Dr. Debangshu Dam vs M/S East West Rescue Private ...
2010 Latest Caselaw 342 Del

*             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
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I.A. No.10116/08 in O.M.P. 445/08                                             Page 5