J.S. Sood vs Johny Bakshi
2000 Latest Caselaw 1260 Del

JUDGMENT

Vikramajit Sen, J.

1. It would be necessary to narrate the facts of the case as a prelude to the disposal of the pending application i.e. 10400/92. Suit No. 1711-A/83 was a petition under Section 20 of the Arbitration Act, 1940, pursuant to which the disputes between the parties were referred to the Sole Arbitration of the person agreed upon by the parties. Their Advocates thereafter appeared before the Sole Arbitrator from time to time and the Award was passed. Mr. Ashok Grover subsequently filed an application for withdrawing from the case, which was allowed. Thereupon notice of the proceedings was issued to the Defendant and after his non-appearance despite having been served at his residence, he was proceeded ex parte on 6.2.1987. On an application filed by Shri Ashok Marwaha, Advocate these Orders were recalled and I.A. Nos. 6425/91 and 6427/91 to 6329/91 were listed for disposal before the same Bench. On the following date I.A. 6429/91 was allowed and thereby Suits Nos. 1710-A/83, 1711-A/84 and Ex. 53/90 were ordered to be tried by the same Judge. The same sequence of events as appears to have compelled Mr. Ashok Grover to withdraw his vakalatnama ensued with Mr. A.K. Marwaha and he was also permitted to withdraw from the case on 13.7.1992. On the same day I.As. 6427-28/91 were dismissed in default, but already one decade had passed. It is noteworthy that I.A. 6427/91, quite inexplicably, had been filed in all the three Suit Nos. 1710-A/83, 1711-A/83 and 774-A of 1988. In order to ensure that substantial justice is carried out I shall treat this application as having been filed in each of the three suits although this is most irregular and these Orders shall not be

treated as a precedent validating such practice. Keeping the conduct of the Judgment Debtor/Applicant in perspective I had earlier thought that it would have been in order to decline to treat this application as pending in all three matters. But perhaps imposition of heavy costs, instead, would be the better course. This application, under Section 151 of the Code of Civil Procedure was for "recall of ex parte decree, for stay of operation of the decree and all actions taken & carried out and all further actions in terms of and in pursuance to/of the decree pending decision of E.A. 104 of 1991 in Ex. Proceedings No. 53 of 1990 and application under Order IX Rules 7 and 13 read with Section 5 of the Limitation Act filed in the registry vide number 4899 on 22nd day of March 1991 without imposition of any terms and without security". As I see it, this compendious and all-encompassing application was filed with the mala fide intent of causing confusion in the cases and obstructing their expeditious disposal. A grave miscarriage of justice has been occasioned. I.A. 6428/91 was similarly one application in all three suits, under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure. Both these applications were dismissed in default on 13.7.1992. Before proceeding further, I may mention that the contents of these applications are a litany of the failures of Ranjit & Co., Advocates & Solicitors, Bombay, and Shri Ashok Grover, Advocate, Delhi, and lengthy averments/arguments against the Award and the conduct of the Plaintiff/Decree Holder, and repetition of the much belaboured argument that a party, (however negligent he may be), should not suffer for the alleged default of his advocates. As usually happens, this homily expressed thorough Mr. Marwaha, boomeranged and recoiled on him when Mr. Harish Malhotra, Advocate, entered upon the scene consequent on the withdrawal of the Marwaha with I.A. 10400/92 dated 29.7,1992. Mr. Malhotra has also filed another application E.A. 243/92 in Ex. 53/90, dated 29.7.1992 for restoration of E.A. 104/91. It is also relevant that these reasons are expected to be countenanced by the Court even though no complaint against the Advocates, who have been allegedly paid heavy fees and whose conduct is assailed as grossly and singularly negligent, has been filed by the Applicant/Judgment Debtor before the Bar Council. Although, in the course of his arguments Mr. Malhotra had agreed that the compendious application filed by Mr. Marwaha should have been preferred in each of the three suits, he has traversed on the very same path, with the added default of not even affixing the requisite court fee for three applications; I.A. 10400/92 has been filed by him under Order IX Rule 9 read with Section 151 C.P.C. for restoration of the applications I.A. 6425/91, 6427/91, 6428/91 6429/91 and 6463/91. When the matter was listed for disposal/arguments before me, the Plaintiff/Decree Holder argued the case in person as he might probably have run out of funds for payment of legal fees in a litigation which had spanned almost two decades. The Decree Holder is justifiably fatigued. At every stage of the case, the Applicant/Judgment Debtor has abused the judicial process, which is always vulnerable to such assaults because of the inculcation of the practice of granting a patient hearing to every litigant. I need hardly add that the reasons now articulated, through Shri Harish Malhotra, are predictably a castigation of the conduct of Shri Ashok Marwaha, Advocate, the previous advocate of the Applicant/Judgment Debtor.

