R.I. Chagla, J.

[1] By this Interim Application the Applicant/Petitioner is seeking exclusion of the period of 1854 days from 5th April, 2017 till 1st November, 2022 in computing the period of limitation for filing the Petition challenging the Award dated 31st March, 2017 passed by the Facilitation Council constituted under the MSME Act. Further relief is sought that upon exclusion of the aforementioned period in filing the Petition, delay of 21 days in filing the Petition be condoned under Section 34(3) of the Arbitration & Conciliation Act, 1996 as amended.

[2] There are certain dates and events which are relevant for the purpose of the present Interim Application which are as under:

(i) The Award was passed by the Facilitation Council on 31st March, 2017;

(ii) On 5th April, 2017, the Applicant is stated to have received the Award;

(iii) The Applicant filed a Writ Petition No.7899 of 2017 on 6th June, 2017 challenging the Award before this Court;

(iv) An Affidavit-in-Reply was filed by the Respondent No.1 on 4th November, 2017 opposing the Writ Petition. The issue pertaining to maintainability of the Writ Petition was raised in the Reply and the Petitioner was also put to notice of the existence of an alternate remedy as a bar to entertain the Writ Petition;

(v) On 20th June, 2019 an order was passed by this Court recording the preliminary objection of the Respondent No.1 based on the decision of the Supreme Court in SBP & Co. Vs. Patel Engineering, 2005 8 SCC 618;

(vi) This Court dismissed the Writ Petition by order dated 20th January, 2020 in view of the law laid down by Supreme Court in Patel Engineering (supra). It is relevant to note that the Petitioner undertook before this Court that they will adopt appropriate proceeding to challenge the Award and this has been recorded in the said order;

(vii) On 24th May, 2020 the Applicant preferred the Special Leave Petition No.7375 of 2020 ("SLP") before the Supreme Court of India challenging the Award and the said order dated 20th January, 2020 passed by this Court;

(viii) The Supreme Court of India on 31st October, 2022 dismissed the SLP on the ground of the Applicant having sufficient remedy under the Arbitration Act to challenge the Award;

(ix) The Applicant preferred the captioned Petition under Section 34 of the Arbitration Act challenging the Award on 23rd December, 2022.

[3] The learned Counsel appearing for the Applicant has submitted that the applicability of Section 14 of the Limitation Act, 1963 to proceedings under Section 34 of the Arbitration Act is not in dispute. The only question which arises is, whether the provision of Section 14 of the Limitation Act, 1963 ought to be invoked in the present case. He has submitted that Section 14 of the Limitation Act contemplates exclusion of time which the Applicant has taken prosecuting with due diligence another civil proceeding in good faith and such Court where the civil proceedings are prosecuted in good faith is unable to entertain the proceedings by reason of defect in jurisdiction or other cause of the like nature.

[4] The learned Counsel for the Applicant has submitted that in the present case the pre-requisites of Section 14 of the Limitation Act are satisfied in view of it being neither party's case that this Court in exercise of its Writ Jurisdiction could not have entertained a challenge to the impugned Award. The filing of the Writ Petition or prosecution thereof could not therefore be termed as mala-fide in any manner. He has placed reliance upon the decision of Division Bench of the Court in JSW Steel Ltd. Vs. Kamlakar Vs. Salvi & Ors. , (Judgment / Order dated 4th October, 2021) . The Division Bench of this Court has held that the Court in exercise of its jurisdiction under Article 226 of the Constitution of India would certainly entertain an order or award passed by a statutory Arbitral Tribunal which is a nullity or when the Tribunal had rendered itself coram non judice.

[5] The learned Counsel appearing for the Applicant has submitted that it is pertinent to note that during the pendency of the Writ Petition, the Applicant had made the requisite deposit in terms of Section 19 of the MSME Act which the Respondent has withdrawn. Filing and prosecution of the SLP before the Supreme Court against the order dated 20th January, 2020 is an extension of the foregoing. He has submitted that had the Applicant not filed an SLP, filing of the Writ Petition could legitimately be said to have been "chance litigation" and would thus fall outside the purview of Section 14. However, since the proceedings were taken to its logical conclusion by the Applicant, the Applicant is entitled to the benefit of Section 14.

