Delhi High Court

Vishal Exports Overseas Ltd vs Hamburg Bulk Carriers on 10 February, 2011

Author: Vikramajit Sen

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No580/2009

VISHAL EXPORTS OVERSEAS LTD....Appellant through
                           Mr. Mihir Thakore, Sr.
                           Adv. with Mr. Unmesh
                           Shukla & Ms. Manmeet
                           Arora, Advs.

                  versus

HAMBURG BULK CARRIERS              .....Respondent through
                                   Mr. O.P. Gaggar &
                                   Mr. Ashwini Sinha, Advs.

%                      Date of Hearing : February 03, 2011

                       Date of Decision : February 10, 2011

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
      1. Whether reporters of local papers may be
         allowed to see the Judgment?             No
      2. To be referred to the Reporter or not?   Yes
      3. Whether the Judgment should be reported
         in the Digest?                           Yes

VIKRAMAJIT SEN, J.

1. This Appeal assails the Order dated 22.10.2009 passed by

the learned Single Judge, which, in effect, rejected the

Appellant's plea predicated on Section 14 of the Limitation Act,

1963. Although it has not been specifically stated so, the effect

of the Order is that the Objections under Section 34 of the

Arbitration & Conciliation Act, 1996 (A&C Act for short)

preferred by the Appellant before us, stand dismissed. All the

eventualities that would arise on an interplay between Section

34 of A&C Act and Section 5 and Section 14 of the Limitation

Act, 1963 have been considered by the Division Bench in

Bharat Sanchar Nigam Limited -vs- Haryana Telecom Ltd.,

2010 VII AD (Delhi) 331 and Executive Engineer -vs- Shree

Ram Construction Co., 2010 X AD(Delhi) 180. In Bharat

Sanchar Nigam Limited, the Court noted that Objections were

filed within the statutory period of ninety days and after

excluding time spent in prosecuting these Objections in Courts

which did not possess jurisdiction, the Objections would have to

be heard on merits. A similar position obtained in Shree Ram

Construction Co. The Court had the added advantage of

relying on the decision of the Apex Court in Consolidated

Engineering Enterprises -vs- Principal Secretary, Irrigation

Department, 2008 VI AD(SC) 520 = (2008) 7 SCC 169. In this

decision, their Lordships have reiterated that Section 14 of the

Limitation Act has the effect of bestowing benefit of exclusion of

time spent bonafide in a wrong Court, restricted, however, to

the period prescribed by the A&C Act, namely, three months

and thirty days. This brief analysis of the law should suffice

since Bharat Sanchar Nigam Limited and Shree Ram

Construction Co. have been reported in the Journals.

Repeating the dialectics in those cases will only lead to prolixity

of this Judgment.

2. The relevant facts are that an Award was published on

30.8.2002 and the copy of the same was served on the Petitioner

on 31.8.2002. Objections under Section 34 were filed on

22.11.2002, palpably within the period of three months

prescribed under the A&C Act. However, the Objections had

been filed in the City Civil Court at Ahmedabad, Gujarat. A

Preliminary Objection was taken by the Respondent before the

City Civil Court, Ahmedabad, Gujarat pertaining to the

territorial jurisdiction of that Court. Since the Objection was

dismissed, the Respondent filed an Appeal in the High Court of

Gujarat. This time around, they were successful. That

Petition/Appeal was allowed on 3.11.2004 with the direction

that "the Trial Court may return the plaint to the party for

presentation of the same before the appropriate Court". The

Respondent contends that the Appellant is entitled to exemption

only to the period of three days which was spent in obtaining

the Certified Copy plus five days in collecting the Certified

Copy. The Appellant contends that limitation would commence

running on 15.4.2005 when the Plaint was returned by the City

Civil Judge, Ahmedabad, Gujarat to the Appellant for filing in

the appropriate Court.

