Calcutta High Court
Kamlesh Kumar Agarwala vs The Estate Of Manjan Devi Patni on 20 May, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APO 27 of 2021
With
AP 74 of 2019
Kamlesh Kumar Agarwala
Vs.
The Estate of Manjan Devi Patni,
Represented by Nirmal Kumar Jain
For the appellant : Mr. Uttam Sharma, Adv.
Ms. Vrinda Kedia, Adv.
For the respondent : Mr. Rajeev Kr. Jain, Adv.
Mr. Kunal Shaw, Adv.
Ms. Yamini Mahanka, Adv.
Hearing concluded on : 06.05.2026 Judgment on : 20.05.2026 Md. Shabbar Rashidi, J.:-
1. The appeal under Section 37 of the Arbitration and Conciliation
Act, 1996 is in assailment of impugned judgment and order dated
March 2, 2020 passed in A.P. No. 74 of 2019, G.A. No. 399 of 2019.
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2. By the impugned judgment and order, the learned Single Judge
rejected the challenge to the arbitral award dated February 28, 2018
and dismissed A.P. No. 74 of 2019 on the ground that challenge under
Section 34 of the Act of 1996 was filed after the expiry of the time
period prescribed under Section 34 (3) of the Act of 1996. The learned
Trial Judge held that,
“It is not in dispute that the respondents filed the
application under Section 29A of the Act of 1996, before a Co-
ordinate Bench of this Court, for extension of time for making
the award by the Arbitrator. By order dated September 05,
2017 a Co-ordinate Bench of this Court, in presence of the
petitioner, extended the time to make and publish the award
of the Arbitrator. A copy of the said order has been disclosed
by the respondents in their affidavit and from a reading
thereof, it is evident that the petitioner did not raise any
objection to the jurisdiction of this Court to entertain the said
application. Further, the petitioner accepted the said order
dated September 05, 2017 and thereafter participated in the
arbitral proceeding conducted by the Arbitrator. In the
application filed in Misc. Case No.298 of 2018 before the
learned District Judge at Alipore, the petitioner did not
challenge the impugned award on the ground that the order
dated September 05, 2017 passed by this Court was without
jurisdiction and consequently, the impugned award made by
the Arbitrator after termination of his mandate which took
place before passing of the said order is also without
jurisdiction and void. In the application filed in Misc. Case
No.298 of 2018 the petitioner had not at all mentioned about
the filing of the said application under Section 29A of the Act
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of 1996 before this Court or passing of the said order dated
September 05, 2017 by a Co-ordinate Bench of this Court.
For all the forgoing reasons, I unable to convince myself
to accept that the petitioner had prosecuted the said Misc.
Case No. 298 of 2018 before the learned District Judge at
Alipore with due diligence or in good faith. Thus, the petitioner
cannot claim benefit of Section 14 of the Limitation Act, 1963.
In the facts of the present case the decision of the Supreme
Court in Modern Construction & Company (supra) is of no
assistance to the petitioner. Accordingly, the application A.P.
No.74 of 2019 filed by the petitioner for setting aside of the
impugned award, beyond the period of the time stipulated in
sub-Section (3) of Section 34of the Act 1996 read with the
Proviso thereto cannot be entertained and the same stands
rejected.”
3. It is submitted on behalf of the appellant that the impugned
judgment and order was passed without application of judicial mind
and is erroneous in law. The same was passed in complete ignorance of
the legal propositions governing the field. Learned advocate for the
appellant submitted that the learned Trial Court came to an erroneous
finding that the appellants did not pursue Misc. Case No. 298 of 2018
under Section 34 of the Arbitration and Conciliation Act, 1996 as well
as C.O. No. 3328 of 2018 in good faith and with due diligence, as such,
the appellant was not entitled for the benefits of Section 14 of the
Limitation Act, 1963.
