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22 January 2022 | Dwivedi and Sons v. Bharat Petroleum Corporation Limited | Civil Writ Jurisdiction No 11279 of 2019 | Anil Kumar Sinha J | Patna High Court | 2022 SCC OnLine Pat 124
The Patna High Court has interpreted Section 14 Limitation Act (“LA”) – the expression “defect of jurisdiction or other cause of like nature” -- to include a scenario where a set-aside application was withdrawn because it was filed without giving prior notice Section 34 (5) ACA to the opposite party, and refiled. The withdrawal was without leave of the court to institute a fresh petition.
The earlier filing was made on the 66th day from the award: hence, it was within limitation under Section 34 (3) ACA (three months, plus 30 days on court’s discretion). However, by the time it was withdrawn, the limitation period had expired. A fresh petition was filed 14 days after the withdrawal, and in total, it was 239 days from the award. When the set-aside court admitted the new petition for hearing, the petitioner challenged the admission in a petition under Article 227 Constitution of India.
Apart from applying the benefit under Section 14 LA, the court also rejected the argument that the fresh petition was not maintainable without the court's leave because of Order XXII Rule 1 (4) Code of Civil Procedure. It said that a set-aside petition was not a suit and Order XXIII CPC would not apply.
Read the decision here.
Categories: Application for Setting Aside Arbitral Award | Article 226 Constitution of India | Article 227 Constitution of India | Condonation of Delay | Extent of Judicial Intervention | Judicial Review | Limitation | Limitation for Setting Aside | Limitation Under Section 34 ACA | Non Est Filing | Power of High Courts to Issue Certain Writs | Power of Superintendence Over All Courts by the High Court | Section 14 Limitation Act | Section 34 ACA | Section 5 ACA