LexM/S ENGINEER BUILDER & ASSOCIATES versus UNION OF INDIA & ORS.
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[2014] 1 S.C.R. 977 MIS ENGINEER BUILDER & ASSOCIATES v. UNION OF INDIA & ORS. (Civil Appeal Nos. 1932-1934 of 2014) FEBRUARY 10, 2014 [A.K. PATNAIK AND JAGDISH SINGH KHEHAR, JJ.) JAMMU AND KASHMIR ARBITRATION ACT, 1945: s.49(2); Fourth schedule - Application for setting aside award A B - Limitation and condonation of delay - Held: s. 49(2) C prescribes a limitation of 30 days for filing an application for setting aside the award - Under s. 5 of the Jammu and Kashmir Limitation Act, period of /imitation can be extended by the Court in respect of any application if the Court is satisfied that the applicant had sufficient cause for not making the D application within the period of limitation - However, s. 5 of the Jammu and Kashmir Limitation Act do not apply to any application under any special or local law - The Act of 1945 does not provide anywhere that s.5 of the Jammu and Kashmir Limitation Act will apply to an application for setting E aside an award u/ss.30 and 33 of the Act of 1945 - Thus, the Court has no powers to condone the delay in filing an application for setting aside an award u/ss.30 and 33 of the Act of 1945 - Jammu and Kashmir Limitation Act - s. 5. INTERPRETATION Of: STATUTES: Conflict between F the provisions of the Act and provisions of the Schedule of the Act - Held: The provisions of the Act will prevail over the provisions of the Schedule. Dispute arose between the parties and matter was G referred to arbitration. The arbitrator passed an award on 4.9.2007 in favour of the appellant. In December, 2007, the appellant filed an execution petition. The respondent then filed an arbitration application under Section 34 of the 977 H 978 SUPREME COURT REPORTS [2014] 1 S.C.R. A Jammu and Kashmir Arbitration and Conciliation Act, 1997 before the High Court for setting aside the award. The single judge of the High Court dismissed the application on the ground that application ought to have been filed under the Jammu and Kashmir Arbitration Act B of 1945. On appeal, the Division Bench of the High Court while upholding the decision of the single judge observed that it would be open to the respondent to take steps as required under Section 30 and 33 of Act of 1945 in relation to the award and if so advised to file an C application for condonation of delay. The grievance of the appellant in the instant appeals was the observation of the High Court regarding filing of application under Section 30 and 33 of Act of 1945 along with application for condonation of delay. D Allowing the appeals, the Court HELD: 1. Sections 30 and 33 of the Jammu and Kashmir Arbitration Act of 1945, which provide for setting aside an award on certain grounds, do not prescribe any E period of limitation for filing an application for setting aside an award, but Section 49(2) read with Fourth Schedule of the Act of 1945 prescribes a limitation of thirty days from the date of service of the notice of filing of the award for filing the application for setting aside an F award or to get an award remitted for reconsideration. Section 49(2) of the Act of 1945 makes an amendment to the First Schedule of the Jammu and Kashmir Limitation Act and provides in Article 153 of the First Schedule of the said Limitation Act that the period of limitation for filing G an application for setting aside the award will be 30 days. The principle laid down by this Court in M/s. Aphali Pharmaceuticals Ltd. vs. State of Maharashtra & Ors. is that in case there is conflict between the provisions of the Act and provisions of the Schedule of the Act, the provisions of the Act will prevail over the provisions of H ENGINEER BUILDER & ASSOCIATES v. UNION OF 979 INDIA the Schedule. As Sections 30 and 33 do not prescribe a A different period of limitation, there is no conflict between Sections 30 and 33 of the Act of 1945 and the Fourth Schedule of the Act of 1945. Rather, Sections 30 and 33 of the Act of 1945, which do not prescribe any period of limitation for filing an application for setting aside an B award will have to be read along with Section 49(2) and Fourth Schedule of the said Act and so read, the period of limitation prescribed for filing an application for setting aside an award is 30 days from the service of notice of filing of the award. [Para 7] [983-8-C; 984-B-E] c 2. It is only under Section 5 of the Jammu and Kashmir Limitation Act that any time beyond the
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