M/S ENGINEER BUILDER & ASSOCIATESversusUNION OF INDIA & ORS.

                    [2014] 1 S.C.R. 977


        MIS ENGINEER BUILDER & ASSOCIATES                       A
                              v.
                  UNION OF INDIA & ORS.
          (Civil Appeal Nos. 1932-1934 of 2014)

                   FEBRUARY 10, 2014
                                                                B
  [A.K. PATNAIK AND JAGDISH SINGH KHEHAR, JJ.)

     JAMMU AND KASHMIR ARBITRATION ACT, 1945:
s.49(2); Fourth schedule - Application for setting aside award
- Limitation and condonation of delay - Held: s. 49(2) C
prescribes a limitation of 30 days for filing an application for
setting aside the award - Under s. 5 of the Jammu and Kashmir
Limitation Act, period of /imitation can be extended by the
Court in respect of any application if the Court is satisfied that
the applicant had sufficient cause for not making the D
application within the period of limitation - However, s. 5 of the
Jammu and Kashmir Limitation Act do not apply to any
application under any special or local law - The Act of 1945
does not provide anywhere that s.5 of the Jammu and
Kashmir Limitation Act will apply to an application for setting E
aside an award u/ss.30 and 33 of the Act of 1945 - Thus, the
Court has no powers to condone the delay in filing an
application for setting aside an award u/ss.30 and 33 of the
Act of 1945 - Jammu and Kashmir Limitation Act - s. 5.

    INTERPRETATION Of: STATUTES: Conflict between F
the provisions of the Act and provisions of the Schedule of
the Act - Held: The provisions of the Act will prevail over the
provisions of the Schedule.

     Dispute arose between the parties and matter was G
referred to arbitration. The arbitrator passed an award on
4.9.2007 in favour of the appellant. In December, 2007, the
appellant filed an execution petition. The respondent then
filed an arbitration application under Section 34 of the
                             977                            H
    978      SUPREME COURT REPORTS              [2014] 1 S.C.R.


A Jammu and Kashmir Arbitration and Conciliation Act,
  1997 before the High Court for setting aside the award.
  The single judge of the High Court dismissed the
  application on the ground that application ought to have
  been filed under the Jammu and Kashmir Arbitration Act
B of 1945. On appeal, the Division Bench of the High Court
  while upholding the decision of the single judge observed
  that it would be open to the respondent to take steps as
  required under Section 30 and 33 of Act of 1945 in
  relation to the award and if so advised to file an
C application for condonation of delay. The grievance of
  the appellant in the instant appeals was the observation
  of the High Court regarding filing of application under
  Section 30 and 33 of Act of 1945 along with application
  for condonation of delay.

D         Allowing the appeals, the Court

       HELD: 1. Sections 30 and 33 of the Jammu and
  Kashmir Arbitration Act of 1945, which provide for setting
  aside an award on certain grounds, do not prescribe any
E period of limitation for filing an application for setting
  aside an award, but Section 49(2) read with Fourth
  Schedule of the Act of 1945 prescribes a limitation of
  thirty days from the date of service of the notice of filing
  of the award for filing the application for setting aside an
F award or to get an award remitted for reconsideration.
  Section 49(2) of the Act of 1945 makes an amendment to
  the First Schedule of the Jammu and Kashmir Limitation
  Act and provides in Article 153 of the First Schedule of
  the said Limitation Act that the period of limitation for filing
G an application for setting aside the award will be 30 days.
  The principle laid down by this Court in M/s. Aphali
  Pharmaceuticals Ltd. vs. State of Maharashtra & Ors. is
  that in case there is conflict between the provisions of the
  Act and provisions of the Schedule of the Act, the
  provisions of the Act will prevail over the provisions of
H
 ENGINEER BUILDER & ASSOCIATES v. UNION OF                979
                   INDIA
the Schedule. As Sections 30 and 33 do not prescribe a           A
different period of limitation, there is no conflict between
Sections 30 and 33 of the Act of 1945 and the Fourth
Schedule of the Act of 1945. Rather, Sections 30 and 33
of the Act of 1945, which do not prescribe any period of
limitation for filing an application for setting aside an        B
award will have to be read along with Section 49(2) and
Fourth Schedule of the said Act and so read, the period
of limitation prescribed for filing an application for setting
aside an award is 30 days from the service of notice of
filing of the award. [Para 7] [983-8-C; 984-B-E]                 c
     2. It is only under Section 5 of the Jammu and
Kashmir Limitation Act that any time beyond the period
of limitation car) be extended by the Court in respect of
any application if the Court is satisfied that the applicant
had sufficient cause for not making the application within D
the period of limitation. It will, however, be clear from
clauses (a) and (b) of Section 29(2) of the Jammu and
Kashmir Limitation Act extracted above that the
provisions of Section 5 of the Jammu and Kashmir
Limitation Act do not apply to any application under any E
special or local law. Section 5 also states that any other
application to which Section 5 may be made applicable
by or under any enactment for the time being in force may
be admitted if the applicant satisfies the Court that he had
sufficient cause for not making the application within the F
period of limitation. The Act of 1945 does not provide
anywhere that the provisions of Section 5 of the Jammu
and Kashmir Limitation Act will apply to an application for
setting aside an award under Sections 30 and 33 of the
Act of 1945. Thus, the Court has no powers to condone G
the delay in filing an application for setting aside an
award under Sections 30 and 33 of the Act of 1945. The
Division Bench of the High Court was not right in giving
liberty to the respondents to file an application for
condonation of delay in filing the application for setting H
    980      SUPREME COURT REPORTS               [2014] 1 S.C.R.