[6] The learned Counsel for the Applicant has submitted that though the Applicant agreed to avail appropriate remedy against the Award, under the advice of its advocates, the Applicant believed that an SLP would at the relevant point in time be the appropriate remedy in respect of the impugned Award and accordingly proceeded to file an SLP before the Supreme Court which came to be disposed of by order 31st October, 2022. The Applicant prosecuted said SLP in good faith as the record would demonstrate. Further, it is pertinent to note that the SLP is not summarily dismissed.

[7] The learned Counsel for the Applicant has accordingly submitted that the Applicant having prosecuted the Writ Petition as also the SLP in good faith would be entitled to exclusion of the period from 6th June, 2017 to 31st October, 2017 (1854 days) which includes intervening period taken for preparation and filing of the SLP before the Supreme Court. In this context, he has placed reliance upon the decision of the Delhi High Court in NHPC Ltd. Vs. BGS-SGS-SOMA JV,MANU-DE/1247/2020 as well as the another decision of the Delhi High Court in National Seeds Corporation Ltd & Ors., Vs. Ram Avtar Gupta,MANU- DE/5728/2023.

[8] The learned Counsel for the Applicant has submitted hat the decisions relied upon by the Respondent are distinguishable on facts and therefore are not applicable. He has accordingly submitted that the period of 1854 days be excluded for the purpose of computing the period of limitation and consequent to exclusion of the above period, the delay of 21 days / 22 days be condoned and the Applicant be permitted to impugn the Award.

[9] The learned Counsel appearing for the Respondent No.1 has submitted that the above Arbitration Petition challenging the Award dated 31st March, 2020 passed by the Facilitation Council under the MSMED Act 2006 has been filed beyond the prescribed period of limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996.

[10] The learned Counsel for the Respondent No.1 has submitted that the prosecution of the Writ Petition challenging the Award of the Facilitation Council was not bonafide. He has referred to the Affidavit-in-Reply filed by the Respondent No.1 on 4th November, 2017 to the Writ Petition, wherein the objection was taken on the ground that an appropriate remedy was available under Section 34 of the Arbitration Act. Thus, the Applicant/Petitioner was put to notice that the Writ Petition was not maintainable.

[11] The learned Counsel for the Respondent No.1 has thereafter referred to the objection taken by the Respondent No.1 on 20th June, 2019 when the Writ Petition was listed before this Court and which objection was recorded in the order passed on that day. This Court has also recorded the judgments on the maintainability of the Writ challenging the Arbitral Award. Despite the Respondent raising the objection as to the maintainability of the Writ challenging the Arbitral Award, the Applicant/Petitioner continued to prosecute the Writ. Thus, such prosecution cannot be said to be a bonafide prosecution of proceedings as contemplated under Section 14 of the Limitation Act.

[12] The learned Counsel for the Respondent No.1 has submitted that the Petitioner after dismissal of the Writ, had submitted that it would adopt the appropriate proceedings to challenge the Award and this has been recorded in the said order dated 20th January, 2020 dismissing the Writ Petition. However, instead of the Applicant/Petitioner adopting the appropriate proceedings i.e. under Section 34, the Applicant/Petitioner preferred an SLP. This certainly cannot be said to be bonafide prosecution of proceedings.

[13] The learned Counsel for the Respondent No.1 has referred to the decision of the Supreme Court in Ketan V. Parekh Vs. Special Director, Directorate of Enforcement & Anr., 2011 15 SCC 30 at Paragraphs 1, 8, 9 and 10 for facts and the law laid down in Paragraphs 31 to 34. The Supreme Court had held that there is no averment that the prosecution before the earlier Court i.e. Delhi High Court was made before the wrong forum and was made with due diligence and in good faith. It was also noticed that the prayer was for condonation of delay and not for exclusion of time spent in prosecuting the remedy before the wrong forum. Accordingly, such an Application was construed to be an Application under Section 5 and not an Application under Section 14 of the Limitation Act. The Supreme Court further held that the benefit of Section 14 cannot be extended as the party had engaged a group of Advocates to present their cause in the Delhi High Court (the Court which was alleged in that matter to be an incorrect forum) and from which it appears that the Appellants in that case were sure of the forum and they merely took a chance by filing a Petition in the Delhi High Court. He has submitted that under the present case also, the Applicant was represented by a group of lawyers in this Court and had asserted the stand that their Writ Petition was maintainable despite objections raised and judgments cited by the Respondent No.1. Therefore, the Applicants in the present case cannot get the benefit of Section 14 of the Limitation Act.

