JUDGMENT
A.P. Shah, J.
1. Admit. Respondents waive service. By consent of the parties appeals are taken up for final hearing. Cross objections filed by the respondents are taken on record.
2. Appeal No. 556 of 2003 is directed against the order of Rebello, J. dismissing the notice of motion seeking condonation of delay in filing the petition under Section 34 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the “1996 Act”, which was earlier filed before the Delhi High Court and which was returned to the appellants herein for filing before the appropriate court. The appellants wanted that period to be excluded for computing the period of limitation under Section 34 of the Act of 1996 by recourse to Section 14 of the Limitation Act, 1963. As the delay has not been condoned, the petition under Section 34 came to be dismissed. Appeal No. 555 of 2003 is preferred against the dismissal of the petition. The principal question which falls for our determination is whether the provisions of Section14 of the Limitation Act, 1963 are applicable to an application challenging an award under Section 34 of the 1996 Act.
3. The award in this case came to be passed on 31-10-2001. The appellants challenged the award by filing petition on 20-12-2001 within the period prescribed under Section 34 of the 1996 Act before the High Court at Delhi. An application was moved for seeking correction to the award before the learned Arbitrators. The award came to be corrected by order dated 22-12-2001. Another application was made for correction of the award which was allowed by order dated 29-12-2001. The respondents herein raised objection before the Delhi High Court that it had no jurisdiction to entertain the petition because it was not the court within the meaning of Section 2(e) of the 1996 Act. On hearing parties, order came to be passed on 18-4-2002 holding that the Delhi High Court would have no jurisdiction and pursuant to that returned the papers to the appellants to present the proceedings before the competent forum. The papers were returned to the appellants on 18-5-2002. After the papers were returned, the petition was presented before this court on 22-8-2002. A notice of motion for condonation of delay has been filed on 18-12-2002. Insofar as applicability of Section 14 of the Limitation Act, 1963 Rebello, J. held that the decision of the Supreme Court in Union of India v. Popular Construction Company, is confined to Section 5 of the Limitation Act. The learned Judge further held that the provisions of Section 14 of the Limitation Act, 1963 are not excluded while considering provisions insofar as excluding time in presenting the petition which was filed in time or within the period provided by the court. The learned Judge further held that the judgment of Justice Srikrishna, as he then was, in the case of Pushpa P. Mulchandani and Ors. v. Admiral Radhakrishin Tahilani (Retd.) and Ors. 2000(4) Mh.LJ. 819 holding that the provisions 4 to 24 of the Limitation Act are not applicable to the petition under Section 34 is no longer good law in view of the decision of Supreme Court in the case of Popular Construction Company (supra) where the Supreme Court specifically held that because of the express language, provisions of Section 5 are not applicable. The learned Judge, however, held that even if the period of 20-12-2001 to 18-5-2002 is excluded, the petition as filed before this court was not within the period of limitation as the appellants had not amended the petition by challenging the award as amended on 22-12-2001 and 29-12-2001, therefore the period of limitation must be deemed to have commenced on the date of the award was amended and the copy was served. Consequently the notice of motion and the petition came to be dismissed.
4. The main issue that falls for consideration is whether considering the provisions of Section 14 of the Limitation Act, 1963, the time taken in proceeding before the Delhi High Court, where it was filed which had no jurisdiction can be excluded, Section 34(3) of the 1996 Act reads as under:
“An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal.
Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter.”
5. Section 29(2) of the Limitation Act, 1963 reads as under:
“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 contends in Section 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law”.
6. Section 3(1) of the Limitation Act, 1963 provides that subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred and application made after the prescribed period, shall be dismissed although limitation has not been set up as defence. The cumulative effect of Section 3 and Section 29(2) of the Limitation Act, 1963 is that where any special or local law prescribes for a proceeding a period of limitation different from the provision made in that regard in the Schedule to the Limitation Act, then Section 3 shall be applicable as if such period were the period prescribed by the schedule and for ascertaining the period of limitation prescribed for any proceeding by any special or local law. Sections 4 to 24 shall be applied to the extent to which there is no express exclusion of their applicability by such special or local law. It is settled position of law that even in case where the law does not exclude provisions of sections 4 to 24 by express reference, it would nonetheless open to the court to examine whether and to what extent the nature of the subject matter and scheme of the special law or local law exclude their operation.
7. In Hukumdev Narain Yadav v. Lalit Narain Mishra, the Supreme Court was concerned with an election petition under Section 81 of the Representation of the People Act, 1951. The issue was whether a petition which could not have been filed on a particular day because the Court was closed on that day and filed on the next day was barred by limitation. The Supreme Court in that decision held as follows : (page 146 SCC)
“.. …It is contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law excluded their operation”.
Again the Supreme Court observed in para 18 : (page 147 SCC)
“It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29(2) of the Limitation Act says, because it provides that sections 4 to 24 (inclusive) shall apply only so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law. ……The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act, but by the provisions of the Act relating to the filing of election petition and their trial to ascertain whether it is a complete Code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of the Act”.
The Supreme Court took a view that the Representation of the People Act was a self-contained Code and, therefore, the provisions of Section 5 of the Limitation Act did not govern filing of the election petition and the appeal and sections 4 to 24 of the Limitation Act were excluded from the application.
