No Acts & Articles mentioned in this case
5-CARBP 305.2023.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION NO.305 OF 2023
Rajuram Sawaji Purohit …Petitioner
Versus
The Shandar Interior Private Ltd. …Respondent
----------
Mr. Mayur Khandeparkar, Counsel a/w Mr. Anuj Desai, Counsel a/w Mr.
Umesh Tawari i/b S. Ashwinkumar & Co. LLP, Advocates for the
Petitioner.
Mr. Rakesh Agrawal, Counsel a/w Ms. Sukhada Dalvi i/b Mr.
Parmeshwar Bhise, Advocate for the Respondent.
----------
CORAM :R.I. CHAGLA, J.
DATED :7TH FEBRUARY, 2024.
JUDGMENT :
1. By this Arbitration Petition, the Petitioner is seeking setting
aside of the impugned Award dated 6
th
June, 2022.
2. A brief background of facts which are germane to the issue
arising in the Arbitration Petition filed under Section 34 of the
Arbitration Act are necessary to be adverted to and which are as under:
1/50
KAVITA
SUSHIL
JADHAV
Digitally signed
by KAVITA
SUSHIL JADHAV
Date: 2024.02.20
14:13:14 +0530 2024:BHC-OS:2667
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(i) An Agreement dated 29
th
November, 2011 was
executed between the Petitioner and Respondent for purchase
of salvage material from project site for a lump sum
consideration of Rs.1,95,00,000/-. The Petitioner had
admittedly paid the sum of Rs.51,38,000/- to the Respondent
as Security Deposit which was to be adjusted against the
salvage material to be delivered by the Respondent to the
Petitioner. The Agreement was valid from 29
th
November, 2011
upto December 2014. It is necessary to note that the
Respondent failed to supply any salvage material to the
Petitioner.
(ii) On 1
st
January, 2016, the Petitioner through his
Advocate issued a legal notice to the Respondent calling upon
the Respondent to refund the deposit amount of
Rs.51,38,000/- alongwith interest.
(iii) The Respondent through its Advocate issued a Notice
dated 15
th
January, 2016 refusing to refund the security
deposit.
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(iv) The Petitioner filed a Company Petition No.269 of
2016 under Sections 433, 434 and 439 of the Companies Act,
1956 (“Winding-up Petition”) praying for winding up the
Respondent.
(v) The Company Registrar of this Court by order dated
14
th
June, 2016 accepted the Company Petition No.269 of
2016 and directed the Petitioner to issue notice to the
Respondent.
(vi) By order dated 6
th
February, 2018, this Court allowed
the Petitioner to withdraw the Winding-up Petition with
liberty to initiate appropriate proceedings.
(vii) The Petitioner filed Commercial Summary Suit
No.721 of 2018 before the this Court on 21
st
June, 2018 and
Summons for Judgment No.79 of 2018 was taken out therein.
(viii) The Respondent filed its Affidavit seeking leave to
defend the Summary Suit on 27
th
August, 2018.
(ix) By order dated 3
rd
October, 2018, this Court with
consent of parties referred the dispute forming the subject
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matter of the Summary Suit to arbitration before the Arbitral
Tribunal consisting of Sole Arbitrator and the plaint was
directed to be treated as the Statement of Claim.
(x) The impugned Award was passed on 6
th
June, 2022
by the Arbitral Tribunal.
(xi) The Arbitration Petition has been filed on 5
th
September, 2022 challenging the impugned Award.
3. Mr. Khandeparkar, learned Counsel appearing for the
Petitioner has submitted that the issue involved in the present
Arbitration Petition involves a pure question of law.
4. Mr. Khandeparkar has submitted that the aforementioned facts
are undisputed and cause of action to sue the Respondent for refund of
the Security Deposit accrued in the Petitioner’s favor on 1
st
January,
2015 and the period of limitation would be three years from the said
date. He has placed reliance upon Article 47 of the Indian Limitation
Act, 1963 in this context.
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5. Mr. Khandeparkar has submitted that the Petitioner was
prosecuting with due diligence and in good faith the Winding-up
Petition for recovery of the Security Deposit for the period from 3
rd
February, 2016 to 6
th
February, 2018 before the wrong forum. The
Petitioner has made necessary averment in Paragraph 25 of the Plaint
that the aforesaid period should be excluded while computing the
period of limitation.
6. Mr. Khandeparkar has submitted that the Respondent in
Paragraph 9(w) of its Affidavit dated 27
th
August, 2018 seeking leave to
defend admitted that the Petitioner had approached the wrong forum by
filing the Winding-up Petition but denied that the period spent by the
Petitioner in prosecuting the Winding-up petition can be excluded in
computing the period of limitation.
7. Mr. Khandeparkar has submitted that there was no denial by
the Respondent in the context of bona fide prosecution of Winding-up
Petition with due diligence.
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8. Mr. Khandeparkar has referred to the Issues framed by the
Sole Arbitrator and in particular Issue No.4 viz. “
Whether the claim is
within limitation
?” and Issue No.5, “What order, award and cost?” and
Issue No.6, “
Whether the Claimant proves that he is entitled to refund of
the amount of Rs.51,38,000/- deposited with the Respondent as also
interest on the said amount at 24% per annum?”
9. Mr. Khandeparkar has submitted that the learned Arbitrator
had answered the Issue Nos.1, 2 and 3 in favour of the Petitioner and
concluded that Petitioner has from time to time deposited amounts
aggregating to Rs.51,38,000/- with the Respondent as against which no
material was delivered/supplied by the Respondent to the Petitioner.
However, the learned Sole Arbitrator has answered the Issue No.4
against the Petitioner and held that Petitioner’s claim is barred by
limitation. He has referred to Paragraph 17.8 of the impugned Award
which contains such finding.
10. Mr. Khandeparkar has submitted that based upon the finding
on Issue No.4, the learned Sole Arbitrator answered the Issue Nos.5 and
6 against the Petitioner and held that the Petitioner is not entitled for
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refund of the amount of Rs.51,38,000/- deposited with the Respondent
and accordingly dismissed the Petitioner’s claim. He has referred to
Paragraph 18 of the impugned Award in this context.
11. Mr. Khandeparkar has submitted that the impugned Award to
the extent that it holds that the Petitioner’s claim is barred by limitation
by answering the Issue No.4 against the Petitioner is patently illegal and
contrary to fundamental policy of law and ought to be set aside.