[14] The learned Counsel for the Respondent No.1 has also referred to the decision of Supreme Court in Rabindra Nath Samuel Dawson Vs. Sivakasi & Ors., 1973 3 SCC 381, wherein the Supreme Court has held that despite objections on maintainability being taken by the Respondents in the inception, a party who resists and invites a decision, such a prosecution by a party cannot be bonafide prosecution.

[15] The learned counsel for Respondent No.1 has also submitted that the prosecution of the Writ Petition by the Applicant/Petitioner cannot be said to be a prosecution with exercise of due diligence. He has submitted that this is apparent that there is not even an averment in the Interim Application for condonation of delay that the Applicant/Petitioner prosecuted the Writ with "due diligence". The Interim Application is bereft of any particulars of due diligence purportedly exercised by the Petitioner. The burden to show that due diligence was exercised, is on the party seeking to claim benefit of Section 14 of the Limitation Act. In any event, the Applicant's case does not fit into the parameter of "been prosecuted with due diligence and good faith".

[16] The learned Counsel for Respondent No.1 has placed reliance upon Section 2 (h) of the Limitation Act, wherein "Good Faith" has been defined as "nothing shall be deemed to be done in good faith which is not done with due care and attention".

[17] The learned Counsel for Respondent No.1 has submitted that in the instant case, the Applicant has not been exercising due diligence and good faith. The Respondent No.1 put the Applicant twice to notice that the appropriate remedy to challenge the Award is under Section 34 of the Arbitration Act. First time in the Affidavit in Reply to the Writ Petition and second time, on 20th June, 2019, at the hearing of the Writ Petition and which is recorded in the said Order. However, despite putting the Applicant to notice, the Applicant continued pursuing the Writ Petition. Thereafter, the Applicant preferred an SLP challenging the dismissal of the Writ Petition and which in turn was dismissed on the ground of having appropriate remedy under the Arbitration Act to challenge the Award.

[18] The learned Counsel for the Respondent No.1 has submitted that the Writ proceedings cannot be said to be a proceedings suffering from "Defect in Jurisdiction" or "Any other causes of like nature". He has submitted that it was not as if the Writ Court could not interfere but it chose not to interfere on account of existence of an alternative remedy. There is no finding in the order of this Court dated 20th January, 2020 that the Court suffers from lack of jurisdiction. It is imperative for a Court which the party claims to suffer from defect, to render a finding to that effect. A different Court cannot render a finding that the earlier proceedings suffer from defect of jurisdiction. He has further submitted that the terms "any other causes of like nature" in Section 14 of the Limitation Act necessarily relates to something analogous to the preceding words "from defect of jurisdiction". To expand the term, as sought by the Applicant, would entail in doing violence to the statute. He has placed reliance upon the decision of the Supreme Court in Zafar Khan & Ors., Vs. Board of Revenue UP,1984 Supp SCC 505 in this context.

[19] The learned Counsel for the Respondent No.1 has also placed reliance upon the decision of the Supreme Court in Deena Vs. Bharat Sing, 2002 6 SCC 336 at Paragraph 13 wherein the Supreme Court has held that in order to claim benefit under Section 14 of the Limitation Act, the ingredients there are required to be met. These ingredients are -

(a) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(b) The prior proceeding has been prosecuted with due diligence and good faith;

(c) The prior proceeding failed due to the Court having a defect in jurisdiction or any other causes of like nature;

(d) Both proceedings must relate to the same matter in issue and,

(e) Both proceedings are in Court.

[20] The Supreme Court in that decision has held in Paragraph 14 that the expression "good faith" qualifies prosecuting the proceeding in the Court which is ultimately found to have no jurisdiction. Further, in Paragraph 15 of the decision, the Supreme Court has held that the expression "defect of jurisdiction" and "or other cause of like nature" would mean that the Court must lack jurisdiction to entertain the Suit or proceeding. Further in Paragraph 16 the decision, the Supreme Court has held that for a party to have a benefit of Section 14 there must be a finding by a Court of the first instance that it lacks jurisdiction. In absence of such finding, a party cannot claim benefit of Section 14 of the Limitation Act.

