TMI Blog2000 (5) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... use the issue of the validity of the award was yet to be decided in its suit. It is a moot point whether the second and third reasons are relevant. Nevertheless, the first ground should have been and, in our opinion, was sufficient to excuse the delay and to remand the matter back to the Trial Court for a decision on the merits of the application under Section 30. It would be an euphemism to describe the ineptitude of the advocates advice to the respondent in connection with the proceedings before the Trial Court as negligence. As he holds the post of Govt. Pleader it could reasonably be assumed by the respondent that he possessed the required legal expertise to advise them correctly. His lack of this is borne out by the several wholly misconceived proceedings filed by the respondent before the Senior Civil Judge on his advice. That the respondents objection to the award is not the laggardly response of a frivolous litigant appears from the fact that an objection to the award was made even before the award was filed. Appeal dismissed. - C.A. 3179 OF 2000 - - - Dated:- 3-5-2000 - D.P. Wadhwa and Ruma Pal, JJ. JUDGMENT Leave granted. The litigants, in this case, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 14(2) of the Act was issued to the respondent on the same date. According to the respondent, it never received the notice. The appellant filed a suit to make the majority award a rule of Court under Section 17 of the Act. The respondent has filed a written statement in the suit. In addition, the respondent filed two suits one for making the minority award a rule of Court and another for setting aside the majority award. Along with the second suit (OSSR 3098/98), the respondent filed an application under Section 5 of the Limitation Act (I.A No. 1394/98). A few days later, the respondent filed a second application (I.A. No. 1395/98) in which it was contended that the second suit was not a suit at all but an application which had been wrongly numbered as a suit. It was, therefore, prayed that the Court should convert the said application i.e. petition to set aside the Award as OP. The Principal Senior Civil Judge by his order dated 28th April 1999 disposed of the application under Section 5 treating OSS 3098/98 as an application for setting aside the award. This is what he said: 13. Now coming to the explanation of petitioner for condonation of delay of 331 days in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealable under S. 30. In some High Courts, no separate application is filed under Section 5 of the Limitation Act and the prayer for condonation of delay is included along with the prayers made for substantive relief. Courts have entertained appeals from an order dismissing an application on the ground of limitation. Thus, in State of West Bengal V. M/s A. Mondal AIR 1985 Cal 12 DB where an application under Section 30 of the Arbitration Act was dismissed on the ground of limitation, an appeal was entertained. [See also Damodaran V. Bhaskaran 1988 (2) KLT 753] The procedure appears to have been approved by the Supreme Court in the case of Union of India V. Union Building AIR 1985 Cal 337 (DB), where on an appeal to the Supreme Court from an order dismissing an application under Section 30 on the ground of delay, the appeal was remanded to the High Court to be disposed of. The position should be no different in Courts where a separate application under Section 5 of the Limitation Act is required to be filed. If the various High Courts decisions noted earlier are correct, then the application under Section 5 being dismissed, the application under Section 30 would consequently al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt may refuse to set aside the award. There is nothing in its language to exclude a refusal to set aside the award because the application to set aside the award is barred by limitation. By dismissing the application albeit under Section 5, the assailability of the award is concluded as far as the Court rejecting the application is concerned. Ultimately therefore, it is an order passed under Section 30 of the Arbitration Act though by applying the provisions of the Limitation Act. Section 17 of the Arbitration Act, 1940 provides: Judgment in terms of award.- Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground it is in excess of, or not otherwise in accordance with, the award. The Court can pronounce judgment according to the award (1) if the time for making an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against an order refusing to set aside an award. The case is not an authority for the proposition that where an application under Section 30 is made and is rejected, no appeal is maintainable. It does not apply to the facts of this case. The second decision cited was Madan Lal versus Sunderlal 1967 (3) SCR 147. In that case the question of appealability of an order rejecting an application under Section 30 of the Arbitration Act, 1940 was neither raised nor decided. On the contrary, the High Court in Madanlals case had dismissed the appeal from the order of the Trial Court which had held that the application under Section 30 was barred by limitation, not on the ground that the appeal was not maintainable but because it upheld the Trial Courts decision. The Supreme Court affirmed the High Courts order. On facts therefore, the decision really supports our conclusions. The editorial comment in Justice Bachawats Law of Arbitration Conciliation (3rd edn.) at p.902 that Mafizuddins case (supra) has been overruled by the decisions of Nilkantha vs. Kashinath (supra) and Madan Lal vs. Sunder Lal (supra) is, for the reasons stated, erroneous. Besides Madanlals case was decided in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, this would be an appropriate case for us to exercise our powers under Article 142 of the Constitution and decide on the merits of the sufficiency cause shown. The High Court gave three reasons for setting aside the order of the Trial Court after considering several decisions cited before it. The first, to use its own words, that there was a total negligence and it is on the part of the counsel who appeared for the State in the Trial Court. The second reason was that high-stakes were involved in the matter. The third reason was that no prejudice would be caused to the Contractor because the issue of the validity of the award was yet to be decided in its suit. It is a moot point whether the second and third reasons are relevant. Nevertheless, the first ground should have been and, in our opinion, was sufficient to excuse the delay and to remand the matter back to the Trial Court for a decision on the merits of the application under Section 30. It would be an euphemism to describe the ineptitude of the advocates advice to the respondent in connection with the proceedings before the Trial Court as negligence. As he holds the post of Govt. Pleader it could reasonably be ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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