TMI Blog2000 (9) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the review petitioners, contends that Section 141 of the Civil Procedure Code ( C.P.C. ) enjoins that the procedure provided in the Code with regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The only proceedings excepted by the explanation are proceedings under Article 226 of the Constitution. He contends that, in the absence of a specific exception as to the application of the provisions of the Civil Procedure Code, Order I Rule 10 of the Code would squarely apply to the proceedings before the Court under the 1996 Act and, consequently, the Court was fully empowered under sub-rule (2) of Rule 10 of Order 1 to implead any party whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. 4. Mr. Bulchandani relied upon section 43 of the 1996 Act to contend that the Limitation Act, 1963 applies to arbitrations as it applies to proceedings in the Court. It is, therefore, contended that Article 137 of the Third Schedule of the Limitation Act, 1963 would govern the limitation with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending that this Court has wide discretion in the matter of reviewing its judgments. 7. Rabindra Nath Biswas v. General Manager, N. F. Rly. and others, was cited in support of the submission that if the omission to implead a party was due to a bona fide mistake, the proviso to section 21(1) of the Limitation Act, 1963 would apply and the impleading of such a party even after the expiry of period of limitation would be deemed to relate back to the original date of the filing of the suit. 8. The learned counsel relied on Motilal Chamaria v. Lal Chand Dugar, in support of his contentions. This was a case arising under the 1940 Act, and relying on the provisions of section 37(1) in the 1940 Act, it was held that the provisions of the Indian Limitation Act, 1908 would apply to arbitration as they apply to proceedings in the Court and that, arbitration proceedings having been placed on the same footing as proceedings in the Court, all the provisions including section 3 of the Limitation Act are attracted to arbitration proceedings. This judgment takes the view that even before the enactment of India Arbitration Act, 1940, the Judicial Committee of the Privy Council had held in Ramd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 'any other application' under Article 137 would be a petition or any other application under any Act but it has to be an application to Civil Court. 10. The judgment of learned Single Judge of this Court in Abdul Gani Sumar v. Reception Committee of the 48th Indian National Congress, is relied upon to urge that the provisions of Order 1 Rule 8 would apply to petition for setting aside an award under section 14 of the Arbitration Act. Similarly, it is urged that the provisions of Order 1 Rule 10 would apply here with equal force. 11. On the authority of Ramchandra Aggarwal and another v. State of Uttar Pradesh and another, it is contended that the Supreme Court has reiterated its earlier view in Munshi Ram v. Banwarilal, that the expression civil proceeding used in section 141 of the C.P.C. is not necessarily confined to an original proceeding like a suit, or an application, but that it applies also to other proceedings. In this judgment, the Supreme Court analysed the provisions of section 24(1)(b) of the C.P.C. and held that the sweep of Section 141 of the C.P.C. was wide enough to include other proceedings such as proceedings arising out of a reference under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken after the period of limitation. The Court held that the application to take additional grounds should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. It was also held that section 5 of the Indian Limitation Act does not apply to the proceedings under the Arbitration Act and cannot, therefore, be invoked. 15. To similar effect are the observations of the Supreme Court in Bijendra Nath Srivastava (Dead) through LRs. v. Mayank Srivastav and others, where what was sought to be brought on record, for the first time, by way of amendment was an issue which was beyond the limitation. The Supreme Court held that such amendment could not be treated as one merely giving better particulars of what had been earlier pleaded in the original petition and, therefore, the amendment had to be rejected if it was beyond the period of limitation. 16. Respondents rely on Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, and contend that, though the question of impleadment of the party is to be decided on the touchstone of Order 1 Rule 10, which provides that the necessary and proper party may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indicated in the preamble of the Act. The Statement of Objects and Reasons given in the Arbitration and Conciliation Bill, 1995, makes it amply clear that the Act was intended to consolidate the law relating to arbitration and conciliation and model it in accordance with the recommendations of the United Nations Commission on International Trade Law's (UNCTRAL). Model Law on International Commercial Arbitration adopted in 1985. Paragraph 4 of the Statement of Objects and Reasons gives a list of nine objectives which are sought to be achieved by the Bill. A careful perusal of those objectives suggests that the intention appears to be to make the Arbitration Act of 1996 a self-contained Code without need to look elsewhere for dealing with the issues of arbitration and conciliation. 