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Secretary to the Government of Orissa, Public Works Department Vs. Ramkrishna Mohapatra - Court Judgment

LegalCrystal Citation
SubjectArbitration;Limitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 166 of 1961
Judge
Reported inAIR1963Ori19
ActsArbitration Act, 1940 - Sections 32 and 33; Limitation Act - Sections 2(7), 5 and 14
AppellantSecretary to the Government of Orissa, Public Works Department
RespondentRamkrishna Mohapatra
Appellant AdvocateAdv. General
Respondent AdvocateR.K. Swain, Adv.
DispositionRevision allowed
Excerpt:
.....namely, that nothing shall be deemed to be done in good faith which is not done with due care and attention. 7. in this circumstances, the decision of the learned1st additional subordinate judge converting the plaint into a petition under section 33 of the arbitration act is clearly illegal and irregular and is accordingly set aside......the learned1st additional subordinate judge converting the plaint into a petition under section 33 of the arbitration act is clearly illegal and irregular and is accordingly set aside. this civil revision is therefore allowed and the contractor opposite party's application to treat the plaint in title suit no. 67 of 1958 as an application under section 33 of the arbitration act stands dismissed. in the circumstances of the case, there will be no order for costs.
Judgment:

S. Barman, J.

1. The Secretary to the Government of Orissa Public Works Department (hereinafter referred to as the Government) is the petitioner in this Civil revision against an order of the learned 1st Additional Subordinate Judge of Cuttack, whereby he converted the plaint in Title Suit No. 67 of 1958 into a petition under Section 33 of the Indian Arbitration Act, in the circumstances hereinafter stated.

2. The opposite party was a contractor under the Government. On June 9, 1954 the contractor opposite party entered into certain contracts with the Govt. to execute some work according to the terms of the agreement where there was an arbitration clause that if any dispute arises between the parties it will be referred to the arbitration of the Government of Orissa or his nominee. Thereafter certain disputes having arisen between the parties they were referred to the arbitration of Sri Bhabagrahi Misra, I. A. S. as Arbitration Tribunal nominated by the Government of Orissa. On September 30, 1954 the Arbitration Tribunal gave his award. On November 8, 1954 the contractor opposite party filed a suit in the court of the 2nd Munsif, Cuttack being Suit No. 240 of 1954 for a declaration that the award is invalid. On November 6, 1958 the Munsif held that he had no jurisdiction to entertain the suit and returned the plaint to the opposite party to be filed in proper court. Thereafter, the opposite party presented the said plaint in the court of the Subordinate judge, Cuttack and the suit was numbered as O.S. No. 67 of 1958.

Thereafter written statement was filed and the suit was posted to several dates for hearing. On December 13, 1960 the contractor opposite party made an application before the 1st Additional Subordinate Judge, Cuttack, for treating the plaint in the said O. S. No. 67 of 1958 as an application under Section 33 of the Arbitration Act. The said application was numbered as Misc. case No. 2 of 1961. On February 23, 1961, the learned 1st Additional Subordinate Judge allowed the said application subject to payment of Rs. 10/- as costs. The said cost was deposited in terms of the order and accordingly on March 9, 1961 the said application being Misc. case No. 2 of 1961 for conversion of the plaint into a petition under Section 33 of the Arbitration Act as aforesaid was allowed. Hence this Civil Revision.

3. The points urged on behalf of the Government (petitioner herein) are these : The award not having been filed as required under Section 14(2) of the Arbitration Act the application under Section 33 is not maintainable under Article 178 of the Limitation Act. The period of limitation for the filing in court of an award is ninety days from the date of service of the notice of the making of the award. Moreover Section 32 of the Arbitration Act is an absolute bar to suits contesting arbitration award. Therefore the title suit No. 240 of 1954 filed on November 8, 1954 in the Court of the 2nd Munsif, Cuttack challenging the validity of the award and the subsequent suit being O.S. No. 67 of 1958 filed on November 6, 1958 in the court of the Subordinate Judge, Cuttack for the same relief, were both barred by reason of the provisions of Section 32 of the Arbitration Act. The period of limitation for an application to set aside an award under the Arbitration Act is thirty days from the date of service of the notice of the filing of the award. The petitioner's point is that the contractor opposite party cannot get benefit of either Section 14 or Section 5 of the Limitation Act for exclusion of the period of time lost when the said two suits, namely, T.S. No. 24 of 1954 ad O.S. No. 67 of 1958 were being pursued, and that the period of limitation cannot be extended. Apparently the filing of suits was wrongly advised by the contractor opposite party's lawyer.

