A bare reading of sub-section (3) of Section 34 read with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 will have to be made within three months. The period can further be extended, on sufficient cause being shown, by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned, the period of limitation prescribed is three months which can be extended by another period of 30 days, on sufficient cause being shown to the satisfaction of the Court. Section29(2) of the Limitation Act, inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the extent, they are not expressly excluded by such special or local law. When any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 300 OF 2014
Mahindra & Mahindra Financial
Services Ltd.
Versus
Manik Vitthal Kawle,
CORAM : RAVINDRA V. GHUGE, J.
Dated : September 25, 2014
1. Heard learned Advocates for the respective parties.
2. Rule. By consent, Rule is made returnable forthwith and the petition
The petitioner, by this petition, seeks to assail the order dated
3.
is taken up for final disposal.
30.8.2012, passed by the learned Principal District Judge, Beed in Misc. Civil
Application No.503 of 2011.
(A)
The petitioner submits the facts of the case as follows:-
Respondent No.1 had availed of a loan of Rs.3,95,000/- for
4.
petitioner.
(B)
The said loan was obtained from the
purchasing a tractor.
Respondent No.2 stood as a guarantor to the said loan
transaction.
Respondent No.3 was the sole Arbitrator.
(D) (C) Since there was denial in making repayment of the loan
installments and in view of the repeated requests made, which did
not yield any result, the petitioner invoked the arbitration clause
and the dispute as regards non payment of the loan amount was
referred to the third respondent - Arbitrator.
(E)
Since respondents 1 and 2, despite several notices and
adjournments, failed to appear in the arbitration proceeding, the
award dated 16.2.2011 was delivered, directing recovery against
respondents 1 and 2.
(F)
An application was filed on 12.12.2011 by the petitioner,
seeking execution of the arbitral award.
This application was
preferred after the lapse of the limitation period under Section 34 of
On 29.9.2012 warrant of attachment was issued under Order
(G)
the Arbitration and Conciliation Act, 1996 (“the Act of 1996”).
XXI Rule 54 of the Code of Civil Procedure ("CPC"), which was
executed upon the property of the first respondent.
(H)
On 14.12.2011, the respondents moved an application under
Section 5 of the Limitation Act, 1963 (“the Act of 1963”) along with
(I)
the arbitral award.
an application under Section 34 of the Act of 1996, for challenging
By the impugned order dated 30.8.2012 and after hearing the
parties, the learned District Judge allowed the application and
condoned the delay by imposing costs of Rs.2,000/-. It was ordered
that after depositing the costs, the petition under Section 34 of the
Act of 1996 be registered and be taken on the file of the Court for
hearing.
(J)
The proceedings under Section 34 of the Act of 1996 are
excluded from the ambit of Section 5 of the Act of 1963.
(K)
The proviso to Sub-section (3) of Section 34 the Act of 1996 is
indicative of the fact that a litigating party on making out a case of
sufficient cause from being prevented in filing the petition, is
granted 30 days beyond the limitation period of 3 months, during
which period the petition can be entertained.
(L)
The respondents have filed their application six months after
the date on which the first respondent received copy of the
arbitration award.
(M)
The competent Court failed to consider the prohibition laid
down in law and the exclusion of Section 5 of the Act of 1963 while
passing the impugned order.
Reliance is placed upon reported judgments in support of the
(N)
contention that even a single day's delay beyond 120 days from the
date of receipt of the order, rendered the application under Section
34 of the Act of 1996, untenable.
5.
The learned Advocate appearing on behalf of respondent No.1
ig
submits that;
Condonation of delay is to be considered liberally.
(B) Delay of only two months and one day has occurred.
(C) Respondent No.1 has specifically pleaded that though the
(A)
award was delivered on 16.2.2011, he has received the copy through
post on 13.6.2011.
(D) Application was filed on 14.12.2011.
(E) Delay of two months and one day was rightly condoned since
Section 5 of the Act of 1963 was applicable to the case of the
respondent.
(F) The delay was neither intentional nor deliberate.
(G) The award was delivered ex-parte and by condoning the delay.
(H) The right of the respondents to challenge the award is
protected and he cannot be rendered remediless.