19. A significant fact which strikes one is that there is no section in the 1996 Act corresponding to Section 41 of the 1940 Act. The intention of the 1996 Act appears to be to steer clear of the earlier position, namely, that the provisions of the Code of Civil Procedure, 1908 would apply to all proceedings under the Arbitration Act subject to the provisions of the Act and Rules made thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Note No. 1 of Rule 803F of the High Court O. S. Rules, is revealing as it states :- (1) Proceedings filed under the Repealed Acts and pending before the High Court (O. S.) shall be governed by the existing Rules i.e. Rules 772 to 803 of the High Court (O. S.) Rules. The proceedings instituted under the Arbitration and Conciliation Act, 1996 shall be governed by the newly framed Rules i.e. Rules 803A to 803F of High Court (O. S.) Rules. I am, therefore, of the view that the contention of Mr. Bulchandani that by virtue of Section 85(2)(b) of the 1996 Act all the rules made earlier, to the extent of non-repugnancy, would continue to apply to the proceedings under the 1996 Act, has no substance and must be rejected. In my considered view, after the coming into force of 1996 Act, in all proceedings governed by the 1996 Act, the provisions of the Civil Procedure Code would apply only to the extent specifically made applicable. The High Court has been invested the powers under section 82 of the 1996 Act to make rules consistent with this Act to all proceedings before the Court under the 1996 Act. When the High Court carried out this exercise it was quite cognizant of Chapter X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritical examination, the contention breaks down. It is true that there is no provision in the 1996 Act which in express words declares sections 4 to 24 of the Limitation Act, 1963 as excluded from application to proceedings in arbitration and conciliation governed by the 1996 Act. But, as rightly contended by Shri Chagla, the exclusion need not be in so many words. The exclusion can also be a matter of direct implication from the law itself. 23. Mr. Chagla, cited the judgment of the Supreme Court in Ravula Subba Rao and others v. Commissioner of Income Tax, Madras, as an authority in support of the proposition canvased by him. In Ravulu Subba Rao and others (supra), the Supreme Court was concerned with the provisions of Income Tax Act, 1922. The Act provided that, in order to be eligible to the benefits of provisions 23(5)(a), a firm had to be registered under Section 26-A in accordance with the conditions laid down in that section and the rules framed thereunder. Rule 6 required that the application under section 26-A should be personally signed by the partner. It was contended before the Supreme Court that in common law what could be legally done by a person could always be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the proviso to sub-section (3) of Section 34 of the 1996 Act. The Limitation Act, 1963 does not in terms prescribe any limitation for an application to set aside an award. This is obviously so for section 34 itself has prescribed the limitation in sub-section (3), the limitation being a period of three months from the date on which the party making that application had received the arbitral award, or if a request has been made under section 33, from the date on which such a request has been disposed of by the Arbitral Tribunal. The proviso to sub-section (3) enables the Court to entertain such an application if satisfied that the applicant was prevented by sufficient cause from making the application, but provides that such an application can be entertained only within a further period of 30 days, but not thereafter. The intention of the Legislature is obvious. As I have already held by my previous order dated 23.4.1999 the intention is to expedite arbitration proceedings. The Legislature has, therefore, provided in clear terms that after a period of three months and 30 days, the Court has no power to condone the delay in the presentation of the application. This, in my opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29(2) of the Limitation Act says, because it provides that Sections 4 to 24 (inclusive) shall apply only so far as, and to the extend to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law ..... The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petition and their trial to ascertain whether it is a complete Code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Sec. 29(2) of the Act. The Supreme Court took the view that the Representation of People Act was a self-contained Code and, therefore, the provisions of section 5 of the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account the nature of the application and the consequences that would arise if such applications were inordinately delayed. 28. Upon a conspectus, I am of the view that there is no substance in the contention of Mr. Bulchandani. Notwithstanding 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 the 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. 29. Mr. Chagla further contended that an application for setting aside the award under section 34 of the 1996 Act has to be made within the limitation prescribed by the Act. This necessarily means that all grounds on which the award is sought to be set aside have to be taken in the petition itself. It is, therefore, not permissible for the Court to permit an amendment of the petition, that too after the period of limitation prescribed in the section has expired. That would tantamount to entertaining a fresh petition beyond the period of limitation. Madan Lal (dead) by his legal representa ..... 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