Case: ORIENTAL INSURANCE CO.LTD Vs. M/S TEJPARAS ASSOCIATES

and the delay should be condoned unless the opposite party is able to show malafide in not approaching the Court within time. It is further contended that it is held therein that the rules of limitation are not meant to destroy or foreclose the right of parties. The learned counsel for the respondent on the other hand would contend that the said decision rendered is in the context of consideration of sufficient cause as contemplated under Section 5 of the Limitation Act which would not be applicable to proceedings under Section 34 of the Act, 1996. In that regard, the learned counsel for the respondent has relied on the decision in the case of Union of India vs. Popular Construction Company, (2001) 8 SCC 470 wherein it is held that Section 5 of the Limitation Act is not applicable to the proceedings under Section 34 of the Act, 1996 for setting aside the arbitral award. Further the decision in the case of Simplex Infrastructure Ltd. vs. Union of India, (2019) 2 SCC 455 is also relied upon to contend that Section 5 of the Limitation Act has no application to a petition challenging the arbitral award under Section 34 of the Act, 1996. The said decision would however indicate that Section 14 of the Limitation Act is applicable to an application submitted under Section 34 of the Act, 1996 seeking for exclusion of certain period if the application under Section 34 of the Act, 1996 is at the first instance filed within the limitation period provided under Section 34(3) of the Act, 1996. The position of law that Section 5 of the Limitation Act is not applicable to condone the statutory period under Section 34(3) of Act, 1996 is well established and needs no reiteration. 11. Having noticed the said decisions, in the instant case as already indicated above the condonation of delay sought is not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term sufficient cause as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note herein is that the application filed for excluding the time is under Section 14 of the Limitation Act. In addition to the very decisions cited above indicating that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Act, 1996 subject to the petition under Section 34 being filed within time, the learned counsel for the appellant has also relied upon the decision in the case of M/s Consolidated Engineering Enterprises vs. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169 wherein the same position is reiterated. 12. The learned counsel for the respondent would however, refer to the very same decision and contend that even if Section 14 of the Limitation Act is applicable, the exclusion of time can only be of the proceedings which is bonafide initiated in a Court without jurisdiction. It is contended that in the instant case the entire cause of action had occurred at Jodhpur and despite the same the appellant had deliberately initiated the proceedings at Jaipur which cannot be considered as a bonafide mistake. Though such contention is put forth, what cannot be lost sight in the instant facts is that the learned Judge of the Additional District Court, Jaipur while considering the maintainability of the proceedings before that Court, through the order dated 12.03.2008 has taken note of the very rival contentions with regard to the cause of action as contended and also the Court before which the proceedings was required to be initiated. Though at this point of time the position of law has been enunciated through several decisions, and there is clarity, at that juncture the consideration with regard to the definition of Court as contained in the Act was required to be interpreted and on taking note of various decision of the Supreme Court had arrived at the conclusion that keeping in view the fact situation the petition is to be returned for presentation in the appropriate Court. The very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of the present case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent herein seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide. 13. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to nonsuit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. In the instant case though the appellant herein had not filed the application indicating the Court to which the petition would be re-presented and did not seek for fixing the date of hearing, the Court at Jaipur while ordering return of the petition after consideration of the application of the respondent under Order 7 Rule 11 CPC had indicated the Court to which it was to be presented and the date for appearance on 02.04.2008 for that purpose. Hence, it is not as if the proceeding came to an abrupt end when the petition was returned so as to consider the next filing as a fresh petition. In that circumstance when the time had been granted and date was fixed by the learned District Judge at Jaipur and if for any reason the re-presentation was not possible on that date, the course open to the appellant was to file an application under Section 148 of CPC before the Court at Jaipur which ordered for return and fixed the time for presentation in the Court at Jodhpur, seeking extension of time granted earlier. However, since the same was not resorted to by the appellant and the petition was re¬ presented before the District Court at Jodhpur with a delay of about 8 days from the date fixed for presentation and as no extension was also sought as indicated above, condonation of such delay ought to have been sought. Since the petition was filed with delay and no other application had accompanied the petition, the respondent filed the application under Section 3 of Limitation Act which prompted a knee jerk reaction by the appellant in filing the application under Section 14 of the Limitation Act. Though the said application has invoked Section 14 of Limitation Act and thereafter supported by an additional affidavit, the averments in the application is in the nature of an application seeking condonation of delay in re¬presentation of the petition as against the date fixed by the Court for presentation in JodhpurFurther the decision in the case of Simplex Infrastructure Ltd. vs. Union of India, (2019) 2 SCC 455    is also relied upon to contend that Section 5 of the Limitation Act has no application to a petition challenging the arbitral award under Section 34 of the Act, 1996. The said decision would however indicate that Section 14 of the Limitation Act is applicable to an application submitted under Section 34 of the Act, 1996 seeking for exclusion of certain period if the application under Section 34 of the Act, 1996 is at the first instance filed within the limitation period provided under Section 34(3) of the Act, 1996. The position of law that Section 5 of the Limitation Act is not applicable to condone the statutory period under Section 34(3) of Act, 1996 is well established and needs no reiteration11. Having noticed the said decisions, in the instant case as already indicated above the condonation of delay sought is not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term sufficient cause as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note herein is that the application filed for excluding the time is under Section 14 of the Limitation Act. In addition to the very decisions cited above indicating that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Act, 1996 subject to the petition under Section 34 being filed within time, the learned counsel for the appellant has also relied upon the decision in the case of M/s Consolidated Engineering Enterprises vs. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169  wherein the same position is reiteratedIt is contended that in the instant case the entire cause of action had occurred at Jodhpur and despite the same the appellant had deliberately initiated the proceedings at Jaipur which cannot be considered as a bonafide mistake. Though such contention is put forth, what cannot be lost sight in the instant facts is that the learned Judge of the Additional District Court, Jaipur while considering the maintainability of the proceedings before that Court, through the order dated 12.03.2008 has taken note of the very rival contentions with regard to the cause of action as contended and also the Court before which the proceedings was required to be initiated. Though at this point of time the position of law has been enunciated through several decisions, and there is clarity, at that juncture the consideration with regard to the definition of Court as contained in the Act was required to be interpreted and on taking note of various decision of the Supreme Court had arrived at the conclusion that keeping in view the fact situation the petition is to be returned for presentation in the appropriate Court. The very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of the present case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent herein seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide13. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to nonsuit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified.