Madhya Pradesh High Court
M/S Compact Builders vs Jabalpur Development Authority on 6 February, 2024
Author: Sheel Nagu
Bench: Sheel Nagu
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 06th OF FEBRUARY, 2024
ARBITRATION REVISION No. 36 of 2023
BETWEEN:-
M/S COMPACT BUILDERS PARTNER MR.
RAKESH KOHLI S/O LATE SHRI G.M.
KOHLI HIG PLOT NO. 23, JDA COLONY,
KATANGA, JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ROHIT TANEJA - ADVOCATE)
AND
JABALPUR DEVELOPMENT AUTHORITY
CHIEF EXECUTIVE OFFICER CIVIC
CENTER, MARHATAL, JABALPUR
(MADHYA PRADESH)
.....RESPONDENT
(RESPONDENT BY SHRI MUKESH KUMAR AGRAWAL -
ADVOCATE)
-----------------------------------------------------------------------------------------
This petition coming on for admission this day, Hon'ble Shri
Justice SHEEL NAGU passed the following:
ORDER
Present revision petition has been filed assailing final order passed on
17.02.2023 in Reference Case No.07/2020 by M.P. Arbitration Tribunal,
Bhopal (for brevity "Tribunal") whereby Reference Petition filed by
petitioner herein u/S.7 of M.P. Madhyastham Adhikaran Adhiniyam, 1983
(for brevity "Adhiniyam of 1983") was dismissed as time barred and while
doing so Tribunal declined to extent benefit of Section 14 of Limitation Act
as claimed by petitioner.
2. Learned counsel for rival parties are heard on the question of
admission so also final disposal.
3. Bare facts involved herein are that cause of action arose to petitioner
on 30.01.2013 when contract in question was terminated by respondents.
Indisputably, claim in question was more than Rs.50,000/- and yet petitioner
instead of approaching the Tribunal under Clause 28 of the agreement filed
a civil suit on 03.05.2013 in which after filing of written statement on
06.02.2015 preliminary issues were framed on 25.02.2015 whereafter said
suit was dismissed as being not maintainable on 29.11.2019 for being time
barred u/S.20 of Adhiniyam, 1983. Thereafter, petitioner preferred a
Reference Petition before Tribunal under Adhiniyam, 1983 on 25.01.2020,
which has now been dismissed by impugned order on 17.02.2023 as being
not maintainable for being time barred by limitation.
4. After having heard learned counsel for rival parties, this Court is of
the considered view that benefit of Section 14 of Limitation Act ought to
have been extended to petitioner for the reasons infra:-
(i) Petitioner appears to have diligently pursued the remedy in shape of
civil suit, which was though barred by Section 20 of Adhiniyam, 1983,
but after civil suit was dismissed as not maintainable on 29.11.2019,
petitioner without further delay approached the Tribunal on 25.01.2020
by filing Reference Petition;
(ii) The Apex Court while interpreting scope and sweep of Section 14
of Limitation Act in (2008) 7 SCC 169 (Consolidated Engineering
Enterprises vs. Principal Secretary, Irrigation Department & Ors.)
held thus:-
"21. Section 14 of the Limitation Act deals with exclusion of
time of proceeding bona fide in a court without jurisdiction.
On analysis of the said section, it becomes evident that the
following conditions must be satisfied before Section 14 can
be pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due
diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must
relate to the same matter in issue and;
(5) Both the proceedings are in a court.
22. The policy of the section is to afford protection to a
litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect cannot
be decided on merits and is dismissed. While considering
the provisions of Section 14 of the Limitation Act, proper
approach will have to be adopted and the provisions will
have to be interpreted so as to advance the cause of justice
rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the invocation
of Section 14. In fact, the section is intended to provide relief
against the bar of limitation in cases of mistaken remedy or
selection of a wrong forum. On reading Section 14 of the Act
it becomes clear that the legislature has enacted the said
section to exempt a certain period covered by a bona fide
litigious activity. Upon the words used in the section, it is
not possible to sustain the interpretation that the principle
underlying the said section, namely, that the bar of
limitation should not affect a person honestly doing his best
to get his case tried on merits but failing because the court
is unable to give him such a trial, would not be applicable to
an application filed under Section 34 of the Act of 1996. The
principle is clearly applicable not only to a case in which a
litigant brings his application in the court, that is, a court
having no jurisdiction to entertain it but also where he
brings the suit or the application in the wrong court in
consequence of bona fide mistake or (sic of) law or defect of
procedure. Having regard to the intention of the legislature
this Court is of the firm opinion that the equity underlying
Section 14 should be applied to its fullest extent and time
taken diligently pursuing a remedy, in a wrong court, should
be excluded.
31. To attract the provisions of Section 14 of the Limitation
Act, five conditions enumerated in the earlier part of this
judgment have to co-exist. There is no manner of doubt that
the section deserves to be construed liberally. Due diligence
and caution are essential prerequisites for attracting Section
14. Due diligence cannot be measured by any absolute
standards. Due diligence is a measure of prudence or
activity expected from and ordinarily exercised by a
reasonable and prudent person under the particular
circumstances. The time during which a court holds up a
case while it is discovering that it ought to have been
presented in another court, must be excluded, as the delay of
the court cannot affect the due diligence of the party.
Section 14 requires that the prior proceeding should have
been prosecuted in good faith and with due diligence. The
definition of good faith as found in Section 2(h) of the
Limitation Act would indicate that nothing shall be deemed
to be in good faith which is not done with due care and
attention. It is true that Section 14 will not help a party who
is guilty of negligence, lapse or inaction. However, there can
be no hard-and-fast rule as to what amounts to good faith. It
is a matter to be decided on the facts of each case. It will, in
almost every case be more or less a question of degree. The
mere filing of an application in wrong court would not
prima facie show want of good faith. There must be no
pretended mistake intentionally made with a view to
delaying the proceedings or harassing the opposite party. In
the light of these principles, the question will have to be
considered whether the appellant had prosecuted the matter
in other courts with due diligence and in good faith."
(iii) In view of above law laid down by Apex Court, it is obvious that
Section 14 of Limitation Act ought to be liberally construed so that a
genuine litigation is not truncated at its infancy and more so every
litigation deserves to be decided on merits and not dismissed on
technical grounds;
(iv) The bonafide pursuit of civil suit by petitioner amply demonstrates
that petitioner ought to have been extended benefit of Section 14 of
Limitation Act and the Tribunal ought to have decided dispute on merits
instead of dismissing it on limitation alone.
5. Accordingly, this Court is inclined to interfere in the matter.
5.1 Consequently, this petition stands allowed with the following
directions:-
(i) Impugned order dated 17.02.2023 passed in Reference Case
No.07/2020 by Tribunal is set aside.
(ii) The Tribunal is requested to decide the dispute filed by
petitioner on 25.01.2020 in shape of Reference Case No.07/2020
on merits as expeditiously as possible.
6. With aforesaid directions, present petition stands allowed sans cost.
(SHEEL NAGU) (VINAY SARAF)
JUDGE JUDGE
mohsin
Date: 2024.02.08 10:48:15 +05'30'
