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Executive Engineer, Rural Engineering Division, Puri Vs. Construction India - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 95 of 1981
Judge
Reported inAIR1982Ori18; 52(1981)CLT458
ActsArbitration Act, 1940 - Sections 30; Limitation Act, 1963 - Sections 29
AppellantExecutive Engineer, Rural Engineering Division, Puri
RespondentConstruction India
Appellant AdvocateAddl. Govt. Adv.
Respondent AdvocateK.N. Jena, Adv.
Cases ReferredSoorajmull Nagarmal v. Golden Fibre
Excerpt:
.....unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or..........under the arbitration act (hereinafter referred to as the 'act') against the decision of the learned subordinate judge, bhubaneswar, to make the award a rule of the court.2. the award was received by the court on 21st mar., 1980. notice was directed oa 27th mar., 1980. from the endorsement in the remarks column against order no. 2, it appears that the government pleader was given notice in the matter that day. on 21st april, 1980, an application was made by the state for time to file objection and time was extended till 6th may, 1980. on 3rd may, 1980, the objection had been filed. the subordinate judge proceeded on the footing that for filing of an objection under section 30 of the act the period of limitation was 30 days and since the objection filed on 3rd may, 1980 was beyond.....
Judgment:
ORDER

R.N. Misra, C.J.

1. This is an appeal under the Arbitration Act (hereinafter referred to as the 'Act') against the decision of the learned Subordinate Judge, Bhubaneswar, to make the award a rule of the Court.

2. The award was received by the Court on 21st Mar., 1980. Notice was directed oa 27th Mar., 1980. From the endorsement in the Remarks Column against order No. 2, it appears that the Government Pleader was given notice in the matter that day. On 21st April, 1980, an application was made by the State for time to file objection and time was extended till 6th May, 1980. On 3rd May, 1980, the objection had been filed. The Subordinate Judge proceeded on the footing that for filing of an objection under Section 30 of the Act the period of limitation was 30 days and since the objection filed on 3rd May, 1980 was beyond the 30 day period from the date when notice was given, the said objection was not maintainable.

3. The learned Additional Government Advocate in appeal contended that under the new Limitation Act, 1963, the Court has jurisdiction to extend the time for filing of objection, Otherwise put, if there be delay in presentation of an objection being beyond 30 days, the Court has also jurisdiction to excuse the delay and entertain the objection. Reliance has been placed on the observations of this Court in the case of State of Orissa v. Govinda Choudhury & Sons, (1972) I Cut WR 821 as also another decision in the same volume at page 951 (State of Orissa v. Bhagabat Prasad Bal). Reference has also been made to a decision of the Calcutta High Court in the case of Soorajmull Nagarmal v. Golden Fibre & Products, AIR 1969 Cal 381. In an unreported decision dated 29-7-1981 in Misc. Appeal No. 36 of 1981 : (since reported in AIR 1981 Orissa 188) a learned single Judge of this Court has also taken the same view. In the circumstances indicated and in view of the change brought about in Section 29 of the new Limitation Act, it must follow that a Court has jurisdiction to extend the time by condoning the delay in filing an objection beyond 30 days. In the facts of the case as already narrated, it must follow that the Court did extend the tune for filing of the objection and, therefore, the objection filed on 3rd May, 1980, which was a combined one both under Sections 30 and 33 of the Arbitration Act, was not out of time even in so far as it related to objections tenable under Section 30 of the Arbitration Act. The learned subordinate Judge omitted to entertain the objections raised under Section 30 of the Arbitration Act on the ground that the objection was beyond time. Therefore, there has been no adjudication on merit in relation to the objection raised under Section 30 of the Act.

4. The impugned decision of the learned subordinate Judge is accordingly set aside and the matter is remitted to the learned subordinate Judge for a fresh disposal by accepting the objection under Section 30 of the Arbitration Act as tenable in law on the ground of limitation.

Costs shall abide the event.


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