2. The easiest approach available to me would have been to take up I.A. No. 10400/92, and because of the opinion already formed by me, to dismiss it and thereby put an end to the dispute. Perhaps, this would be so, but unlikely, since the Applicant has palpably become habituated to filing frivolous actions in Court, so as to ensure their continuous pendency, much like a festering wound which cannot turn fatal.

3. Suit No. 775-A of 1988 is the petition of the Arbitrator under. Sections 14 and 17 of the Arbitration Act, 1940. His Award accompanies this petition. On one of the many hearings, this petition was listed before Court on 3.11.1988 when Mahesh Chandra J. observed that there was no representation on behalf of the Judgment Debtor despite service. However, the Learned Judge did not make the Award Rule of the Court, but adjourned it for further hearing to 22.11.1988. Eventually, after noting that no Objections to the Award had been filed, the Award was made Rule of the Court on 12.1.1989. Interest at the rate of 12 per cent per annum on the principal amount from the date of the decree till realisation was also granted. It is this decree of which execution has been initiated in Ex.53/90; when attachment was carried out, Mr. Marwaha filed E.A. 104/91, for recalling the transfer of the decree to Bombay, and for stay of the decree. This was followed by Mr. Malhotra filing E.A. 243/92 for restoration of E.A. 104/91 dismissed in default on 13.7.1992.

(A) In my view, once an Award has been made Rule of the Court, as was done on 12.1.1989 by Sunanda Bhandare, J. in the disposal of I.A. 8358/88 in Suit No. 774-A/88, the only remedy available to the Judgment Debtor was by way of an appeal t6 the Division Bench and not by way of Order IX Rule 9 or Rule 13, being I.A. 6425/1991 in Suit No. 1710-A/1983 and I.A. 6427/1991 in Suit No. 1710-A/1983. Since I.A. 6427/1991 is still not maintainable the question of the granting of condensation of delay, as prayed for in I.A. 6428/1991 does not arise.

4. In the erudite judgment of M.L. Varma J, delivered in Bhagwan Dass Brothers v. Ghulam Ahmed Dar, , the Learned Judge drew a distinction between cases where no Objections against an award had been filed and those where this exercise had been made, but not pursued any further. In his opinion, in the second category of cases, the phrase "after refusing it" in Section 17 of the Arbitration Act 1940 was of such significance that on the refusal of the application, and the subsequent passing of an Award, this Award/decree would always have the characteristic of an ex parte decree. Hence the provisions of Order IX Rule 13 would be attracted. However, let us consider the conceivable consequences that may ensue on the non-appearance of the Objector or his Advocate, when the case is called on for hearing. The Court may dismiss the Objections in default and in the absence of any Objections it may pronounce judgment in terms of the Award without any further thought. In Lachhman Das v. Ram Lal, , the Supreme Court and in Rajender Prasad Sharma v. Ashok Kumar Sharma, 1996 (2) Arb. L.R. 362, a Division Bench of this Court have been at pains to observe that a duty is cast on the Court to positively and proactively peruse the Award so as to be assured of its correctness before pronouncing judgment on its terms. Nonetheless, whether the Award receives the Courts imprimatur automatically or after due considerations, in both the eventualities, it seems to me that the Order/Judgment would have an ex parte character. This would not justify obscuring the distinction between an ex-parte decree, and a decree passed ex parte the defendant/respondent. The Court must, even in default of any appearance for the Objector, consider the Objections on the record and either accept them wholly or in part, or reject them. In this event, it can scarcely be argued that the Court had proceeded to pronounce judgment without "refusing the application for setting aside the Award". Such an order/judgment would not assume an ex parte character. The principle of audi alteram partem mandates that an opportunity should be afforded to all parties to be heard. In my view, this principle would be unduly stretched and strained to require that justice may be delayed for the sake of hearing the oral submissions of a non diligent litigant.

