TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1439
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....6 with time prescribed under Section 34 of the Act 1996, but for inherent defect it was withdrawn and after removing the said defect present petition has been filed and in the present case, though, the applicant/petitioner is seeking benefit of provisions of Section 14 of the Limitation Act, but because of his inadvertent mistake this application has been stated to be filed only under Section 5 of the Limitation Act, whereas it ought to have been filed under Section 5 read with Section 14 of the Limitation Act for condonation of delay after exclusion of time spent in pursuing first application/petition without complying mandatory provisions of Section 34(5) of the Act, 1996 and thus he prayed for considering this application under Section 5 read with Section 14 of the Limitation Act. 3. Learned counsel for the respondents contended that for failure to file application under appropriate provision of law and for absence of necessary pleadings for condonation of delay and exclusion of time as prayed, the application deserves to be dismissed. However, settled position of law is not disputed that for faulty nomenclature and/or for technical defects, the litigant should not be made to s....
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....efilling the fresh application after removing the defect as objected by the respondents, keeping in view the mandatory nature of Section 34(5) of the Act, 1996. 8. It is settled that there is no exclusion of applicability of Indian Limitation Act to the proceedings under Arbitration and Conciliation Act, 1996, except that delay, in filing application/petition under Section 34 of the Act, 1996 beyond three months, can be condoned only for 30 days and not beyond that and it is also no longer res integra that provisions of Section 14 of the Limitation Act are applicable for proceedings under Arbitration and Conciliation Act, 1996. (See State of Goa v. Western Builders, reported in (2006) 6 SCC 239, Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others, reported in (2008) 7 SCC 169 and also Commissioner, M.P. Housing Board and others v. M/s. Mohanlal and Company decided vide judgment dated 19.7.2016 passed in Civil Appeal NO. 6573 of 2016 (Arising out of SLP(C) No. 39511 of 2013.) 9. It is canvassed on behalf of applicant/petitioner that in absence of compliance of Section 34(5) of the Act 1996, the Court was not competent to entertain the appl....
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.... it for defect of jurisdiction and there was no defect of jurisdiction in the present case, as the application/petition under Section 34 of the Act, 1996 was to be filed in the same Court and therefore, the applicant/petitioner is not entitled for exclusion of time, as prayed. Further it is also argued by learned counsel for respondents that High Court has enacted Himachal Pradesh High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules 1997, (in short Scrutiny Rules) and also High Court of Himachal Pradesh (Appellate Side) and (Original Side) Rules, 1997, which have been duly published in extra ordinary gazette of Himachal Pradesh and also available on website of High Court of H.P. He referred Rule 8 of Chapter-2 (dealing with scrutiny of papers) of Part-1 of Scrutiny Rules, wherein it is provided that maximum period for removing objection shall be 7 days at a time and 20 days in aggregate and in case the objections are not removed within aforesaid maximum period of 20 days, the matter shall be dealt with in accordance with Rule 7 of Chapter 6-C of the High Court of Himachal Pradesh (Appellate Side) and (Original Side) Rules, 1997 as the ....
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.... judgment passed by High Court of Gujarat in first appeal No. 575 of 1977, decided on 29.8.1991, titled Trustees of Surat Parsi panchayat Funds and Properties Trust v. Ketan Textile, wherein it has been held as under:- "13. The underlying object of Section 14 of the Limitation Act is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits, but falling through the court being unable to give him such a trial. It is clear from the plain perusal of the aforesaid section that the principle is clearly applicable not only to the cases in which a man brings his suit in the court having no jurisdiction to entertain it, but also where he brings the suit in a wrong court in consequence of a bonafide mistake of law or defect of procedure. Thus, a litigant should not be deprived of his rights by reason of the applicability of the law of limitation, when he is diligently and bonafide proceeding to obtain the redress in a higher court also. Undoubtedly, thus, the purport of the legislature in enacting these provisions seems to be not to punish a litigant for mistake of procedure which had been made on wrong advice. Therefore, the ultimate de....
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....see Raghunath Das v. Gokal Chand, 1959 SCR 811 at 818). After all Section 47 itself contemplates transmigration of souls as it were of execution petitions and suits. The substantial identity of the subject-matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstances legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits, comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right (see India Electric Works Ltd. v. James Mantosh, (1971) 2 SCR 397). In the Associated Hotels case (i.e. the very lis in its earlier round on the execution side) this Court pointed out (1961) 1 SCR 259 at 273) that the question was one of initial jurisdiction of the Court to entertain the proceedings. Thus in this very matter, the obstacle was jurisdictional and the exclusionary operation of Section 14 of the Limitation Act was attracted." 13. Considering rival contentions of parties, I am of the opinion ....