Having heard the submissions of the learned Advocates for the
6.
respective parties and having gone through the petition paper book, it
appears that the award at issue, dated 16.2.2011, was delivered after the
respondents had failed to appear in the matter despite notices having been
served upon the two respondents and the matter being adjourned to enable
them to participate in the proceedings. The Arbitrator has considered the
7.
documents placed before him, and has delivered the said award.
It is not disputed by the respondents that respondent No.1 had
obtained a loan and respondent No.2 had stood as a guarantor. It is also
not disputed that there were lapses on the part of the first respondent in
the repayment of the installments.
8.
The issue raised is, as to whether the delay in preferring proceedings
under Section 34 of the Act of 1996 beyond three months as originally
provided and one more month as provided by proviso, would vest
jurisdiction in the competent court to condone the delay.
9.
Section 34 of the Act of 1996 reads as under:-
" 34. Application for setting aside arbitral award.
1.
Recourse to a Court against an arbitral award may be made
only by an application for setting aside such award in accordance
with sub-section (2) and subsection (3).
An arbitral award may be set aside by the Court only if-
a. the party making the application furnishes proof that-
2. i. a party was under some incapacity, or
ii. the arbitration agreement is not valid under the
law to which the parties have subjected it or, failing
any indication thereon, under the law for the time
being in force; or
the party making the application was not given
iii.
proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise unable to
present his case; or
the arbitral award deals with a dispute not
iv.
contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to
arbitration: Provided that, if the decisions on matters
submitted to arbitration can be separated from those
not so submitted, only that part of the arbitral award
which contains decisions on matters not submitted to
arbitration may be set aside; or
v.
the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement was in
conflict with a provision of this Part from which the
parties cannot derogate, or, failing such agreement,
was not in accordance with this Part; or
b.
the Court finds that-
i.
the subject-matter of the dispute is not capable
of settlement by arbitration under the law for the time
being in force, or
the arbitral award is in conflict with the public
ii.
policy of India.
Explanation.-Without prejudice to the generality of
sub-clause (ii), it is hereby declared, for the avoidance
of any doubt, that an award is in conflict with the
public policy of India if the making of the award was
induced or affected by fraud or corruption or was in
3.
violation of section 75 or section 81.
An application for setting aside may not be made after three
months have elapsed from the date on which the party making that
application had received the arbitral award or, if a request had
been made under section 33, from the date on which that request
had bow disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was
prevented by sufficient cause from making the application within
the said period of three months it may entertain the application
within a further period of thirty days, but not thereafter.
4.
On receipt of an application under sub-section (1), the Court
may, where it is 16 appropriate and it is so requested by a party,
adjourn the proceedings for a period of time determined by it in
order to give the arbitral tribunal an opportunity to resume the
arbitral proceedings or to take such other action as in the opinion of
arbitral tribunal will eliminate the grounds for setting aside the
arbitral award."
10.
Sub-section (1) of Section 34 of the said Act of 1996 enables an
aggrieved party to take recourse to a Court against the arbitral award and
for seeking setting aside of such award.
Several contingencies are
incorporated below sub-section (2) as regards the circumstances and the
Sub-section (3) and the proviso thereunder, are germane to these
11.
facts in which the award could be set aside.
proceedings. An application for setting aside is prohibited from being made
beyond three months of the date on which the party has received the
arbitral award. The proviso thereunder is aimed at securing the interest of
the aggrieved party. The discretion is left with the Court to entertain an
application even beyond the limitation period of three months provided,
the Court is satisfied that the applicant was prevented by a sufficient cause
12.
from making such an application within the period of three months.
However, I find the fetter that is imposed by legislation through the
proviso to be quite significant. Though an application could be entertained
by the Court in its discretionary powers within a period of thirty days from
the expiry of the limitation period, it cannot be entertained thereafter.
The phraseology prohibiting an application after 120 days is “but not
thereafter”.
13.
The contention of the first respondent is that Section 5 of the Act of
1963 would become applicable and the first respondent is rescued by the
said provision. Section 5 of the said Act of 1963 reads as under:-
" 5.
Extension of prescribed period in certain cases. -Any appeal
or any application, other than an application under any of the
provisions of Order XXI of the Code of Civil Procedure, 1908, may be
admitted after the prescribed period, if the appellant or the
applicant satisfies the court that he had sufficient cause for not
preferring the appeal or making the application within such period.