5. The orders passed by the Hon'ble Division Bench in Delhi Development Authority v. Star Builders (supra) are brief. As recorded therein, "the Learned Single Judge dismissed the Objection Petition in default of appearance and made the award a rule of the Court followed by a decree drawn up in terms of the Order". Although reference was made to the decision in Bhagwan Dass Brothers case (supra) the order does not indicate whether the Learned Single Judge had duly considered the Objections. This Order/Judgment does not state that in all cases, only an application under Order IX Rule 13 is maintainable and not an appeal. It cannot be of avail to the Respondent. In B.P. Sharma v. Union of India, 1995 II AD (Delhi) 439, the learned Judge held that summons/notice have to be served in a meaningful manner and not as a mere formality. Since it was found that this had not been done, the Court suo moto set aside the ex parte judgment independent of the powers and discretion available to it under Order IX Rule 13 of the Code of Civil Procedure. In Satish Kumar Agarwal v. Delhi Development Authority (supra) the learned Single Judge was of the opinion that since the Court Master had no authority to fix a case for hearing, it was not proper to proceed ex parte on the following date. This proposition is well settled and perhaps for this reason the applications appear not to have been seriously opposed.

6. In Prakash Chander Manchanda and Anr. v. Smt. Janaki Manchanda, , after noticing that two views existed prior to the amendment of the CPC in 1976 the Court made the following observations.

"6. In some decisions, the High Courts have gone to the extent of saying that even if the trial Court disposes of the matter as if it was disposing it on merits under Order 17, Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with Order 17, Rule 3 and provisions of Order 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Civil P.C. it is not disputed that to the facts of this case, Civil P.C. as amended will be applicable and therefore it is not necessary for us to (go) into that question. Order 17, Rule 2 and Rule 3 as they now stand read: "Order 17, Rule 2: Procedure if parties fail to appear on day fixed: Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

Explanation - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. Order 17 Rule 3: Court may proceed notwithstanding either party fails to produce evidence, etc.

7. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding, such default, --

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, or any of them is absent, proceed under Rule 2."

8. It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The Explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9, Civil P.C. It is therefore clear that after this amendment in Order 17 Rules 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on 30.10.1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. 30.10.1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order 9."

"7. It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the Court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial Court went on in the controversy about Order 17. Rules 2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by one word."

"8. The learned counsel for the respondent attempted to contend that in this view of law as it now stands an application under Order 9 Rule 13 will be maintainable. However it was suggested that there was also an objection of limitation about the acceptance of that application. It is apparent that the learned trial Court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained. This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial Court to consider the application under Order 9 Rule 13 and dispose it of in accordance with that law and while so doing, it may even examine the objections that may be raised by the respondent."

9. This case did not relate to the Arbitration Act, it appears to have been a civil suit.

10. The decision of the Full Bench of the Allahabad High Court in the case of Duryodhan v. Sitaram, , dealt with the Representation of the Peoples Act, 1951 and the powers of the Court under Section 116-A thereof. It was only incidently that the question arose of whether the petition could have been disposed off on merits. In Navab Usmanali Khan v. Sagar Mal, . The adversaries had agreed to refer their disputes to arbitration but when the Award was rendered against the Nawab he pleaded the immunity from being sued, under the sundry provision of the Code of Civil Procedure. The Court relied on the opinion of Lord Russel in Hansraj Gupta v. Official Liquidator, AIR 1933 P.C. 63 to the effect that "the word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by presentation of a plaint". It recorded that similar views were also voiced in Bhawan Singh v. State of Rajasthan, . The Apex Court then held that proceedings under Section 14 read with Section 17 of the Arbitration Act 1940 for passing a judgment on an award does not commence with a plaint and therefore cannot be regarded as a suit. Similar views were earlier recorded in Ganeshmal Bhawarlal v. Kesoram Cotton Mills, , where it was specifically held that Order IX Rule 13 would not be attracted to Arbitration proceedings. A Division Bench of the Andhra Pradesh High Court returned the same legal view, in the case entitled Government of Andhra Pradesh v. Boctchalu Balaiah, , in the following words:

