M/S. Enkay Construction Company vs The Vice Chairman, Dda & Anr.
2000 Latest Caselaw 582 Del

ORDER

Vikramajit Sen, J.

1. The Delhi Development Authority (DDA) had awarded a contract for the construction of 1092 Janta Houses at Paschim Vihar, New Delhi to the Peti-tioner in 1980-81. In this connection, disputes arose between these parties which were referred, in 1990, to the Sole Arbitration of the Engineer Member of the DDA. A reasoned Award dated 20.12.1994, in favour of the Petitioner was published subsequently. It was for an amount of approximate-ly Rs. 40 lakhs. Suit No. 197-A of 1995 has been filed by the Petitioner under Sections 14(2), 17 and 29 of the Arbitration Act, 1940 for pronounc-ing a decree in terms of the Award. Notice of this Petition/Suit was served on the DDA on 27.9.1995, requiring it to file Objection, if any, within thirty days. These Objections, numbered as IA 58/96 in Suit No. 197-A/95 were eventually filed on 2.1.1996, accompanied with an application, IA. No. 57/1996 for condensation of delay under Section 5 of the Limitation Act read with Section 151 C.P.C. All three applications shall be disposed off by these orders.

I. A. 57/1996.

2. It has been averred by the DDA that the notice of Suit 197-A/1995 was served on the DDA on 4.10.1995, but the Legal Branch inadvertently directed the notice to the Executive Engineer (WD-8) on the same date; and was received by the latter two days later, on 6.10.1995. It was then sent back to the Legal Branch on 9.10.1995 stating that that matter did not pertain to the WD-8. The Legal Assistant thereupon referred the matter to the Movement Clerk in the High Court on 10.10.1995, and the latter gave his Report on 8.11.1995. Thereupon the Legal Assistant asked for a copy of the Movement Register, which was supplied on 13.12.1995 and the file was again sent to the Executive Engineer of WD-8 on that date. On 20.12.1995 WD-8 returned the file to the Legal Assistant and it reached the Executive Engineer WD-12 on 20.12.1995. It was still ignored. But some other matter brought the Assistant Engineer WD-12 to the Legal Branch on 22.12.1995 when this Officer came across the subject notice in this office. The prayer for condensation of delay in filing the Objection is predicated on these facts, and supported by an affidavit of Shri C. Banerjee, Chief Engineer, South East Zone, DDA. The affidavit does not disclose whether the averment made in the application are true to the deponent's knowledge, or on information received by him from the DDA records and believed by him to be true. A Rejoinder has also been filed which has been supported by an affidavit of Shri Amit Biswas, Chief Engineer (West Zone), and as in the earlier in-stance, does not disclose the source or fountainhead on the strength of which instructions were issued by this Officer. No documents have been filed to substantiate these averments. It is obviously too sanguine to expect that special care will be taken even in special cases already ren-dered grievously hurt, vulnerable and damaged by delay.

3. It is for the DDA to put its house in order so that such mindless neglect in handling of important files is not occasioned again. Conscience compels to express that it is quite possible that delay was intended to be caused, since the file is stated to have been wrongly sent to WD-8 on 4.10.1995 and thereafter again on 13.12.1995 which once again held onto it till 20.12.1995. No blame or responsibility for this ineptitude in handling public funds appears to have been fastened. The only controversy that does not exist is that the Objections to the Award have been filed after consid-erable and inordinate delay.

4. It has been contended by Shri Rajiv Nayyar, Learned Senior Advocate appearing for the Contractor, that Section 5 of the Limitation Act is not available to the DDA and that the Court has no discretionary power to condone the delay or enlarge the statutory period for filing Objections. It is his submission that the Objections are in the nature of a suit in con-tradistinction to an application. He has buttressed his arguments by plac-ing reliance on a catena of cases indicating this to be the legal position. The judgment of the Division Bench in the case of Hastimal Dalichand Bora and Ors. Vs. 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, which have the effect of non-suiting the DDA:

"Section 33 deals with the applications to be made by the par- ties. Before we consider the provisions of this section, it may be relevant to point out that S. 32 enacts a bar to suits con- testing arbitration agreements or awards. In other words, all questions with regard to the existence or validity of an arbitra- tion 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 Sch.II of the Code of Civil Procedure, 1908.