8. In Mohd. Ashfaq v. State Transport Appellate Tribunal, UP and ors, the court was concerned with the interpretation of Section 58 of the Motor Vehicles Act, 1939. This section provided that a motor vehicle permit could be renewed on an application provided the application for renewal was made, (a) in case of a stage carriage permit or a public carrier’s permit, not less that one hundred and twenty days before the date of its expiry; and (b) in any other case, not less than sixty days before the date of its expiry. Sub-section (3) of the Act provided,
“Notwithstanding anything contained in the first proviso to Sub-section (2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than fifteen days after the said last date and is accompanied by the prescribed fee”. It was contended before the Supreme Court that by virtue of Section 29(2) read with Section 5 of the Limitation Act, the Regional Transport Authority had discretion to condone the delay in making an application for permit even if it was done beyond the period prescribed in Section 58 as long as there was good cause for it. The court held that the delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days. The court observed that even though provision may seem harsh, it had been deliberately so made by the Legislature taking into account the nature of the application and the consequences that would arise if such applications were inordinately delayed.
9. In the case of Popular Construction Company (supra), the submission before the Court was that since the 1996 Act did not expressly exclude sections 4 to 24 and if there was sufficient cause for delay in filing the application under Section 34, the delay can be condoned. The Court after considering its earlier decision in the case of Vidyacharan Shukla v. Khubchand Baghel, and Hukumdev Narain Yadav (supra) observed that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. The court held that Section 5 of the Limitation Act stood excluded as far as Section 34 of the 1996 Act is concerned. The relevant observations of the Supreme Court are reproduced below :
“12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to subsection (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of the Act. Parliament did not need to go further, to hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.
13. Apart from the language, “express exclusion” may follow from the scheme and object of the special or local law :
“Even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions of the nature of the subject matter and scheme of the special law exclude their operation”. (SCC p. 146, para 17)
14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act, The Arbitration and Conciliation Act, 1995 which preceded the 1996 Act stated as one of its main objectives the need “to minimize the supervisory rule of courts in the arbitral process”. This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms :
“5. Extent of judicial intervention. — Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part”
15. The “Part” referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitration. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act.
16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award “in accordance with” Sub-section (2) and Sub-section (3), Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application “in accordance with” that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasized by the provisions of Section 36 which provide that:
“where the time for making an application to set aside the arbitral award under Section 34 has expired…… the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court”.
This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to “proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow” (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court’s powers by the exclusion of the operation of Section 5 of the Limitation Act”.
10. It is true that the decision of the Supreme Court relates to the applicability of Section 5 of the Limitation Act but the Court has pointed out that Section 34(1) itself provides that the recourse to a Court against an arbitral award can be made only by an application for setting aside such an award in accordance with Sub-section (2) and Sub-section (3). Any application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application in accordance with that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. It was observed that to hold that the Court would entertain an application to set aside an award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. The court has also considered the history and the scheme of the 1996 Act and came to the conclusion that the time limit prescribed under Section 34 to challenge the award is absolute and unextendable by court under Section 5 of the Limitation Act. The Court has also pointed out that by enacting Section 36 the Legislature has made a significant departure from the provisions of the Arbitration Act, 1940, inasmuch as consequent to the time expiring under Section 34 of the 1996 Act, the award becomes immediately enforceable without any further act of the court.
11. The Limitation Act, 1963 does not in terms prescribe any limitation for an application to set aside an award. Section 34 itself has prescribed the limitation in Sub-section (3), the limitation being a period of three months from the date on which the party making that application had received the arbitral award, or if a request has been made under Section 33, from the date on which such a request has been disposed of by the arbitral tribunal. Section 34(3) clearly provides that no application can be made after the expiry of three months. Proviso to Sub-section (3) enables the court to entertain such an application if satisfied that the applicant was prevented by sufficient cause from making the application, but provides that such an application can be entertained only within a further period of 30 days but not thereafter. If the view taken by the learned Judge is to be accepted it would render the words “but not thereafter” occurring in the proviso of Section 34(3) completely nugatory. The Legislature has provided in clear terms that after the period of 3 months and 30 days, the court has no power to condone the delay in the presentation of the application. In our view the provisions of sections 4 to 24 of the Limitation Act, cannot apply to an application under Section 34(3) inasmuch as the provision of Section 34(3) is a complete and self contained code, which does not admit introduction or application of provisions of law contained in sections 4 to 24 of the Limitation Act and there is clear indication of the intention of the Legislature to exclude the provisions of sections 4 to 24 of the Limitation Act.
12. In the light of the above discussion we are of the view that the learned single Judge was not right in holding that the provisions of Section 14 which provide for exclusion of the period are not excluded by the scheme of the 1996 Act. In Pushpa P. Mulchandani v. Admiral Radhakrishin Tahilani upon examination of the decisions in the filed Srikrishna, J. has clearly held that notwithstanding that the 1996 Act contains no specific words of exclusion, an examination of the scheme of the Act would suggest that the intention is to exclude the application of the provisions of sections 4 to 24 of the Limitation Act. We are in respectful agreement with the view expressed in the case of Pushpa P. Mulchandani. We may also mention that though the decision in Popular Construction Company is rendered after the decision in Pushpa P, Mulchandani’s case, the conclusions in Pushpa P. Mulchandani’s case are fully supported by the decision in Popular Construction Company’s case. It is impossible to subscribe to the view taken by the learned single Judge that the law laid down in Pushpa P. Mulchandani’s case is no longer a good law in view of the decision in the case of Popular Construction Company.
13. For all these reasons we have come to the conclusion that the provisions of Section 14 of the Limitation Act, 1963 do not govern the filing of petition under Section 34 of the 1996 Act and in this view, it is unnecessary to deal with the other contentions raised in the appeal.
14. The appeals are accordingly dismissed but in the circumstances of the case without costs.
15. The learned counsel for the appellant seeks leave to appeal to the Supreme Court under Article 133 read with Article 134A of the Constitution. Application is rejected.