12. Mr. Khandeparkar has submitted that it is imperative for this
Court to exercise its jurisdiction under Section 34 of the Arbitration Act
and set aside the Award particularly when the impugned Award holds
that the Petitioner’s claim is barred by the law of limitation as a result of
which the Petitioner is not entitled to any payment and thereby
dismissing the Petitioner’s claim, which finding is patently illegal and
contrary to the public policy of India.
13. Mr. Khandeparkar has in support of his contention with reagrd
to the scope of interference by Courts under Section 34 of the
Arbitration Act, referred to the Judgment of the Supreme Court in
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Ssangyong Engg. & Construction Co. Ltd. Vs. NHAI
1
at Paragraphs 37 &
39. The Supreme Court has held that Courts can interfere with an Award
where there is patent illegality appearing on the face of the Award
which illegality goes to the root of the matter and which does not
amount to mere erroneous application of the law.
14. Mr. Khandeparkar has also referred to the decision of this
Court in Union of India Vs. Recon
2
at Paragraphs 15(g), 16 & 16.1,
wherein it is held that ‘an erroneous application of law’ does not include
within its ambit the cases where the arbitrator has invoked the law
incorrectly and applied the incorrect law to the facts of a given case and
in such case the Award would be vulnerable as being patently illegal.
15. Mr. Khandeparkar has submitted that the decision of this
Court in Union of India Vs. Recon (supra) has been followed in a
subsequent Judgment of this Court in BCCI Vs. Deccan Chronicles
3
at
Paragraphs 14 & 16
.
1
(2019) 15 SCC 131
2
2020 SCC OnLine Bom 2278
3
2021 SCC OnLine Bom 834
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16. Mr. Khandeparkar has submitted that the learned Sole
Arbitrator in the present case has erroneously invoked the law of
limitation i.e. Section 14 of the Limitation Act and the law applied is
also contrary to previous binding precedents of this Court, thereby
applying the incorrect law to the facts of the present case. He has
submitted that by the incorrect invocation of the law of limitation and
consequential erroneous decision by the learned Sole Arbitrator, makes
the Award vulnerable as being contrary to the public policy of India and
thus hit by Section 34(2)(b)(ii) read with Clause (ii) of Explanation 1
thereof. He has placed reliance upon Judgment of the Supreme Court in
the case of Temjenkaba & Ors. Vs. Temjenwati & Ors,
4
, wherein it was
held that the Limitation Act is based on public policy.
17. Mr. Khandeparkar has also placed reliance upon the decision
of Madras High Court in the case of M/s Chennai Water Desalination
Ltd. Vs. Chennai Metropolitan Water Supply and Sewerage Board,
5
at
Paragraph 17 and 18, wherein it is held that limitation being a facet of
4
(2002) 10 SCC 597
5
O.P. No.298 of 2019 dated 26.07.2022
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public policy, an error of limitation clearly leaves an Award hit by
Section 34(2)(b)(ii) read with Clause (ii) of Explanation 1.
18. Mr. Khandeparkar has submitted that the question involved is
a pure question of law and not a mixed question of facts and law as
contended by the Respondent. He has submitted that from the start of
the period of limitation i.e. 1
st
January, 2015 till the date of filing of the
Summary Suit i.e. 21
st
June, 2018, the period spent by the Petitioner in
prosecuting the Winding-up Petition i.e. from 3
rd
February, 2016 to 6
th
February, 2018 deserves to be excluded. He has placed reliance upon
Section 14 of the Limitation Act and in particular Section 14(1) thereof.
19. Mr. Khandeparkar has submitted that for availing the benefit
of Section 14(1) of the Limitation Act, there are five conditions to be
satisfied. Condition No.1 being that, the concerned subsequent
proceeding is a Suit and Condition No.2 that the previous proceeding
should be a civil proceeding, Condition No.3 is that the previous
proceeding should relate to same matter in issue, further Condition No.4
is that the previous proceeding should have been prosecuted with due
diligence and good faith. Lastly, Condition No.5 is that the Court
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in which the previous proceeding was filed was unable to entertain it
from defect of jurisdiction of other cause of a like nature. In Tata
Consultancy Services Ltd. Vs. Inspira IT Products Ltd.,
6
these conditions
were held to have been satisfied.
20. Mr. Khandeparkar has submitted that the Judgment of the
learned Single Judge in Tata Consultancy Services Ltd. (supra) has been
upheld in Appeal by the Division Bench of this Court in Tata Consultancy
Services Ltd. Vs. Inspira IT Products Pvt. Ltd. in Commercial Appeal
No.483 of 2018 dated 14
th
June, 2022. Further, the Supreme Court has
dismissed the Special Leave Petition (“SLP”) filed against the same in
Tata Consultancy Services Ltd. Vs. Inspira IT Products Ltd. ,
7
21. Mr. Khandeparkar has submitted that Tata Consultancy
Services Ltd. (Supra) which case is almost identical to the facts of the
present case where Winding-up Petition had been filed and thereafter
withdrawn with liberty to file an appropriate proceeding (Suit for
recovery) before the competent Civil Court, this Court held that the time
6
Commercial Arbitration Petition No.996/2018 dtd.18/09/2018
7
SLP (c) No.15922 of 2022 dtd.14th October, 2022
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expended in prosecuting the Winding-up Petition deserves to be
excluded.
22. Mr. Khandeparkar has submitted that this Court in Tata
Consultancy Services Ltd. (supra) held that the right of a creditor to
apply for winding-up of a company, if it is unable to pay his debt, is after
all nothing but a private right given to him by a special statute. Non-
payment of his legitimate debt amounts to nothing but infringement of
his civil right, and he may in such a case choose to adopt any remedy
which may be available to him in law and if the remedy he adopts or
action which he brings in such a case is not criminal in nature, there is
no reason why such remedy or action should not be treated as a civil
proceeding within the meaning of Section 14 of the Limitation Act.
Thus, condition Nos.1 and 2 were held to be satisfied. He has relied
upon Paragraphs 8 to 13 of the said decision in this context.
23. Mr. Khandeparkar has submitted that in the present case, the
Petitioner had instituted the Winding-up Petition to recover its debts.