"When an award is passed in the Court, what the aggrieved party has to do is enunciated by Section 30 gives an opportunity to the aggrieved party to file an application under Section 30 for setting aside the award within 30 days from the date of service of the notice of filing of the award in the Court on the 'grounds mentioned therein and no appeal against such an order lies under Section 30 of the Act. If such a petition is not filed under Section 30, the Court has to pass a decree under Section 17 of the Act making the award the rule of the Court, irrespective of the fact whether the defendants do appear or do not appear and contest. Section 17 makes it mandatory on the part of the Court to pass judgment and decree in terms of the award as such a decree can be pronounced even if the parties, cannot be treated as ex parte, especially when a petition under Section 30 of the Act for setting aside the award was not filed within 30 days from the date of service of the notice of filing of the award in the Court. It is not an ex parte decree, the question of setting aside such a decree under Order 9 Rule 13 does not arise. Hence the petition filed under Order 9 Rule 13 C.P.C., for setting aside the ex parte decree which was passed under Section 17, Arbitration Act, is not maintainable. This legal position is made clear by the several High Courts and the Supreme Court.

11. In Ganeshmal v. S. Kesoram Cotton Mills, this question was examined by Bachawat J, thoroughly with reference to the case law on this aspect. In that case there is no service of notice of filing of the award in the Court on the defendants in the manner prescribed by law. The limitation for applying to set aside the award, therefore, never started to run and the decree was passed before the expiry of the time for applying to set aside the award and without complying with the mandatory provisions of Section 17, Arbitration Act. Under those circumstances the learned Judge observed:

12. In my judgment in spite of Section 43 of the Arbitration Act and Section 141 of the Code strictly the provision of Order 9 Rule 13 does not apply to proceedings for setting aside of an ex parte decree passed under Section 17. In a suit there is plaintiff and defendant and Order 9, Rule 13 deals with them differently; strictly neither party to an award is a plaintiff or defendant and both parties are entitled to ask the Court to pronounce judgment according to the award. In a suit if the plaintiff does not appear no decree can be passed and if the defendant does not appear the plaintiff must prove his case. Under Section 17 a judgment must be pronounced and a decree must follow, if the conditions of Sections 14 and 17 are complied with. Such a decree even if pronounced in the absence of the parties cannot be said to be passed as ex parte so as to attract Order 9, Rule13...Order 9, Rule 13 enables the Court to set aside an ex parte decree in case where the summons was not duly served but it does not provide for a case where the decree under Section 17, Arbitration Act, is passed without complying with its mandatory provisions and before the expiry of the time for applying to set aside the award. The provision of Order 9 Rule 13 of the Code cannot be made applicable to the proceedings for setting aside a judgment pronounced under Section 17 of the Arbitration Act. In spite of Section 43, Arbitration Act, such provisions of the Code as are not consistent with the provisions of the Arbitration Act will not apply to the proceedings under the latter Act."

13. A Division Bench of the Madras High Court in Alvel Sales v. Dujadwala Industries, , was of the opinion that even if a decree under Section 17 had been passed when the Respondents were not present, it was not an ex parte decree, since the presence of the parties was not necessary. It affirmed and followed the previous decisions of Division Benches in Roshan Lal Marwari and Ors. v. Firm of Bridhi Chan Sri Lal, AIR 1924 Patna 603 and Rajashwar Prasad Singh v. Ambika Prasad Singh and Ors., . In Ram Chander y. Jamna Shankar, it was observed that when a decree was passed under Section 17 of the Arbitration Act 1940, it could not be regarded as an ex parte decree even though it was passed in the absence of the Defendants. The Learned Judge held that if service had not been properly effected, the decree could be set aside "on a summary application". This was also the view favoured in Soorajmull Nagarmal v. Golden Fibre and Products, .

14. A Single Judge of this Court has also held that the award having been made rule of the Court and a decree passed in terms thereof, even though the Defendant was absent, could not be set aside under Order IX Rule 13. In this case titled I.N.C.A. Builders v. I.A.A.I., 1998 V AD (Delhi) 602, the Learned Judge came to this conclusion after perusing Order XVII Rule 2 of the Code of Civil Procedure. I am in respectful agreement with his view. B. Champalal Jain's case (supra) and Rengammal's case (supra) were also decided on the same analogy.

15. Since the uniform and universal opinion of the various High Courts is that Order IX Rule 13 is inapplicable in cases where an award has been made rule of the Court, even de hors the provisions of Order XVII of the Code of Civil Procedure 1908, I.A. 6425/91 in Suit No. 1710-A/83 and I.A. 6427/91 in Suit No. 1711-A/83, being applications under Order IX of the Code of Civil Procedure are clearly not maintainable.