4. Learned advocate for the appellant further submitted that
learned Single Judge committed error in law in so far as the period
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spent in bona fide pursuance of Misc. Case No. 298 of 2018 as well as
C.O. No. 3328 of 2018 was required to be excluded for the purpose of
computing the period of limitation prescribed under Section 34 (3) of
the Act of 1996. Such period being excluded in terms of the provisions
of Section 14 of the Limitation Act, the challenge to the arbitral award
being A.P. No. 74 of 2019 was filed well within the prescribed period. In
support of such proposition, learned advocate for the appellant cited
the decision reported in (2020) 12 Supreme Court Cases 667 (EXL
Careers and Another Vs. Frankfinn Aviation Services Private
Limited).
5. Learned advocate for the appellant further contended that the
learned Single Judge did not appreciate that in the arbitral proceeding,
the respondents had claimed award regarding recovery of possession of
immoveable property which is situated beyond the territorial
jurisdiction of the Calcutta High Court and therefore, the Calcutta High
Court is not the appropriate Court within the meaning of Section 2(1)
(e) of the Arbitration and Conciliation Act, 1996 to entertain the
proceeding under Section 34 of the Act. Moreover, the issue of
jurisdiction was never raised at the time of consideration of the
application under Section 29A of the Act of 1996 filed on behalf of
respondents which was disposed in terms of order dated September 5,
2017. For such reasons, the provisions of Sections 42 of the Act of 1996
would not be attracted in the facts and circumstances of the case.
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6. Learned advocate for the appellant also submitted that the
learned Single Judge erred in coming to a conclusion that while
challenging the arbitral award by way of Misc. Case No. 298 of 2018,
the appellant did not disclose the filing of application under Section
29A of the Act of 1996 and the order passed thereon. It was also
contended that learned Trial Judge was not justified in dismissing A.P.
No. 74 of 2019 merely on the ground that it was filed beyond the time
stipulated under Section 34 (3) of the Arbitration and Conciliation Act.
To such proposition, learned advocate for the appellant relied upon a
decisions rendered by Karnataka High Court reported in 2010 SCC
OnLine Kar 5270 (M/s Kotak Securities Ltd., Bangalore Vs. Sri
Chethan Bhandary and Others), Indian Law Reporter 1999 Kar
1543 (Seenappa & Ors. Vs. Subbaiah & Ors), (2008) 7 Supreme
Court Cases 169 (Consolidated Engineering Enterprises Vs.
Principal Secretary, Irrigation Department and Others) and (2015)
7 Supreme Court Cases 58 (M.P. Steel Corporation Vs.
Commissioner of Central Excise).
7. It was further the contention of the learned advocate for the
appellant that the filing of A.P. No. 74 of 2019 on February 6, 2019
cannot be said to be beyond the period of limitation in so far as the
signed copy of the award was not been served upon and received by the
appellant i.e. party to the arbitration proceeding in terms of the
provisions of Section 31 (5) of the Act of 1996. Service of copy of the
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award upon an agent or advocate for the party cannot be considered for
the purpose of limitation for challenging an award under Section 34.
8. On the other hand, learned advocate for the respondent
contended that the application under Section 34 of the Act of 1996 was
filed much after the expiry of time period prescribed under Section 34
(3) of the Act. It was further argued that the appellant has not pleaded
any plausible reason for such delay or the reasons for not presenting
the application which was returned for its presentation before the
competent Court. In such view of the facts, the appellant is not at all
entitled for the benefits of Section 14 of Limitation Act, 1963. It was
also submitted by learned advocate for the respondent that the
appellant has abandoned the original application under Section 34,
returned by the earlier Court and proceeded to file a fresh application
without obtaining due leave of the Court, contemplated under Order
XXIII Rule 3 of the Civil Procedure Code, 1908. Therefore, the appellant
is debarred from presenting a fresh application under Section 34 of the
Act of 1996 in view of the provisions of Order XXIII Rule 4 of the Civil
Procedure Code. In support of his contentions, learned advocate for the
respondent relied upon order dated February 26, 2021 passed by
Hon’ble Supreme Court in Special Leave to Appeal (C) No(s). 3269-
3270 of 2021 (Manjan Devi Patni & Ors. Vs. Mohanlal Agarwal).
9. The learned advocate for the respondent stood by the
impugned judgment and order and submitted that the learned Single
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Judge rightly dismissed A.P. No. 74 of 2019 on the ground of delay in
filing the challenge under Section 34 of the Act of 1996. According to
learned advocate for the respondent, the impugned judgment and order
is liable to be affirmed.