3. It will be important to record that the City Civil Court,

Ahmedabad, Gujarat had, in Civil Miss. Application

No.628/2002, passed the Order on 30.3.2005, the operative part

of which reads thus:-

Civil Misc. Application No.628 of 2002 be returned to the applicant alongwith all the original documents for presentation of the same before the appropriate court.

The applicant is hereby directed to present the application before the appropriate court on or before 15.4.2005 under the intimation to the opponent and the opponent has to remain present as soon as the application is presented before the competent court.

4. The question that arises is whether the period between

3.11.2004 and 15.4.2005 would qualify for exemption under

Section 14 of the Limitation Act, 1963, even though the

Appellant calculates this exemption to have come to an end on

7.4.2005, the date on which the Plaint was actually and

physically returned to it. It is not in controversy that the Plaint

was filed in this Court on 12.4.2005.

5. Learned counsel for the Appellant contends that the

Appellant was not legally obligated to secure an Order of return

of the Plaint to the Petitioner subsequent to the Order dated

3.11.2004 passed by the High Court of Gujarat. It is argued that

it was the bounden duty of the City Civil Court, Ahmedabad,

Gujarat to pass appropriate orders in the matter. Since that

Court had not taken up the matter on 13.1.2005, the Appellant

had preferred an application praying for the return of the Plaint.

We think that the argument is well-founded. It is conceivable

and permissible for the City Civil Court, Ahmedabad, Gujarat to

have suo moto implemented the Order of the High Court of

Gujarat. It must be assumed that the Order of the High Court

would have been conveyed to the City Civil Judge, Ahmedabad,

Gujarat. Therefore, on any date prior to 13.1.2005, the City Civil

Judge, Ahmedabad, Gujarat could have passed an order

returning the Plaint to the Appellant. Had this been done, time

would have started to run against the Appellant from that day

forward. In the event, the Appellant had to secure the Order of

the return of the Plaint by filing an application which was

opposed by the Respondent, inter alia, on the ground that the

Objections had become time-barred. It should also be recalled

that the High Court of Gujarat had, in terms of Order dated

3.11.2004, left it to the discretion of the Trial Court whether or

not to return the Plaint. It, therefore, required adjudication,

which exercise was completed only on 30.3.2005, that too

granting liberty to the Appellant to file the returned Plaint in the

competent Court before 15.4.2005. It is not the Respondent's

case that the Appellant had delayed in collecting the Plaint and,

therefore, we must presume that the Plaint was made available

for being returned to the Appellant only on 7.4.2005. It is not

disputed that the returned Petition [the Objections under

Section 34 of the A&C Act] was definitely filed in this Court by

12.4.2005 which is three days prior to the expiration of the

period granted by the City Civil Judge, Ahmedabad, Gujarat. It is

also not controverted that when the Appellant had filed

Objections in the City Civil Court, Ahmedabad, Gujarat, it had

exhausted eighty two days; ergo eight days still remained out of

the three months period ordained by the statute. It is also

beyond cavil that the Court possesses power to condone delay

for a period of thirty days thereafter. Since the City Civil Court,

Ahmedabad, Gujarat had not ordered the return of the Plaint till

30.3.2005, the Appellant must be deemed to have exhausted

only eighty-two days till then.

