* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ OMP No. 445/2008
21st January, 2010
DR. DEBANGSHU DAM ...Petitioner
Through: Ms. Geeta Luthra Advocate with Mr.
Parinay D. Shah, Advocate.
VERSUS
M/S EAST WEST RESCUE PRIVATE LIMITED ....Respondent
Through: Mr. A.P.S. Ahluwalia, Advocate with Mr. S.S.Ahluwalia, Advocate for the respondents.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
% ORDER
VALMIKI J.MEHTA, J
I.A. No.10116/08 in O.M.P. No.445/08
1. This is an application under Section 14(2) of the Limitation Act 1963, whereby the petitioner seeks to exclude the time taken for prosecuting the present proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 originally instituted in the High Court of Shimla on 29.11.2003 and decided on 16.6.2008.
I.A. No.10116/08 in O.M.P. 445/08 Page 1
2. By the order dated 16.6.08, the High Court of Shimla has, inter- alia, held as under:
(i) Both the Courts i.e. High Court of Shimla as well as the Courts at Delhi had jurisdiction to try the objections under Section 34.
(ii) By virtue of a provision in the Service Rules of the petitioner with the respondent, the parties had agreed to the exclusive jurisdiction of the courts at Delhi.
(iii) It is not as if that the Courts at Shimla did not have the jurisdiction, but the High Court of Shimla vide its order dated 16.6.08 held that it would not exercise jurisdiction because the parties had agreed to the jurisdiction of the Courts at Delhi.
(iv) The Court gave benefit of the provision of Section 14(2) of the Limitation Act to the present petitioner and allowed exclusion of the time taken during the proceedings in the High Court of Shimla.
3. In my opinion, the petitioner must succeed in this application inasmuch as it is not that the Courts at Shimla had no jurisdiction at all, the judgment of the High Court of Shimla dated 16.6.08 in Arbitration Case No.71/2003 holds that it had jurisdiction. It cannot therefore be said that the petitioner did not bona fidely institute and prosecute the proceedings in the Court at Shimla. I also feel that it is no longer open to the respondent to I.A. No.10116/08 in O.M.P. 445/08 Page 2 challenge the grant of the benefit of Section 14(2) of the Limitation Act inasmuch as the High Court of Shimla by the order dated 16.6.08 had held as under:
"A direction is issued that:
(a) The original petition/records of the case be returned to the petitioner for presentation in a Court of competent jurisdiction. For this purpose, notice shall be issued to the petitioner by the Registrar.
(b) Needless to say that the time spent by the petitioner before this Court shall be excluded for the purposes of limitation when the petition is filed before any other Court."
It is not disputed that the present respondents has not challenged the granting the benefit of provision of Section 14(2) to the petitioner by the order dated 16.6.08. If the respondent was aggrieved with the benefit of Section 14(2) granted to the present petitioner by the High Court of Shimla, the proper remedy for the respondent was to challenge the judgment dated 16.6.08 and which admittedly has not been done. This court does not have appellate powers over the judgment dated 16.6.008.
4. In view of the above, I am of the view that not only the time taken for prosecuting the proceedings in the High Court of Shimla is liable to be excluded in fact because the actions of the petitioner were bonafide, in fact the respondent has no right to rake up the issue again with respect to the benefit granted to the petitioner under Section 14(2) by the judgment dated 16.6.08 inasmuch as the same was not challenged before the higher forum.
5. The counsel for the respondent has placed reliance upon the I.A. No.10116/08 in O.M.P. 445/08 Page 3 judgments reported as Ram Kishun Bai and another Vs. Ashirbad Rai and others AIR (37)1950 Patna 473, Mullapudi Satya Narayana Brahmam and others Vs. Maganti Seethayya AIR 1927 Madras 597 and M/s. Videocon International Ltd. Vs. M/s. Logos Traders & Ors. 2008(1)RCR
85. The judgment of Patna High Court holds that a Court which holds that it has no jurisdiction, becomes functus officio after so holding. There is no dispute to this proposition of law. However, it is not that any order was passed by the Shimla High Court in the present case after it had become functus officio. In the present case, the Shimla high Court, in fact, had jurisdiction but it choose not to exercise jurisdiction because of the parties had agreed to the jurisdiction of the Courts at Delhi. It is not as if therefore that the Shimla High Court lacked inherent jurisdiction to try the matter and that no orders at all could thus be passed. The judgment of the Patna High Court will therefore not apply to the facts of the present case. So far as the decision of the Madras High Court is concerned, the counsel for the respondent relies upon it for the proposition that time should not excluded. Whether or not the time should or should not be excluded depends on the facts of the case, and in this case, I find that there are reasons to grant benefit of Section 14(2) to the petitioner. The judgment of the Kerala High Court will not apply to the facts of the present case inasmuch as the paragraph of the said judgment which is relied upon, viz para 6, holds that the Court which returns the plaint cannot fix the time for filing the same in I.A. No.10116/08 in O.M.P. 445/08 Page 4 the appropriate Court, which in any case is always subject to the law of limitation, and which is not the position here.
In view of the aforesaid discussion the application under Section 14(2) is allowed subject to payment of costs of Rs.25,000/- . I.A. No.10116/08 in O.M.P. No.445/08 This is an application for stay of the Award. This application need not be filed in view of Section 36 of the Act. The counsel for the petitioner therefore does not press the application which is disposed of as such.
O.M.P. No.445/08 Copy of the petition be given the counsel for the respondent. Reply be filed within four weeks thereafter. Rejoinder thereto, if any, be filed within four weeks thereafter. The arbitration record is also filed in this case.
List this matter for hearing as per its seniority in the week commencing 5th April, 2010.
VALMIKI J.MEHTA, J
January 21, 2010
Ne
I.A. No.10116/08 in O.M.P. 445/08 Page 5