IN IN IN THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.23 OF 2002 AND APPEAL FROM ORDER NO.39 OF 2002 APPEAL FROM ORDER NO.23 OF 2002 State of Goa, rep. by the Executive Engineer, Works Division VII (NH), Public Works Department, having his office at Old Bus Stand, Panaji-Goa .............. APPELLANT VERSUS M/s. U.P. State Bridge Corporation Limited, A Government of U.P. Undertaking having registered office at Setu Bhavan, 16, Madan Mohan Malviya Marg, Lucknow - 226 001 ............. RESPONDENT. ----- Mr. V.P. Thali, Addl. Advocate General, with Ms. S. Linhares, Addl. Government Advocate, for the Appellant. Mr. S.G. Dessai, Sr. Advocate, with Mr. Rohit Bras de Sa, Advocate, for the Respondent. ----- APPEAL FROM ORDER NO.39 OF 2002 State of Goa, rep. by the Executive Engineer, Works Division II, Irrigation Department, Fatorda, Margao, Goa ........ APPELLANT VERSUS M/s. Heera Construction Company, Citi Center, 113, 1st Floor, Patto Plaza, Panaji, Goa ........ RESPONDENT. ----- - 2 - Mr. V.P. Thali, Addl. Advocate General, with Ms. S. Linhares, Addl.Government Advocate,for the Appellant. Mr. M.S. Usgaonkar, Sr. Advocate, with Mr. Sudesh Usgaonkar and Mr. Sanjay Sardesai, Advocates, for the Respondent. ----- CORAM CORAM CORAM : S. RADHAKRISHNAN,J. : S. RADHAKRISHNAN,J. : S. RADHAKRISHNAN,J. DATED : SEPTEMBER 26, 2002. ORAL JUDGMENT By both these Appeals the State of Goa has challenged the Orders passed by the IInd Additional District Judge, North Goa,Panaji, and the IInd Additional District Judge, South Goa, Margao, whereby both the learned Judges have construed the objections filed by the Appellant with regard to the Arbitral Award to be time-barred and, accordingly, the Applications filed by the Appellant herein were rejected. 2. As far as Appeal From Order No.23 of 2002 is concerned, the Arbitral Award was passed on 8th August, 1997. Across the Bar,the learned Counsel for the Respondent states that the Appellant State of Goa had received the aforesaid Arbitral Award on 4th September, 1997. Thereafter, on 7th of February 1998, the Civil Judge, Senior Division by a notice informed - 3 - the Appellant regarding filing of objections and the date was fixed as 17th March, 1998. In pursuance thereof, the Appellant State of Goa had filed the objections before the Civil Judge, Senior Division, under Section 30 of the Arbitration and Conciliation Act, 1940. 3. After hearing all the parties, the Civil Judge, Senior Division at Panaji dismissed the aforesaid Application on 20th April 1999 holding that the application was governed by the new Arbitration and Conciliation Act, 1996 and as such, ruled that the said Court lacked jurisdiction to decide the said Application. Aggrieved thereby, the Appellant had filed a Civil Revision Application before this Court, being Civil Revision Application No.149 of 1999, against the said Order of dismissal dated 20th April, 1999. This Civil Revision Application was filed by the Appellant State of Goa on 8th July,1999. Finally, this Court dismissed the above Civil Revision Application on 17th February, 2000 and a certified copy of the said Order was obtained by the State of Goa on 13th March, 2000. 4. Subsequently, the Appellant, on 28th April 2000, filed the objections under Section 34 - 4 - of the Arbitration and Conciliation Act, 1996 which is registered as Civil Miscellaneous Application No.88 of 2000 before the IInd Additional District Judge, North Goa, Panaji. The said Civil Miscellaneous Application came to be dismissed by the learned IInd Additional District Judge, North Goa, Panaji by his Order dated 3rd October, 2001 which is impugned in this Appeal from Order. The main ground on which the aforesaid Civil Miscellaneous Application was dismissed was that the objections have been filed beyond the time prescribed in law and the argument that the benefit of Section 14 of the Limitation Act ought to be extended to the case of the Appellant was rejected holding that the said benefit under Section 14 of the Limitation Act will not apply. Aggrieved by the aforesaid Order dated 3rd October, 2001 passed by the learned IInd Additional District Judge, the present Appeal from Order No.23 of 2002 has been filed by the Appellant. 