stipulated period of limitation. In terms of the language employed in sub-section (3) of Section 34 of the Act of 1996, there remains no quarrel that in such proceedings provisions of Section 5 of the Limitation Act are not applicable. However, Section 14 of the Limitation Act can certainly be invoked by aggrieved party for excluding the period spent on bona fide prosecuting proceedings in wrong forum. As Section 34 of the Act of 1996 envisage that for setting aside arbitral award aggrieved party can prefer an application, the relevant provision contained under sub-section (2) of Section 14 of the Limitation Act is attracted in such proceedings, which reads as under:
"(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." 9. Now considering the submissions of the learned counsel for the appellants for exclusion of period spent in bona fide prosecuting proceedings before wrong forum, certain dates are crucial. It is an admitted fact that appellants at the threshold laid application under Section 34 of the Act of 1996 before the Jaipur Court on 15th July 2013, i.e. after availing the period of limitation of 90 days. The proceedings before the Jaipur Court were terminated on 21st of April 2014 when the Court ordered for returning the application/objections of the appellants for presentation before appropriate Court. Therefore, the appellants are entitled for exclusion of period from 15.07.2013 to 21.04.2014. The learned Court below has taken note of the crucial dates and has allowed exclusion of the interregnum period to the appellants. In view of the fact that before the Jaipur Court the proceedings were terminated on 21st April 2014, the period of 30 days in terms of proviso to sub-section (3) of Section 34 of the Act of 1996 obviously commenced w.e.f. 22nd April 2014. As such, if additional period of 30 days is to be reckoned from 22nd April 2014 then too 30 days have expired on 21st of May 2014 and admittedly the application was submitted by the appellants before the learned Court below on 22nd May 2014, therefore, the application was per-se barred by limitation, may be by a day.
On thoroughly examining the averments contained in application under Section 14 of the Limitation Act, I have not been able to find out that pursuant to order by Jaipur Court dated 21st of April 2014, the application for presentation before the appropriate Court was not returned to the appellants on the same day. The application of the appellants in this behalf is conspicuously silent. Therefore, it pre-supposes that application was returned to the appellants on the same day. The averments contained in the application read as under:
A bare reading of the above quoted averments of the application makes it amply clear that application is absolutely vague, cryptic and unspecific. Appellants have not even cared to mention the chronological events and the relevant dates in the application for seeking extension of time. Such vague averments are not inspiring confidence.
Well it is true that the learned Court below has mentioned 25th April 2014 as the relevant date on which period of limitation has expired but I am unable to concur with the learned Court below for considering it to be the sacrosanct date for recording finding that on that day period of limitation expired. Be that as it may, this error itself cannot vitiate the impugned order passed by the learned Court below for the reason that after return of application for presentation before appropriate forum, the appellants have not presented the application under Section 34 of the Act of 1996 within 30 days i.e. the extended period envisaged under proviso to sub-section (3) of Section 34 of the Act of 1996. Therefore, I am not persuaded to interfere with the impugned order. Reiterating my stand that Section 5 is not applicable in such proceedings, I am not inclined to interfere with the impugned order passed by the learned Court below.
Resultantly, the appeal fails and same is accordingly dismissed summarily.