4. The question is : Should the contractor opposite party suffer for his lawyer's mistake. The contractor opposite party's point is that the very fact that he filed the first suit. S. No. 240 of 1954 on November 8, 1954, that is to say almost immediately after the award was given by the Arbitration Tribunal and further that the second suit being O.S. No. 67 of 1958 was also filed immediately after the learned Munsif held that he had no jurisdiction and returned the plaint, -- shows diligence on the part of the contractor opposite party. He also relies on the position that the Government did not question the maintainability of the two suits. Government only challenged the pecuniary jurisdiction of the Court on valuation and the learned Munsif had returned the plaint on his finding of under valuation. It is further contended that even in the second suit O.S. No. 67 of 1958, the Government did not raise objection that Section 32 of the Arbitration Act is an absolute bar. It is also submitted on behalf of the contractor opposite party that when he came to know of the correct position in law after change of lawyer, he made the application for converting the plaint into a petition under Section 33 of the Arbitration Act on December 13, 1960. His point is that the position in law whether a suit or petition lies under Section 33 was not clear and accordingly the confusion continued. The contractor opposite party is said to have honestly entrusted the case to the lawyer and that he himself was vigilant throughout.

5. Section 32 of the Arbitration Act which is a bar to suits contesting arbitration agreement or award reads as follows :

'Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act'.

It is quite clear that the contractor opposite party cannot get exclusion of the time lost in the two suits because the suits are barred on the very face of Section 32 of the Arbitration Act. It is well settled law that the party is not completely absolved of all his responsibilities and automatically becomes entitled to the protection under the provisions of section 14 of the Limitation Act merely by entrusting all his work on a very worthy lawyer. But the Court has got to examine and scrutinise the conduct of the lawyer. If on such scrutiny it is found that the conduct of the lawyer was probably negligent and that the view taken by him was unreasonable, the client has got to suffer for the conduct of his lawyer.

In this case, the legal position ought to have been apparent to the lawyer that Section 32 of the Arbitration Act is an absolute bar to such suits. It is evident that the lawyer in charge of the case had completely ignored the actual position in law nor did he even take due care and attention to look up and ascertain the legal position. A proceeding contrary to a clearly expressed provision of law cannot be regarded as prosecuting another Civil proceeding in good faith in the sense in which the words 'good faith' are defined in Section 2(7) of the Limitation Act, namely, that nothing shall be deemed to be done in good faith which is not done with due care and attention.

6. In the present case, more than six years had passed in pursuing the suits as aforesaid. The contractor opposite party's lawyer apparently did not even look at the Arbitration Act. Any lawyer dealing with an arbitration award is expected to look into the Arbitration Act. It was sheer negligence on the part of the lawyer. It cannot be a rule of law that any mistaken advice given by a lawyer is a sufficient ground under Section 5 or Section 14 of the Limitation Act. If the view taken by the lawyer is quite a reasonable view even though mistaken and the advice could be given by any senior lawyer in spite of due care and attention, then only the party is entitled to the protection under the provisions of Section 5 or Section 14 of the Limitation Act. But this is not the position in the instant case as the advice was given without due care and attention. The lawyer thus invited a great risk to his client without any justification whatsoever.

7. In this circumstances, the decision of the learned1st Additional Subordinate Judge converting the plaint into a petition under Section 33 of the Arbitration Act is clearly illegal and irregular and is accordingly set aside. This Civil Revision is therefore allowed and the contractor opposite party's application to treat the plaint in Title Suit No. 67 of 1958 as an application under Section 33 of the Arbitration Act stands dismissed. In the circumstances of the case, there will be no order for costs.


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