Explanation. -The fact that the appellant or the applicant was
misled by any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be sufficient
cause within the meaning of this section."
It is not in dispute that Section 5 of the Act of 1963 appears to be
14.
quite clear in its operation and it is entirely left to the satisfaction of the
Court to entertain a proceeding beyond the prescribed period, upon its
satisfaction, that the applicant was prevented by a sufficient cause from
filing an application within the limitation period.
15.
The first respondent has relied upon the judgment of the Apex Court
in the case of Union of India Vs. Hanuman Prasad and Brothers [2000 AIR
SCW 3934]. The Apex Court has held that Section 5 of the Act of 1963 was
wrongly held to be inapplicable to the proceedings before the Court while
reading with Section 30 of the Act of 1996. Section 30 of the Act of 1996
deals with settlements.
Section 30, with its four sub-sections reads as
under:-
" 30. Settlement.
1.
It is not incompatible with an arbitration agreement for an
arbitral tribunal to encourage settlement of the dispute and, with
the agreement of the parties, the arbitral tribunal may use
mediation, conciliation or other procedures at any time during the
If, during arbitral proceedings, the parties settle the dispute,
2.
arbitral proceedings to encourage settlement.
the arbitral tribunal shall terminate the proceedings and, if
requested by the parties and not objected to by the arbitral
tribunal, record die settlement in the form of an arbitral award on
agreed terms.
3.
An arbitral award on agreed terms shall be made in
accordance with section 31 and shall state that it is an arbitral
An arbitral award on agreed terms shall have the same status
4.
award.
and effect as any other arbitral award on the substance of the
dispute."
16.
The import and object of Section 30 of the Act of 1996, apparently is
to encourage settlement of disputes by bringing the litigating parties
together. It is from that point of view that the Apex Court has applied
Section 5 of the Act of 1963. The case before the Apex Court was squarely
covered under Section 30 of the Act of 1996. In my view, the facts of the
case being distinguishable, the Union of India's judgment (supra) would be
of no assistance to the respondent whose case falls under Section 34 of the
Act of 1996.
17.
The first respondent has also relied upon the judgment of the apex
Court in the case of State of Maharashtra Vs. M/s Ark Builders [AIR 2011 SC
1374]. Dealing with Section 34 of the Act of 1996, the Apex Court has ruled
that the limitation shall start operating only from the date on which the
aggrieved party receives a signed copy of the award. Facts of the said case
“(3)
are as follows:-
On March 20, 2003 the arbitrator gave a copy of the award,
signed by him, to the claimant in whose favour the award was made.
No copy of the award was, however, given to the appellant, the other
party to the proceedings, apparently because the appellant had
failed to pay the costs of arbitration. The respondent submitted a
copy of the award in the office of the Executive Engineer (appellant
no.4) on March 29, 2003, claiming payment in terms of the award. On
April 16, 2003, the Executive Engineer submitted a proposal to
challenge the award before the Chief Engineer, and the Financial
Advisor and Joint Secretary. The respondent sent a reminder to the
Chief Engineer on June 13, 2003, for payment of the money awarded
to him by the arbitrator and a second reminder to the Secretary and
Special Commissioner on January 8, 2004. The Executive Engineer by
his letter dated January 15, 2004, acknowledged all the three letters
of the claimant and informed him that the government had decided
to challenge the award before the appropriate forum.
(4)
According to the appellants, the decision to make an
application for setting aside the award was taken on December 16,
2003, but no application could be made for want of a copy of the
award from the arbitrator. Hence, on January 17, 2004, a messenger
was sent to the arbitrator with a letter asking for a copy of the
award. The arbitrator made an endorsement on the letter sent to him
stating that on the request of the claimant the original award was
given to him and the Xerox copy of the award (sent to him along with
the letter), was being certified by him as true copy of the award. The
endorsement from the arbitrator along with the Xerox/certified copy
of the award was received from the arbitrator on January 19, 2004
and on January 28, 2004, the appellants filed the application under
(5)
The
respondent
raised
section 34 of the Act.
an
objection
regarding
the
maintainability of the petition contending that it was hopelessly
barred by limitation. The Principal District Judge, Latur, by order
dated February 15, 2007 passed in Civil Application No.84 of 2005
(previously Suit No.1 of 2004) upheld the respondent's contention and
Against the order of the Principal District Judge, the
(6)
dismissed the appellants' application as barred by limitation.
appellants preferred an appeal (Arbitration Appeal No.2 of 2008)
(7)
before the Bombay High Court.