10. Owing to disputes and differences between the parties in
respect of certain immoveable properties situated at premises No. 14,
R.G. Kar Road, P.S. Ultadanga, Kolkata-700004, within the territorial
jurisdiction of Alipur, South 24 Parganas, there was an arbitral
reference at the behest of respondent Nos. 1 to 11 herein as claimants.
Learned arbitrator entered into the reference and passed an award on
February 28, 2018. By the said award learned arbitrator directed the
appellant to pay ₹1,10,00,000/- to respondent Nos. 1 to 11 together
with interests at varied rates for different periods. By the impugned
arbitral award, the appellant was also directed to deliver possession of
the immoveable property being premises No. 14, R.G. Kar Road, P.S.
Ultadanga, Kolkata- 700004 along with all the documents etc.
concerning such property to the aforesaid respondents.
11. Such arbitral award was challenged by the appellant by way of
Misc. Case No. 298 of 2018 before learned District Judge at Alipore,
South 24 Parganas, under the provisions of Section 34 of Arbitration
and Conciliation Act, 1996 on the ground that the suit properties were
situated within the territorial jurisdiction of learned District Judge,
Alipore, the said Court had the jurisdiction to entertain an application
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under Section 34 of the Act of 1996 concerning the disputes involved in
the arbitral award.
12. The respondents entered appearance in the said Misc. Case
and preferred a challenge to the maintainability of Misc. Case No. 298
of 2018 before learned District Judge at Alipore, South 24 Parganas. It
was the contention on the part of the respondents that during the
pendency of the arbitral proceeding, the respondents had filed an
application under Section 29A of the Act of 1996 being A.P. No. 712 of
2017 before a Single Judge of High Court, Calcutta seeking extension of
time of making and publication of the arbitral award. Such application
on behalf of the respondents was allowed in presence of the appellant
and by an order dated September 5, 2017 the time of making and
publication of the arbitral award by the learned arbitrator was
extended.
13. In such context, since an initial application was entertained
and orders were passed in connection with the said arbitration,
according to respondents, the Court of learned District Judge at Alipore
lost jurisdiction in the proceeding in terms of the provisions of Section
42 of the Act of 1996. The respondents had thus prayed for rejection of
the proceedings under Section 34. Section 42 of the Arbitration and
Conciliation Act, lays down that,
“42. Jurisdiction.–Notwithstanding anything contained
elsewhere in this Part or in any other law for the time being in
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force, where with respect to an arbitration agreement any
application under this Part has been made in a Court, that
Court alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications arising out of
that agreement and the arbitral proceedings shall be made in
that Court and in no other Court.”
14. During the pendency of Misc. Case No. 298 of 2018, the
respondents again approached a Single Judge of this Court by way of
EC No. 327 of 2018 seeking execution of the impugned arbitral award
dated February 28, 2018 as against the appellant. It was contended
that the execution application was moved on behalf of the respondents
upon due notice to the appellant. The said application was also
disposed of by an order dated August 1, 2018 passed by a Single Judge
of this Court, restraining the appellant from selling, disposing of,
alienating and encumbering the properties involved in the arbitration.
The said order dated August 1, 2018 was never challenged by the
appellant.
15. The appellant contested the application questioning the
jurisdiction of learned District Judge, Alipore, South 24 Parganas, filed
on behalf of the respondents by filing written objection thereto. Upon
hearing the parties and considering the materials on record, the learned
District Judge at Alipore, by an order passed on August 14, 2018
directed return of the application under Section 34 of the Act of 1996
registered as Misc. Case No. 298 of 2018 to the appellant for its
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presentation before the appropriate Court having requisite jurisdiction
to entertain such application.
16. Order dated August 14, 2018 passed in Misc. Case No. 298 of
2018 was challenged by the appellant in a proceeding under Article 227
of the Constitution of India being C.O. No. 3328 of 2018 which was
contested by the respondent Nos. 1 to 11. However, C.O. No. 3328 of
2018 was rejected by an order passed on January 24, 2019. It is
thereafter, on February 5, 2019, the appellant proceeded to receive
back the original arbitral award from the Court of learned District
Judge at Alipore and subsequent thereto filed the proceeding under
Section 34 of the Act of 1996 before this Court being A.P. No. 74 of
2019, which of course, was rejected in terms of the impugned judgment
and order.
