The High Court · 2019
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Review No. 40 of 2019 M/s Sutlej Construction Limited, through its Chairman Sri S.C Gupta, son of late Hari Ram Gupta, SCO No. 858, 2nd Floor, PO and PS Manimajra, NCA Manimajra, District Chandigarh -160101 (Union Territory) ...… Petitioner Versus 1.State of Jharkhand, through the Commissioner and Secretary, Water Resources Department, PO and PS Doranda, District Ranchi 2.The Chief Engineer, Water Resources Department, PO Dhurwa, PS Jagarnathpur, District Ranchi 3. The Superintending Engineer, Water Resources Department, Tenughat Dam Circle, PO and PS Tenughat, Tenughat, District Bokaro 4.The Executive Engineer, Konar Canal Division, PO Banaso, PS Bishnugarh, Banaso, District Hazaribag (Jharkhand) ..... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner For the State : Mr. Indrajit Sinha, Advocate : Mr. Sanjay Kumar Tiwari, SC I Mr. Rahul Kumar Singh, AC to SC I --------- Order No. 07 /Dated: 11 th April 2023 I.A. No. 4897 of 2022 This interlocutory application has been filed under section 5 of the Limitation Act for condonation of delay of 299 days. 2. The petitioner in paragraph no. 6 of this interlocutory application has stated as under: “6. That in the meantime the health condition of the deponent who is the Chairman of the petitioner, who lives in Chandigarh and has been coming to Ranchi to take steps in relation to the case, suffered due to old age and otherwise and he remained under treatment. So, he could not instruct his advocate to take necessary steps to remove a defect pertaining to furnishing of certified copy of the impugned order. As soon as the petitioner's health condition improved he contacted his advocate and gave due instructions. Accordingly, the certified copy was applied for on 6.8.2019 and it was supplied on 5.9.2019 and thereupon filed. By this time the period of 299 days were spent. ” 3. Not only there is no serious opposition to this application filed under section 5 of the Limitation Act, having regard to the facts and circumstances in the case, this Court deems it proper to condone the delay in filing the present review petition and, accordingly, I.A. No. 4897 of 2022 is allowed. 2 Civil Review No. 40 of 2019 Civil Review No. 40 of 2019 4. Pursuant to the order dated 8th March 2019 passed in Special Leave to Appeal (C) No. 5633 of 2019, the present review petition has been filed by M/s Sutlej Construction Limited. 5. The order dated 8th March 2019 passed by the Hon'ble Supreme Court reads as under: “Upon hearing the counsel the Court made the following Order. Leave to withdraw the special leave petition as prayed for
Legal Reasoning
by the learned counsel for the petitioner is granted. The special leave petition is closed on withdrawal.” 6. At the outset this needs to be indicated that this review petition
Decision
could not be heard and disposed of for the reason that the present petition has remained lying with the defects till 6th July 2022. Then this review petition was listed in the Court upon a Bench slip dated 11th November 2022 tendered by the learned counsel for the review petitioner. 7. On 25th November 2022, the following order has been passed by this Court: “Mr. Pandey Neeraj Rai, the learned counsel for the petitioner seeks permission to file better affidavit in support of the application seeking condonation of 299 days' delay in filing the present review petition. Post this matter on 13th January 2023.” 8. It seems that because the Bench was not available or the subject distribution for Single Judge was not allocated, this civil review petition could not be listed for further hearing. 9. Though as many as 15 grounds have been raised in the present petition, the learned counsel for the review petitioner would urge that the grounds pleaded under paragraph nos. 5D to 5G are the main grounds to seek review of the order dated 12th October 2018 passed in Arbitration Appeal No. 20 of 2007. 10. The following plea has been raised by the review petitioner under ground nos. 5(D) & 5 (E): “5(D). For that the judgment under review has been passed on the premise that the limitation for raising the claims started running from10.08.1992, as it was the last communication by the applicant to the department. However, while so holding letter dated 17.5.2002 sent by the department to the applicant, escaped the kind notice of this Hon'ble Court, whereby for the first time, the department rejected the claims of the applicant. Thus, the cause of action for invoking the arbitration clause accrued to the applicant after the receipt of the said 3 Civil Review No. 40 of 2019 letter and within three months of the same, the arbitration was invoked by the Petitioner in August, 2002. Hence the same was well within the period of limitation. 