TaxTMI 
TaxTMI 
2018 (4) TMI 1571
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.... parties on the issue of limitation raised by the respondents first. Some of the relevant facts for the purpose of deciding the issue of limitation raised by the respondents are as under : 3. The petitioner lodged the Commercial Arbitration Petition (Lodging) 334 of 2017 in this Court on 26th July, 2017 inter-alia praying for setting aside the impugned award dated 28th April, 2017 i.e. within a period of three months from the date of service of the signed copy of the award from the learned arbitrator. By an Arbitration & Conciliation (Amendment) Act, 2015, section 34(5) of the Arbitration & Conciliation Act, 1996 was inserted, which reads thus: (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. 4. The petitioner did not issue any prior notice to the respondents before filing the said Commercial Arbitration Petition (Lodging) 334 of 2017. The petitioner however, issued a notice under section 34(5) upon the respondents on 27th July, 2017. The petitioner also filed an affidavit provin....
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....odging of the said arbitration petition. He submits that the respondents however raised an objection before this court on 18th August, 2017 alleging non compliance of section 34(5) of the Arbitration and Conciliation Act, 1996. The matter was adjourned by this court to 31st August, 2017. 9. On 31st August, 2017, the petitioner sought liberty to withdraw the said arbitration petition bearing No. 400 of 2017 [(L) No. 334 of 2017] with liberty to file a fresh arbitration petition. The respondents did not oppose the application made by the petitioner for withdrawal of the said arbitration petition with liberty to file a fresh arbitration petition. This court granted liberty to the petitioner to withdraw the said arbitration petition with liberty to file a fresh petition by an order dated 31st August, 2017. On 1st September, 2017 the petitioner lodged this arbitration petition impugning the said arbitral petition. The petitioner also complied with the notice under section 34(5) by issuing a notice upon the respondents prior to the date of lodging this petition and also filed an affidavit proving service of notice along with this petition. 10. It is submitted by the learned senior ....
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....bitration petition in good faith and with due diligence and thus the time taken by the petitioner in pursuing the Arbitration Petition No. 400 of 2017 i.e. during the period between 26th July, 2017 and 31st August, 2017 shall be excluded under section 14(2) of the Limitation Act, 1963. It is submitted that under section 14 of the Limitation Act, 1963 applies to the application under section 34(1) and can be considered while computing the period of limitation under section 34(3) of the Arbitration and Conciliation Act, 1996. He submits that the expression "other cause of a like nature" described in section 14(1) of the Limitation Act, 1963 should be read as ejusdem generis to the words "defects of jurisdiction". 14. It is submitted by the learned senior counsel that the petitioner has not taken any undue advantage of not giving any prior notice under section 34(5) or not having filed any affidavit of compliance in respect of such notice. The petitioner had given such notice under section 34(5) on the very next date of lodging the earlier arbitration petition and had filed affidavit of compliance on the next day of issuing such notice. 15. Learned senior counsel placed reliance....
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....benefit of section 14(2) of the Limitation Act, 1963 and the time taken in prosecuting the said arbitration petition (400 of 2017) between 26th July, 2017 and 1st September, 2017 cannot be excluded. He submits that if the said time is not excluded, this arbitration petition having been filed after expiry of three months from the date of service of the signed copy of the award on 30th April, 2017, the petition lodged on 1st September, 2017 is ex-facie barred by limitation prescribed under section 34(3) of the Act. 19. Learned counsel placed reliance on the following judgments :- (a) Deena (dead) Through LRs. v. Bharat Singh (Dead) through LRs. And others,: (2002) 6 SCC 336 (Paragraphs 4, 14 to 17) (b) Rabindra Nath Samuel Dawson v. Sivakasi and others, (1973) 3 SCC 381 (Paragraphs 4 and 5) (c) Judgment of Allahabad High Court in case of Jagannath Prasad v. Sri Sant Hardassram Sevashram and others, AIR 1978 All 250, (Paragraph 6) 20. It is submitted by the learned counsel for the respondents that this is not a case of bonafide mistake. The petitioner cannot be allowed to urge that the petitioner was not aware of the provisions of section 34(5) brought....