17. The issue which has fallen for our consideration in the present
proceeding is, whether Misc. Case No. 298 of the Act of 1996 and C.O.
No. 3328 of 2018 were pursued by the appellant with due diligence and
whether the period spent in prosecuting such proceedings is liable to be
excluded and the appellant is entitled to the benefits of the provisions of
Section 14 of Limitation Act, 1963 which reads as follows:
“14. Exclusion of time of proceeding bona fide in Court without
jurisdiction. – (1) In computing the period of limitation
prescribed for any suit, the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a Court of first instance or in a Court of appeal,
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against the defendant, shall be excluded, where the
proceeding is founded upon the same cause of action and is
prosecuted in good faith in a Court which, from defect of
jurisdiction, or other cause of a like nature, is unable to
entertain it.
(2) In computing the period of limitation prescribed for any
application, the time during which the applicant has been
prosecuting with due diligence another civil proceeding,
whether in a Court of first instance or in a Court of appeal,
against the same party for the same relief shall be excluded,
where such proceeding is prosecuted in good faith in a Court
which from defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
Explanation I. — In excluding the time during which a former
suit or application was pending, the day on which that suit or
application was instituted or made, and the day on which the
proceedings therein ended, shall both be counted.
Explanation II. — For the purposes of this section, a plaintiff or
an applicant resisting an appeal shall be deemed to be
prosecuting a proceeding.
Explanation III. — For the purposes of this section misjoinder
of parties or of causes of action shall be deemed to be a cause
of like nature with defect of jurisdiction.
Explanation IV. — In suitable cases proceedings in the
Revenue Department may come within the expression civil
proceedings as used in the section.”
18. It has been contended on behalf of the appellant that since
the immoveable properties involved in the arbitration proceeding, were
situated within the territorial jurisdiction of learned District Judge at
Alipore, South 24 Parganas, the appellant filed the challenge under
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Section 34 of the Act of 1996 before such Court bona fide by way of
Misc. Case No. 298 of 2018. An objection as to the jurisdiction of such
Court was raised by the respondents on the ground of the provision
contained in Section 42 of the Act of 1996. Such objection was
accepted by learned District Judge at Alipore, South 24 Parganas,
which was subsequently upheld by a Single Bench of this High Court
in C.O. No. 3328 of 2018.
19. It is not in dispute that initially, an application under Section
29A of the Act of 1996 was filed and entertained by Single Bench of
this Court under Section 29A of the Act of 1996 being A.P. No. 712 of
2017 seeking extension of time for making and publication of the
arbitral award. Such application on behalf of the respondents was
allowed in presence of the appellant and by an order dated September
5, 2017 the learned Judge extended the time of making and
publication of the arbitral award by the learned arbitrator. Nothing
has been placed before us to suggest that the appellant raised an
objection as to the jurisdiction of such Court to entertain the
application under Section 29A of the Act of 1996. Apparently, orders
were passed in A.P. No. 712 of 2017 extending time for making and
publication of the arbitral award.
20. If that be so, the Court of learned District Judge at Alipore,
South 24 Parganas lost jurisdiction to entertain an application under
Section 34 of the Act of 1996 in terms of the provisions of Section 42
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of the said Act. In such view of the facts, learned District Judge at
Alipore, South 24 Parganas, by its order dated August 14, 2018
accepted the objection as to its jurisdiction to entertain an application
under Section 34 of the Act of 1996 and directed return of the
application under Section 34 of the Act, being Misc. Case No. 298 of
2018. Such order of learned District Judge, Alipore was challenged in
C.O. No. 3328 of 2018 and was upheld by a Single Bench of this
Court. The impugned order notes that the application under Section
29A of the Act of 1996 filed at the behest of respondents was decided
in presence of the appellant.