The matter in issue in the Winding-up Petition and the Summary Suit is
the same being the existence of debt in the Petitioner’s favour from the
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Respondent and the Petitioner’s entitlement to recover the same and
thus condition (iii) is satisfied. He has in that context placed reliance
upon Tata Consultancy Services Ltd. (supra) at Paragraph 15.
24. Mr. Khandeparkar has submitted that is is pertinent to note
that unlike Section 14(2) which is in the context of a subsequent
“application” where the requirement is for the reliefs in the previous
civil proceeding and the subsequent “application” should be the same,
the requirement laid down in Section 14(1) which is in the context of a
subsequent “Suit” is that the “matter in issue” in the previous civil
proceeding and the subsequent “Suit ” should be the same. Thus the
requirements laid down in Section 14(1) and 14(2) are distinct from
each other.
25. Mr. Khandeparkar has submitted that there has been
sufficiency of pleadings in the present case and which meets the
requirement of the settled law. He has placed reliance upon the decision
of Supreme Court in the case of M.P. Steel Corpn. Vs. CCE,
8
wherein
the Supreme Court held that merely stating that a party was prosecuting
8
(2015) 7 SCC 58
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its remedy before another forum which ought to be excluded was
sufficient to attract the principles of Section 14 of Limitation Act. He
has placed reliance upon Paragraph 8 and 9 of the said Judgment in this
context.
26. Mr. Khandeparkar has submitted that reference made be made
to the Judgment of Tata Consultancy Services Ltd. (supra) at Paragraph
14, wherein it is held that under Section 14(1) of the Limitation Act,
there is no requirement that the previous proceeding must be for
recovery of any debt, or, for the same relief as claimed in the Suit
instituted or reference made subsequently. That, Winding-up Petition is a
bona fide remedy for enforcing payment of lawful debt.
27. Mr. Khandeparkar has accordingly submitted that the
aforementioned Condition 4 for the applicability of Section 14(1) of the
Limitation Act viz. that the previous proceeding should have prosecuted
in due diligence and in good faith has been met.
28. Mr. Khandeparkar has submitted the last Condition No.5 for
applicability of Section 14(1) of the Limitation Act viz. the Court in
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which legal proceeding was filed, was unable to entertain it from defect
of jurisdiction or other cause of a like nature has also been met in the
present case. The Petitioner was prosecuting the Winding-up Petition
diligently and with the bona fide intention to recover the debt due to
him from the Respondent. Since the Petitioner had approached the
Company Court which could not entertain the present proceeding, the
Petitioner had withdrawn the Winding-up Petition with liberty to file
appropriate proceedings. Thus, the Petitioner’s case was squarely
covered under Section 14(1) of the Limitation Act which covers the
cases where the previous proceedings could not be entertained for
“defect of jurisdiction” as well as for “causes of like nature”. The
Respondent has itself admitted that the Petitioner had approached the
wrong forum. He has in this context placed reliance upon Paragraph 16
of the Judgment of this Court in Tata Consultancy Services Ltd. (supra)
at Paragraph 16. This Court has held therein that the defect is not as to
the merits of the claim, but the inability of the Court to entertain it on
account of some reason which is peculiar to the remedy adopted. That is
nothing but a defect of a like nature as the defect of jurisdiction.
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29. Mr. Khandeparkar has submitted that since the Winding-up
Petition was withdrawn with liberty would not mean that the Petitioner
would not be entitled to the benefit of Section 14(1) of the Limitation
Act. Inability of the Court to entertain the Winding-up Petition is not a
proven inability. The inability of the Company Court to entertain the
Winding-up Petition was accepted by the Petitioner as a result of which
the Petitioner withdrew the Winding-up Petition with liberty to approach
the Civil Court. Such withdrawal signifies that the Company Court
hearing the proceeding was unable to entertain it as the liberty sought
by the Petitioner could not be for approaching the Company Court once
again and could only be for filing recovery proceeding before the
competent Civil Court. He has submitted that none of the judgments
relied upon by the Respondent consider a situation where the previous
winding-up proceeding was withdrawn with liberty to file appropriate
proceedings before the competent Civil Court.
30. Mr. Khandeparkar has submitted that the view taken by the
learned Single Judge in Tata Consultancy Services Ltd. (supra) which
has been upheld in Appeal by the Division Bench of this Court as well as
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the SLP therefrom has been dismissed by the Supreme Court squarely
covers the case of the Petitioner and the Petitioner is entitled to the
benefit of Section 14(1) of the Limitation Act.
31. Mr. Khandeparkar has submitted that since the Winding-up
Petition was withdrawn for cause of a like nature as that of a defect in
the jurisdiction and therefore, by virtue of Section 14(3) of the
Limitation Act, Order 23 Rule 1(2) of the CPC, 1908 has no application
in the facts of the present case and the Petitioner would be entitled to
the benefit of Section 14(1) of the Limitation Act.
32. Mr. Khandeparkar has submitted that the Division Bench of
this Court in Maharashtra State Farming Corporation Ltd. Vs. Belapur
Sugar and Allied Industries Ltd.,
9
permitted exclusion of time spent in
prosecuting a Winding-up Petition and appeals therefrom while
computing the period of limitation in the appropriate remedy to be
adopted by the party in view of Section 14 of the Limitation Act. In the
said case the party prosecuting a Winding-up Petition was relegated to
ordinary remedy available in law after having pursued the Winding-up
9
2004 (3) Mh.L.J. 414
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Petitions and appeals diligently and bona fide. He has in this context
referred to Paragraphs 15 to 18 of the said decision.
33. Mr. Khandeparkar has submitted that Section 14 of the
Limitation Act ought to be interpreted in a manner that advances the
cause of justice. Further, Section 14 of the Limitation Act is wide enough
to cover such cases where the defects are not merely jurisdictional
strictly so called but others more or less neighbours to such deficiencies.
Any circumstance, legal or factual, which inhibits entertainment or
consideration by the Court of the dispute on the merits comes within the
scope of the section and a liberal touch must inform the interpretation of
the Limitation Act which deprives the remedy of one who has a right.
34. Mr. Khandeparkar has further placed reliance upon the
decision of M.P. Steel Corpn. (supra), wherein it was held that where
previous proceeding was being prosecuted before another appellate
forum, that time period shall also be excluded in calculating the period
of limitation.
