9911796707
TMI Blog2006 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the State of Goa and directed that the claimant is entitled to a sum of Rs. 89763/- and he further directed the State to pay simple interest on Rs. 75553/- from 4th January, 1993 at the rate of 15% per annum. This interest was payable till the date of decree of the award and till payment whichever is earlier. Aggrieved against this award, a petition was filed before Civil Court, Civil Judge, Margao under sections 30 and 53 of the Arbitration Act, 1940 for making rule of the Court. Objection was raised that since The Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) has come into force therefore, Civil Court had no jurisdiction to entertain the proceedings under the Arbitration Act, 1940. The Civil Judge, Senior Division held that under the Arbitration and Conciliation Act, 1996 there is no provision for making the award as a Rule of the Court. He observed that as per new Act of 1996 the award can be executed as decree. The learned Judge held that in view of the decision of the apex court given in the case of Thyseen Stahlunion SMBH vs. Steel Authority of India and in view of the decision of the Goa Bench in the case of Reshma Construction vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e operation of Limitation Act is ousted by virtue of Sub-section (2) of Section 29. In this connection our attention was invited to Section 34 of the Act which lays down the ground on which award can be set aside & period within which it can be set aside. Therefore, it is a complete code in itself and the operation of Section 14 & Section 5 of Limitation Act stands excluded. However in order to appreciate the submission of learned counsel it would be necessary to reproduce the Section 34 of the Act:- 34. Application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if (a) the party making the application furnishes proof that (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h proviso. Reading of sub-section 3 alongwith the proviso of Section 34, it clearly transpires that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 should be made within 3 months and the period can be further extended on sufficient cause by another period of 30 days & not thereafter that means so far as application for making setting aside the award the period of limitation has been prescribed in sub-section (3) i.e. 3 months but it can be extended for another period of 30 days on sufficient cause be shown to the satisfaction of court. Therefore, the applicability of Section 5 of the Limitation Act stands excluded & the application for condonation of delay upto a period of 30 days can be made by the court and not beyond that. Therefore, it was submitted that there is no scope for applicability of Section 14 of Limitation Act in these proceedings by virtue of sub-section (2) of Section 29 of the Limitation Act. Sub-section (2) of Section 29 of the Limitation Act reads as under - " (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time spent in prosecuting the remedy before wrong forum bona fide reads as under: "14. Exclusion of time of proceeding bona fide in court without jurisdiction (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligences another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and 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. (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. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. Whenever two enactments are overlapping each other on same area then courts should be cautious in interpreting those provisions. It should not exceed the limit provided by statute. The extent of exclusion is however, really a question of construction of each particular statute & general principles applicable are subordinate to the actual words used by legislature. There is no provision in whole of the Act which prohibit discretion of the court. Under section 14 of the Limitation Act if the party has been bona fidely prosecuting his remedy before the court which has no jurisdiction whether the period spent in that proceedings shall be excluded or not. Learned counsel for the respondent has taken us to the provisions of the Act of 1996; like section 5, section 8(1), section 9, section 11 sub-section (4), (6), (9) and sub-section (3) of section 14, section 27, sections 34, 36, 37, 39 (2) (4), section 41, sub-section (2) section 42 & 43 and tried to emphasis with reference to the aforesaid sections that the legislature wherever wanted to give power to the Court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the court so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by the provisions of the Arbitration and Conciliation Act, 1996. The arbitrator proceeded on that basis and gave a final award. That final award was challenged. The question arose whether the proceeding shall be governed by the 1940 Act or of 1996 Act? And which is the appropriate Court. The dispute prolonged for nearly 16 years. This Court dismissed the appeal and held that in the present case proceedings should go on under the provisions of the Act, 1996 though the dispute arose prior to coming into force of the Act 1996, the appropriate forum for challenging the award under Section 34 was Principal Civil Court of original jurisdiction as contemplated under Section 2(e) of the Act, 1996. However, with regard to delay in filing objection before the principal civil court of original jurisdiction , this Court directed that the petitioner shall file objection for setting aside the award before the Court concerned within 30 days from this date, the delay in regard to filing of the petition as contemplated under Section 34 of the Act, 1996 shall be condoned by the said Court since the time consumed was bona fide in prosecution of its remedy. The exact observation of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oples Act or the provisions of Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of section 29 of the Limitation Act that the provisions of Limitation Act shall stand excluded in Act of 1996 to the extend area which is covered by the Act of 1996. In the present case under section 34 by virtue of sub-section 3 only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days To this extent the applicability of section 5 of Limitation will stand excluded but there is no provision in the Act of 1996 which excludes operation of section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so. As the result of the above discussion we are of the opinion that the view taken by the court below excluding the applicability of Section 14 in this proceeding is not correct. We hold that section 14 of the Limitation Act, 1963 is applicable in the Arbitration an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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