21. The impugned judgment and order also noted that by an
order dated August 1, 2018 passed by a Single Judge of this Court in
EC No. 327 of 2018, the appellant was restrained from transferring,
alienating, encumbering or in any way dealing with the immoveable
properties involved in the arbitration. Such order was never
challenged by the appellant for lack of jurisdiction. The appellant was
well aware of filing of application under Section 29A before the High
Court at Calcutta and in fact, it was contested by the appellant there.
Therefore, in terms of the forum selection clause envisaged under
Section 42 of the Act of 1996, the High Court on its Original Side is
the first Court having jurisdiction to entertain an application under
Section 34. Nevertheless, the appellant proceeded to file an application
under Section 34 before the learned District Judge, Alipore, South 24
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Parganas and an order passed therein for return of the application
was challenged up to the High Court in C.O. No. 3328 of 2018.
22. As noted above, the impugned award was passed on February
28, 2018. The judgment and order impugned herein, notes that the
appellant filed the initial challenge to the award before learned District
Judge at Alipore, well within the time prescribed under Section 34 (3)
of the Act which, however, culminated into order dated August 14,
2018, directing return of the application on account of lack of
jurisdiction for its presentation before the appropriate Court having
jurisdiction. Such order was challenged and upheld by order passed
by a Single Judge of this Court on January 24, 2019 in C.O. No. 3328
of 2018. It is after the disposal of C.O. No. 3328 of 2018, the appellant
approached the Court of the learned District Judge, Alipore on
February 5, 2019 to receive back the original award and thereafter,
the application under Section 34 of the Act of 1996 being A.P. 74 of
2019 was filed before the High Court on its Original Side.
23. Therefore, the arbitral award dated February 28, 2018 came
to be challenged under Section 34 of the Act of 1996 on February 6,
2019 by A.P. No. 74 of 2019. It was contended on behalf of appellant
that the time consumed in prosecuting Misc. Case No. 298 of 2018
before the learned District Judge, Alipore and C.O. No. 3328 of 2018
before this Court should be excluded in terms of the provisions of
Section 14 of the Limitation Act, 1963.
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24. We have noted hereinbefore that the order dated September 5,
2017 in A.P. No. 712 of 2017 under Section 29A of the Act of 1996
was passed in presence of the appellant. Nothing is placed before us
that the appellant raised any objection as to the jurisdiction of the
Court passing such order. The said order was also not challenged by
the appellant. If that be so, the appellant cannot be seen to
subsequently turn around to raise objection as to the jurisdiction of
the Court passing order dated September 5, 2017. In such view of the
facts, it cannot be said that the appellant observed due diligence in
pursuing the other proceedings namely Misc. Case No. 298 of 2018
and C.O. No. 3328 of 2018.
25. Moreover, after the order of return of the application under
Section 34 by the learned District Judge, Alipore dated August 14,
2018, and order dated January 24, 2019 in C.O. No. 3328 of 2018 by
the High Court, the appellant approached the Court of learned District
Judge to receive back the original award on February 5, 2019 and
thereafter came up with a fresh application under Section 34 on
February 6, 2019 by way of A.P. No. 74 of 2019. No explanation,
whatsoever, has been advanced to explain the delay occurring between
January 24, 2019 when the order in C.O. No. 3328 of 2018 was
passed and February 6, 2019 being the date of thing of fresh
application under Section 34 of the Act of 1996.
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26. Further, no explanation, whatsoever, has been placed on
record to elucidate that when upon passing of the order dated January
24, 2019 in C.O. No. 3328 of 2018, the appellant approached the
Court of learned District judge, Alipore to receive back the original
award on February 5, 2019 for its presentation before the appropriate
Court, what prevented him from receiving back the original application
under Section 34 for the self-same purpose. A fresh application under
Section 34 being A.P. No. 74 of 2019 came to be filed by the appellant
on February 6, 2019 before the High Court. Ideally, the original
application with the relevant endorsement by the Court concerned or
with a copy of the order directing return of the application, ought to
have been presented before the Court having jurisdiction which has
apparently, not been done. True it is, the appellant was at liberty to
file a fresh application under Section 34 of the Act of 1996 but such
legal right is subject to the laws of limitation.
27. In EXL Careers and Another (supra) noted paragraph 17 of
the decision rendered in ONGC Vs. Modern Construction & Co.