5(E). For that the said letter dated 17.5.2002 has been referred to by the learned Arbitrator in para 58 of the award. A reference to the said letter has also been made in letter dated 8.7.2002 sent by the applicant to the department, which is even reproduced at page 24 of the order dated 12.10.2018 passed by this Hon'ble Court. As per settled law, the period of limitation would commence either from the date of unequivocal rejection of claims or from the date of preparation of final bill. In the instant case, the claims of the applicant were for the first time rejected by the department only on 17.5.2002. Furthermore, the final measurement as per department's own admission was taken in 1999. Hence, the claims filed in the year 2002 were well within limitation. Moreover it has been observed on page 28 of the order dated 12.10.2018 passed by this Hon'ble Court that letters dated 16.4.2000, 28.8.2000, 15.5.2001 and 21.11.2001 relied upon by the learned Arbitrator were not brought on record and, thus, had been wrongly relied upon by the Arbitrator. It is humbly submitted that the said letters duly stand mentioned in the letter dated 13.4.2002 sent by the petitioner to the department and same has been even reproduced at page 23 of the order dated 12.10.2018 passed by this Hon'ble Court. The said letter was replied by the department vide reply dated 17.5.2002. In the said reply, the factum of sending of the letters dated 16.4.2000, 28.8.2000, 15.5.2001 and 21.11.2001 was not disputed by the department. Thus the Arbitrator rightly relied upon the said letters.” 11. The ground nos. 5(F) & 5(G) refer to judgments in “State of Orissa v. Damodar Das” (1996) 2 SCC 216, “Hari Shankar Singhania (2) v. Gaur Hari Singhania (2006) 4 SCC 658, “Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority” (1988) 2 SCC 338 and “Rashtriya Ispat Nigam Ltd. v. Prathyusha Resources & Infra (P) Ltd.” (2016) 12 SCC 405, to submit that the application under section 20 is governed by Article 137 of the Schedule to the Limitation Act 1963 and, viewed thus, the right to apply first accrued to the petitioner on 17th May 2002 when the Department refused the claim of the petitioner. 12. In short, the plea urged on behalf of the review petitioner is that the limitation shall start to run from the date a specific denial of the claim is made by the Department. 13. All the aforesaid grounds pertain to non-consideration of the communication dated 17th May 2002 issued by the Department by which claim raised by the review petitioner has been specifically declined. However, the very nature of the plea urged on behalf of the review petitioner with reference to the aforesaid judgments makes it apparent that the review petitioner wants rehearing of Arbitration Appeal No. 20 of 2007. 4 Civil Review No. 40 of 2019 14. In the first place, such is not the Legislative intendment under sections 20 and 21 of the Arbitration and Conciliation Act, 1996. Secondly, the judgment in “Major (Rtd.) Inder Singh Rekhi v. Delhi Development Authority (1988) 2 SCC 338” wherein the Hon'ble Supreme Court has held that a dispute arises when a claim is made by one party which is denied or repudiated by the other party is not applicable in the present case. “Inder Singh Rekhi” shall not be applied in cases where the claim is not alive and has become a time-barred claim. 15. In the present case, this Court has specifically dealt with this issue in paragraph no.24 of the judgment under review whereunder all relevant communications between the parties have been taken note of. This Court has taken note of the stand taken by the Department which took a specific plea that the claimant had abandoned the contract, left the site with its men and machinery and did not raise any demand for about a decade. Furthermore, this Court finds that at page 24 of the order dated 12 th October 2018 there is a reference of the communication dated 17th May 2002 in response to which a letter has been written to the petitioner on 8th July 2002. The paragraph no. 24 of the judgment under review reads as 16. under: “24. The learned Arbitrator has observed that the starting point for cause of action has to be judged from the point when a right or claim has been denied (para 105). In this context it is pertinent to point out that this principle would apply when a right or the claim is alive and it is not that a time-barred claim, or a stale claim, or an abandoned claim can be revived on the basis of a letter written by the other party, much after the claim became dead. What the learned Arbitrator has done is that he takes note of the exchange of letters between the parties, but in the process he has over-looked that it was a letter written by the Department on 23.03.1999 directing the claimant to participate in the measurement which had triggered the exchange of letters between the parties. But before that there was a complete lull between the period from 10.08.1992 to 23.03.1999. In the interregnum no fresh cause of action had arisen and mid-way the period of limitation has expired. It is also important to record that it was only the claim for payment against the running bill pursuant to joint measurement taken on 09.08.1991 which was raised lastly by the claimant on 10.08.1992 and thereafter it was for the first time through telegram dated 16.04.1999 which, in fact, was an objection to the proposed measurement, that the claimant has stated that payment has not been made to it. This was followed by letter dated 13.04.2002. The letters dated 23.03.1999 and 05.04.1999, in response to which telegram dated 16.04.1999 was sent by the claimant, were written not in response to any communication from the claimant and the circumstances under which these letters were written have been pleaded in para 56 and 57 of the counter-affidavit filed by the Department. These facts have been completely over-looked by the learned Arbitrator. The learned Arbitrator goes one step ahead and 5 Civil