State Of Rajasthan vs M/S Ajmer Singh And Co
2021 Latest Caselaw 6917 Raj

(1 of 4) [CMA-337/2020]

HIGH COURT of JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Civil Misc. Appeal No. 337/2020

1. State of Rajasthan through District Collector, Jaisalmer

2. Chief Engineer (West), CAD, Bikaner

3. Executive Engineer, CAD, Gangnahar OFD, Division 5th, Shri Karanpur, Dist. Sri Ganganagar.

----Appellants Versus

1. M/s Ajmer Singh & Co., registered partnership firm, Godara Bhawan, Near Jain P.G. College, Nokha Road, Gangasehar, Bikaner.

2. M.C. Mehta, Sole Arbitrator, Retired Suptd. Engineer (Irrigation Department), R/o 490, Kamla Nehru Nagar, First Pulia, Near O.B.C..Bank, Chopasani Road, Jodhpur.

----Respondents

For Appellant(s) : Mr. Sandeep Shah, AAG with Mr. Pratyushi Mehta.

For Respondent(s) : Mr. Pradeep Choudhary, R-1.

HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE ARUN BHANSALI

Judgment / Order

10/03/2021

This appeal filed by the appellants under Section 37 of the

Arbitration and Conciliation Act, 1996 (Act of 1996) read with

Section 13 of the Commercial Courts Act, 2015 (Act of 2015) is

directed against the judgment dated 05.08.2019 passed by

Commercial Court, Jodhpur in Civil Misc. Case No.62/2018 (N.C.V.

No.55/2018), whereby an application preferred by the appellants

under Section 34 of the Act of 1996 against the award dated

(2 of 4) [CMA-337/2020]

15.02.2016 passed by the Sole Arbitrator (Mr. M.C. Mehta) has

been dismissed.

The appeal is reported to be barred by limitation for 83 days.

It is accompanied by an application under Section 5 of the

Limitation Act,1963 (for short "Act of 1963").

A reply to the application under Section 5 of the Act of 1963

has been filed on behalf of first respondent, taking the stand that

as per the provisions of Section 13 of the Act of 2015, the

limitation for filing the appeal against the order passed by the

Commercial Court under Section 37 of the Act of 1996 is of sixty

days, which cannot be further extended by the Court. According to

respondent, the provisions of Section 5 of the Act of 1963 are not

applicable to the appeal filed under Section 13 of the Act of 2015

and, therefore, the appeal preferred by the appellants being

barred by limitation deserves to be dismissed. In support of the

contention, the learned counsel appearing for the first respondent

relied upon a decision of Supreme Court rendered in the case of

Union of India Vs. M/s Popular Construction Company

reported in (2001) 8 SCC 471.

In Popular Construction Company's case (supra), in respect

of proceedings under Section 34 of the Act of 1996, the Hon'ble

Supreme Court has laid down that proviso to sub-Section (3) of

Section 34 would amount to an express exclusion within the

meaning of Section 29(2) of Act of 1963 and therefore, the time

limit prescribed under Section 34 to challenge an award is

absolute and cannot be further extended.

A bare perusal of provisions of Section 37 of the Act of 1996

reveals that it does not provide for any limitation for filing of the

appeal against the order passed under Section 34 of the Act of

(3 of 4) [CMA-337/2020]

1996. By virtue of provisions of Section 43 of the Act of 1996, the

Act of 1963 shall apply to arbitration as it applies to proceedings

in the Court. But then, as per proviso to sub-Section (1) of Section

13, the order passed by the Commercial Court in the proceedings

enumerated under Section 37 of the Act of 1996, is appealable

before Commercial Appellate Division of the High Court and sub-

Section (1) of Section 13, prescribes the limitation for filing such

appeal as sixty days from the date of judgment or order, as the

case may be.

It is noticed that as per sub-Section (2) of Section 29, where

any special or local law prescribes for any suit, appeal or

application a period of limitation different from the period

prescribed by the Schedule, the provisions of section 3 shall apply

as if such period were the period prescribed by the Schedule and

for the purpose of determining any period of limitation prescribed

for any suit, appeal or application by any special or local law, the

provisions contained in sections 4 to 24 (inclusive) shall apply only

in so far as, and to the extent to which, they are not expressly

excluded by such special or local law.

In this view of the matter, the limitation for filing the appeal

before the Commercial Appellate Division against the order passed

by the Commercial Court in proceedings under Section 34, by

virtue of provisions of Section 13 of the Act of 2015, shall be sixty

days. But since, the applicability of provisions of the Act of 1963,

has not been expressly excluded by incorporation of any provision

in the relevant statute, by virtue of Section 29(2) of the Act of

1963, the provisions of Section 5 of the Act of 1963, shall be

applicable to the appeal filed under Section 37 of the Act of 1996

read with Section 13 of the Act of 2015.

(4 of 4) [CMA-337/2020]

For the aforementioned reasons, in our considered opinion,

the ratio of the decision of the Supreme Court in the matter of M/

s Popular Construction Company (supra) relied upon by the

learned counsel appearing for the first respondent, is not

applicable to the proceedings of appeal under Section 37 of the

Act of 1996 and thus objection raised on behalf of first respondent

regarding non-applicability of the provisions of the Act of 1963, is

devoid of any merit and deserves to be rejected.

The application preferred on behalf of appellants seeking

condonation of delay in filing the appeal is not opposed by the

learned counsel appearing for the respondent on merits.

Accordingly, the application under Section 5 of the Limitation

Act is allowed. Delay in filing the appeal is condoned.

Learned counsel appearing for the first respondent seeks two

weeks' time to argue the appeal on merits.

Time prayed for is allowed.

List the matter on 24.03.2021.

In the meanwhile and until further orders, the property of

the appellants already attached in execution of the award shall not

be put to auction and the properties under attachment, shall

remain in possession and in use of the appellants.

                                   (ARUN BHANSALI),J                                      (SANGEET LODHA),J


                                    5-DJ/-









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