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35. Mr. Khandeparkar has further placed reliance upon Union of
India Vs. West Coast Paper Mills Ltd.,
10
in this context.
36. Mr. Khandeparkar has accordingly submitted that the
captioned Arbitration Petition be allowed and the impugned Award be
set aside. He has submitted that in view of the Petitioner seeking setting
aside of the Award, the Petitioner seeks to withdraw of the Interim
Application (L) No.28574 of 2022.
37. Mr. Rakesh Agarwal, learned Counsel appearing for the
Respondent has submitted that the period from 3
rd
February, 2016, (the
date of institution of Winding-up Petition) till 6
th
February, 2018 (when
the Winding-up Petition was withdrawn) i.e. 2 years and 3 days cannot
be excluded for the purpose of computation of limitation. He has
submitted that the issue in Winding-up Petition is different and distinct
than the issue raised in the Suit. Further, the Winding-up proceeding
was withdrawn not because of a “
Defect of Jurisdiction or other cause of
like nature
”. Paragraph 25 of the Plaint does not contain the pleadings
to establish that the earlier Winding-up proceeding was prosecuted in
10
(2004) 3 SCC 458
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“good faith”. This is without prejudice to the submission that the
Winding-up proceeding does not relate to the “
same matter in issue” as
that of “
money recovery suit”, and there is no evidence to establish
“
good faith”, which is a question of fact.
38. Mr. Agarwal has referred to the definition of of “good faith”
under Section 2(h) read with Section 14(1) of the Limitation Act. This
is relevant for the purpose of deciding the present matter. He has
submitted that the learned Arbitrator has rendered a well-reasoned
finding in Paragraph 17.7 and 17.8 of the impugned Award. The learned
Arbitrator has held that the Winding-up Petition was not dismissed on
account of any “
defect of jurisdiction or other cause of a like nature”.
The learned Company Judge refused to proceed with the Company
Petition as he held that the debt was bonafidely disputed by the
Respondent Company. Therefore, the issue of limitation was decided in
favor of the Respondent by holding that the Claim is time-barred.
39. Mr. Agarwal has submitted that the frame of the Petition
under Section 34, and particularly the grounds does not show that the
impugned Award is not assailed on the premise that the learned
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Arbitrator has committed any error in applying the law of limitation.
There is no such averment in the Petition. He has referred to Ground(F)
of the Arbitration Petition, wherein the Petitioner has relied upon 2
Judgments, which are
sub-silento, as it does not lay down any
proposition of law. He has submitted that in the narrow window of
Section 34 of the Arbitration and Conciliation Act, the re-appreciation of
the evidence is not permissible. Whether the Petitioner was prosecuting
the Winding-up Petition in good faith or not, whether the Company
Petition was prosecuted with due diligence or not, whether the
Company Petition was prosecuted in “good faith” or not, all these are
the disputed question of fact, on which the learned Arbitrator has given
his ruling.
40. Mr. Agarwal has submitted the issue in the Winding-up
Petition is whether the Company is commercially solvent or not to pay
its debt. The issue in the money recovery suit is whether the Plaintiff is
entitled to recover the money or not. Both the issues are different and
hence, it cannot be said that the Winding-up proceedings relate to the
“same matter in issue” as that of a money recovery suit, which is sine-
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qua-none to invoke provisions of Section 14(1) of the Limitation Act,
1963. Thus, the benefit of Section 14(1) will not be available to the
Petitioner herein, in the facts of the present case.
41. Mr. Agarwal has submitted that in the unreported Judgment
cited by the Petitioner in Tata Consultancy Services (supra) do not
consider the earlier Judgments of the Supreme Court and the
fundamental difference between the Winding-up Petition and money
recovery suit. He has submitted that the Judgments which the
Respondents have now cited were not brought to the notice of learned
Single Judge. The learned Single Judge has overruled the reported
Judgment of the Co-ordinate Bench in Ajab Enterprises
11
. He has
submitted if at all, the learned Judge defers with the view of the Co-
ordinate Bench, then, the matter ought to have been referred to the
Larger Bench.
42. Mr. Agarwal has submitted that in so far as the Judgment of
the Division Bench in Tata Consultancy Services (supra) is concerned,
the Judgment of the Supreme Court in Natesan Agencies
12
and other
11
AIR 1991 Bom 35
12
(2019) 15 SCC 70
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judgments cited by the Respondents herein were not brought to the
notice of the Division Bench. However, the Division Bench has
distinguished the disputed and undisputed claim in Paragraph 16.
43. Mr. Agarwal has submitted that since the Claim was disputed,
the Winding-up Petition cannot be said to be a bona fide remedy for the
Claimant or the claimant was prosecuting said Winding-up Petition in
“good faith”.
44. Mr. Agarwal has submitted that in so far as the Judgment of
Maharashtra State Farming Corporation Ltd. (supra) is concerned, the
Judgment is “sub silento ” as it does not lay down any binding
proposition of law. He has submitted that as laid down in the Supreme
Court in M.P. Steel Corporation Vs. Commissioner of Central Excise
13
,
the provisions of Section 14 of the Limitation Act, 1963 must be liberally
construed. However, it does not mean that provisions can be violated by
settled judicial norms.
45. Mr. Agarwal has submitted that the benefit of Section 14(1) of
the Limitation Act, is not available to the Petitioner. There is correct
13
(2015) 7 SCC 58
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application of law in the facts of the case. There are no pleadings and
evidence related to the material ingredient of the Section 14(1). The
burden of proof is on the claimant to prove that he is entitled to the
benefit of Section 14(1). In the absence of any pleading and proof, of
facts also, the claim has been rightly dismissed by the learned Arbitrator.
46. Mr. Agarwal has thereafter placed reliance upon Natesan
Agencies (supra) where the Supreme Court has considered the
provisions of Section 14 of the Limitation Act. In Paragraph 21.4.4, the
Supreme Court has with approval quoted para 30 of the Judgment of
the Division Bench of Nagpur High Court in the case of Kashinath
Shankarappa Vs. New Akot Cotton Ginning and Pressing Company Ltd.
14
The difference between the Winding-up Petition and money recovery
proceedings has been considered and the Supreme Court has held that
the benefit of Section 14 of the Limitation Act is not available.