[21] The learned Counsel for Respondent No.1 has distinguished the judgment cited by the Applicant/Petitioner in JSW Steel Ltd. (Supra) on the ground that the Judgment is in fact against the Petitioner as it shows that the Writ Petition challenging Award cannot be termed as "defect of jurisdiction". The judgment does not lay down any proposition that supports the Petitioner's case. In that case, the Writ Court interfered with an Award on account of inherent lack of jurisdiction. The Court was not concerned with facts which can even remotely relate to the facts of the present case.

[22] The learned Counsel for the Respondent No.1 has submitted that strictly without prejudice to the above submissions, assuming that the Applicant is entitled for exclusion of period spent in prosecuting the Writ Petition, still the Petition under Section 34 is not referred within the prescribed period of limitation. He has submitted that the period between two dates i.e. date from receipt of the Award i.e. 5th April, 2017 till date of filing of the Writ Petition i.e. 5th June, 2017 which is a total of 61 days cannot be counted in exclusion. Further, the period between the date of rejection of the Writ Petition by this Court i.e. 20th January, 2020 till 14th March, 2020 i.e. stoppage of period of limitation, based on the order of Supreme Court where limitation from 14th March, 2020 till 28th February, 2022 was excluded which is a total number of 53 days, cannot be counted in exclusion. Further, the period between 1st November, 2022 till 22nd December, 2022 i.e. day after dismissal of the SLP till one day prior to the filing of the Petition under Section 34 before this Court which is a total period of 52 days cannot be counted in exclusion. Thus, the delay in filing the Petition is 166 days.

[23] The learned Counsel for Respondent No.1 has submitted that assuming that the Applicant is entitled to for exclusion of the period spent in prosecuting in a bonafide manner and with due diligence, still the Petition under Section 34 is preferred after a period of 166 days i.e. beyond the permissible period of 120 days for filing of a Petition under Section 34 of the Arbitration Act.

[24] The learned counsel for the Respondent No.1 has submitted that the decision of Delhi High Court in NHPC Ltd. BGSSGS Soma JV (Supra) relied upon by the Applicant is of no assistance as in that case, the Applicant did not submit to the Court that they will adopt appropriate proceedings and then challenge the order of the Court before the Supreme Court. Therefore, preparation time cannot be excluded in the present case. Accordingly, it is submitted that this Court dismiss the Interim Application and Petition with costs.

[25] Having considered the rival submissions, it is relevant to reproduce Section 14 of the Limitation Act which reads thus:

"Exclusion of time of proceeding bonafide 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 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."

[26] Thus, Section 14 of the Limitation Act requires certain necessary ingredients to be met for it to be applicable. Firstly, the Applicant is required to prosecute with due diligence another civil proceeding. Secondly, the Plaintiff is to prosecute the civil proceeding in good faith. Thirdly, the Court in which the proceeding is prosecuted suffers from "defect of jurisdiction" or "other cause of a like nature". It is only then that the time for prosecution of such proceeding is to be excluded. In my view, these ingredients have not been met in the present case.

[27] The Applicant chose to challenge the Award by filing the Writ Petition on 6th June, 2017. The Respondent No.1 had at the outset in his Affidavit-in-Reply to the Writ Petition objected to the Writ Petition on the ground that an appropriate remedy was available under Section 34 of the Arbitration Act. Further, the Respondent No.1 yet again took the objection of maintainability of the Writ Petition on ground of appropriate alternative remedy available under Section 34 of the Arbitration Act on 20th June, 2019 when this Court had considered the Writ Petition and which has been recorded in the said order passed on that day. This Court had also recorded the judgments on maintainability of the Writ Petition challenging the Arbitral Award which had been cited by the Counsel for Respondent No.1. Despite this objection taken by Respondent No.1 on the maintainability of the Writ Petition, the Applicant/Petitioner continued to prosecute the Writ Petition. Thus, in my view, this cannot be a prosecution of the proceeding with due diligence and / or in good faith.

[28] Further, this is apparent from the statement made by the Counsel on behalf of the Applicant after the dismissal of the Writ Petition by this Court that the Applicant would adopt appropriate proceedings to challenge the Award under Section 34 of the Arbitration Act. Instead of adopting the appropriate proceedings, the Applicant instead chose to challenge the order dated 20th January, 2020 passed by this Court dismissing the Writ Petition. This in my view certainly cannot be bona-fide prosecution of the proceedings.

