1. The petitioner who has suffered an order in his Application in I.A No. 62 of 2004 in A.R.O.P No. 1268 of 2004, on the file of the District Judge, Kanyakumari at Nagercoil is before this Court.

2. The Short matrix of the case is as follows:

(a) The respondent has filed Original Petition before the District Judge, Kanyakumari at Nagercoil, against the order passed by the Arbitrator dated 16.10.2002 The said Original Petition has been filed with an Application to condone the delay of 180 days in filing fresh Original Petition, which has been stoutly opposed by the petitioner. The learned District Judge, Kanyakumari at Nagercoil, by his order dated 19.10.2004, allowed the Application filed by the respondent under Section 5 of the Limitation Act, condoning the delay of 180 days in filing the said Original Petition. The said order is questioned by the respondent in this Revision Petition.

(b) The respondent in his affidavit filed in support of the Application under Section 5 of the Limitation Act, has averred as follows:

“The said Original Petition has been filed before the District Judge, Kanyakumari at Nagercoil on 13.01.2003, in SR. No. 188 of 2003. The same has been returned granting one month time on 20.01.2003 It has been represented on 20.02.2003 Again the same was returned on 06.03.2003, which came to the knowledge of the respondent on 17.03.2003 Later, it has been resubmitted on 7.4.2003 It is further alleged that the respondent was under the impression that the Original Petition would have been numbered but on enquiry on 16.06.2003, the Original Petition was not numbered and the represented O.P papers was not available and hence, a fresh Original Petition has been filed with an Application to condone the delay of 180 days.”

3. The said Application to condone the delay of 180 days has been resisted by the petitioner herein who has been arrayed as respondent in the said Application by filing counter to the followinq manner:

“The statement that the returned Original Petition was represented on 07.04.2003, is totally incorrect. In pursuance of the award, the petitioner herein has filed an Application for executing the award on 07.03.2003 and the respondent herein has appeared in that matter on 29.07.2003, 07.11.2003, 11.02.2003, 09.01.2004, 30.01.2004, 12.02.2004, 20.02.2004 and on 05.03.2004 In none of the dates, when the matter has been posted, the respondent has not raised any contention regarding the filing of the application under Section 34 of the Act, to set aside the award on 13.01.2003 Only on 12.03.2004, the respondent has represented before the Executing Court, that the Original Petition, to set aside the award, has been filed under Section 34 of the Act. Immediately, the petitioner herein has verified with the Registry through his Advocate and found that the O.P papers were not represented on 07.04.2003 Thus, according to the petitioner herein, his returned O.P papers were not represented on 07.04.2003, on the allegation that the whereabouts of the represented O.P papers were not available is utter false one. Therefore, the respondent herein cannot maintain the Second Original Petition by filing an Application under Section 5 of the Limitation Act. It has been further averred that the Second Original Petition cannot be entertained in view of the fact, that it is barred by limitation.”

4. Mr. AR.L Sunderesan, learend Senior Counsel for Ms. AL. Gandhimathi, appearing for the petitioner strenuously contended that:

(a) Since the respondent has not established the fact that the Original Petition that has been filed and returned have been represented on 07.04.2003 and then further allegation that the whereabouts of reprepresented O.P papers could not be traced has not been established, the Court below should not have condoned the delay of 180 days in preferring the fresh O.P;

(b) Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter called ‘the Act’) clearly states to set aside the award, the Application has to be made within three months from the date of the receipt of the award. Further period of 30 days is provided under the proviso if the Court is satisfied that the applicant was prevented by sufficient cause, from making the Application within the said period of three months. Thus, according to the learned Senior Counsel for the petitioner, the respondent herein ought to have filed the Original Petition for setting aside the award within a period of three months or at least within 30 days thereafter, and that to by showing sufficient reasons. In the case on hand, the respondent has come forward with an Application to condone the delay of 180 days and hence, the Original Petition is clearly barred by limitation and shall not have been entertained.

(c) The Court below did not considered all the above referred submissions and erroneously allowed the application filed by the respondent herein condoning the delay of 180 days which is totally against the provisions contemplated under the said Act.

5. Per contra, Mr. D. Gandhiraj, learned Government Advocate appearing for the respondent contended that:

(a) Since the O.P papers which have been represented on 07.04.2003 and the same have been misplaced by the office, it has necessitated the respondent to file the fresh Original Petition, with an application to condone the delay of 180 days and the Court below has rightly allowed the said Application which cannot be said to be erroneous.

6. I have heard the learned Senior counsel for the petitioner and the learned Government Advocate appearing for the respondent.

7. It is true that the respondent has filed an Application under Section 34 of the Act, for setting aside the award passed on 13.01.2003 and the same has been returned on 20.01.2003, granting one month time to represent the papers. It was again represented on 20.02.2003 Once again the O.P papers were returned on 06.03.2003 But there is no proof to show that it has been resubmitted on 07.04.2003 In this connection, it is relevant to mention that this Court by an order dated 14.02.2006, has passed the following order:

“Registry is directed call for a report from the learned District Judge, Kanyakumari at Nagercoil about the claim of the petitioner that he has filed a Petition with paper and the same was lost and further, whether any representation was made and also as to whether any order was passed to reconstruct the papers as alleged in para 5 & 6 in the grounds of CRPs, by sending copy of the grounds of CRPs, within a period of two weeks.”