6. The Order granting the Appellant time upto 15.4.2005 has

not been assailed, although the question of the Objections being

barred by time had been left open by that Court. We must

immediately address the submission of learned counsel for the

Appellant that since the filing in this Court had been carried out

on 12.4.2005, it was within time. In other words, the argument

on behalf of the Appellant is that the filing could have been

carried out till 15.4.2005 without the Appellant having to

account for any delay. Order VII Rule 10/10-A of the Code of

Civil Procedure, 1908 (CPC for short) does not prescribe

whether the Court is bound to grant any specified time within

which the returned Plaint must be filed in the appropriate

Court. This conundrum has also been discussed in Shree Ram

Construction Co. and since nothing turns on this controversy

so far as we are presently concerned, we need not go any

further than merely alluding to that decision. If no time had

been indicated by the City Civil Judge, Ahmedabad, Gujarat

within which the returned Plaint was required to be filed in the

transferee Court, it would have to be assumed that the time had

started running immediately from the date of the Order or from

the date when the Plaint was returned. We raise this question

because it may become critical in a case where inordinate delay

takes place in the actual return of the Plaint, ascribable only to

the Court. It is also quite possible that the Plaintiff may take no

steps towards impressing upon the Court of the necessity to

return the Plaint to the Plaintiff. Since this question does not

arise before us, we shall only surmise that if the delay is on the

part of the Plaintiff/Objector, he would receive no remission

beyond a total of three months and thirty days. We are also

reminded of the legal adage that no party/person can suffer for

the act of the Court. Therefore, had the period of limitation

expired prior to 15.4.2005, the Plaintiff/Objector could still have

taken advantage of the Order and filed the Plaint on or before

that date. We are of the opinion that so long as the Plaint was

filed in the competent Court on or before 15.4.2005, no delay

would occur. It is arguable that the Appellant would be within

its rights to seek condonation of delay for a period of eight days

together with thirty days if the deadline of 15.4.2005 had not

been met by it. That question has also not arisen before us and,

therefore, we need not pronounce upon it. It needs to be

clarified that exclusion upto 15.4.2005 is relevant because the

Orders to this effect have been passed by the City Civil Court,

Ahmedabad, Gujarat and have not been challenged. It is

certainly possible that that Court may have permitted the

Appellant a shorter time, and in that event it would have been

prudent for the Appellant to file the Plaint in this Court within

that period. For example, the Court could have granted only

eight days for filing in the Competent Court, that is, delay since

that would bring the filing within the three months statutory

period.

7. In Ram Ujarey -vs- Union of India, (1999) 1 SCC 685, their

Lordships have enunciated the law regarding refiling of a plaint

returned under Order VII Rule 10/10-A of the CPC in the

following words:-

21. The period of limitation within which claim petitions can be filed before the Tribunal is indicated in Section 21 of the Act. The contingencies contemplated by Section 21 are not applicable to the present case. The suit, admittedly, was filed within time. It is another matter that it was filed in a court which had no jurisdiction and, therefore, the Tribunal, while allowing the appeal filed against the decree passed by the trial court, directed the plaint to be returned to the appellant for presentation before the appropriate Bench of the Tribunal. Some delay had occurred in the refiling of the plaint before the Tribunal and as pointed out by the Tribunal itself, the delay was only of one- and-a-half months, although at one place the Tribunal observed that there was a delay of about eight months. The period of eight months has been calculated by the Tribunal from the date on which an order was passed at Allahabad for the return of the plaint. The limitation would not run from the date of the order, but would run from the date on which the plaint was returned and made available to the appellant, if the appellant was not at fault. Two dates have been mentioned on which the plaint was returned; in the application for condonation of delay, the date mentioned is 20-8-1988, but in the affidavit filed in support of that application, the date of receipt of the plaint is mentioned as 20-10- 1988. Since the OA was filed before the Tribunal on 12- 12-1988, there was a delay of either three-and-a-half months or one-and-a-half months, but not a delay of eight months as observed by the Tribunal. The Tribunal

had itself observed in an earlier part of its judgment that there was a delay of one-and-a-half months only.

A perusal of the above passage fortifies us in our view that the

period upto 15.4.2005 would be excludable while computing

limitation, by virtue of Section 14 of the Limitation Act, 1963.

8. It is in this analysis that we accept the Appeal and set

aside the impugned Order. The learned Single Judge has already

noted that the proceedings before him had been dismissed in

default on two occasions. Since the matter requires to be

remanded back to the learned Single Judge for a decision on the

Objections, we feel that the Appellant must be cautioned that in

the event of any further default in appearance, the learned

Single Judge would be justified in dismissing the Objections.

9. Parties to appear before the learned Single Judge on