A   aside the award under Sections 30 and 33 of the Act of
    1945. [Paras 9, 10) [986-A-E]

        Mis. Aphali Pharmaceuticals Ltd. vs. State of
    Maharashtra & Ors. (1989) 4 SCC 378: 1989 (1) Suppl. SCR
    129 - relied on.
8
                         Case Law Reference:

          1989 (1) Suppl. SCR 129        relied on   Paras 6, 7

      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
C 1932-1934 of 2014.

        From the Judgment and order dated 30.03.2010 of the
    High Court of Jammu & Kashmir at Jammu in CIMA No. 91 of
    2010 with Caveat No. 1259 of 2009 and CMP No. 125 of 2010.
D
         S.S. Upadhyay, Sharmila Upadhyay, Pawan Upadhyay,
    S.S. Shastri, Rishi Manchanda, Param Mishra for the Appellant.

        Mohan Jain, ASG, D.K. Thakur, Anil Katiyar for the
    Respondents.
E
          The Judgment of the Court was delivered by

          A.K. PATNAIK, J. 1. Leave granted.

       2. These are appeals by way of Special Leave under
F Article 136 of the Constitution against the order dated
  30.03.2010 of the High Court of Jammu and Kashmir in CIMA
  No.91 of 2010 with CMP No.125 of 2010 with Caveat No.1259
  of 2009.

G      3. The facts very briefly are that the appellant was awarded
  a contract by the respondent for constructing accommodation
  for married JCOs/Hav/Ors. at Srinagar in Kashmir. Clause 70
  of the agreement between the appellant and the respondents
  provided that all disputes between the parties to the contract
H shall be referred to the sole arbitration of an Engineer Officer
 ENGINEER BUILDER & ASSOCIATES v. UNION OF                     981
           INDIA [A.K. PATNAIK, J.]
to be appointed by the Authority mentioned in the tender-              A
documents. The disputes raised by the appellant were referred
to an arbitrator and the arbitrator made an award dated
04.09.2007 to the effect that the appellant would be entitled to
recover Rs.65,78,450/- together with litigation expenses and
Arbitrator's fee fixed at Rs.1,00,000/-. The arbitrator further        B
directed in .the award that the respondents shall make the
payment within three months from the date they receive the
copy of the award, failing which the entire awarded amount shall
be recoverable with interest at the rate of 18% per annum from
the date of the award. In December 2007, the appellant filed           c .
an Execution Petition in the Court of District Judge, Jammu,
for execution of the award.

      4. The respondents then filed an Arbitration Application
No.8 of 2008 under Section 34' of the Jammu and Kashmir
Arbitration and Conciliation Act, 1997 (for short 'the Act of 1997')   D
before the High Court of Jammu and Kashmir for setting aside
the award. The learned Single Judge of the High Court
dismissed the application by order dated 07.12.2009 saying
that the application for setting aside the award ought to have
been filed under the Jam mu and Kashmir Arbitration Act of the         E
year 1945 (for short 'the Act of 1945'). The respondents carried
an appeal before the Division Bench of the High Court which
was registered as CIMA No.91 of 2010 and by the impugned
order dated 30.03.2010 passed in the said appeal, the Division
Bench of the High Court held that the learned Single Judge was         F
right in coming to the conclusion that the Act of 1945 was
applicable to the facts of the present case in view of the
provisions of Section 68 of the Act of 1997. The Division Bench
of the High Court, therefore, refused to interfere with the order
passed by the learned Single Judge, but observed that it shall         G
be open to the respondents to take such steps as are required
to be taken under Sections 30 and 33 of the Act of 1945 in
relation to the award, and if so advised, to file an application
for condonation of delay. The appellant is aggrieved by this
observation of the High Court that it will be open to the              H
    982     SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A   respondents to file an application under Sections 30 and 33
    of the Act of 1945 along with an application for condonation of
    delay and has, therefore, filed this appeal.