(B) As has already been mentioned, the Award was made Rule of the Court on 12.1.1989 by Orders passed by Sunanda Bhandare J. in Suit No. 775-A/88, after the Learned Judge had take note of the fact that the parties to the Arbitration had been served with a notice of the filing of the Award, and despite such service, neither party had filed any Objections. I.A. 6427/91 was thereafter filed for recalling the decree,, along with I.A. 6428/91 under Section 5 of the Limitation Act, on 16.4.1991. Even if the delay is condoned and the decree is set-aside, no substantial change would result. The impugned Award is dated 1.3.1988 and unless Objections thereto are filed by the Judgment Debtor, there would be no reason to alter the opinion formed by the Court on 12.1.1989 when the Award was made the Rule of the Court. E.A. 104/91 in Ex. 53/90 has been filed on 20.3.1991 but all that is prayed therein is that the Order dated 14.3.1990 transferring the decree to Bombay High Court be recalled along with the repeated prayer of setting aside the "ex parte decree". On surveying the position on 12.1.1989, independent of the existence of Objections, the Court had already considered the Award, and finding no reason to remit or set it aside, had passed a decree in terms thereof. A decision not to make to Award the Rule of the Court is possible if reasons justifying this view had been disclosed by way of Objections.

These Objections are required to be filed within thirty days of notice of the filing of the Award. No Objections have been filed and even if I treat E.A. 104/91 as Objections, these are beyond time. No prayer for condoning the delay has been made. Even if it had been made, the Court does not possess any power/discretion in condoning the delay. The judgment of the Division Bench in the case of Hastimal Dalichand Bora and Ors. v. Hiralal Motichand Mutha, was authored by Gajendragadkar, J. as his Lordship then was. It was held that "the Court would have no jurisdiction to consider the contentions raised in such an application when it has been filed beyond time". Thereafter the Learned Judge made the following observations:

"Section 33 deals with the applications to be made by the parties. Before we consider the provisions of this section, it may be relevant to point out that Section 32 enacts a bar to suits contesting arbitration agreements or awards. In other words, all questions with regard to the existence or validity of an arbitration agreement or an award must be determined by the Court in which the award under the agreement has been or may be filed under the provisions of the Arbitration Act and the decision of the Court in these proceedings is final and cannot be challenged by a separate suit. This marks an important departure from the provisions relating to awards contained in Schedule II of the Code of Civil Procedure, 1908.

16. Section 33, therefore, requires parties to make applications if they wish to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined, and it lays down the procedure for dealing with applications which are made under this section. Article 158 of the Limitation Act prescribes a limitation of thirty days for the purpose of applications made for remitting or setting aside an award. It is perfectly true that if a party to an award wants to challenge the validity of the award on any ground and desires that the award should either be remitted or set aside, he has to make an application in that behalf under Section 33 within the time prescribed by Article 158.

17. It may be that if an application is made by a party raising some contentions against the award, the effect of which is not to have the award either remitted or set aside, the provisions of Article158 may perhaps not apply to such an application. In the present appeal we are not called upon to consider that point. It is admitted before us that the contentions which the defendants sought to raise before the learned trial Judge fell within the mischief of Article158. But from the fact that a party is precluded from challenging the validity of the award on the ground that he has not made a proper application within the limitation prescribed by Article 158, it would not follow that the Court cannot 'sub motu' consider the same question in a proper case.

18. If the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void, we think it would be open to the Court to consider this patent defect in the award 'suo motu', and when the Court acts 'suo motu' no question of limitation prescribed by Article158 can arise. In our opinion, the words used both in Section 17 and Section 30 are wide enough to include the jurisdiction of the Court to deal with matters covered by those sections 'suo motu'. It would appear that under the English law the Court has a similar power to set aside an award, apart from the motion made by the parties in that behalf. For Russell, while dealing with the power of the Court, to remit or set aside the award, observes:

"The Court has further an inherent power to set aside an award which is bad on its face: either as involving an apparent error in fact or law, or as not complying with the requirements of finality and certainty. The inherent power to set aside also extends to an award which exceeds the arbitrator's jurisdiction, and possibly to cases where fresh evidence has become available." (Russell on Arbitration 15th edn., p. 263).

19. Similar views have subsequently been independently expressed by another Division Bench in Kawalsingh Akbar v. Baldeosingh Akbar, AIR 1957 Nagpur 57. The following passage is significant and deserves reproduction:

"An agreement of reference to arbitration is of a solemn character which is binding on the parties; so is the award. If, therefore, a party wishes to avoid the effect of the agreement or award, he must strictly comply with the provisions of law. In Ebrahim Kassam v. Northern Indian Oil Industries Ltd., an objection to the award was filed in time but the additional ground on which the award was sought to be set aside was taken after the period of limitation.

