Allowed

Mrs. Balvinder Kaur Purswani v. Libord Securites Ltd. and Anr.

Bombay HC2 Aug 2004ARBP/275/2004

Case brief

AI extract

What is this about?

The court held that Section 14 of the Limitation Act does not apply as the earlier proceedings were not against the petitioner. It also ruled that factual questions regarding the account nature raised for the first time in a Section 34 petition were excluded. Consequently, the award was set aside as the claim was time-barred.

What did the court decide?

The impugned arbitral award dated 11th March 2004 is set aside as the claim was barred by the law of limitation.

Mrs. Balvinder Kaur Purswani Vs Libord Securites Ltd. and Anr. — Arbitration | Bombay HC (2004)

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I	N	THE HIGH ORDINARY		COU	RT OF ORIGINAL	JUDICATURE AT CIVIL	B JURISD	OMBAY ICTION
		ARBITRATION		PE	TITION	NO.275 O	F	2004
Mrs Balvi Libord Se	nder K curitie	aur Purswani v/s s Ltd. and anr.				... Petitioner ... Respondents
Mr	S.S.	Purohit	i/b		M/s	Purohit and	Co.	for
Petitioner.
Mr	B.B.	Saraf i/b		Mr	H.V.	Chande for	Resp	ondents.
CORAM DATE		: :			2	D.K.DESHMUKH ND AUGUST		J. 2004

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P.C.:

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1.			By this petition, the petitioner challenges
the	award	dated	11th March 2004 passed by the Arbitral
Tribunal	con	stituted	under the Bombay Stock Exchange
Bye-laws.	A	sh	ort ground on which the award is
challenged	is	t	hat the claim was barred by the law of
limitation.		The	Arbitral Tribunal has recorded a
finding	that		the cause of action for making reference
arose	on	3rd	May 1999. Admittedly, the present
reference	in	which	award has been made, has been made on
1st	January	2003.	According to the award of the
Arbitral	Trib	unal,	the reference is made within the
period	of	limitat	ion because the claim, which was
referred	to	the	arbitration by the respondents on 21st
March	2001,	was	decided by the Appellate Tribunal on 5th
August	2003	and	the time taken in those proceedings is
liable	to	be	excluded because of the provisions of
section	14	of	the Limitation Act. Now, admitted
position	before	me	is that in the earlier reference, the

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petitioner was not a party. Section 14 of the

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Limitation Act reads as under :-

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"14. Exclusion of time of proceeding bona

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fide in court without jurisdiction :-

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(1)	In comp	uting	the per	iod of limitati	on for
any	suit the	time	during	which the	plaintiff
has	been	prosecuti	ng	with due	diligence
another	civil	proceedi	ng, whe	ther in a	court
of	first i	nstance	or of	appeal or	revision,
against	the def	endant	shall	be excluded,	where
the	proceeding	relates	to th	e same matter	in
issue	and is	prosec	uted in	good faith i	n a
court	which,	from	defect	of jurisdiction	or

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other cause of a like nature, is unable to

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entertain it.

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(2)	In compu	ting t	he pe	riod of	limitation	for
any	application,	the	time	during	which	the
applicant	has	been		prosecuting	with	due
diligence	another	civil	pro	ceeding,	whether	in
a co	urt of	first	instance	or of	appeal	or
revision,	against	the	same	party	for the	same
relief	shall	be	exclu	ded,	where	such
proceeding	is	prosecut	ed in	good	faith in	a
court	which,	from	defect	of	jurisdiction	or

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other cause of a like nature, is unable to

entertain it.

(3) Notwithstanding

anything

contained in rule

2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect

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in the jurisdiction of the court or other

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cause of a like nature."

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. It is clear that apart from the fact that it should be the same claim in earlier proceedings, the claim must be against the same party. Admittedly, the claim in the earlier reference was not against the petitioner, therefore, provisions of section 14 of the Limitation Act will not operate to exclude the time taken in earlier proceedings. It was contended before me on behalf of the respondents that though admittedly the last entry was made on 3rd May 1999, in view of the first article of the schedule of the Limitation Act, as the present reference was for recovery of balance due on mutual, open and current account where there have been reciprocal demands between the parties, the period of limitation will start from the closure of the year in which last item admitted or proved is entered in the account, such year will be computed as in the account.

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The	submission is	that the period of	limitation	will
therefore	start from	1st April 2000 and	therefore,	the
reference	is made	within the period	of	limitation.
Admitted	ly, this quest	ion was not raised	before	the
Arbitral	Tribunal. Whe	ther the claim is	for recove	ry of
the	balance due, whether	the account was	open or	current
are	all questions of	fact which have to	be raised	and
decided	by the Arbi	tral Tribunal. The	question	cannot
be	permitted to be	raised for the first	time	in a
petition	filed under	section 34 of the said	Act.	The
next	question would	be if such contention	is	raised,
what	is the accounti	ng year followed by	the	claimants.
In	the absence of	enquiry into facts by	the	Arbitral
Tribunal,	such question	s cannot be allowed	to be	raised
in	this Court for	the first time. I	find that	the
Arbitral	Tribunal h	as wrongly held that	the	reference
was	made within th	e period of limitation.	The	award
therefore	is liable to	be set aside as the	claim	was
barred	by the law	of limitation.	In the	result

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therefore, petition succeeds and is allowed, the award

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impugned in the petition is set aside.

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. Parties to act on the copy of this order duly

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authenticated by the Associate / Personal Secretary as

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true copy.

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Certified copy expedited.

Mrs. Balvinder Kaur Purswani v. Libord Securites Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

Mrs. Balvinder Kaur Purswani v. Libord Securites Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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