Manak Mohta, J. - (1.) HEARD
(2.) THE instant civil misc. appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Arbitration Act') has been filed by the Oriental Insurance Co. Limited against the judgment and order dt. 15.07.2008 passed by learned Additional District Judge No. 3, Jodhpur by which he has dismissed the application filed under Section 34 of the Act as being held time -barred while rejecting the application under Section 14 of the Limitation Act. The brief facts of case as revealed from the record are that respondent -firm M/s. Tej Paras Associated and Exports (P) Limited was engaged in the business of cold storage having its godown at E -92 (B) Mandore Industrial Area, Jodhpur. The respondent -firm was having dealings with Vijaya Bank, which insisted to take fire insurance policy. The respondent -firm obtained a fire insurance policy vide policy No. 2000/660 for the period 01.12.1999 to 30.11.2000. It is further revealed from record that a fire broke out in the cold storage on 23.04.2000 due to which the cold storage reduced in ash and in that respect the respondent -firm claimed damages from the Insurance Company but the Insurance Company did not settle the dispute, thereupon, as per the terms of the policy, the matter was referred for arbitral proceedings. Shri S.C. Sikka was appointed as arbitrator on behalf of the Insurance Company and Shri D.M. Lodha was appointed as arbitrator on behalf of the respondent -firm. Both the arbitrators with the consent of each others, appointed Justice Shri D.C. Dalela, former Judge of this Court as Presiding Arbitrator. They proceeded with the matter and finally pronounced the award on 28.06.2004. It reveals from the record that the applicant -Insurance Company being aggrieved of the said award, moved an application under Section 33 of the Act for clarification of the venue on 13.07.2004. The learned Arbitrators vide order dt. 17.12.2004 passed order in that respect. Being aggrieved by the said award and order, the Insurance Company the appellant further moved the Court. Against the main award as well as the order passed under Section 33 of the Act on 17.12.2004, an application under Section 34 of the Arbitration Act, 1996 was filed on 03.03.2005 before the learned District Judge, Jaipur City, Jaipur challenging the said award on different ground with the averments that part of the cause of action to file this application arose at Jaipur, therefore, the Jaipur Court was having jurisdiction. In this respect form teh perusal of record it reveals that on 23.03.2005 i.e. on the first day of hearing, the respondent firm moved an application with regard to jurisdiction stating there in that no cause of action arose at Jaipur, the subject matter i.e. the property is situated at Jodhpur, the fire policy was taken from Jodhpur Insurance Office and the venue of arbitration was also at Jodhpur, therefore, the Jaipur Court is not having any jurisdiction. The case was thereafter transferred to the Court of Additional District and Sessions Judge (Fast Track) No. 7 Jaipur City, Jaipur. The appellant -Insurance Company contested that application. The application remained pending for disposal for a considerable period and ultimately on 12.03.2008 while holding that no cause of action or part cause of action arose at Jaipur, the learned Court, Jaipur under Order 7 Rule 10 and 10A C.P.C. returned the application with a direction to file before the concerned District Judge, Jodhpur and the parties were directed to remain present before the learned District Judge, Jodhpur on 02.04.2008.
(3.) IT is pertinent to note that the original application was taken by appellant from Jaipur Court on 29.03.2008 but that was not filed on or before 02.04.2008 before the District Judge, Jodhpur but later, on 10.04.2008 on application under Section 34 of the Arbitration Act was filed before the learned District Judge, Jodhpur wherefrom the application was again transferred to the Court of learned Additional District Judge No. 3, Jodhpur. It is also pertinent to note that alongwith the application under Section 34 of the Arbitration Act no application under Section 14 of the Limitation Act for exclusion of time was filed. On the basis of knowledge of proceedings, from the side of respondent an application was moved on 10.04.2008 under Section 3 of the Limitation Act stating therein that petition under Section 34 of the Act has been filed after an inordinate delay, that should be dismissed summarily. After his objection, an application under Section 14 of the Limitation Act alongwith affidavit was filed on 03.05.2008 by the appellant. The respondent contested the application. He also filed a reply.;