5. As far as the Appeal from Order No.39 of 2002 is concerned, the Arbitral Award was passed on 8th November, 1997. On 21st January, 1998, the Appellant State of Goa was served with a notice from the Civil Judge Senior Division regarding the Award being filed in that Court and registered as - 5 - Special Civil Suit and the date was fixed as 17th March 1998 for filing objections. The State of Goa filed objections on 29th January 1998 under Sections 15, 16, 30 and 33 of the Arbitration and Conciliation Act, 1940. Finally, the Civil Judge, Senior Division, by his Order dated 7th May, 1998, declined to entertain the said objections and dismissed the Application filed by the State of Goa. Thereupon, the Appellant herein had filed fresh objections under Section 33 and 34 of the Arbitration and Conciliation Act, 1996 before the same Court on 6th June, 1998. Finally, this Civil Miscellaneous Application was dismissed on 21st March 2002 holding that the objections filed by the State of Goa were clearly time-barred and the benefit of Section 14 of the Limitation Act cannot be availed of by the State of Goa. Aggrieved by the aforesaid Order dated 21st March 2002 passed by the learned IInd Additional District Judge, South Goa, Margao, the present Appeal from Order has been filed on 11th January 2002 before this Court. 6. Shri Thali, the learned Addl. Advocate General, appearing on behalf of the Appellant State of Goa, very strongly contended that benefit of Section 14 of the Limitation Act ought to have been extended to the instant case - 6 - inasmuch as the Appellant was prosecuting with due diligence the aforesaid proceedings in good faith and, as such, the time spent by the Appellant State of Goa ought to be excluded in view of the fact that the Appellant was proceeding bonafide in a Court without jurisdiction. 7. In that behalf, Shri Thali, the learned Addl. Advocate General, relied on a judgment of the Hon’ble Supreme Court in Union of India v. Union of India v. Union of India v. Popular Popular Popular Construction Co.[(2001) 8 SCC 470] Construction Co.[(2001) 8 SCC 470] Construction Co.[(2001) 8 SCC 470] contending that in the aforesaid judgment, the Supreme Court has dealt with only the provisions under Section 5 of the Limitation Act and not Section 14 of the said Act. In the above judgment, the Hon’ble Supreme Court, in clear and unequivocal terms has held that in view of the clear provision in the Arbitration and Conciliation Act, 1996, especially Section 5 of the said Act read with Section 34 thereof, the period of limitation prescribed under the Arbitration and Conciliation Act, 1996 by specifically mentioning 3 months and a further period of 30 days "but not thereafter" has to be construed as prevailing over the provisions under Section 5 of the Limitation Act and as such the benefit of Section 5 of the Limitation Act could not be extended. - 7 - 8. The learned Counsel submitted that in matters pertaining to an application filed under Section 34 of the Arbitration and Conciliation Act, 1996, the party concerned has to file the application within a period of 3 months and a further period of 30 days is granted which can be condoned by the Court but not thereafter. Therefore, the Supreme Court has clearly held that no further extension would be granted and no condonation beyond the said period of 30 days can be granted by the Court. 9. Mr. Thali also referred to another Judgment of a learned Single Judge of our High Court in Pushpa P. Mulchandani (Mrs.) & others v. Admiral Pushpa P. Mulchandani (Mrs.) & others v. Admiral Pushpa P. Mulchandani (Mrs.) & others v. Admiral Radhakrishin Radhakrishin Radhakrishin Tahilani (RETD.) & others [2000(1) Tahilani (RETD.) & others [2000(1) Tahilani (RETD.) & others [2000(1) Bom.C.R. Bom.C.R. Bom.C.R. 592], 592], 592], wherein the learned Single Judge of our High Court has observed as under :- "28. 28. 28. Upon a conspectus, I am of the view that there is no substance in the contention of Mr. Bulchandani. Notwithsanding that the 1996 Act contains no specific words of exclusion, an examination of the scheme of the Act would suggest that the intention is to exclude the application of the provisions of sections 4 to 24 of Limitation Act. This is clearly evidenced by the words "but not thereafter" used at the end of the proviso to sub-section (3) of section 34." - 8 - 10. Shri Thali thereafter referred to another judgment of the Supreme Court in Lala Ram Lala Ram Lala Ram v. v. v. Hari Ram [1969(3) SCC 173]. He laid s Hari Ram [1969(3) SCC 173]. He laid s Hari Ram [1969(3) SCC 173]. He laid stress on the observations of the Supreme Court in Paragraphs 7 and 8 of the said judgment to contend that such delay can be condoned under Section 14 of the Limitation Act. 11. Thereupon, Mr. Thali, the learned Addl. advocate General, referred to another Supreme Court judgment in P. Mishra v. Mal P. Mishra v. Mal P. Mishra v. Mal Narayan Narayan Narayan Sharma and another [1970(2) SCC 369]. Sharma and another [1970(2) SCC 369]. Sharma and another [1970(2) SCC 