20. It was held that the application to take the additional ground should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. No quarter can, therefore be given to the laches and delay which the appellant has been guilty of. This question, however, does not arise as Section 5 of the Indian Limitation Act does not apply to the proceedings under the Arbitration Act and cannot, therefore, be invoked. We, therefore, affirm the finding of the Court below that the application filed by the appellant to set aside the award was barred by limitation".

21. Yet another Division Bench has voiced the same view in State of Kerala and Anr. v. P.M. Sivan Pillai, 1997 (2) Arb. LR 41. This is what it said: "The question now remains to be considered is whether Section 5 of the Limitation Act can be invoked for condoning the delay in filing a petition to set aside an award under Section 33 of the Arbitration Act, 1940. The Supreme Court in Madan Lal v. Sunder Lal, , observed thus:

"Assuming that the court has power to set aside the award suo moto, we are of opinion that that power cannot be exercised to set aside an award on grounds which fall under Section 30 of the Act, if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Article 158 of the Limitation Act would be completely negatived."

22. In this context the following observation of the Division Bench of the Bombay High Court in Hastimal Dalichand Barg v. Hiralal Motichand Mutha (supra), is apposite.

"It is common ground that the written statement has been filed by the defendants in the present proceedings beyond the limitation prescribed by Article 158, and it is conceded by Mr. Kotwal that Section 5 of the Limitation Act has not been made applicable and the court has no jurisdiction to condone the delay which a party may make in filing an application under Section 33. In other words, even if the court was inclined to treat the written statement of the defendants as an application made under Section 33 of the Act, the difficulty created by the delay would be insuperable and the court would have no jurisdiction to consider the contentions raised in such an application when it has been filed beyond time, and yet, without considering this point, the learned Judge has proceeded to deal with the merits of the contentions, though it is true that in the end he has rejected them."

23. In Kawal Singh Akbar v. Baldeo Singh Akbar, AIR 1957 Nagpur 57, the Nagpur High Court observed: "It was held that the application to take the additional ground should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. No quarter can, therefore, be given to the laches and delay which the appellant has been guilty of. The question, however, does not arise as Section 5 of the Indian Limitation Act does not apply to the proceedings under the Arbitration Act, and cannot, therefore, be invoked. We, therefore, affirm the finding of the court below that the application filed by the appellant to set aside the award was barred by limitation." In view of the aforesaid decisions, we are of the view that the court has no jurisdiction to condone the delay in filing an application to set aside the award under Section 33 of the Act. That would mean the Court has no power to invoke Section 5 of the Limitation Act in such situation. An application to set aside the award under Section 33 of the Arbitration Act is like an Original Suit. Section 5 of the Limitation Act does not apply to suits. In the present case, the application to set aside the award was filed in a suit by the respondent praying to pass a judgment and decree in terms of the award. Even in such situation the character of the application under Section 33 remains in tact. Further, the Arbitration Act does not provide that the powers contained in Section 5 of the Limitation Act would apply to the different proceedings under the said Act."

24. Even in Ganesh Chandra Misra v. Artatrana Misra and Ors., , it was held that Section 5 could not be invoked to extend time to file an application to set aside an award.

25. The uniform view therefore is that if Objections are filed beyond the period of thirty days, they cannot be looked into since the Court does not possess the power to entertain application under Section 5 of the Limitation Act. This question was not even considered by a Learned Single Judge of this Court in S.A. Builders v. Delhi Development Authority, 1996 (2) Arb.LR 569, and in view of the authoritative pronouncements considered above, appears to be per incurium. Although reliance has been placed on another decision of a Learned Single Judge of this Court in S.K. Enterprises v. Delhi Development Authority, , since the reason for condensation of delay was found to be insufficient, this decision also appears to be per incurium. The applicability of Section 5 of the Limitation Act was similarly neither raised nor considered in the case. In Union of India v. Vijay Construction Co., AIR 1981 Delhi 193, a Division Bench of this Court had held that the period of limitation in respect of an application under Section 20 of the Arbitration Act 1940 would be governed by Article 137 of the Limitation Act and the period of three years would commence from the date that the contract was rescinded. In paragraph 5, it is observed that Section 37(1) of the Arbitration Act provides that all provisions of the Indian Limitation Act 1963 shall apply to arbitrations as they apply to proceedings in Court. In this context it will be relevant to revert to Sections 4 and 5 of the Arbitration Act which read as follows:

"4. Expiry of prescribed period when court is closed.--Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.