47. Mr. Agarwal has thereafter referred to Paragraphs 21.4.5,
21.4.6, 21.5, 21.6, and 21.7 of Natesan Agencies (supra) which has
been held that for the the applicability of Section 14 of the Limitation
14
1958 SCR 1331
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Act and exclusion of the time spent in the earlier proceedings, the
matter in issue in both the earlier and the latter proceedings must be the
same. The earlier proceeding must be prosecuted with “Due Diligence”
and there must be the defect of jurisdiction which compelled the
Petitioner to withdraw the earlier proceedings.
48. Mr. Agarwal has submitted that in the said decision, the
Judgment in Yeshwant Deorao Vs. Walchand ,
15
has been quoted. He
has in this context placed reliance upon Paragraph 5 of the said
Judgment which is relevant. He has submitted that though the said
Judgment is on Section 14(2) of the Old Limitation Act, Paragraph 5
quoted above distinguishes the Insolvency proceedings and money
recovery proceedings. The said ratio is a binding precedent. The said
judgment holds that both these proceedings are of a different nature and
in terms of procedure there is a huge divergence.
49. Mr. Agarwal has referred to the reported Judgment of the
Delhi High Court in AIR 2003 Delhi 252 which deals with a more or less
similar situation where the benefit of Section 14 was sought on the
15
AIR (38) 1951 SC 16
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ground that the Plaintiffs therein were prosecuting the Winding-up
Petition. On the question of law, the Delhi High Court in Paragraph 15
and 16 relied on the Judgment of the Supreme Court in Yashwant
Deorao, Zafar Khan, and the earlier Judgments. The Delhi High Court
did not exclude the time expended in prosecuting the winding up
Petition as the relief sought in winding up proceedings and that for a
Suit for recovery were found to be widely different.
50. Mr. Agarwal has further placed reliance upon the decision of
this Court in Rajan Products
16
in this context. He has submitted that
there are number of cases wherein the benefit of Section 14 has not
been given to the Plaintiff who had earlier preferred Winding-up
Petition.
51. Mr. Agarwal has submitted that with the greatest respect, the
unreported Judgment of this Court in Tata Consultancy Services (supra)
and the Division Bench Judgment dated 14
th
June, 2022 cannot be said
to be correct preposition of law and binding precedent in view of the
Judgment of the Supreme Court in Natesan Agencies (supra).
16
1991 Com. Cases 181 Bom.
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52. Mr. Agarwal has referred to Order VII Rule 6 of the CPC.
wherein it is provided that where the Suit is instituted after the
expiration of the period prescribed by the law of limitation, the Plaint
shall show the ground upon which exemption from such law is claimed.
Provided that the Court may permit the Plaintiff to claim exemption
from the law of limitation on any ground not set out in the Plaint, if
such ground is not inconsistent with the grounds set out in the Plaint.
He has submitted that so far as the burden of proof, it is not in dispute
that the burden of proof will lie on the Plaintiff/Claimant to establish
that he is entitled to benefit, as necessary factual ingredients are
available in his pleading. He has in this context placed reliance upon the
decision of the Division Bench of this Court in Foreshore CHSL Vs.
Praveen D. Desai
17
following the Judgment of the Supreme Court in
Madhavrao Narayanrao Vs. Ramkrishna Govind and others,
18
it is held
that the burden of proof is on the person claiming the benefit of Section
14 of the Limitation Act.
17
2009 (2) Mh. L.J. 29
18
AIR 1958 SC 767
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53. Mr. Agarwal has submitted that the ingredients of Section
14(1) are always a disputed question of facts and law, which is to be
proved by leading evidence. He has submitted that under Section 34 of
the Arbitration and Conciliation Act, it is not permissible to revisit the
evidence. The learned Arbitrator is the best Judge to decide the factual
issues based on the quality and quantity of the evidence before him. His
findings on facts cannot be assailed otherwise it will amount to violating
the narrow jurisdiction of Section 34 of the Arbitration and Conciliation
Act.
54. Mr. Agarwal has submitted that in the absence of appropriate
pleading and in view of the fact that the mandatory ingredients of
Section 14(1) of the Limitation Act are not pleaded and proved, in the
humble submission of the Respondent, the present Petition is devoid of
merits and the same may be dismissed with costs.
55. Mr. Agarwal has submitted that there is no wrong application
of the law of Limitation. He has submitted that assuming without
admitting that there is a wrong application of Section 14(1) and the
Winding up proceedings are civil proceedings involving the same issue,
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still in fact, there is no pleading related to Winding-up proceedings
being prosecuted in “good faith” or Winding-up Petition was withdrawn
due to “defect of jurisdiction or cause of like nature”. There is no
evidence related to said disputed question. He has placed reliance upon
the decision of this Court in Thomas Cook (India) Ltd. Vs. Red Appe
Chandrarat Travel particularly Paragraph 41 to 47 thereof. This is in
the context of the ground of limitation, being a mixed question of law
and fact, can never be a ground which would involve any basic notion of
morality of justice for an Arbitral Award to be set aside. Mr. Agarwal has
submitted that given the settled preposition of law on microscopic
jurisdiction under Section 34 of the Arbitration and Conciliation Act, it is
not permissible to look into the disputed questions of facts, which
warrants the re-appreciation of the evidence. He has submitted that the
issue of whether the requisite parameters under Section 14(1) of the
Limitation Act has been complied with or not, will require the
reassessment of the evidence. He has submitted that in the narrow
compass of Section 34 of the Arbitration and Conciliation Act, this is not
permissible.
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56. Mr. Agarwal has thereafter made submissions on the liberty
granted by the learned Company Court and that such liberty given by
the learned Company Judge cannot be interpreted to construe that the
legal and factual parameter, and the burden of proving the same, has
been dispensed with. He has in this context relied upon the judgment of
Guwahati High Court in Dipak Das Vs. Dhariyodhan Deb
19
at Paragraph
12 and the decision of the Supreme Court in Asgar and Ors Vs. Mohan
Verma at Paragraph 22. He has submitted that from the aforesaid settled
preposition of law, it can be safely stated that the liberty granted by the
learned Company Judge to file the appropriate proceedings for money
recovery does not absolve the Petitioner from following the law
(including the Limitation Act) and rules of pleading including Order VII
Rule 6 of CPC. He has submitted that in the absence of appropriate
pleading and in view of the fact that the mandatory ingredients of
Section 14(1) of the Limitation Act are not pleaded and proved, the
present Petition is devoid of merits and the same be dismissed with
costs.