        5. Mr. S.S. Upadhyay, learned senior counsel appearing
  for the appellant, submitted that the Fourth Schedule to the Act
8
  of 1945 has incorporated an amendment in Article 153 of the
  First Schedule to the Jammu and Kashmir Limitation Act, which
  we.uld make it clear that for setting aside an award or to get
  an award remitted for reconsideration, the period of limitation
C is thirty days from the date of the service of the notice of filing
  of the award. He submitted that the Jammu and Kashmir
  Limitation Act provides in Section 29(2)(a) that the provisions
  con.tained in Sections 4, 9 to 18 and 22 shall apply to any
  application under any local or special law and further clarifies
  in Section 29(2(b) that the remaining provisions of the Jammu
D and Kashmir Limitation Act shall not apply. He submitted that,
  therefore, the provisions of Section 5 of the Jammu and
   Kashmir Limitation Act, which empower the court to condone
   the delay in filing an application, will not apply. He submitted
   that the Division Bench of the High Court is, therefore, not
E correct in giving liberty to the respondents to apply for setting
   aside the award under Sections 30 and 33 of the Act of 1945
   along with an application for condonation of delay.

       6. Mr. Mohan Jain, learned Additional Solicitor General,
F on the other hand, submitted that Section 30 of the Act of 1945
  does not prescribe a period of limitation for an application for
  setting aside an award. He cited the decision of this Court in
  Mis. Aphali Pharmaceuticals Ltd. vs. State of Maharashtra &
  Ors. [(1989) 4 SCC 378] to contend that the Fourth Schedule
  of the Act of 1945 cannot override the main provisions of the
G Act. He submitted that since there is no period of limitation
  prescribed, the award could be challenged within the time
  extended by the Court under Section 5 of the Jammu and
  Kashmir Limitation Act and, therefore, the liberty granted by the
  Division Bench of the High Court in the impugned order to the
H
 ENGINEER BUILDER & ASSOCIATES v. UNION OF                     983
           INDIA [A.K. PATNAIK, J.]
respondents to apply for setting aside the award under Section         A
30 of the Act of 1945 along with an application for condonation
of delay cannot be faulted.
      7. We have considered the submissions made by the
learned counsel for the parties and we find that Sections 30
and 33 of the Act of 1945, which provide for setting aside an          8
award on certain grounds, do not prescribe any period of
limitation for filing an application for setting aside an award, but
Section 49(2) read with Fourth Schedule of the Act of 1945
prescribes a limitation of thirty days from the date of service of
the notice of filing of the award for filing the application for       C
setting aside an award or to get an award remitted for
reconsideration. This will be clear from Section 49(2) and the
relevant portion of the Fourth Schedule of the Act of 1945
extracted hereinbelow:
                                                                       D
    "49(2). The enactments specified in the Fourth Schedule
    are amended to the extent and in the manner mentioned
    therein."

                    "THE FOURTH SCHEDULE
                                                                       E
                         [See Section 49(2)]

                    ENACTMENTS AMENDED

   Year     No.       Short title           Amendments
                                                                       F
   1995     IX        TheJammu             In the First Schedule -
                      and Kashmir          (i) for Article 153,
                      Limitation Act,         the following shall
                      1995                    be substituted,
                                               namely:--
                                           "158. Under the             G
                                           Jammu and Kashmir
                                           Arbitration Act to set
                                           aside an award or to
                                           get an award remitted
                                           for re-consideration.       H
    984      SUPREME COURT REPORTS                   [2014] 1 S.C.R.