Explanation--A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day."

"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation. -- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

27. Since the Division Bench decision was rendered in the context of the earlier Act, the repealed Section 5 of the Indian Limitation Act, 1908 is reproduced below for ready reference and to underscore that this provision has not undergone much change, apart from an inclusion of a reference to Order XXI of the C.P.C.

"5. Extension of period in certain cases.--Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation. -- The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

28. If the intention of the Legislature was to permit the extension of time not only to appeals or applications, but also to suits, it would have employed these words in Section 5, as it has done in Section 4. The departure and difference is deliberate and can only lead to the conclusion that Section 5 was not intended to apply to suits. The decision

of the Division Bench appears also to be contrary to that of the Apex Court in Wazir Chand Mahajan and Anr. v. Union of India, , where even on an appreciation of the repealed Statute of Repose, i.e. Limitation Act 1908, the provisions of Article 181 were not extended to petitions under Section 20 of the Arbitration Act.

29. Reference is required to the decision of a Division Bench of the Andhra Pradesh High Court in Government of Andhra Pradesh v. Durgaram Prasad, AIR 1984 AP 15, where the Court held that Section 5 of the Limitation Act, 1963, can be invoked where Objections under Section 30 had been filed beyond the period of limitation. The Bench was of the view that by the introduction of the words making reference to Order XXI of the Code of Civil Procedure the previous decisions were no longer applicable. It opined that the complexion and texture of the erstwhile Section 5 was totally different and that the scope of the new Section 5 "is enlarged". I am unable to agree with this view. It will be useful to reiterate again that if the legislature's intention was to include suits within the amplitude of Section 5 it would have employed the phraseology adopted in Section 4 and simply but specifically would have mentioned the word 'suits' in Section 5. Secondly, the effect of the amendment appears to be restrictive rather than enlarging. There is no controversy that pleadings in Order XXI of the Code of Civil Procedure are 'applications' in contradistinction to 'suits'. In the old Section therefore the provisions of Section 5 could be pressed to condone delay, which is now not possible even to applications under Order XXI of the Code of Civil Procedure. If this was the intention of the Legislature, it was necessary to make this incorporation since, indubitably, Section 5 did and continues to deal with applications.

30. The applications are not maintainable and are liable for dismissal even on these grounds since there is no conceivable justification/reason for setting aside the Award and the decree/judgment passed in terms thereof.

(C) Even on merits no sufficient cause has been disclosed for granting any indulgence to the Judgment Debtor. He is a businessman with sufficient means at his disposal. He has engaged Shri Ashok Grover, Advocate in the petition under Section 20 of the Act pursuant to which the parties were referred to Arbitration. Shri Ashok Grover participated in the Arbitration Proceedings, and also thereafter. The Judgment Debtor next engaged Shri Ashok Marwaha, Advocate, who withdraw from the case for reason akin to those which persuaded Shri Grover to withdraw. The Judgment Debtor then engaged Shri Harish Malhotra, Advocate. The Judgment Debtor is a veteran and seasoned litigant who would have been fully aware of the consequences of his failure to diligently follow the proceedings. He deserves no indulgence from the Court and is guilty of delaying proceedings at every stage of his dispute with the Decree Holder/Plaintiff.

31. In this analysis E.A. 243/92 in Ex. 53 of 1990 and I.A. 10400/92 in Suit No. 1711-A/83 and all pending applications are dismissed. Keeping the conduct of the Judgment Debtor/Applicant/Defendant in perspective, I feel compelled to dismiss the applications with exemplary costs of Rs. 50,000/-, to be paid/deposited by him within thirty days in favour of the 'Prime Ministers Relief Fund', by Demand Draft, to be deposited with the Registrar of this Court for onward transmission. I direct the

Registrar to initiate requisite proceedings for the recovery of this sum from the Judgment Debtor/Applicant/Defendant if the deposit is not made within this period. Since all pending applications filed by Shri Johny Bakshi are dismissed, the Hon'ble High Court of Bombay shall proceed in the Execution Proceedings pending before it in the manner it considers appropriate.