19
1998 AIHC 744
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57. Having considered the rival submissions, in my view, it is
necessary to consider, whether the Petitioner has met the conditions for
availing the benefit of Section 14(1) of the Limitation Act. There
appears to be no dispute on the dates and events which have been relied
upon by the Petitioner. The only dispute appears to be whether Section
14(1) was at all applicable. This was one of the issues which had been
framed by the Sole Arbitrator viz. Issue No.4, “
Whether the claim is
within limitation
?” The learned Sole Arbitrator had answered Issue
Nos.1, 2 and 3 in favour of the Petitioner and concluded that the
Petitioner has from time to time deposited amounts aggregating to Rs.
51,38,000/- with the Respondent as against which no material was
delivered/supplied by Respondent to the Petitioner. The claim of the
Petitioner has been rejected solely on the ground of limitation.
Accordingly, the learned Arbitrator has held that the Petitioner will not
be entitled to refund of amount of Rs.51,38,000/- deposited with the
Respondent.
58. Much has been said about the scope of interference under
Section 34 of the Arbitration Act. The contention of the Respondent
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being that limitation is a mixed question of facts and law and that the
Court under Section 34 of the Arbitration Act cannot re-appreciate
evidence. In my view, there is much merit in the submission of Mr.
Khandeparkar that the present issue on limitation involves a pure
question of law. As aforementioned, the facts are undisputed. Thus, it is
well settled that there will be interference by the Court under Section 34
of the Arbitration Act where there is patent illegality appearing on the
face of the Award which illegality goes to the root of the matter and
which does not amount to mere erroneous application of the law.
Reference can be made to the judgment of the Supreme Court in
Ssangyong Engg. & Construction Co. Ltd.(supra) in this context. There
are other decisions of this Court which Mr. Khandeparkar for the
Petitioner has placed relied upon viz. Recon (supra) and BCCI Vs.
Deccan Chronicles (supra) which adopt the same view. Thus, in the
event it is held the learned Arbitrator has erroneously involved the law
of limitation by holding that the exclusion under Section 14(1) of the
Limitation Act cannot be applied, such finding would amount to a patent
illegality appearing on the face of the Award. Further, the Supreme
Court in Temjenkaba (supra) has held that the Limitation Act is based
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on the public policy. Thus, the incorrect invocation of the law of
limitation makes the Award vulnerable as being contrary to Public Policy
of India and thus hit by Section 34(2) (b) (ii) read with Clause (ii) of
explanation 1 thereof of the Arbitration Act.
59. In my considered view, it appears from the pleadings in the
Summary Suit and in particular Paragraph 25 thereof that the Petitioner
had claimed that he pursued the prior proceeding for Winding-up before
the Company Court with due diligence and bonafidely. It would thus be
necessary to reproduce Paragraph 25 of the Plaint filed in the Summary
Suit which reads thus:
“25. Plaintiff states that the agreement dated 29
th
November, 2011 framing subject matter of the suit was valid
till December, 2014 within which the Defendant suppose to
perform it's part of consideration, which the Defendant failed
to perform. Then Plaintiff filed the Company Petition No. 269
of 2016 on 3
rd
February, 2016 and the same was withdrawn
with liberty to file the present suit as advised by this Hon'ble
High Court on 16
th
February, 2018, thus the time taken in
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pursuing the Company Petition No. 269 of 2016 needs to be
excluded while calculating the period of limitation In the view
of the above no part of the plaintiff’s claim is barred by law of
limitation and the present summary Suit is well within time,
as the Plaintiff have diligently and bonafidely pursued the
Winding up Petition before this Hon’ble Court diligently and
bonafidely.”
60. It appears from the Affidavit filed by the Respondent seeking
leave to defend the Summary Suit dated 27
th
August, 2018 that the
Respondent had admitted that the Petitioner had approached the wrong
forum by filing the Winding-up Petition but denied that the period spent
by the Petitioner in prosecuting the Winding-up petition can be excluded
in computing the period of limitation. It is necessary to Paragraph 9(w)
of the Respondent’s Affidavit which reads thus:
“w. With reference to paragraph 25 of the Plaint, The
Defendant says that, the suit filed by the plaintiff is not within
the period of the limitations, the earlier petition was filed with
wrong forum and hence the present suit for recovery is barred
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by limitation and as such the contents of the said para is not
acceptable to the present defendant.”
61. However, it is pertinent to note that there is no denial by the
Respondent in the context of bonafide prosecution of Winding-up
Petition by the Petitioner with due diligence.
62. Further, there is no dispute in so far as the start of the period
of limitation i.e. 1
st
January, 2015 and the period spent by the Petitioner
in prosecuting the Winding-up petition i.e. from 3
rd
February, 2016 to 6
th
February, 2018 which has been sought to be excluded. In this context it
is necessary to reproduce Section 14 of the Limitation Act, 1963 which
reads thus:
“
14. Exclusion of time of proceeding bona fide in
court without jurisdiction.—(1) In computing the period of
limitation for any suit the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and is
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prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to
entertain it.
(2) In computing the period of limitation for any application,
the time during which the applicant has been prosecuting
with due diligence another civil proceeding, whether in a
court of first instance or of appeal or revision, against the
same party for the same relief shall be excluded, where such
proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or 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 in the
jurisdiction of the court or other cause of a like nature.
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Explanation.—For the purposes of this section,—
(a) in excluding the time during which a former civil
proceeding was pending, the day on which that proceeding
was instituted and the day on which it ended shall both be
counted;
(b) a plaintiff or an applicant resisting an appeal shall be
deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be
deemed to be a cause of a like nature with defect of
jurisdiction.”
63. There are five conditions which have been imposed by Section
14(1) for availing its benefit. First of the conditions is that, the
concerned subsequent proceeding is a Suit. Secondly the previous
proceeding should be a civil proceeding. Thirdly the previous proceeding
should relate to the same matter in issue. Fourthly the previous
proceeding should have been prosecuted with due diligence and in good
faith and fifthly the Court in which the previous proceeding was filed
was unable to entertain it from defect of jurisdiction or other cause of a
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like nature. In so far as the 4
th
and 5
th
conditions are concerned it
appears from the pleadings in the Summary Suit that there was no
dispute with regard to the proceedings having been prosecuted with due
diligence and in good faith as well as the prior proceeding in Winding-
up suffering from defect of jurisdiction.