Section 33, therefore, requires parties to make applications if they wish to challenge the existence or validity of an arbitra- tion agreement or an award or to have the effect of either deter- mined, and it lays down the procedure for dealing with applica- tion which are made under this section. Article 158 of the Limi- tation 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 S. 33 within the time prescribed by Art. 158.

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 Art. 158 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 Art. 158. 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 pre- scribed by Art. 158, it would not follow that the Court cannot 'suo motu' consider the same question in a proper case.

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 Art. 158 can arise. In our opinion, the words used both in S. 17 and S. 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 possible to cases where fresh evidence has become available." (Russell on Arbitration 15th edn., p. 263).

5. Similar views have subsequently been independently expressed by anoth-er Division Bench in Kawalsingh Akbar Vs. Baldeosingh Akbar, AIR 1957 Nagpur 57. The following passage is significant and deserves reproduction:

"An agreement of reference to arbitration is of a solemn charac- ter which is binding on the parties; so is the award. If, there- fore, a party wishes to avoid the effect of the agreement or award, he must strictly comply with the provisions of law. In Ebrahim Kassam Vs. 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.

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 S. 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 appli- cation filed by the appellant to set aside the award was barred by limitation".

6. Yet another Division Bench has voiced the same view in State of Kerala & Anr. Vs. P.N. 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 Vs. 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."

In this context the following observation of the Division Bench of the Bombay High Court in Hastimal Dalichand Barg Vs. Hiralal Motichand Mutha, 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 state- ment 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 conten- tions 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."

In Kawal Singh Akbar Vs. Baldeo Singh Akbar, AIR 1957 Nagpur 57, the Nagpur High Court observed: " It was held that the applica- tion 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 Arbi- tration 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."

7. I shall only record reference to the decisions in Ganesh Chandra Misra Vs. Artatrana Misra & Ors., , where it was held that Section 5 could not be invoked to extend time to file an application to set aside an award.

8. 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 Limita-tion Act. This question was not even considered by a Learned Single Judge of this Court in S.A. Builders Vs. Delhi Development Authority, 1996 (2) Arb. LR 569, and in view of the authoritative pronouncements considered above, is per incurium. Although reliance has bee placed on another deci-sion of a Learned Single Judge of this Court in S.K. Enterprises Vs. Delhi Development Authority, , since the reason for condensation of delay was found to be insufficient, this decision is also per incuriam. The applicability of Section 5 of the Limitation Act was similarly neither raised nor considered in the case.

Shri V.K. Sharma Learned Counsel for the DDA. has relied on Union of India Vs. Vijay Construction Co., AIR 1981 Delhi 193, in which 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. Learned Counsel has argued relevancy of this decision to the issues in controversy in the present case because the Division Bench had, in paragraph 5, 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. This, in his view, renders Section 5 of the Limita-tion Act 1963, applicable and available to the DDA. What the Learned Coun-sel has ignored is, inter alia, the immediately preceding Section and thereafter Section 29(2). Sections 4 and 5 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."

9. Since the Division Bench decisions were 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 applica- tion 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 ascer- taining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

10. 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 depar-ture and difference is deliberate and can only lead to be conclusion that Section 5 was not intended to apply to suits. The decision in the case of Union of India Vs. Vijay Construction Company (supra), apart from the fact that it was in the context of Section 20, is therefore not relevant to the facts of this case. Before moving further, it is necessary to mention the argument of Learned Counsel for the Petitioner that this decision of the Division Bench is contrary to that of the Apex Court in Wazir Chand Mahajan and Anr. Vs. 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.

Shri V. K. Sharma, learned counsel for D.D.A., also cited a decision of a Division Bench of the Andhra Pradesh High Court in the dispute Govern-ment of Andhra Pradesh Vs. Durgaram Prasad. AIR 1984 Andhra Pradesh 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 inten-tion was to include suits within the amplitude of Section 5 it would have employed the phraseology adopted in Section 4 and simply but specifically mentioned the words `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 there-fore the provisions of Section 5 could be pressed to condone delay, which is now not possible even to these applications under Order XXI. If this was the intention of the Legislature, it was necessary to make this incorpora-tion since, indubitably, Section 5 did and continues to deal with applica-tions.

