India: Applicability Of The Limitation Act, 1963, To Appeals Under Section 37(2) Of The Arbitration And Conciliation Act, 1996

Introduction

Different substantive and procedural laws in India such as the Code of Civil Procedure, 1908 (CPC), Criminal Procedure Code, 1973 (CrPC), etc. provide for a mechanism of an appeal in cases of an unfavorable order/judgement. The preferred appeals are subject to the bar of limitation under the Limitation Act, 1963 ('Act').¹ This essay highlights the contentious issue of the applicability of the provisions of the Act to the appeals under sub-section (2) of section 37 of the Arbitration and Conciliation Act, 1996 ('A&C Act').

Appeals under section 37(2) - no prescribed time limit

Section 37(2) of the A&C Act prescribes that appeals shall lie for orders passed by the Arbitral Tribunal either accepting the plea referred to in Section 16(2) or 16(3) or granting/refusing to grant an interim measure under Section 17. Though there is no prescribed limit for filing an appeal under this provision, but the Act is applicable to arbitrations as it applies to the proceedings in court.² The Act stipulates that the period of limitation for filing an appeal shall be as prescribed under the Schedule.³ The Bombay High Court in Oil and Natural Gas Corporation Ltd. v. Jagson International Ltd.⁴, held that since the schedule does not provide for the limitation period for filing an appeal under section 37, the Limitation Act is not applicable to such appeal.

Though the Schedule in the Act does not provide for a limitation period to file an appeal under section 37, but the savings clause of the Act stipulates that in cases where a special/local law does not expressly bar the application of sections 4 to 24 of the Act, the same shall be applicable.⁵ This position of law has been ignored by the Bombay High Court in Jagson International case, wherein it was held that if a special law does not provide for a period of limitation, then the applicability of the general law of limitation is implicitly excluded.⁶

The Supreme Court, in ITI Limited v. Siemens Public Communications Network Ltd.⁷, held that merely because the A&C Act does not provide for the applicability of the CPC, the inference that the latter is inapplicable, cannot be accepted. Thus, the provision of the CPC shall be applicable to the appeals preferred under the A&C Act.⁸ Justice Raveendran, in his concurring judgement in Consolidated Engg. Enterprises and Ors. v. Principal Secy. Irrigation Dept. and Ors.⁹ remarked that the objective of section 29(2) and 43(1) of the Limitation Act is to ensure that the provisions contained in sections 4 to 24 apply to appeals under special/local laws, unless they are expressly excluded. Over-ruling the judgement in Jagson International, the Court, in Consolidated Engg., held that the provisions of the Limitation Act applies to all proceedings under the A&C Act, unless expressly excluded by the provisions of the A&C Act.

The Court, in Consolidated Engg., clarified that the 'appeals under CPC' as per Article 116 of the schedule also refer to the appeals where the procedure of filing such appeals and the powers of the court for dealing with such appeals are governed by the CPC, in addition to the appeals preferred under the CPC, the period of limitation being 90 days from the date of the order.

Current Position

Relying upon the judgements as laid down in Consolidated Engg. and Siemens Public Communications, the Kerala High Court in Prembushan v. Thulasidas¹⁰, has held that the period of limitation for filing an appeal under Section 37(1) (c) of the A&C Act, shall be 90 days from the date of the order. A similar stance has been adopted by the Meghalaya High Court in North-Eastern Electric Power Corporation Ltd. v. Patel Unity Joint Venture (PUJV)¹¹ wherein it has been held that the provisions of the Limitation Act are applicable to the court proceedings under the A&C Act and the period of limitation for an appeal under section 37 would be governed by Article 116 of the schedule to the Limitation Act.

Conclusion

A conjoint perusal of section 43(1), 29(2) of the Act and the Supreme Court decisions in Consolidated Engg. and Siemens Communications leads to a conclusion that the period of limitation of 90 days, as prescribed in the schedule to the Act is applicable to the appeals preferred under section 37 (2) of the A&C Act, though there is no specific court ruling in this regard.

Footnotes

1 The Limitation Act, 1963 §3

2 The Limitation Act, 1963 §43(1)

3 The Limitation Act, 1963 §2(j)

4 AIR 2005 Bom 335

5 The Limitation Act, 1963 §29(2)

6 supra note 3

7 (2002) 5 SCC 510

8 Id.,

9 (2008) 7 SCC 169

10 ILR 2017(3)Kerala 379

11 MC (Arb. A) No. 4 of 2016

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