64. In the decision of the learned Single Judge of this Court in
Tata Consultancy Services Ltd. (supra) it has been held that that the
right of a creditor to apply for winding-up of a company, if it is unable to
pay his debt, is after all nothing but a private right given to him by a
special statute. This Court has accordingly held that there is no reason
why such remedy or action should not be treated as a civil proceeding
within the meaning of Section 14 of the Limitation Act. This has been
held in Paragraphs 8 to 13 of the said decision. It is further relevant to
note that the said decision has been upheld in Appeal by the Division
Bench of this Court as well as the SLP therefrom has been dismissed by
the Supreme Court. The said decisions have been relied upon on behalf
of the Petitioner.
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65. I do not see any reason to depart from the view expressed by
this Court in Tata Consultancy Services Ltd. (supra) that the concerned
subsequent proceeding is the Suit and the previous proceeding is a civil
proceeding. Thus, condition Nos.1 and 2 for availing the benefit of
Section 14(1) of the Limitation Act have been satisfied.
66. In so far as the Condition No.3 is concerned, the contention on
behalf of the Respondent is that the relief in the previous proceeding
should be the same as that in the subsequent proceeding for the
applicability of Section 14(1) of the Limitation Act. This is contrary to a
reading of Section 14(1) of the Limitation Act which states that the
issues and not the relief in both the proceedings are required to be the
same. I find much merit in the contention of the Petitioner that the
matter in issue in the Winding-up Petition is the same as that in the
Summary Suit. This has also been held by this Court in Tata
Consultancy Services Ltd. (supra). The Petitioner has instituted the
Winding-up Petition to recover its debts. Whereas the Summary Suit has
also been instituted for recovery of debts. Thus, the issue involved in
both the Winding-up Petition and the Summary Suit is the same.
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67. I find that unlike Section 14(1), the requirement in Section
14(2) is for the reliefs in the previous civil proceeding and the
subsequent
“application” should be the same.
68. The Judgment of the Supreme Court in
Natesan Agencies
(supra) has been relied upon by the Respondent for contending that the
matter in issue Winding-up Petition and Summary Suit cannot be said to
be the same as the relief sought in the Winding-up Petition and
Summary Suit is different. The said decision is required to be read in the
context of the facts that arose in that case.
69. The Supreme Court in Natesan Agencies (supra) had found
the matter in issue in the writ proceedings different from the matter in
issue in the Suit. Further, in that case the writ proceedings were
dismissed on merit and not for want of jurisdiction which is not the
situation in the present case. This is clear from Paragraphs 21.4.6 and
21.5 of the said decision. The Supreme Court had accordingly not
excluded the time spent in the earlier writ proceedings in calculating the
period of limitation in prosecuting the subsequent Suit on that basis.
Thus, in my view the decision of the Supreme Court in Natesan Agencies
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(supra) is distinguishable on facts and inapplicable in present case.
Further, the Supreme Court in Natesan Agencies (supra) had relied upon
the Judgment of the Division Bench of the Nagpur High Court in
Kashinath Shankarappa Vs. New Akot Cotton Ginning and Pressing Co.
Ltd., (supra) and had also placed reliance upon the earlier decision of
the Supreme Court in Yashwant Deorao (supra).
70. It is the contention on behalf of the Respondent that the
decision of this Court in Tata Consultancy Services Ltd. (supra) had not
considered the aforementioned decision. However, it is noted that the
decision of the Nagpur High Court in Kashinath Shankarappa (Supra)
had been challenged before the Supreme Court. The Supreme Court in
Kashinath Shankarappa Wani Vs. New Akot Cotton Ginning and Pressing
Co. Ltd.
20
had doubted the findings of the Nagpur High Court in the
context of Limitation and came to a conclusion that parties could not
establish that the liquidation proceedings had been filed in the Courts
below and that there was nothing to show that the requirements of
Section 14 were at all satisfied. This is apparent from a reading of
Paragraphs 9 to 11, 13 and 14 of the Judgment of the Supreme Court.
20
AIR 1958 SC 437.
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In view of the Judgment of the Nagpur High Court having merged with
the Judgment of Supreme Court, the Judgment of Supreme Court can
only be looked into for the proposition of law laid down in that case. In
any event the factual scenario in that case and the present case are
different. In the facts of the present case, liberty had been granted to
withdraw the Winding-up Petition. That was not the case before Nagpur
high Court.
71. Further, the decision of the Supreme Court in Yashwant
Deorao (supra) was the case, where the reliefs have been sought in
insolvency proceedings which was found to be different from the reliefs
sought in an Execution Application and therefore time spent in
prosecuting the insolvency proceedings was held not to be excluded in
computing the period of limitation for filing an Execution Application.
In my view, this judgment is inapplicable to the facts of the present case
as that case was passed in the context of an
“application” which is
covered under Section 14(2) of the Limitation Act which requires that
the reliefs sought in the subsequent
“application” must be the same as
the relief sought in the previous civil proceedings. Whereas, in the
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present case, in the context of a “Suit” which is covered under Section
14(1) of the Limitation Act what is required to be seen is that the
“matter in issue” in the subsequent “Suit” must be the same as that of
the prior civil proceedings.
72. It is trite law that a Judgment must be read as a whole and the
observations from the Judgment have to be considered in the light of the
questions which were before the Court. A Court must be careful in
ascertaining the true principle laid down in the decision of the Court
and not to pick out words or sentences from the Judgments, divorced
from the context of the questions under consideration by that Court, to
support their reasonings. This has been held by the Supreme Court inCommissioner of Income Tax v. Sun Engineering Works (P) Ltd.,
21
.
Thus, I find the decisions relied upon on behalf of the Respondent are
inapplicable to the present case. Further, I do not find any merit in the
contention on behalf of the Respondent that the decision of this Court
viz. Tata Consultancy Services Ltd. (supra) is in any way per incuriam.
Thus, Tata Consultancy Services Ltd. (supra) is good law and the facts
therein are almost identical to the facts of the present case. There
21
(1992) 4 SCC 363
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similar proceedings were filed viz. winding-up Petition before the
Company Court and subsequent Suit for recovery of debt. Therefore,
the judgment in Tata Consultancy Services Ltd. (supra) having been
upheld by the Division Bench of this Court and thereafter SLP dismissed
by the Supreme Court is binding upon this Court.