Review No. 40 of 2019 takes note of the correspondence dated 16.04.2000, 28.08.2000, 15.05.2001 and 21.11.2001 (paragraph no. 107), however, the aforesaid letters were never brought on record during the arbitral proceeding. These letters have been referred by the learned Arbitrator to hold that the claimant sought permission to resume the work and the Department invited the claimant to participate in the final measurement and, thus, commercial relationship between the parties had continued. In the first place, as noticed above, there was no correspondence between the parties between 10.08.1992 to 23.03.1999. The Department has pleaded that the claimant had abandoned the contract, left the site with its men and machinery and did not raise any demand for about a decade. Neither any document has been produced by the claimant nor it has been established by it that negotiation between the parties to resolve the dispute had continued between this period; atleast there is no reference of such a document or a plea in the award. A similar situation has been dealt with by the Supreme Court in “Steel Authority of India Ltd Vs. J.C Budharaja, Government and Mining Contractor” reported in AIR 1999 SC 3275 – facts, of course, are a little different; thus : “31. In the present case, as stated above, on 29th August, 1979, the contractor wrote letter making certain claims. Thereafter, the supplementary agreement was executed on 20th December, 1980. In that agreement it is nowhere stated that contractors alleged right of getting damages or losses suffered by him was kept alive. On the contrary, he has agreed to complete the work within the time stipulated in the second agreement by charging some higher rate. Contractor has not sought any reference within three years from the date when cause of action arose, i.e., from 29th August, 1979. Only in 1985 when dispute arose with regard to the second agreement, respondent gave notice on 2nd December, 1985 to appoint sole arbitrator. The sole arbitrator was appointed with a specific reservation regarding the tenability, maintainability and validity of reference as also on the ground that claim was barred by the period of limitation and it pertained to excepted matters in terms of general conditions of the contract. From these facts, it is apparent that claim before the arbitrator in November-December, 1985 was apparently barred by period of limitation. Letter dated 3rd September, 1983 written by the appellant repudiating the respondent’s claim on account of damages or losses sustained by him would not give fresh cause of action. On that date cause of action for recovering the said amount was barred by the period of three years prescribed under Art. 137 of the Limitation Act, 1963. Under S.3 of the Limitation Act, it was the duty of the arbitrator to reject the claim as it was on the face of it, barred by the period of limitation.” 17. This is therefore quite apparent that through this review petition the same issue which has been specifically dealt with in Arbitration Appeal No. 20 of 2007 has been sought to be raised again by the petitioner. 18. On a consideration of the materials on record, this Court has finally held as under: “29. In view of the aforesaid facts and for the reasons indicated hereinabove, it is held that the claims raised by the claimant which have been allowed by the learned Arbitrator were time-barred claims and to this extent the award dated 31.01.2006 is held illegal, without jurisdiction and against the public policy. The learned trial 6 Civil Review No. 40 of 2019 Judge has erroneously refused to exercise a jurisdiction – to examine validity of the award dated 31.01.2006 – which is legally vested in it. The impugned order dated 27.06.2007 passed in Arbitration Misc. Case No. 13 of 2006 suffers from serious infirmities in law, and therefore it warrants interference by this Court. In so far as counter-claim is concerned, the Department has not raised any specific ground to challenge rejection of the counter- claim and in view of the fact that the Department has failed to produce records before the Arbitral Tribunal to explain the delay of about 13 years in making a claim for Rs.28,04,526/-, I am not inclined to interfere with this part of the award, and accordingly challenge by the Department on this count fails. 30. In the result, this arbitration appeal partly succeeds. Arbitration Appeal No. 20 of 2007 is allowed, in the aforesaid terms, and the impugned order dated 27.06.2007 passed in Arbitration Misc. Case No. 13 of 2006 stands set-aside to the above extent. ” 19. It is a well-accepted proposition in law that while exercising the review powers the Court does not sit in appeal over the main order as an appellate authority. This is also no longer a debatable issue that in the garb of review the applicant cannot seek rehearing of the main petition. In “Lily Thomas v. Union of India” (2000) 6 SCC 224 the Supreme Court has held as under: “56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. .....” 20. While so, this Court does not find any ground urged by the petitioner which is akin to the grounds mentioned under Rule 1 to Order 47 of the Code of Civil Procedure. 21. Having regard to the aforesaid facts and circumstances in the case, finding no merit in this civil review petition, Civil Review No. 40 of 2019 is dismissed. Tanuj (Shree Chandrashekhar, J.)