8. In pursuance of the said direction, the then District Judge, Kanyakumari at Nagercoil, has sent the following report:

“I submit that the Honourable Madurai Bench of the Madras High Court in its letter CO. No. 27/2006 dated 17.02.2006 has directed to submit a detailed report on the following points namely,

1. Whether the petitioner has represented the Petition with paper on 07.04.2003?

2. Whether any representation was made about the loss of papers represented? and

3. Whether any order was passed to reconstruct the paper as alleged in para 5 and 6 of the grounds of C.R.Ps

In this connection, for the 1st point, I submit that the State Government has filed an arbitration appeal in the form of O.P on 13.01.2003 with main Petition, Copy of petition, Process memo, Summon, Copy of agreement and Copy of award, which were entered in the Court fee Register (C.R 19) as S.R 189/2003. On perusal of the above register, it is found that the same were returned on 21.01.2003 and taken back on and represented on 20.02.2003 and entered in the Court fee Register as S.R 763/2003 and the above Petition were again returned by the office on 06.03.2003 and the same were taken back by the staff of the Government Pleader on 17.03.2003 After taking back the papers no representation was made on 07.04.2003 as stated. But in fact, a fresh new Main Appeal in the form of O.P Along with copy, Process memo, Summons, Copy of agreement and Copy of award were presented on 15.07.2003 and entered in the Court fee register as S.R 2710/2003 and the said papers were returned on 25.07.2003 and taken back by the staff of Government Pleader on 29.07.2003 and represented on 29.01.2004 and entered in the Court fee Register as S.R 454 of 2004 and returned on and taken back on 06.03.2004 and represented on 10.03.2004 and assigned as S.R 1269/2004 and the petition filed to condone the delay of 180 days was numbered as I.A 63/2004 on 12.03.2004

I further submit that at the time of presenting the fresh O.P on 15.07.2003 no representation was made about the loss of records filed under S.R 189/2003 on 13.01.2003 But in fact, the Main Petition with copy of award and copy of agreement entered as S.R 181/2003 were not represented on 07.04.2003 eventhough the same were taken back on 17.03.2003

2. For the point No. 2, I submit that no representation was made for the alleged loss of Petition and other papers enclosed in S.R 189/2003.

3. For the point No. 3, I submit that no order was passed by the Court for the reconstruction of the papers originally presented under S.R 189 on 13.01.2003”

9. Thus, it is very clear that the respondent has not represented the O.P papers on 07.04.2003, as alleged by the respondent in his affidavit filed in support of the Application to condone the delay of 180 days in filing the fresh Original Petition.

10. When this is the clear and factual position, now it has to be seen whether the respondent can maintain a fresh O.P, that to with an Application to condone the delay of 180 days. In order to appreciate the submissions made by the learned counsel for the petitioner and the respondent, it would be necessary to reproduce the Section 34(1) and (3) of the Act which reads as follows:

“34. Application for setting aside arbitral award. — (1) 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).

………………………

(3) 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 Application was prevented by sufficient cause from making the applicant within the said period of three months it may entertain the Application within a further period of thirty days, but not thereafter.”

11. The above said provision clearly reads that an Application for setting aside the award shall be made within three months from the date of receipt of award and if sufficient reason is shown, the Application can be maintained with a further period of 30 days.

12. The language of Section 34 if plainly read, it expressly excludes operation of Section 5 of the Limitation Act and hence, there is no scope for assessing reasons beyond the period prescribed in the Proviso to Section 34. In this connection, it will be useful to refer Section 29(2) of the Limitation Act, 1963. Section 29(2) provides that:

“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”.

13. Thus, if special period of limitation has been prescribed for making Application for any condonation of delay or any other purpose that period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. There cannot be any dispute about the said preposition. Further more, as far as Section 34 of the Arbitration and Conciliation Act, 1996 is concerned, the crucial words are “but not thereafter” used in the Proviso to sub-section 3.

14. The said phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act. To hold that the Court can entertain an Application to set aside the award beyond the extended period under the proviso would render the phrase “but not thereafter” wholly otiose.

15. In this connection, the learned Senior Counsel appearing for the petitioner has brought to my notice to the Judgment reported in Union Of India v. Popular Construction Co.., 2001 (4) CTC 213: 2001 (8) SCC 470 wherein, the Apex Court has clearly held as follows:

“Arbitration — Arbitration and Conciliation Act, 1996, Section 34(3) and Proviso — Limitation — Held, Section 5, Limitation Act, 1963 not applicable to proceedings under Section 34 for setting aside arbitral award — Words “but not thereafter” in Proviso to sub-section (3) amount to an express exclusion within meaning of Section 29(2), Limitation Act — Express exclusion can also be inferred from history, scheme and objectives of the 1996 Arbitration Act, one of whose main objectives is to restrict judicial intervention in arbitral matters as much as possible — High Court rightly affirmed the dismissal of appellant's Application challenging the award almost eight months after it was received from arbitrator.”