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.... recorded the said objection raised by the respondents and adjourned the matter to 31st August, 2017 for deciding the said issue. A perusal of the papers and proceedings in this arbitration petition clearly indicates that the petition was already affirmed on 31st August, 2017 when the matter appeared before this court. The petitioner obtained liberty from this court to withdraw the said arbitration petition (400 of 2017) with liberty to file a fresh petition. The respondents did not raise any objection to the said application made by the petitioner for withdrawal of the said arbitration petition with liberty to file a fresh petition nor raised an issue of limitation when liberty was granted to the petitioner. The respondents also did not challenge the said order passed by this court on 31st August, 2017. 24. It is not in dispute that the petitioner issued a notice under section 34(5) on the respondents on 1st September, 2017 and also filed an affidavit of compliance along with this arbitration petition. The said notice under section 34(5) was issued upon the respondents before this petition was lodged. If the cause of action for filing arbitration petition under section 34(1) is....
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....id provision differently. 28. Supreme Court in case of India Electric Works Ltd. (supra) has considered the expression "other cause of a like nature" prescribed in section 14(2) of the Limitation Act, 1963. Supreme Court held that if those words "other cause of a like nature" were read along with the expression "is unable to entertain", they would denote that the defect must be of such a character as to make it impossible for the court to entertain the suit or application in its inception or at all events as to prevent it from deciding it on the merits. It is held that if the defects were of such a nature that they had to be decided before the case could be disposed of on merits or if they did not necessitated an examination of the merits of the case they would be defects of a "like nature". Supreme Court held that in each one of these cases the court did not lack jurisdiction in its inception but the suit could not be proceeded with and disposed of until the statutory conditions laid down had been satisfied or fulfilled. 29. In paragraph (7) of the said judgment, it is held that although all questions of limitation must be decided by the provisions of the Act and the courts ....
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....to delaying the proceedings or harassing the opposite party. In my view, the principles of law laid down by the Supreme Court would squarely applies to the facts of this case. 32. It is not the case of the respondents that the petitioner had intentionally and deliberately not issued notice under section 34(5) of the Arbitration and Conciliation Act, 1996 with a view to delay the proceedings or to harass the respondents or that the petitioner has received any benefit due to non service of notice. In my view there was a honest and bonafide doubt in the mind of the large number of litigants whether such notice contemplated under section 34(5) was mandatory or directory. A perusal of the record clearly indicates that the petitioner has not taken any advantage of not giving notice under section 34(5) prior to the date of lodging such arbitration petition (400 of 2017). The respondents however made a statement from time to time in the petition filed by the petitioner not to execute the impugned award. 33. In my view, since the petitioner had under the bonafide doubt as to whether the said notice contemplated under section 34(5) was mandatory or directory as is apparent from the con....
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.... to the facts of this case. 36. The respondents themselves had raised an objection across the bar as well as in their affidavit in reply that without prior notice under section 34(5) of the Arbitration and Conciliation Act, 1996, the said arbitration petition (400 of 2017) was not maintainable. In my view, this objection thus would fall under the expression "other cause of a like nature". 37. Insofar as the judgment of Supreme Court in case of Rabindra Nath Samuel Dawson (supra) relied upon by Mr. Jawle, learned counsel for the respondent is concerned, in the said judgment, the Supreme Court has considered the fact where the defendants had raised an objection to the non-joinder of the Government as a party at the earliest possible opportunity. The plaintiffs however pursued the said suit and agreed to bear the risk of non-joinder of the State Government. In these circumstances, the Supreme Court held that the plaintiffs in that case were not prosecuting the suit in good faith and with due diligent and benefit of section 14(2) could not be thus given to such litigant. 38. The facts however in this case are totally different. Not only the petitioner but large number of other....