73. I thus find that the decision of this Court in Tata Consultancy
Services Ltd. (supra) is squarely applicable to the facts of the present
case and the decisions of the Delhi High Court relied upon by the
Respondent which hold otherwise cannot come in the way of this
finding. Thus, I hold that Condition No.3 for availing benefit under
Section 14(1) of the Limitation Act viz. the previous proceeding should
relate to the same matter in issue is satisfied in the present case.
74. I further find that there is no merit in the submission on
behalf of the Respondent that there is insufficiency of pleadings to
attract the principles of Section 14(1) of the Limitation Act. The
decision of the Supreme Court in M.P. Steel Corpn.(supra) relied upon
on behalf of the Petitioner has held that merely stating that a party was
prosecuting its remedy before another forum which ought to be
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excluded was sufficient to attract the principles of Section 14 of
Limitation Act.
75. Further, the decision of this Court in Tata Consultancy Services
Ltd. (supra) has held that under Section 14 (1) of the Limitation Act,
there is no requirement that the previous proceeding must be for
recovery of any debt, or, for the same relief as claimed in the Suit
instituted or reference made subsequently. That, Winding-up petition is
a bona fide remedy is indeed one of the remedies for enforcing payment
of lawful debt. In this context, Paragraph 14 of the said decision is
relevant which reads thus:
“14 Ms. Sethna, however, contends that a winding up
petition is not a bona fide remedy for recovery of debt and
inasmuch as the Respondent has filed a winding up petition,
as opposed to a suit, for recovery of his debt, he cannot be
said to have prosecuted the action in good faith. Learned
Counsel relies on the case of IBA Health (India) Private Ltd.
vs. InfoDrive Systems SDN.BHD.7 in this behalf. In the first
place, there is no legal requirement that the proceeding must
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be for recovery of any debt, or, for that matter, for the same
relief as claimed in the suit instituted or reference made
subsequently. Secondly, and at any rate, a winding up petition
is indeed one of the remedies for enforcing payment of a
lawful debt. After all, what the petitioner does in such a case is
to seek winding up so that the assets of the company can be
administered and dividends can be declared towards payment
of dues owed by the company to its creditors including the
petitioner himself. It is in that sense a mode of equitable
execution. The Supreme Court has recognized it as such in the
case of Harinagar Sugar Mills Co.Ltd. vs. M.W. Pradhan, Court
Receiver, High Court, Bombay 8. The court cited with approval
the observations in Palmer's Company Precedents (Part II),
1969 Ed., P.25 to the effect that winding up petition was a
perfectly proper remedy for enforcing payment of a just debt,
and held that filing a winding up petition was a mode of
execution which the court gives to the creditor against a
company unable to pay its debts. Our Court, following this
view, unequivocally held in Modern Dekor Painting Contracts
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Pvt. Ltd. Vs. Jenson & Nicholson (India) Ltd.9 that a winding
up petition being a legitimate mode of recovery of a debt due
and payable by the company at the date of the petition, no
question of bar of limitation as at the date of the order in a
winding up petition would ever arise. The dictum in the case
of IBA Health (India) Private Ltd. (supra) to the effect that
winding up is not a means of enforcing payment of a disputed
debt is in an altogether different context. The winding up
petition, in the present case, unless contrary is shown, can
well be said to be a prosecution of a civil proceeding in good
faith. Besides, whether or not the petition was prosecuted
bona fide is a mixed issue of law and facts and the arbitrator's
conclusion in that behalf (holding the prosecution to be bona
fide) cannot be assailed within the parameters of Section 34 of
the Act. It cannot either be termed as opposed to public policy
or patently illegal. The petition was, thus, prosecuted in good
faith. There is no submission in the present case that it was
not prosecuted with due diligence.”
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76. Thus, the Condition No.4 viz. is previous proceeding having
been prosecuted with due diligence and good faith is satisfied. This is
apart from the aforementioned finding that there is no denial in the
pleadings on behalf of the Respondent to the assertion by the Petitioner
in the Plaint filed in the Summary Suit that the previous proceeding of
winding up was prosecuted with due diligence and in good faith.
77. Further, the Condition No.5 viz. the Court in which the
previous proceeding was filed, was unable to entertain it from defect of
jurisdiction or other cause of a like nature has also been satisfied. It has
been held in the decision of this Court in Tata Consultancy Services Ltd.
(supra), at paragraph 16 where also the Winding-up Petition was
withdrawn, that the defect is not as to the merits of the claim, but the
inability of the Court to entertain it on account of some reason which is
peculiar to the remedy adopted. That is nothing but a defect of a like
nature as the defect of jurisdiction. The withdrawal of the winding up
Petition with liberty to approach the Civil Court signifies that the
Company Court hearing the proceeding was unable to entertain it as the
liberty sought by the Petitioner could not be for approaching the
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Company Court once again and could only be for filing recovery
proceeding before the competent Civil Court.
78. I find that the Respondent has not placed reliance upon a
single judgment where the previous winding-up proceeding was
withdrawn with liberty to file an appropriate proceeding before the
competent Civil Court. Thus, I find no reason to defer from the view
expressed by the learned Single Judge in Tata Consultancy Services Ltd.
(supra), which view has been upheld by the Division Bench and not
interfered by the Supreme Court.
79. The Respondent has relied upon the judgment of the Supreme
Court in Asgar (Supra) to contend that when a proceeding is dismissed
by a Court by observing that a party is free to pursue an appropriate
remedy does not preclude the contesting party from setting up all the
defences available to it upon invocation of such remedy. In the present
case there is no dispute as to the Respondent raising all defences. This
does not mean that the Court is in any manner precluded from finding
that the Arbitrator has wrongly invoked the law by holding that the
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exclusion in Section 14(1) of the Limitation Act is not applicable to the
present case.
80. Having considered the applicability of Section 14 of the
Limitation Act in my view, this provision is required to be interpreted in
the manner that advances the cause of justice.
81. I accordingly set aside the impugned Award dated 6
th
June,
2022.
82. The Arbitration Petition is accordingly disposed of.
[R.I. CHAGLA, J.]
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