(2014) 1 Supreme Court Cases 648 and held thus,
“15. Modern Construction, referred to the consistent position in
law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon
& Co., Amar Chand Inani v. Union of India, Hanamanthappa
v. Chandrashekharappa, Harshad Chimanlal Modi (2) and
after also noticing Joginder Tuli, arrived at the conclusion as
follows: (Modern Construction case, SCC p. 654, para 17)
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“17. Thus, in view of the above, the law on the issue
can be summarised to the effect that if the court where
the suit is instituted, is of the view that it has no
jurisdiction, the plaint is to be returned in view of the
provisions of Order 7 Rule 10 CPC and the plaintiff can
present it before the court having competent jurisdiction.
In such a factual matrix, the plaintiff is entitled to
exclude the period during which he prosecuted the case
before the court having no jurisdiction in view of the
provisions of Section 14 of the Limitation Act, and may
also seek adjustment of court fee paid in that court.
However, after presentation before the court of
competent jurisdiction, the plaint is to be considered as
a fresh plaint and the trial is to be conducted de novo
even if it stood concluded before the court having no
competence to try the same.”
Joginder Tuli was also noticed in Harshad Chimanlal Modi (2)
but distinguished on its own facts.
16. ……..
17. We regret our inability to concur with Oriental Insurance
Co. Ltd., relied upon by Mr Patwalia, that in pursuance of
the amendment dated 1-2-1977 by reason of insertion of
Rule 10-A to Order 7, it cannot be said that under all
circumstances the return of a plaint for presentation before
the appropriate court shall be considered as a fresh filing,
distinguishing it from Amar Chand. The attention of the
Court does not appear to have been invited to Modern
Construction and the plethora of precedents post the
amendment.”
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28. The Karnataka High Court in the case of M/s Kotak
Securities Limited (supra), held to the following:
“20. Even assuming that in certain circumstances, the filing of
the same petition which was returned with an endorsement
stating that the said Court had no jurisdiction is not
mandatory in all cases and that a fresh petition could be
presented before the Court having jurisdiction, ultimately it is
for the Court which is to be satisfied about the cause shown.
Therefore, it has to be stated that in the facts and
circumstances of this case, where the appellant has not
chosen to re-present the original papers, it was incumbent
upon him to explain the circumstances under which it could
not re-present the papers and chose to file a fresh petition,
Therefore, we hold that in appropriate cases, appellant whose
petition is returned due to want of jurisdiction can seek
exemption from re-presenting the very papers on the Court
being satisfied of the loss or destruction of papers for reasons
beyond the control of the appellant and that the exclusion of
time under Section 14 is not conditional on the appellant re-
presenting the very papers in all cases, but if the appellant
chooses to file a fresh petition, it is incumbent upon
him to explain to the satisfaction of the Court the
reasons for his omission in not re-presenting the papers
and to satisfy the requirements mentioned under
Section 14(1) & (2) of the Limitation Act, as the case may
be to avail the benefit of exclusion of time taken in prosecuting
the previous petition, In the instant case, there is no such
explanation, Therefore, the appellant cannot avail the benefit
of Section 14(1) or 14(2) of the Limitation Act.”
[Emphasis supplied]
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29. In the case at hand, we have noted that no explanation,
whatsoever, has been offered by the appellant for not presenting the
original application and instead filing a fresh one. In order to claim the
benefits of Section 14 of the Limitation Act, the appellant was obliged
to explain the circumstances for filing a fresh application under
Section 34 instead of the one which was directed to be returned by the
Court not having jurisdiction to entertain it, though, the original
award under challenge was consciously received back from such
Court.
30. In Consolidated Engineering Enterprises (supra), the
Hon’ble Supreme Court laid down the difference in the applicability of
Section 5 of the Limitation Act, 1963 vis-Ã -vis Section 14 thereof in the
following terms:
“28. Further, there is fundamental distinction between the
discretion to be exercised under Section 5 of the Limitation Act
and exclusion of the time provided in Section 14 of the said
Act. The power to excuse delay and grant an extension of time
under Section 5 is discretionary whereas under Section 14,
exclusion of time is mandatory, if the requisite conditions are
satisfied. Section 5 is broader in its sweep than Section 14 in
the sense that a number of widely different reasons can be
advanced and established to show that there was sufficient
cause in not filing the appeal or the application within time.