16. Thus, the only conclusion that could be arrived on the above referred discussion is that the Application filed by the respondent to condone the delay of 180 days in preferring the Original Petition for setting aside the award cannot be entertained.

17. The learned Government Advocate appearing for the respondent has drawn my attention to the Judgment reported in State Of Goa v. Western Builders, V (2006) SLT 511. By citing the said Judgment, the learned Government Advocate submitted that the Apex Court has held that Limitation Act will be applicable is respect of the proceedings under the Arbitration and Conciliation Act, 1996. But I am unable to accept the said contentions of the learned Government Advocate. It is useful to refer paragraphs 22 and 23 of the said Judgment which reads as follows:

“Therefore, in the present context also it is very clear to us that there is no two opinions in the matter that the Arbitration and Conciliation Act, 1996 do not expressly excluded the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite the commercial issue expeditiously. It is also clear in the statement of objects and reasons that in order to recognize economic reforms the settlement of both of domestic and international commercial disputes should be disposed of guickly so that country's economic progress be expedited. The statement of objects and reasons also nowhere indicate that Section 14 of the Limitation Act shall be excluded. But on the contrary intendment of Legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of sub-section (2) of Section 29 of the Limitation Act, its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub-section (2) of Section 29 of Limitation Act with reference to other Acts like The Representation of Peoples Act or the provisions of Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of Section 29 of the Limitation Act that the provisions of Limitation Act shall stand excluded in Act of 1996 to the extent area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub-section (3) only the Application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of Limitation will stand excluded but there is no provision in the Act of 1996 which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so.

As the result of the above discussion we are of the opinion that the view taken by the Court below excluding the applicability of Section 14 in this proceeding is not correct. We hold that Section 14 of the Limitation Act, 1963 is applicable in the Arbitration and Conciliation Act, 1996. We set aside all the judgments/Order and remand all these cases back to the Trial Court/District Court for deciding the Application under Section 14 of Limitation Act on merit after hearing both the parties and in case the delay is condoned then the case should be decided on merits after hearing all the concerned parties.”

18. In the above said Judgment, the consideration before the Apex Court was whether Section 14 of the Limitation Act, has been extended from the provisions of the Arbitration and Conciliation Act, 1996. Hence, the said Judgment will not be applicable to the facts and circumstances of the present case. Thus, I am unable to accept the argument of the learned counsel for the petitioner that the Limitation Act has not been excluded from the purview of the Arbitration and Conciliation Act, 1996. Their Lordship has clearly held that by virtue of Section 34(3) the Application for filing and setting aside the award, a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent their Lordship has stated that applicability of Section 5 of the Limitation Act, will stand excluded, since there is no provision in the Act of 1996 which excludes operation of Section 14 of the Limitation Act. Their Lordship has stated that Section 14 of the Limitation Act, 1963 will be applicable to the Arbitration and Conciliation Act, 1996.

19. Further, Section 14 of the Limitation Act reads as follows:

“Exclusion of time of proceedings bona fide in Court without jurisdiction — (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligences another civil proceeding, whether in a Court of first instance or of Appeal or Revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue 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 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 of Appeal or Revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, front defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Not-withstanding anything contained in Rule 2 of Order 23 of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh Suit instituted on permission granted on the ground that the First Suit must fail by reasons of a defect in the jurisdiction of the Court or other cause of a like nature”.

20. The said provision clearly says that if the proceedings have been wrongly prosecuted in another forum, period taken thereon shall be excluded. But, in the case on hand, it is the case of the respondent herein that he has filed the Original Petition for setting aside the award in time and later represented the papers on 07.04.2003 and since it was misplaced in the Court where it was filed, fresh O.P has been filed later.

21. From the discussion made above, it is crystal clear that the statement made by the respondent in the affidavit in support of the Application to condone the delay is factually incorrect. While so, it cannot be said that the Section 14 of the Limitation Act, will be applicable to the case on hand, since it is not the case of the respondent that it was presenting the case in wrong forum. The respondent who has filed the Original Petition failed to represent the papers on 07.04.2003 and has filed a fresh Original Petition with an Application to condone the delay of 180 days. As pointed out earlier, the said Application cannot be entertained for the reasons discussed above.

22. Thus, the Court below erroneously allowed the Application filed by the respondent to condone the delay of 180 days in preferring the Original Petition for setting aside the award.

23. Hence, the order of the learned District Judge, Kanyakumari at Nagercoil dated 19.10.2004 made in I.A No. 62 of 2004 in A.R.O.P No. 1268 of 2004 is liable to be set aside and accordingly set aside. The Civil Revision Petition stands allowed. However, there is no order as to costs. Consequently, connected C.M.P is closed.