11. Having arrived at the conclusion that the Court has no power to con-done the delay in filing Objections under Section 33 of the Arbitration Act, being lis analogous to suits and not to applications, further consid-eration of whether reasons exist for condoning the delay is rendered oti-ose. However, since detailed submissions had been made on this aspect of the case also I feel compelled to deal with the issue. Shri V. K. Sharma, learned counsel for the DDA placed reliance on the decision of the Apex Court rendered in State of Haryana Vs. Chandra Mani and others, . It was observed therein that in view of the fact that the Government is an impersonal machinery and decisions are taken at a slow pace certain amount of latitude is not impermissable. However, it should be kept in perspective that the Court made these observations in circumstances where it had arrived at the opinion that a case had been disclosed which was fit for condoning the delay. Shri V. K. Sharma also relied on Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others., , the following extract of which is now widely quoted:

"It is common knowledge that this Court has been making a justi- fiable liberal approach in matters instituted in this Court. But the message does not appear to have percolate down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Whey not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condensation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treat- ment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condensation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file push- ing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represent the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."

12. Reference is also made to decision of a Single Bench of this Court in S.A. Builders Vs. Delhi Development Authority (supra) where the question of the availability of Section 5 of the Limitation act was not considered.

13. Shri Rajiv Nayyar, learned counsel for the Petitioner has drawn atten-tion to M/s. Democretic Builders Vs. Union of India, and Union of India Vs. Brij Lal Prabhu Dayal and others, , which are decisions of single Benches. He has also relied on the case of Delhi Development Authority Vs. Ramesh Kumar, in which a Division Bench of this Court comprising of M Jagannadha Rao, CJ (as his Lordship then was) and Anil Dev Singh, J. had opined that even administra-tive delays have to be properly explained and that if there is any negli-gence or indolence it cannot be condoned merely because the State is the concerned party. Reliance was also placed on P.K. Ramachandran Vs. State of Kerala and another, , in which the Court dismissed the appeal before the High Court as time barred and observed as follows: "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so pre- scribe and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condensation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

14. Learned counsel's reliance on the view taken by me in R.P. Arora Vs. Union of India, 1999 VI AD (Delhi) 679, is misplaced since it is not the case of the Respondent, Delhi Development Authority, that service of notice is improper. Even in the absence of such a plea having been taken in the pleadings since the notice was admittedly served on the Chief Legal Advi-sor, who must have shown the imperative of filing Objections within the statutory period, no similarity between the two cases exists.

15. Reverting to the facts of the case there is no justification for the Legal Branch to send the notice to the wrong Branch on two occasions. The version that the notice was found by the Assistant Engineer in the office of the Chief Legal Advisor (CLA) on 22.12.1995 is most incredible. The application/rejoinder, given the gravity of the situation, has not even been supported by affidavits of persons having personal knowledge of the facts. At every stage there appears to be atleast deliberate and culpable negligence, if not concerted and calculated indolence. Has any enquiry been constituted? Public funds, possibly aggregating Rupees Forty Lakhs are in question, which ought to have provoked the Delhi Development Authority to rouse from its slumber.

16. I.A. No. 57/96 under Section 5 of the Limitation Act is without merit and is dismissed. I.A. No. 58/96, being Objections filed under Sections 30 and 33 of the Arbitration Act are consequently also dismissed.

17. In these circumstances I would reiterate the view expressed in New Model Industries Ltd. Vs. Union of India, 1999 VI. AD (Delhi) 270, as under: 5. The Court is enjoined, where it sees no cause to set aside the award, to pronounce judgment according to the Award. However, the intervening words, i.e. "after the time for making an application to set aside the award has expired, on such application having been made, after refusing it" cannot be ignored and rendered otiose. If these words have not been used in this Section the argument pressed by the learned counsel for the Objectors may have had substance, and it may have been incumbent on the Court to carefully peruse the Award in each and every case. This is clearly not envisaged by the Arbitration Act. Forensic propriety calls for a cursory reading or consideration of the Award with the objective of ensuring that there is nothing therein which could lead to a mis-carriage of justice. There is no duty cast on the Court to make this judicial investigation where no Objections have been filed except if there is such a glaring mistake in the Award that pronouncing a judgment predicated on the Award would be abhorrent to the judicial conscience.

18. It was on the high authority of the Apex Court's perspicuous decision in Madan Lal Vs. Sunder Lal, that this Restatement was made. For general and composite benefit the following paragraphs are ex-tracted.