369]. He laid emphasis on the following observations of the Supreme Court in paragraph 7:- "It was held that in the absence of any express provision to the contrary in the special statute, the provisions of the Indian Limitation Act, 1908, contained in Section 4 and Section 9 to 18 and 22 shall apply to the extent to which they were not expressly excluded by any special or local law." 12. Shri Thali thereafter referred to another judgment of the Supreme Court in The The The Commissioner Commissioner Commissioner of Sales Tax, U.P. v. M/s. Madan of Sales Tax, U.P. v. M/s. Madan of Sales Tax, U.P. v. M/s. Madan Lal Lal Lal Das & Sons, Bareilly Das & Sons, Bareilly Das & Sons, Bareilly [(1976) 4 SCC 464]. The learned Counsel pointed out that in the said judgment the Hon’ble Supreme Court had applied - 9 - Section 12(2) of the Limitation Act, 1963 to exclude the time spent in obtaining the certified copy. 13. Similarly, Shri Thali, the learned Counsel for the Appellant, also referred to and relied on another Supreme Court judgment in Mukri Mukri Mukri Gopalan Gopalan Gopalan v. Cheppilat Puthanpuravyil Aboobacker v. Cheppilat Puthanpuravyil Aboobacker v. Cheppilat Puthanpuravyil Aboobacker [(1995) [(1995) [(1995) 5 SCC 5] 5 SCC 5] 5 SCC 5]. He contended that in the said judgment the Supreme Court had construed the appellate authority to be a Court under Section 18 of the Kerala Rent Control Act and, accordingly, the provisions of Section 4 to 24 of the Limitation Act were held to apply. Therefore, the said appellate authority had ample jurisdiction to consider and condone the delay under Section 5 of the Limitation Act. Shri Thali, the learned Addl. Advocate General, also sought to distinguish Section 5 and Section 14. He urged that Section 5 dealt with sufficient cause for condoning delay whereas Section 14 deals with the computation of period of limitation when a party has been prosecuting with due diligence certain proceedings which ought to be excluded. He also contended that Section 5 seeks to extend the period of limitation whereas Section 14 seeks to exclude the period spent by a party bonafide litigating before a Court - 10 - without jurisdiction. Shri Thali, therefore, contended that the learned Additional District Judges had committed a serious error in not applying Section 14 of the Limitation Act in both the above cases and had wrongly construed that the benefit of Section 14 of the Limitation Act could not be given. Therefore, the learned Counsel submits that even though the aforesaid judgment of the Supreme Court in Union of India v. Popular Union of India v. Popular Union of India v. Popular Construction Construction Construction Co.(supra) and the learned Single Co.(supra) and the learned Single Co.(supra) and the learned Single Jud Jud Judge’s judgment in Pushpa P. Mulchandani’s Pushpa P. Mulchandani’s Pushpa P. Mulchandani’s case (supra) (supra) (supra) were were were dealing only with the issue whether with the issue whether with the issue whether the the the benefit benefit benefit of Section 5 of the Limitation Act ought to be extended or not and both the aforesaid judgments do not deal with the specific issue as to whether benefit under Section 14 of the Limitation Act could be extended or not. 14. In that behalf, Shri Thali, the learned Counsel for the Appellant also strongly relied on another judgment of our High Court in Reshma Reshma Reshma Constructions v. State of Goa [1998(1) Goa Constructions v. State of Goa [1998(1) Goa Constructions v. State of Goa [1998(1) Goa L.T. L.T. L.T. 311] 311] 311] especially the following observations of the learned Single Judge in the said judgment: "Being so, having held that the provisions of the new Act would apply to the proceedings in question, it will be unjust to deny the opportunity to the respondent to take recourse under Section 33 - 11 - and/or Section 34, if it so desires, considering the fact that it had already filed objections under the provisions of the old Act. Moreover, the said application, if filed now, would be certainly barred by law of limitation in terms of the provisions contained in Section 34(3) of the new Act, but for the benefit being extended to the respondent in terms of Section 14 of the Limitation Act, 1963. Undisputedly, the respondents had been prosecuting the matter with due diligence in the Civil Court under the bonafide belief that the proceedings were governed by the provisions of the old Act. In the facts and circumstances, the period spent from 7.9.96 till the date of this Judgment is necessarily to be excluded for the purpose of calculation of the limitation period