A                                                    -Thirty
                                                      days.
                                                       The date of
                                                       service of the
                                                       notice of filing
B                                                      of the award."
  Thus, Section 49(2) of the Act of 1945 makes an amendment
  to the First Schedule of the Jammu and Kashmir Limitation Act
  af'ld provides in Article 153 of the First Schedule of the said
  Limitation Act that the period of limitation for filing an application
C for setting aside the award will be 30 days. The principle laid
  down by this Court in Mis. Aphali Pharmaceuticals Ltd. vs.
  State of Maharashtra & Ors. (supra) is that in case there is
  conflict between the provisions of the Act and provisions of the
  Schedule of the Act, the provisions of the Act will prevail over
o the provisions of the Schedule. As Sections 30 and 33 do not
  prescribe a different period of limitation, there is no conflict
  between Sections 30 and 33 of the Act of 1945 and the Fourth
  Schedule of the Act of 1945. Rather, Sections 30 and 33 of
  the Act of 1945, which do not prescribe any period of limitation
E for filing an application for setting aside an award will have to
   be read along with Section 49(2) and Fourth Schedule of the
  said Act and so read, the period of limitation prescribed for
   filing an application for setting aside an award is 30 days from
   the service of notice of filing of the award.
F       8. The only other question which we have to decide is
  whether the Court is vested with any power to extend the time
  for filing the application for setting aside an award beyond the
  period of thirty days from the date of service of the notice of
  filing of the award as prescribed in Section 49(2) read with the
G Fourth Schedule of the Act of 1945. To answer this question,
  we have to refer to Sections 5 and 29 of the Jammu and
  Kashmir Limitation Act. These provisions of the Jammu and
  Kashmir Limitation Act are extracted hereinbelow:
          "5. An appeal or an application for a review of a judgment
H         or for leave to appeal or an application to set aside an
ENGINEER BUILDER & ASSOCIATES v. UNION OF                   985
          INDIA '[A.K. PATNAIK, J.]
  order of dismissal of a suit for plaintiff's default or an        A
  application to set' aside a decree passed ex-parte in an
  original suit or appeal or an application to bring the heirs
  of a deceased party on the record or an application to set
  aside an order of abatement of a suit or appeal or any
  other application to which this section may be made               B
  applicable by or under an enactment for the time being in
  force may be admitted after the period of limitation
  prescribed therefor, when the appellant or applicant
  satisfies the Court that he had sufficient cause for not
  preferring the appeal or making the application within such       c
  period.

  Explanation. - The fact that the appellant or applicant was
  misled by any order, practice or judgment of the High Court
  in ascertaining or computing the prescribed period of
  limitation may  besufficient cause within the meaning this        D
  section."

  "29. (1) Nothing in this Act shall affect section 25 of the
  Contract Act (IX of 1997).
                                                                    E
         (2) Where. any special or local law prescribes for any
  suit, appeal or a'pplication a period limitation different from
  the period pres;cribed therefor by the first schedule, the
  provisions of section 3 shall apply as if such period we~
  prescribed therefor in that schedule and for the purpose
                                                                    F
  of determining any period of limitation prescribed for any
  suit, appeal or application by any special or local law-

         (a) the provisions contained in section 4, sections
         9 to 18 and section 22 shall apply only insofar as
         and the extent to which they are not expressly             G
         excluded by such special or local law and;

         (b) the remaining provisions of this Act shall not
         apply.
                                                                    H
    986     SUPREME COURT REPORTS                 [2014} 1 S.C.R.


A      9. It is only under Section 5 of the Jammu and Kashmir
  Limitation Act that any time beyond the period of limitation can
  be extended by the Court in respect of any application if the
  Court is satisfied that the applicant had sufficient cause for not
  making the application within the period of limitation. It will,
B however, be clear from clauses (a) and (b) of Section 29(2) of
  the Jammu and Kashmir Limitation Act extracted above that
  the provisions of Section 5 of the Jammu and Kashmir
  Limitation Act do not apply to any application under any special
  or local law. Section 5 also states that any other application to
c which Section 5 may be made applicable by or under any
  enactment for the time being in force may be admitted if the
  applicant satisfies the Court that he had sufficient cause for not
  making the application within the period of limitation. The Act
  of 1945 does not provide anywhere that the provisions of
  Section 5 of the Jammu and Kashmir Limitation Act will apply
0
  to an application for setting aside an award under Sections 30
  and 33 of the Act of 1945. Thus, the Court has no powers to
  condone the delay in filing an application for setting aside an
  award under Sections 30 and 33 of the Act of 1945.

E         10. For the aforesaid reasons, we hold that the Division
    Bench of the High Court was not right in giving liberty to the
    respondents to file an application for condonation of delay in
    filing the application for setting aside the award under Sections
    30 and 33 of the Act of 1945. We accordingly set aside the
F   observations to this effect in the impugned order and allow the
    appeals, but order that the parties shall bear their own costs.

    D.G.                                          Appeals allowed.