The ingredients in respect of Sections 5 and 14 are different.
The effect of Section 14 is that in order to ascertain what is
the date of expiration of the “prescribed period”, the days
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excluded from operating by way of limitation, have to be
added to what is primarily the period of limitation prescribed.
Having regard to all these principles, it is difficult to hold that
the decision in Popular Construction Co. [(2001) 8 SCC 470]
rules that the provisions of Section 14 of the Limitation Act
would not apply to an application challenging an award under
Section 34 of the Act.
29. As this Court holds that Section 14 of the Limitation Act,
1963 is applicable to an application filed under Section 34 of
the 1996 Act for setting aside an award made by an
arbitrator, the appeal arising from Special Leave Petition (C)
No. 10311 of 2005 will have to be dismissed because the
Division Bench of the High Court of Karnataka has in terms
held that there was no lack of bona fides on the part of the
respondents and that the respondents had diligently
prosecuted the matter before the other court and had also
immediately after coming to know the lack of jurisdiction of
the court had filed the memo seeking withdrawal of the
appeal and presented the same before the lower court which
had the jurisdiction.”
31. In the aforesaid authority the Hon’ble Supreme Court further
laid down that,
“56. In Parson Tools this Court did not hold that Section 14(2)
was excluded by reason of the wording of Section 10(3-B) of
the Sales Tax Act. This Court was considering an appeal
against the Full Bench decision of the Allahabad High Court.
Two Judges of the High Court had held that the time spent in
prosecuting the application for setting aside the order of
dismissal of appeals in default, could be excluded when
computing the period of limitation for filing a revision under
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Section 10 of the said Act, by application of the principle
underlying Section 14(2) of the Limitation Act. The minority
view of the third Judge was that the revisional authority
under Section 10 of the U.P. Sales Tax Act did not act as a
court but only as a Revenue Tribunal and therefore the
Limitation Act did not apply to the proceedings before such
Tribunal, and consequently, neither Section 29(2) nor Section
14(2) of the Limitation Act applied. The decision of the Full
Bench was challenged by the Commissioner of Sales Tax
before this Court, contending that the Limitation Act did not
apply to tribunals, and Section 14(2) of the Limitation Act was
excluded in principle or by analogy. This Court upheld the
view that the Limitation Act did not apply to tribunals, and
that as the revisional authority under Section 10 of the U.P.
Sales Tax Act was a tribunal and not a court, the Limitation
Act was inapplicable. This Court further held that the
period of pendency of proceedings before the wrong
forum could not be excluded while computing the period
of limitation by applying Section 14(2) of the Limitation
Act. This Court, however, held that by applying the
principle underlying Section 14(2), the period of
pendency before the wrong forum may be considered as
a “sufficient cause” for condoning the delay, but then
having regard to Section 10(3-B), the extension on that
ground could not extend beyond six months. The
observation that pendency of proceedings of the nature
contemplated by Section 14(2) of the Limitation Act, may
amount to a sufficient cause for condoning the delay and
extending the limitation and such extension cannot be for a
period in excess of the ceiling period prescribed, is in the light
of its finding that Section 14(2) of the Limitation Act was
inapplicable to revisions under Section 10(3-B) of the U.P.
Sales Tax Act. These observations cannot be interpreted as
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laying down a proposition that even where Section 14(2) of the
Limitation Act in terms applied and the period spent before
wrong forum could therefore be excluded while computing the
period of limitation, the pendency before the wrong forum
should be considered only as a sufficient cause for extension
of period of limitation and therefore, subjected to the ceiling
relating to the extension of the period of limitation. As we are
concerned with a proceeding before a court to which Section
14(2) of the Limitation Act applies, the decision in Parson Tools
which related to a proceeding before a Tribunal to which
Section 14(2) of the Limitation Act did not apply, has no
application.”
