Punjab-Haryana High CourtThe State Of Punjab Through The ... vs N.V. International And Ors. on 24 March, 2006Equivalent citations: (2007)145PLR389, AIR 2007 (DOC) 217 (P. & H.)Author:K.S. GarewalBench:K.S. Garewal,Pritam PalJUDGMENT
 

K.S. Garewal, J.1. Learned Single Judge on August 23, 2005 had deemed it appropriate that F.A.O. No. 3799 of 2005 be heard by a larger Bench because the point in.oived interpretation of the judgment of the Supreme Court inUnion of India v. Popular Construction Co. A.I.R.2001 S.C. 4010. Later in F.A.O. No. 4750 of 2005 the learned Single Judge expressed again the same view on October 18, 2005. Therefore, both the above cases are before this Bench and shall be decided together since the questions of law are the same.2. The State of Punjab had an agreement with N.V. International which contained an arbitration clause. Therefore, when a dispute arose the matter was referred to the Arbitrator, Shri B.R.Bajaj, I.A.S., Principal Secretary to Government of Punjab, Department of Finance. The Arbitrator passed an award on February 13, 2004, accepting the claim of the N.V. International for refund of Rs. 28.00 lacs which had been forfeited by the State and ordered release of this amount within one month from the date of the award.3. The above award was challenged through a writ petition which was dismissed on October 4, 2004 by the Division Bench holding that "admittedly, alternative and efficacious remedy is available to the petitioner under theArbitration Act1996... the writ petition is wholly premature. The petitioner is at liberty to approach the civil court for appropriate relief...."4. Thereafter, the State of Punjab filed a civil miscellaneous application seeking modification of the order and grant of reasonable time to file objections before the Civil Court underSection 34of the Act. The said application was dismissed on January 13, 2005. The petition underSection 34of the Arbitration and Reconciliation Act, 1996 for setting aside the award dated February 13, 2004 was finally, filed on January 15, 2005 and when it came up before the learned Additional District Judge, Chandigarh the court was pleased to hold that the objections were hopelessly time barred and dismissed the objection petition vide judgment dated June 1, 2005.5. The dismissal of the objections has been challenged through the present appeal.6. In the connected F.A.O. No. 4750 of 2005 the dispute was with Nirmal Agency. In this case as well the arbitrator had accepted the claim of Nirmal Agency and ordered refund of Rs. 28.00 lacs which had been forfeited by the State. The award was passed on February 13, 2004. The facts of the two appeals are almost identical although in the case of Nirmal Agency the objections underSection 34of the Act had been instituted on January 28, 2005 and dismissed on August 6, 2005.7. According to the learned Counsel for the State, the learned Additional District Judge had failed to consider the fact that the appellant State was claiming benefit of not onlySection 5of the Limitation Act but alsoSection 14of the said Act. He has argued that even if it was assumed that the provisions ofSection 5of the Limitation Act are not applicable to proceedings under theArbitration and Reconciliation Act, 1996, a belated application was still maintainable underSection 14of the Limitation Act because the appellant was claiming that the period of limitation be calculated after deducting the time spent in the hearing of the writ petition before this Court.8. The learned Additional District Judge considered the above contentions and relied heavily upon the judgment the Supreme Court inUnion of India v. Popular Construction Co.for holding that the objection petition was barred by time.9. The learned Counsel for the respondents has referred to the decisions of Karnataka and Bombay High Courts and has argued that the period spent in prosecuting the writ petitions before the High Court cannot be excluded while computing the limitation. Provisions ofSection 12and14of the Limitation Act would not apply to the present case.10.In this connection the learned Counsel relied upon theH.M.P. Engineers Ltd. and Ors. v. Rallis India Ltd. and Ors.2003(3) Arbitration Law Reporter 510 (Bombay), Division Bench of the Bombay High Court which analyzed the decision of the Supreme Court inPopular Construction Company's case and took a definite view that provisions ofSection 14of the Limitation Act did not govern the provisions relating to filing of the petition under Section 34 of the 1996 Act.In doing so the Court referred toPushpa P. Mulchandani and Ors. v. Admiral Radhakrishin Tahilani (Retd.) and Ors. 2001(2) Arbitration Law Reporter 284 (Bombay).11. We are also of the view that the provisions ofSection 4to24of the Limitation Act cannot and do not apply to the applications under Section 34(3) of the 1996 Act which is a self contained code and does not admit induction and application of provisions of law contained inSections 4to24of the Limitation Act.12. The weight of judicial authority is certainly in favour of the respondent and no interpretation can really be given to the provisions of theLimitation Actwhich may permit inclusion of the period spent in prosecuting the writ petition in this Court for the purpose of determining the limitation for filing petition under the provisions ofSection 34of the Arbitration and Conciliation Act, 1996.13. The State of Punjab could not have been ignorant of the fact that the provisions of Section 34 entitled the State to file an application for setting aside the arbitral awards. Therefore, it is not understood why the State decided to file a writ petition instead of an application under Section 34.14. Another factor which also weighs with us is the fact that the award was pronounced on February 13, 2004. Civil Writ Petition No. 15349 of 2004 was filed by the State of Punjab on September 23, 2004, returned with some objections and refiled on September 28, 2004. It came up before the Division Bench September 30, 2004 and was adjourned to October 4, 2004 when it was disposed of with liberty to the petitioner to approach the Civil Court for the appropriate relief on the same cause of action.15. Thereafter the petitioner filed CM. No. 22459 of 2004 for modification of the said order. This petition was also disposed of with a direction that the points raised therein had to be raised before the appropriate forum.16. Likewise Civil Writ Petition No. 15346 of 2004 against Nirmal Agency was filed in September 2004 and disposed on October 4, 2004, a CM. was filed for modification which too was disposed of as in the case of N.V. International.17. Therefore, in the present cases even the writ petitions had been filed after the period for filing the objection petitions had expired. We are of the view that the State cannot be permitted to take any benefit of the period spent in prosecuting "time barred" writ petitions to revive matters which were barred by time.18. Both the appeals are without merit and hereby dismissed with costs which are quantified at Rs. 10,000/-.