"(7) This analysis of the relevant provisions of the Act con- tained in Chap. II which apply mutates mutants to arbitrations of the other two types shows that the Court has to pronounce judgment in accordance with the award if it sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or if it sees no cause to set aside the award. The Court has to wait for the time given to a party to make an application for setting aside the award and where such an appli- cation has been made the Court has to decide it first and if it rejects it the Court proceeds to pronounce judgment according to the award. It is clear, therefore, from S. 17 that an application to set aside the award is contemplated therein and it is only when no such application has been made within the time allowed or if such an application has been filed and has been rejected that the Court proceeds to pronounce judgment in terms of the award. The Act, therefore, contemplates the making of an application to set aside an award and the grounds on which such an application can be made are to be found in S. 30. The grounds on which an application can be made for setting aside the award are-(a) that an arbitrator or umpire has misconducted himself or the proceed- ings, (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under S. 35 or (c) that an award has been improperly procured or is otherwise invalid. These are the only grounds on which an award can be set aside under S. 30 and it will be seen that if a party wants an award to be set aside on any of these grounds it has to make an application. Thus any party wishing to have an award set aside on the ground that it was improperly procured or otherwise invalid has to make an application. We may also refer to S. 32 which lays down that

"notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the exist- ence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amend- ed, modified or in any way affected otherwise than as provided in this Act."

"(8) It is clear, therefore, from the scheme of the Act that if a party wants an award to be set aside on any of the grounds men- tioned in S. 30 it must apply within 30 days of the date of serv- ice of notice of filing of the award as provided in Art. 158 of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in S. 30 of the Act. It may be conceded that there is no special form pre- scribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be barred by limita- tion."

"(9) It is not in dispute in the present case that the objections raised by the appellant were covered by S. 30 of the Act, and though the appellant did not pray for setting aside the award in his objection that was what he really wanted the Court to do after hearing his objection. As in the present case the objection was filed more than 30 days after the notice it could not be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was no application to set aside the award on grounds mentioned in S. 30 within the period of limitation and, therefore, the Court could not set aside the award on those grounds. There can be no doubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under S. 30 cannot be considered by the Court unless such an objection is made within the period of limitation (namely, 30 days), though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside the award."

"(10) Learned counsel for the appellant, however, urges that S. 17 gives power to the Court to set aside the award and that such power can be exercised even where an objection in the form of a written -statement has been made more than 30 days after the service of the notice of the filing of the award as the Court can do so suo motu. He relies in this connection on Hastimal Dali- chand Vs. Hiralal Motichand, and Saha and Co. Vs. Isharsingh Kripalsingh, . Assuming that the Court has power to set aside the award suo motu, we are of opinion that power cannot be exercised to set aside an award on grounds which fall under S. 30 of the Act, if taken in an objec- tion petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Art. 158 of the Limitation Act would be completely negatived. The two cases on which the appellant relies do not in our opinion support him. In Hastimal's case, , it was observed that "if the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void 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 Art. 158 can arise." These observations only show that the Court can act suo motu in certain circumstances which do not fall within S. 30 of the Act.

Saha and Co. 's case, , was a decision of five Judges by a majority of 3:2 and the majority judgment is against the appellant. The minority judgment certainly takes the view that the non-existence or invalidity of an arbitration agreement and an order of reference to arbitration may be raised after the period of limitation for the purpose of setting aside an award because they are not grounds for setting aside the award under S. 30. It is not necessary in the present case to resolve the conflict between the majority and the minority Judges in Saha and Co. 's case, , for even the minority judgment shows that it is only where the grounds are not those falling within S. 30, that the award may be set aside on an objec- tion made beyond the period of limitation, even though no appli- cation has been made for setting aside the award within the period of limitation. Clearly, therefore, where an objection as in the present case raises grounds which fall squarely within S. 30 of the Act that objection cannot be heard by the Court and cannot be treated as an application for setting aside the award unless it is made within the period of limitation. Saha and Co. 's case, , therefore, also does not help the appellant."

19. In conclusion, the Arbitrator has not misconducted either himself or the proceedings, and the Award has not been improperly procured and is not otherwise invalid. No cause has been shown to set it aside and judgment is therefore pronounced according to the Award.

20. Suit No. 197-A/95 is decreed, but there shall be no order as to costs.