under Section 33(1) and/or Section 34(3) of the new Act in case the respondent prefers to take recourse under Sections 33 or 34 of the new Act. " 15. Therefore, the learned Addl. Advocate General contends that this issue of application of Section 14 of the Limitation Act was considered by the learned Single Judge in the aforesaid judgment and has applied this principle under Section 14 of the Limitation Act and had actually excluded time spent in bonafide litigation in a Court without jurisdiction. Further, the learned Addl. Advocate General contended that the IInd Additional District Judge, South Goa, Margao has committed serious error in not allowing the Appellant to rely upon Section 14 of the Limitation Act for the - 12 - purpose of excluding the period in a legal proceeding bonafide in a Court without jurisdiction. The said benefit ought to have been given and the objections ought to have been considered on merits and not rejected on the ground that the same was barred by law of limitation. 16. Shri S. G. Dessai,the learned Counsel appearing on behalf of Respondent, as far the Appeal from Order No.23 of 2002 is concerned, strongly contended that Section 14 of the Limitation Act will not apply in the instant case and the judgment of the learned IInd Additional District Judge, North Goa, Panaji is absolutely right in not excluding the time as contemplated under Section 14 of the Limitation Act. Similarly, the learned Sr. Counsel Shri Usgaonkar appearing for the Respondent in Appeal from Order No.39 of 2002 also contended that the benefit of Section 14 cannot be extended in the instant case and the learned IInd Additional District Judge, South Goa was absolutely right in not extending the same and holding the said application to be clearly time-barred. 17. Shri Usgaonkar, the learned Sr. Counsel appearing for the Respondents in Appeal from Order No.39 of 2002, referred to the judgment of the - 13 - Hon’ble Supreme Court in Rajpur Ruda Meha and others Rajpur Ruda Meha and others Rajpur Ruda Meha and others v. v. v. State of Gujarat (AIR 1980 SC 1707) State of Gujarat (AIR 1980 SC 1707) State of Gujarat (AIR 1980 SC 1707) to contend that the judgment of the learned Single Judge in Reshma Reshma Reshma Constructions v. State of Goa (1998(1) GLT Constructions v. State of Goa (1998(1) GLT Constructions v. State of Goa (1998(1) GLT 311) 311) 311) wherein the learned Single Judge has given the benefit of Section 14 of the Limitation Act cannot be construed as judgment laying down the law pertaining to applicability of Section 14 of the Limitation Act in the context of Arbitration and Conciliation Act, 1996. In that context, the learned Counsel has referred to the above judgment in Rajpur Ruda Meha and Rajpur Ruda Meha and Rajpur Ruda Meha and others others others v. State of Gujarat (supra) v. State of Gujarat (supra) v. State of Gujarat (supra) wherein the Supreme Court has clearly held that if it were to be treated as a precedent to be binding on the Court, then a discussion by the Court after pondering over in depth over the issue was necessary. Shri Usgaonkar thereafter referred to another judgment of the Supreme Court in The Commissioner of Sales Tax U.P. v. M/s. The Commissioner of Sales Tax U.P. v. M/s. The Commissioner of Sales Tax U.P. v. M/s. Parson Parson Parson Tolls and Plants (AIR 1975 SC 1039) Tolls and Plants (AIR 1975 SC 1039) Tolls and Plants (AIR 1975 SC 1039). In the said judgment, the learned Counsel strongly relied on the observations of the Supreme Court from paragraph 10 onwards. In that, the learned Counsel emphasised the observations of the Supreme Court in Para 11 of the said judgment referring to rule of interpretation to the effect that, "the will of the legislature is the supreme law of the land, and demands perfect obedience". "Judicial power is never exercised", said - 14 - Marshall C.J. of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law." 18. In the light of the above, Shri Usgaonkar contended that in view of the provisions of Section 5 of the Arbitration and Conciliation Act, 1996 and the proviso to Section 34(3) of the Arbitration and Conciliating Act, 1996 the maximum period for filing the application or to condone the delay would only be 30 days beyond the prescribed period, namely, 3 months. He emphasized that the Legislature has specifically used the words "but not thereafter" to indicate that even the Court’s power to condone delay would only be limited to 30 days beyond the prescribed period of 3 months but not thereafter. 