TaxTMI 
TaxTMI 
2000 (5) TMI 1062
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....rts order would have had to be set aside, because it had re-appraised the cause shown by the respondent and condoned the delay under Section 5 of the 1963 Act. There is ample authority to hold that this could not be done under Section 115 of the Code [See: D.L.F. Housing & Construction Company Private Ltd., New Delhi vs. Sarup Singh & Others 1970 (2) SCR 368 Manindra Land and Building Corporation Ltd. vs. Bhutnath Banerjee and Others 1964 (3) SCR 495 and Pandurang Dhoni Chougule vs. Maruti Hari Jadhav 1966 (1) SCR 102.] But was the Civil Judges order dismissing the respondents application under Section 5 at all revisable under Section 115 of the Code or did an appeal lie from it under Section 39 of the Arbitration Act, 1940? The answer is of moment as the powers of an appellate Court are wider than those available under Section 115. Section 39 (1) (vi) of the Arbitration Act, 1940 says that an appeal shall lie inter alia from an order refusing to set aside an award. To arrive at a conclusion as to whether the order passed by the Senior Civil Judge, Kakinada was an order refusing to set aside the award, we have to consider the facts. Disputes between the parties were referred to thr....
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....written statement in O.S. 445/97 on 17.7.1998. The above circumstances go to show that petitioner is not willing to state that particulars referred to above, as the same will go against the petitioner and it will amount to service of notice of Arbitrators filing Award into Court. In the present circumstances of the case and as the explanation of petitioner is not sufficient explanation, I am of the view that delay as claimed by petitioner cannot be condoned. Accordingly, this petition is dismissed, but under the circumstances of the case no costs. The outcome of the order in effect was that the prayer for setting aside the award was refused on the ground of delay. The effect-test was applied by the High Court of Andhra Pradesh in Babumian & Mastan and Anr. V. Smt. K. Seethayamma and Others AIR 1985 AP 135 which said: In the light of the rulings in Gopalaswamy v. Navalgaria (AIR 1967 Mad 403) (supra) and the decision of the Bench in CMA No. 612 of 1977 dated 3.4.1978, the legal position may be enunciated as follows: The order refusing to condone the delay in filing the claim petition has the effect of finally disposing of the original petition. Such an order can, therefore, be....
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....n by Section 3 of the Limitation Act, 1963 which inter alia provides that: Subject to the provisions of Sections 4 to 24 of the Act every suit instituted, appeal preferred, and application made, after the prescribed period shall be dismissed, although limitation has not been set up as a defence The section makes it clear that limitation may be a ground for rejecting a suit already instituted, an appeal preferred and, in the context of this case, most importantly, an application already made. What is before the Court is the substantive application when the question of limitation is decided. Limitation, like the question of jurisdiction may be provided for in a separate statute but it is a defence available in the suit, appeal or application. When the defence is upheld it is the suit or the appeal or the application itself which is dismissed. Of course, the question as far as appeals are concerned may be debatable having regard to the provisions of Order 41 of the Code of Civil Procedure relating to admission of appeals as an appeal may not be admitted at all because it is barred by limitation. We express no final view in the matter. But there is no corresponding requirement for a....
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....itation on the word refusal to mean only a refusal on merits. Reading Section 39 (1)(vi) and Section 17 together, it would therefore follow that an application to set aside an award which is rejected on the ground that it is delayed and that no sufficient cause has been made out under Section 5 of the Limitation Act would be an appealable order. This brings us to the decisions of this Court relied on by the appellant to contend that the order of the Principal Senior Civil Judge was not an appealable one and could only be revised under Section 115 of the Code of Civil Procedure. The first decision cited is Nilkantha Shidramappa Ningashetti versus Kashinath Somanna Ningashetti : 1962 (2) SCR 551. In that case there was no application to set aside the award at all and no question of rejection of such an application arose. After the award was filed, the defendant No.1 filed his say about the arbitrators award. He subsequently withdrew his say. Later, a guardian of a party who was a minor, filed a written statement claiming that the award was null and void on the ground that the award was without jurisdiction. This objection was not pressed before the Trial Court. The Trial Court, there....
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....f the Limitation Act would be completely negatived. Apart from the decision not being relevant to the issue before us, it is entirely distinguishable in law. Section 5 of the Limitation Act, 1963 is now applicable to all applications under the Arbitration Act. Provided that the delay is sufficiently explained, there is no such compulsion on the Court to reject an application filed beyond the prescribed period of limitation nor is there any question of the prescribed period of limitation being negatived by entertaining an application under Section 30 beyond the period of limitation. We therefore conclude that the order of the Senior Civil Judge rejecting the application of the respondent under Section 5 was appealable under the 1940 Act. The application under Section 115 of the Code therefore did not lie. Despite the fact that this issue was neither raised before nor considered by the High Court, we cannot take a blinkered view of the situation in law. Had the issue been raised, it would have been open to the High Court to have converted the revision petition into an appeal. To set aside the order of the High Court on this technical ground and to remand it for a reconsideration of t....