M/S. ESSAR CONSTRUCTIONS versus N.P. RAMA KRISHNA REDDY

Citation: [2000] 3 S.C.R. 923 · Decided: 03-05-2000 · Supreme Court of India · Bench: D.P. WADHWA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

' 
MIS. ESSAR CONSTRUCTIONS 
v. 
N.P. RAMA KRISHNA REDDY 
MAY3, 2000 
[D.P. WADHWAAND RUMA PAL, JJ.] 
Arbitration Act, 1940-Sections 30, 39( 1 )(vi) & ( 17)-Arbitration-
Award-Application for setting aside the award along with application for 
condonation of delay-Trial Court dismissing the application for condonation 
A 
B 
of delay-Revision petition under Section 115 of the Code-High Court 
C 
condoning the delay and remitting the matter to trial Court-Validity of-
Held, an order dismissing an application for condonation of delay amounts 
to refusal to set aside award-71ius, appealable under Section 39(l)(vi)-
Revision Petition under Section 115 of the Code not maintainable-Code of 
Civil Procedure, 1908-Section 115-Limitation Act 1963-Sections 3 & 5. 
Constitution of India-Article 142-High Court entertaining a revision 
petition where appeal was proper remedy-Held, an appropriate case for 
exercising powers under Article 142. 
D 
Dispute between the parties were referred to three arbitrators in 
E 
terms of Arbitration agreement. Two of them passed an order in favour of 
appellant and the third in favour of respondent. Respondent filed a suit for 
making the minority award rule of the Court and also a petition for setting 
aside the majority award, along with an application for condonation of 
delay under Section 5(5) of the Limitation Act, 1963. Trial Court holding 
that the delay could not be condoned, dismissed the petition. On revision 
F 
under Section 115 of the Code, High Court condoned the delay and re-
manded the matter to the trial Court. Hence the present appeal. 
In the appeal, the question that arose for consideration was whether 
an order of the trial court dismissing an application for condonation of 
G 
delay under Section 5 of the Limitation Act 1964 for filing an application 
under Section 3 of the Arbitration Act, 1940 was revisable under Section 
• .1 
115 of the Code of Civil Procedure or did an appeal lie under Section 39 of 
the Arbitration Act. 
Dismissing the appeal, the Court 
923 
H 
A 
B 
c 
D 
E 
F 
G 
H 
924 
SUPREME COURT REPORTS 
[2000] 3 S.C.R. 
HELD : 1.1. Order of the Trial Court rejecting the application of 
respondent under Section 5 of the Limitation Act, 1963 was appealable 
under Section 39 of the Arbitration Act, 1940. Consequently, the revision 
petition under Section 115 of the Code of Civil Procedure, 1908 would not 
lie. [932-F] 
1.2. Section 39(1)(vi) of the Arbitration Act, 1940 does not indicate 
the grounds on which the court may refuse to set aside the award. There is 
nothing in its language to exclude a refusal to set aside the award because 
the application to set aside the award is barred by limitation. By dismissing 
the application albeit under Section 5, the assailability of the award is 
concluded as far as the Court rejecting the application is concerned. Ulti· 
mately therefore, it is an order passed under Section 30 of the Arbitration 
Act though by applying the provisions of the Limitation Act. Similarly, 
under Section 17, the grounds of refusal are not specified nor is there any 
limitation on the word 'refusal' to mean only a refusal on merits. Thus, 
reading Section 39(1)(vi) and Section 17 together, it would 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. [930-A-C; G-H; 931-A] 
Privy Council in Harinath Chatterjee v. Mathurmohan Goswam4 (1894) 
ILR 21, referred to. 
Babumian & Mastan and Am: v. Smt. K. Seethavamma and Others, AIR 
(1985) AP 135; Mafizuddin v. Alimuddin, AIR (1950) Ass. 191; State of West 
Bengal v. Mis. A. Monda4 AIR (1985) Cal. 12 DB and Damodaran v. 
Bhaskaran, (1988) 2 KLT 753, approved. 
Nilkantha Shidramappa Ningaslzetti v. Kaslzinatlz Somanna Ningashett4 
')-
[1962) 2 SCR 551 and Madan Lal Sunderla4 [1967) 3 SCR 147, distin· 
guished. 
2. Section 3 of the Limitation Act makes it clear that limitation may 
be ground for rejecting a suit already instituted an appeal preferred and, 
in the context of the instant case, most importantly, an application already 
made. 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 applica· 
tion. When the defence is upheld it is the suit or the appeal or the applica-
tion itself which is dismissed. A suit which is dismissed on the ground o

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