The High Court upheld the submissions made on behalf of the
claimant-respondent, affirmed the view taken by the Principal
District Judge and by judgment and order dated October 6, 2009
dismissed the appeal filed by the appellants. It took note of section
31(5) and section 34(3) of the Act and the decision of this Court in
Tecco Trichy Engineers & Contractors but rejected the appellant's
contention highlighting that the word used in section 31(5) is
`delivered' and not `dispatched'.
(13)
The highlighted portion of the judgment extracted above,
leaves no room for doubt that the period of limitation prescribed
under section 34(3) of the Act would start running only from the date
a signed copy of the award is delivered to/received by the party
making the application for setting it aside under section 34(1) of the
Act. The legal position on the issue may be stated thus. If the law
prescribes that a copy of the order/award is to be communicated,
delivered, dispatched, forwarded, rendered or sent to the parties
concerned in a particular way and in case the law also sets a period
of limitation for challenging the order/award in question by the
aggrieved party, then the period of limitation can only commence
from the date on which the order/award was received by the party
18.
concerned in the manner prescribed by the law.”
It was well settled by now that so far as the Act of 1996 is concerned
and the area in which Section 34 operates, the limitation would start
operating from the date of receipt of the award by the aggrieved party. In
the instant case, the first respondent has admitted in paragraph No.2 of its
written statement that he had received copy of the award on 13.6.2011 and
14.12.2011.
Applying the ratio laid down in the case of M/s Ark Builders (supra),
19.
had moved an application under Section 34(3) of the Act of 1996 on
respondents 1 & 2 were expected to file their application on/or before
13.9.2011. Having not done so, it leaves the respondents to the mercy of
the proviso to Section 34(3) of the Act of 1996. Even as per the proviso, the
application should have been filed within thirty days.
The respondent
therefore, do not dispute that the delay caused was actually of three
months and one day, but in the light of the proviso to Section 34(3) of the
Act of 1996, the delay would be reduced to two months and one day.
20.
The Apex Court (Three Judges' Bench) in the case of Consolidated
Engineering Enterprises Vs. Principal Secretary, Irrigation Department [2009
(Supple) AIR SC 396] has dealt with an almost identical issue. The question
of limitation under Section 34(3) of the Act of 1996 was raised. Section 5 of
the Act of 1963 was sought to be read along with Section 34(3) of the Act of
1996, so as to canvass that the competent Court had jurisdiction to condone
the delay and the same was entirely at the discretionary powers of the
21.
Court.
The Three Judges' Bench considered the contentions of the parties
and has finally settled the controversy in paragraphs 10 to 12 of the said
A bare reading of sub-section (3) of Section 34 read with the
"10.
judgment, which read as under:-
proviso makes it abundantly clear that the application for setting
aside the award on the grounds mentioned in sub-section (2) of
Section 34 will have to be made within three months. The period can
further be extended, on sufficient cause being shown, by another
period of 30 days but not thereafter. It means that as far as
application for setting aside the award is concerned, the period of
limitation prescribed is three months which can be extended by
another period of 30 days, on sufficient cause being shown to the
satisfaction of the Court. Section 29(2) of the Limitation Act, inter
alia provides that where any special or local law prescribes for any
suit, appeal or application a period of limitation different from the
period of limitation prescribed by the schedule, the provisions of
Section 3 shall apply as if such period was the period prescribed by
the schedule and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by any
special or local law, the provisions contained in Sections 4 to 24 shall
apply only insofar as, and to the extent, they are not expressly
excluded by such special or local law. When any special statute
prescribes certain period of limitation as well as provision for
extension up to specified time limit, on sufficient cause being
shown, then the period of limitation prescribed under the special
law shall prevail and to that extent the provisions of the Limitation
Act shall stand excluded. As the intention of the legislature in
enacting sub-section (3) of Section 34 of the Act is that the
application for setting aside the award should be made within three
months and the period can be further extended on sufficient cause
being shown by another period of 30 days but not thereafter, this
Court is of the opinion that the provisions of Section 5 of the
Limitation Act would not be applicable because the applicability of
Section 5 of the Limitation Act stands excluded because of the
However, merely because it is held that Section 5 of the
11.
provisions of Section 29(2) of the Limitation Act.
