Bombay High Court
Khamkar Construction Private ... vs Nuclear Power Corporation Of ... on 28 June, 2022
Bench: B.P. Colabawalla
23.ial.19642.22..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION(L)NO.19642 OF 2022
Digitally signed
ANJALI
IN
by ANJALI
TUSHAR
TUSHAR ASWALE
ASWALE Date: 2022.06.29
14:41:34 +0530
EXECUTION APPLICATION(L) NO.21179 OF 2021
Khamkar Construction Pvt Ltd ..Applicant/Claimant
Vs.
Nuclear Power Corporation
of India Ltd ..Respondent
Ms.Sayalee Rajpurkar i/b Kadam & Company, for the
Applicant/Claimant.
CORAM:- B. P. COLABAWALLA,J.
DATE :- JUNE 28, 2022.
P. C.:
The above Execution Application is filed to execute the
Arbitral Award dated 21st June, 2018. The above Interim Application is
filed because the Registry has taken an objection of non filing of the
Execution Application within two years from the date of the passing of
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23.ial.19642.22..doc
the Arbitral Award, and therefore, notice under Order XXI Rule 22 of
the Code of Civil Procedure, 1908 ("CPC") would have to be issued.
2 The learned counsel appearing on behalf of the Applicant
submitted that notice under Order XXI Rule 22 of the CPC is not
necessitated in the facts of the present case. In this regard, she
submitted that the Award which is put in execution is dated 21 st June,
2018. Under normal circumstances, if the Award was put into execution
by 20th June, 2020, then, no notice under Order XXI Rule 22 of the CPC
would have to be issued to the Judgment Debtor.
3 She however submitted that due to the COVID-19
pandemic, the Execution Application could not be filed by 20 th June,
2020 and was filed only on 17th September, 2021. She submitted that
the Hon'ble Supreme Court by its order dated 23 rd September, 2021
(page 18 of the application) has categorically held that in computing the
period of limitation for any Suit, Appeal, Application or proceeding, the
period from 15th March, 2020 till 2nd October, 2021 shall stand excluded.
The Supreme Court has further held that consequently the balance
period of limitation remaining as on 15 th March, 2021, if any, shall
become available with effect from 3rd October, 2021. In cases where the
limitation would have expired during the period from 15 th March, 2020
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23.ial.19642.22..doc
till 2nd October, 2021, notwithstanding the actual balance period of
limitation remaining, all persons shall have a limitation period of 90
days from 3rd October, 2021. She submitted that in the present case, the
above Execution Application has been filed on 17 th September, 2021, and
therefore, clearly within the period of two years from the date of the
passing of the Arbitral Award. She, therefore, submitted that the office
objection taken by the department is unfounded and ought to be
dispensed with.
4 I have heard the learned counsel appearing on behalf of the
Applicant and also perused the papers and proceedings in the above
Interim Application. From what is stated in the application, it is clear
that the Award was passed on 21st June, 2018. Under normal
circumstances, the Award ought to have been put in execution by 20 th
June, 2020 in order to ensure that no notice under Order XXI Rule 22
of the CPC was required to be issued. However, since the outbreak of
the COVID-19 pandemic intervened, the Hon'ble Supreme Court, by its
order dated 23rd September, 2021, has clearly held that the period from
15th March, 2020 till 2nd October, 2021 shall stand excluded in
computing the period of limitation. The present Execution Application
has been filed during this period, namely, on 17 th September, 2021. It is,
therefore, clear that if this time is excluded (as ordered by the Hon'ble
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23.ial.19642.22..doc
Supreme Court), then, the present Execution Application, is filed within
two years. This being the case, the office objection for non filing of the
Execution Application within two years from the date of the passing of
the Arbitral Award, is incorrect and therefore the above Interim
Application is allowed in terms of prayer clause (a) which read thus:-
"(a)This Hon'ble Court may dispense with the office
objection viz...."Non filing of the Execution Application
within 2 years from the date of the said Award was
passed.[Order XXI Rule 22 of the Code of Civil
Procedure, 1908]" is raised by the Execution
Department with directions to them for expeditiously
execute the said Award."
5 The above Interim Application is accordingly disposed of.
No order as to costs.
6 This order will be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
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