[Emphasis supplied]
32. Seenappa (supra) was rendered by Karnataka High Court in
the context of a partition suit where a second partition suit was filed
without taking leave in the earlier suit to file a fresh suit. The High
Court observed that if the plaintiff does not avail the concession of
taking return of the plaint and the Court fee and does not present the
same plaint on which he paid the Court fee in a Court of competent
jurisdiction, it does not bar him to file a fresh suit by again paying
Court fee in a Court of competent jurisdiction. The High Court also
observed that Order VII, Rule 10 of Civil Procedure Code does not
disentitle a party from filing fresh suit in Court of competent
jurisdiction, if he does not choose to take return of the plaint filed in a
wrong Court for presentation in proper Court.
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33. In M.P. Steel Corporation (supra) the Hon’ble Supreme
Court noted that the provisions contained in Section 14 of the
Limitation Act, 1963 should be construed liberally. It was laid down
that,
“35. This judgment is in line with a large number of
authorities which have held that Section 14 should be liberally
construed to advance the cause of justice–see Shakti Tubes
Ltd. v. State of Bihar [(2009) 1 SCC 786 : (2009) 1 SCC (Civ)
370] and the judgments cited therein. Obviously, the context of
Section 14 would require that the term “court” be liberally
construed to include within it quasi-judicial tribunals as well.
This is for the very good reason that the principle of Section 14
is that whenever a person bona fide prosecutes with due
diligence another proceeding which proves to be abortive
because it is without jurisdiction, or otherwise no decision
could be rendered on merits, the time taken in such
proceeding ought to be excluded as otherwise the person who
has approached the court in such proceeding would be
penalised for no fault of his own. This judgment does not
further the case of Shri Viswanathan in any way. The
question that has to be answered in this case is whether
suits, appeals or applications referred to by the Limitation Act
are to be filed in courts. This has nothing to do with “civil
proceedings” referred to in Section 14 which may be filed
before other courts or authorities which ultimately do not
answer the case before them on merits but throw the case out
on some technical ground. Obviously the word “court” in
Section 14 takes its colour from the preceding words “civil
proceedings”. Civil proceedings are of many kinds and need
not be confined to suits, appeals or applications which are
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made only in courts stricto sensu. This is made even more
clear by the explicit language of Section 14 by which a civil
proceeding can even be a revision which may be to a quasi-
judicial tribunal under a particular statute.”
34. Therefore, on the basis of ratio laid down in the
aforementioned authorities, it is evident that in order to avail the
benefits under Section 14 of the Limitation Act, the party claiming
benefits has to establish that there was observance of due diligence on
the part of such party in pursuing the proceedings in the wrong
forum.
35. In the order dated February 26, 2021 passed by the Hon’ble
Supreme Court in Special Leave to Appeal (C) No(s). 3269-3270 of
2021, between the self-same parties, it was observed that,
“Prima facie, the application filed by the Respondents under
Section 34 of the Arbitration and Conciliation Act, 1996 is barred
by limitation, the same having been filed in the High Court well
beyond four months from the date of the receipt of the Award.
The learned Single Bench has, by a reasoned judgment rejected
the claim of the Respondents to the benefit of Section 14 of the
Limitation Act, 1963.
Even assuming that the proceedings under Section 34 of
the Arbitration and Conciliation Act, 1996 in the District
Court, were instituted bona fide there could be no bona
fide reason for pursuing a Civil Revision Application from
the reasoned order of the District Court returning the
application under Section 34 for presenting the same
before the appropriate Court instead of re-filing the
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application under Section 34 in the Original Side of the
High Court, the respondents filed a Civil Revisional
Application, and thereby caused delay.”
[Emphasis supplied]
36. In view of the observations made by the Hon’ble Supreme
Court, the appellant cannot be said to have acted with requisite
bonafide as contemplated under Section 14 of the Limitation Act,
1963, in pursuing the Civil Revision being C.O. 3328 of 2018 and as
such, the appellant is not entitled to the benefits of such provision.
37. On the basis of discussion made hereinabove, we find no
materials to interfere with the impugned judgment and order. The
same stands affirmed. Consequently, APO No. 27 of 2021 is hereby
dismissed. Connected application(s), if any, shall also stand disposed
of. There will be no order as to costs, however. Trial Court Records be
returned to the appropriate Court.
38. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
39. I agree.
[DEBANGSU BASAK, J.]