Limitation Act is not applicable to an application filed under Section
34 of the Act for setting aside an award, one need not conclude that
provisions of Section 14 of the Limitation Act would also not be
applicable to an application submitted under Section 34 of the Act
of 1996.
12.
Section 14 of the Limitation Act deals with exclusion of time
of proceeding bona fide in a court without jurisdiction. On analysis
of the said Section, it becomes evident that the following conditions
must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due
diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must
relate to the same matter in issue and;
(5) Both the proceedings are in a court.
16
The policy of the Section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding which
by reason of some technical defect cannot be decided on merits and
is dismissed. While considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be well to bear in
ig
mind that an element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to provide relief against
the bar of limitation in cases of mistaken remedy or selection of a
wrong forum. On reading Section 14 of the Act it becomes clear that
the legislature has enacted the said section to exempt a certain
period covered by a bona fide litigious activity. Upon the words used
in the section, it is not possible to sustain the interpretation that
the principle underlying the said section, namely, that the bar of
limitation should not affect a person honestly doing his best to get
his case tried on merits but failing because the court is unable to
give him such a trial, would not be applicable to an application filed
under Section 34 of the Act of 1996. The principle is clearly
applicable not only to a case in which a litigant brings his
application in the court, that is, a court having no jurisdiction to
entertain it but also where he brings the suit or the application in
the wrong court in consequence of bona fide mistake or law or
defect of procedure. Having regard to the intention of the
legislature this Court is of the firm opinion that the equity
underlying Section 14 should be applied to its fullest extent and
time taken diligently pursuing a remedy, in a wrong court, should be
excluded."
In the said judgment, the Apex Court, therefore, has concluded that
22.
an application could be filed under Section 34 of the Act of 1996 within
three months, which was extendable, on showing sufficient cause for a
period of thirty days, but not thereafter. It has also laid down the law that
when the special statute prescribes certain period of limitation, as well as
an extension up to a specific time limit, then the period of limitation
It was, therefore, ruled that the applicability of Section 5 of the Act
23.
1963 shall stand excluded.
provided as such must prevail and to that extent the provisions of the Act of
of 1963 would stand excluded by virtue of Section 29(2) thereof.
It is,
however, observed that the application of Section 4 of the Act of 1963
would not be excluded, since it pertains to exclusion of time of
proceedings, bonafide, in a Court without jurisdiction. In the instant case,
it is not the case of the respondents that they had approached a wrong
forum and had thus wasted time.
24.
This Court had an occasion to deal with a similar situation in the case
of P.C.V.Traders, Mumbai Vs. Kapol Cooperative Bank Ltd. Mumbai [2013 (1)
Mh.L.J.365].
The learned Single Judge of this Court has concluded in
paragraph Nos.6 and 7 as under:-
" 6.
I am of the view that the petitions not having been filed
within three months from the date of getting the copy of the award
is barred by limitation prescribed under section 34(3) of the Act.
Even if, the date of receipt of the supplementary award from the
arbitrator is considered, three months had already expired when
these petitions were lodged. In my view this court was misled by the
petitioner by falsely contending that there was delay of only two
days in filing petition under section 34 of the Act.
In my view the prescribed period for making an application for
7.
setting aside arbitral award is three months. The period of thirty
days mentioned in proviso to section 34(3) of the Act is not the
period of limitation and is therefore, not prescribed period for the
purpose of making an application for setting aside arbitral award.
The Petitioner has proceeded on the footing that the time to
challenge was three months plus thirty days from the date of getting
the copy of the supplementary award which is on the face of it
contrary to section 34(3) of the Act. I do not propose to go into the
issue whether the limitation in this case would commence from the
date of getting the copy of the award dated 8 th November, 2005 in
view of the application filed by the petitioner under section 33(4) of
the Act having been dismissed being not maintainable by the learned
Arbitrator. "
25.
It is, therefore, in my view, trite law that under Section 34(3) of the
Act of 1996, read with the proviso thereunder, the competent authority
would not have jurisdiction to condone the delay caused by the applicant in
making an application beyond the maximum period of four months.
26.