[29] The decision of the Supreme Court in Ketan Parekh (Supra) relied upon by the Counsel for the Respondent No.1 is apposite. In that case also, there was no averment that the prosecution before the earlier Court i.e. Delhi High Court was made before a wrong forum and / or was made with due diligence and / or good faith. The Supreme Court had noticed that the prayer was for condonation of delay and not for exclusion of time spent in the prosecution of remedy before the wrong forum. The Appellant in that case was represented by a group of Advocates who took a chance before the incorrect forum. In the present case too, the Applicant was represented by a group of lawyers who asserted their stand that the Writ Petition was maintainable despite objections having been raised and judgments cited by Respondent No.1. Therefore, the Applicant cannot have the benefit of Section 14 of the Limitation Act.

[30] Further, the Supreme Court in Rabindra Nath Samuel Dawson (Supra) has held that despite objection on maintainability taken by the Respondent in the inception, a party who resists and invites a decision, such prosecution by a party cannot be a bona-fide prosecution. This decision is also apposite in the present case. The Respondent No.1 had objected to the maintainability of the Writ Petition at the outset and despite which the Applicant/Petitioner resisted and invited the decision of this Court and thereafter chose to challenge the decision by filing an SLP.

[31] I also find much merit in the submission of learned Counsel for Respondent No.1 that there is no due diligence exercised by Applicant/Petitioner. It is not the contention of the Applicant/Petitioner that it had prosecuted the Writ Petition with "due diligence". The burden to show due diligence is on the party seeking benefit of Section 14 of the Limitation Act. Further, the Applicant's case would not fall within the parameter of "been prosecuted with due diligence in good faith". Under the definition of "Good Faith" in Section 2(h) of the Limitation Act - nothing is deemed to be done in good faith which is not done with due care and attention.

[32] In my view, the Applicant in the present case has failed to exercise due diligence and good faith. Further, the proceedings adopted by the Applicant viz. the Writ proceedings cannot be said to be proceeding suffering from "defect of Jurisdiction" or "any other causes of like nature". It is not the submission of the Applicant/Petitioner that the Writ Court cannot interfere with the Arbitral Award. In the present case, the Writ Court chose not to interfere on account of alternate remedy. In the decision of the Supreme Court in Zafar Khan (Supra) "Defect of Jurisdiction" has been construed as well as "other cause of like nature" and explanation (c) to Section 14 has also been referred to which provides misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction. This expression must take its colour and content from the just preceding expression, "defect of jurisdiction". In the present case, the Writ Petition challenging the Award cannot be termed as "defect of jurisdiction". In fact, this Court in JSW Steel Ltd. (Supra) has held that the Writ Petition challenging an Award cannot be termed as "Defect of Jurisdiction".

[33] I further find much merit in the submission of the Counsel of Respondent No.1 that presuming Section 14 applies to the Arbitration Petition, the Arbitration Petition is not preferred within the prescribed period of limitation as the delay is of 166 days as the period between receipt of the Award and filing of the Writ Petition as well as the period between the rejection of the Writ Petition and filing of the SLP and the period between the dismissal of SLP and filing of the Arbitration Petition cannot be counted in the exclusion period under Section 14 of the Limitation Act. Thus, in any event the Arbitration Petition has been preferred beyond the permissible period of 120 days under Section 34 of the Arbitration Act.

[34] The decision of the Delhi High Court in NHPC Ltd. Vs. BGS-SGS-SOMA JV (Supra) which has been relied upon by the Applicant/Petitioner can be of no assistance as unlike in the present case the Petitioner in that case had not submitted to the Court that they will adopt appropriate proceedings. Accordingly, in the present case, the preparation time cannot be counted in exclusion.

[35] In view thereof, I find no merit in the present Interim Application for exclusion of the period of 1854 days from 5th April, 2017 till 1st November, 2022 in computing the period of limitation for filing the Petition challenging the Award dated 31st March, 2017 passed by the Facilitation Council constituted under the MSME Act. The delay beyond the permissible period of 120 days under Section 34(3) and proviso thereto of the Arbitration Act can in no event be condoned.

[36] The present Interim Application is accordingly disposed of.

[37] In view of this order, the Commercial Arbitration Petition under Section 34 of the Arbitration Act is dismissed as being barred by Limitation and is accordingly disposed of