19. Shri Usgaonkar thereafter referred to another Judgment of the Supreme Court in Hukumdev Hukumdev Hukumdev Narain Narain Narain Yadav v. Lalit Narain Mishra [(1974)2 SCC Yadav v. Lalit Narain Mishra [(1974)2 SCC Yadav v. Lalit Narain Mishra [(1974)2 SCC 133]. 133]. 133]. He pointed out that in that judgment, the Supreme Court has held that the Court has to see if in a particular Act, the remedy provided therein is intended to be a complete code by itself which alone should govern the several matters provided by it. - 15 - Therefore, the argument by the learned Counsel is that the Arbitration and Conciliation Act, 1996 which is a code by itself dealing with all the matters pertaining to arbitration, which itself provides for a period of limitation as clearly indicated in Section 34, Clause (3) Proviso. Hence there is no recourse for a party to refer to the Limitation Act since the special Statute excludes the same. Therefore, the learned Counsel contends that the provisions of the Limitation Act obviously gets excluded by necessary implication as per the wording of proviso to Clause (3) of Section 34 under the said Arbitration Act of 1996. 20. Under the aforesaid facts and circumstances, the learned Counsel contends that the learned IInd Additional District Judge, South Goa, Margao, was absolutely right in not extending the benefit of Section 14 of the Limitation Act to exclude the time as sought to be contended by the Appellant. 21. Shri Usgaonkar thereafter contended that the Hon’ble Supreme Court in the case of Union of Union of Union of India India India v. Popular Construction Co. (supra) has held v. Popular Construction Co. (supra) has held v. Popular Construction Co. (supra) has held unequivocally that as far as Section 34 of Arbitration Act is concerned, the crucial words were "but not thereafter" as used in Proviso to sub-section (3) of Section 34 of the Arbitration and Conciliation Act, - 16 - 1996, which was construed by the Supreme Court to amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act. If one looks at Section 29(2) of the Limitation Act it very clearly provides that the provisions contained in Section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Shri Usgaonkar contended that by the aforesaid judgment the Supreme Court has clearly ruled that the above Proviso to Clause 3 of Section 34 of the Arbitration and Conciliation Act, 1996 would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act. The learned Counsel also pointed out that in the aforesaid judgment it is ruled that to the extent the judicial intervention is curtailed by providing in the aforesaid Arbitration and Conciliation Act,it makes abundantly clear that there is a non-obstante clause that no judicial authority shall intervene except where so provided. Shri Usgaonkar thereafter pointed out that the main objective of the Arbitration and Conciliation Act, 1996 was to provide speedy and efficacious remedy to the party and especially in view thereof Section 5 was enacted indicating that even the judicial intervention should be expressly restricted only to the areas where it specifically empowered. In the light of the above, - 17 - Section 34 Clause 3 Proviso also makes it clear that if at all any application were to be made the same ought to be made within a period of 3 months and a further period of 30 days could be condoned by the Court to a party showing sufficient cause,"but not thereafter ". In the light of the above, the learned Counsel Shri Usgaonkar contended that the above judgment of the learned IInd Additional District Judge cannot be faulted. 22. Shri S.G. Dessai, the learned Senior Counsel appearing for the Respondent in Appeal from Order No.23 of 2002, also strongly contended that the judgment of the learned IInd Additional District Judge, North Goa, cannot be faulted for not applying Section 14 of the Limitation Act which could not be applied at all in view of the aforesaid judgment of the Supreme Court in Union of India v. Popular Union of India v. Popular Union of India v. Popular Construction Construction Construction Co. (supra) and also Co. (supra) and also Co. (supra) and also the judgment of the Single Judge of this Court in Pushpa P. Mulchandani & Pushpa P. Mulchandani & Pushpa P. Mulchandani & others others others v. Admiral Radhakrishin Tahilani & others v. Admiral Radhakrishin Tahilani & others v. Admiral Radhakrishin Tahilani & others (supra) (supra) (supra). Shri Dessai, the learned Sr. Counsel, also brought to my notice that the State of Goa had accepted the position in law that as far as the arbitral award is concerned, the Arbitration and Conciliation Act 1996 would be applicable and not the Arbitration and Conciliation Act of 1940 after the