The respondent has tried to canvass that the judgment of the Apex
Court in the case of Hanuman (supra) was not cited before the three Judges'
Bench in the case of Consolidated Engineering (supra). It is, therefore, tried
to be canvassed that this Court should follow the view taken by the Apex
The Apex Court in the case of Siddharam Satlingappa Mhetre Vs.
27.
Court in the case of Hanuman (supra).
State of Maharashtra [(2011) 1 SCC 694] has dealt with the issue as regards
the concept of per incuriam decision and precedential value of a judgment
delivered by the Larger Bench. In paragraph Nos.127, 135, 136 and 138,
the Apex Court has dealt with the said issue. It would be relevant to
reproduce the said paragraphs in this judgment, as under:-
"127. The judgments and orders mentioned in paras 124 and 125 are
clearly contrary to the law declared by the Constitution Bench of
this Court in Sibbia's case (supra). These judgments and orders are
also contrary to the legislative intention. The Court would not be
justified in re-writing section 438 Cr.P.C.
“135. A Constitution Bench of this Court in Central Board of
Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673
has observed that:
“(1) The law laid down by this Court in a decision delivered by
a Bench of larger strength is binding on any subsequent Bench
of lesser or coequal strength.”
“136. A three-Judge Bench of this court in Official Liquidator v.
Dayanand and Others (2008) 10 SCC 1 again reiterated the clear
position of law that by virtue of Article 141 of the Constitution, the
judgment of the Constitution Bench in State of Karnataka and Others
v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all courts
including this court till the same is overruled by a larger Bench. The
ratio of the Constitution Bench has to be followed by Benches of
lesser strength. In para 90, the court observed as under:-
"
We are distressed to note that despite several
pronouncements on the subject, there is substantial increase
in the number of cases involving violation of the basics of
judicial discipline. The learned Single Judges and Benches of
the High Courts refuse to follow and accept the verdict and
law laid down by coordinate and even larger Benches by citing
minor difference in the facts as the ground for doing so.
Therefore, it has become necessary to reiterate that
disrespect to the constitutional ethos and breach of discipline
have grave impact on the credibility of judicial institution and
encourages chance litigation. It must be remembered that
predictability and certainty is an important hallmark of
judicial jurisprudence developed in this country in the last six
decades
and increase
in the frequency of conflicting
judgments of the superior judiciary will do incalculable harm
to the system inasmuch as the courts at the grass roots will
not be able to decide as to which of the judgments lay down
the correct law and which one should be followed.”
“138. The analysis of English and Indian Law clearly leads to the
irresistible conclusion that not only the judgment of a larger
strength is binding on a judgment of smaller strength but the
judgment of a co-equal strength is also binding on a Bench of judges
of co-equal strength. In the instant case, judgments mentioned in
paragraphs 135 and 136 are by two or three judges of this court.
These judgments have clearly ignored a Constitution Bench judgment
of this court in Sibbia's case (supra) which has comprehensively dealt
with all the facets of anticipatory bail enumerated under section
438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs
135 and 136 of this judgment are per incuriam."
28.
The Apex Court by relying upon the judgment in the case of Central
Board of Dawoodi Vs. State of Maharashtra [(2005) 2 SCC 673], has observed
that the law laid down by the Court in a decision delivered by a Bench of
larger strength is binding on any subsequent lessor or co-equal Bench. From
the observations as reproduced from paragraphs as above, it is, therefore,
clear that the view taken by the Three Judges' Bench of the Apex Court in
the case of Consolidated Engineering (supra) will be applicable to this case.
29.
By the impugned order, the competent Court has concluded that the
delay of two months and one day can be condoned since the delay was
neither intentional nor deliberate. It is apparent that the conclusions drawn
by the concerned Court are not in consonance with the law as laid down by
the Apex Court in the case of Consolidated Engineering (supra) and the view
of this Court in the case of PCV Traders (supra).
I, therefore, find the
impugned judgment to be erroneous and in opposition to settled law.
30.
In the result, the impugned order dated 30.8.2012, passed by the
Principal District Judge, Beed in Misc. Civil Application No.503 of 2011 is
quashed and set aside. Application Exhibit 1, filed by respondent No.1,
therefore, stands rejected.
The Writ Petition is allowed. Rule is made absolute. No order as to
costs.
31.
(RAVINDRA V. GHUGE, J.)
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