Government of Bangladesh Vs. The Kothari Fermentation and Biochem Ltd. and another, 2016(1) LNJ (AD) 27

Case No: Civil Petition For Leave To Appel Nos. 1577—1580 of 2012

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Murad Reza,Mr. Habibul Islam Bhuyan,,

Citation: 2016(1) LNJ (AD) 27

Case Year: 2016

Appellant: Government of Bangladesh

Respondent: The Kothari Fermentation and Biochem Ltd. and another

Subject: Arbitration/Mediation, Limitation,

Delivery Date: 2014-02-13

APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ,
Surendra Kumar Sinha, J,
Md. Abdul Wahhab Miah, J,
Hasan Foez Siddique, J,
AHM Shamsuddin Chowdhury, J.
 
Judgment on
13.02.2014
 
Government of Bangladesh
... Petitioner
(In all the petitions)
Versus
The Kothari Fermentation and Biochem Ltd.
...Respondents
(In C. P. Nos. 1577, 1578 & 1579 of 2012)
M/S. Sampat Industrial and Construction Co. Ltd.
...Respondents
(In C. P. Nos. 1580of 2012)
 
Constitution of Bangladesh, 1972
Article 104
Article 104 of the Constitution confers extraordinary powers on this Court to do complete justice between the parties under special circumstances and for special reasons. There is no exhaustive list of special circumstances and special reasons. According to this Court  “Cases may vary, situation may vary and the scale  and parameter of complete justice also vary. Sometimes it may be justice according to law, sometimes it may be justice  according to fairness, equity and good conscience, sometimes it may be justice tempered with mercy, sometimes it may be pure commonsense, sometimes it may be  the  inference of an ordinary reasonable man and so on”. . . . (21)
 
Constitution of Bangladesh, 1972
Article 104
The power under Article 104 being an extra ordinary power is  conferred on  the Apex Court of the country  to do complete justice but it cannot all together ignore the substantive provision of statute. . . .(23)
 
Constitution of Bangladesh, 1972
Article 104
The power of this  Court  to do complete justice  invoking  Article 104 of the Constitution  cannot be availed  of to fill up the lacuna of the petitioner’s case or to  ignore the express statutory provisions or the vested rights of the respondents which they have   acquired by lapse of time cannot be taken away under the guise of complete justice. Therefore the irresistible conclusion is that when a party to a proceeding, has deliberately committed a default or is guilty of laches or gross negligence, cannot be  allowed to invoke Article 104 of the Constitution for the exercise of the Supreme Court’s power and jurisdiction seeking relief in the name of complete justice. . . . (25)
 
Limitation Act, (IX of 1908)
Section 3
The true meaning of section 3 is that any suit instituted, appeal preferred and an application made after the period of the limitation as prescribed by the First Schedule shall be dismissed unless any of the provisions of sections 4 to 25 has been invoked in the facts and circumstances of a given case. . . . (26)
 
Limitation Act, (IX of 1908)
Sections 3, 5, 29(2) and Article 158
Arbitration Act, (X of 1940)
Section 33
The Arbitration Act, 1940, is a special law but it does not provide any  special  provision of  limitation for filing a suit, appeal, review or application rather the period of limitation  prescribed thereof by the First schedule to the Limitation Act, 1908 as contemplated in Article 158 is applicable  in the case of an application for objection under Section 33 of the Arbitration Act to set aside an award or to get an award remitted for reconsideration and as such Section 29 (2) of the Limitation Act, 1908  has no manner of application to such matters. Therefore, it is wrong to construe that the Arbitration Act, 1940 being a special law the provisions of Section 5 of the Limitation Act is not applicable for condonation of delay in filing any application to set aside an award or to get an award remitted for reconsideration. An application for objection to challenge the existence or validity  of an award has to be filed within 30 days from the date of the service of notice of filing of the award and if filed beyond statutory period then the application for objections cannot be taken into consideration, especially in the absence of an application for condonation of delay under section 5 of the Limitation Act explaining sufficient cause for not making the application within such period.   . . . (28)
 
National Board of Revenue Vs. Nasrin Banu, 48 DLR (AD) 171, 178; Nazimuddin Vs. Hamida Banu, 45 DLR (AD) 38 at page 44; State of Punjab Vs. Bakshish Singh, (1998) 8 SCC 222; Supreme Court Bar Association Vs. Union of India, (1998) 4 SCC  409; M.C. Mehta Vs. Kamal Nath,  (2000) 6 SCC  213 para- 19; Raziul Hasan Vs. Badiuzzaman Khan, 1996 BLD (AD) 253; Abdul Malek Vs.  Abdus Salam, 61 DLR (AD) 124 and Hussain Muhammad Ershad Vs. State, 6 BLC (AD) 30 ref.
 
For the Appellant (In all the petitions) : Mr. Murad Reza, Additional Attorney General, instructed by Mr. B Hossain, Advocade-on-Record.

For the Respondents (In all the petitions): Mr. Habibul Islam Bhuyan, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
 
Civil Petition For Leave To Appel Nos. 1577—1580 of 2012
 
JUDGMENT
Md. Muzammel Hossain, CJ:
 
These civil petitions for leave to appeal, taken up for hearing analogy, are directed against the common judgment and order dated 28.02.2012 passed by a Division Bench of the High Court Division in First Appeal No. 131 of 2011, First  Miscellaneous Appeal No. 133 of 2011, First Miscellaneous Appeal No.134 of 2011 and First Appeal No.127 of 2011 dismissing the appeals which have arisen out of the judgments and decrees dated 28.03.2007 passed by the learned Joint District Judge, First Court, Dhaka in Title Suit No.16 of 2005 analogously with  Arbitration Miscellaneous Case No.77 of 2005, Title Suit No. 15 of 2005 analogously with Arbitration Miscellaneous Case no.78 0f 2005, Title Suit No.18  analogously with Arbitration Miscellaneous Case No. 79 of 2005 making the awards Rules of the Court in modified form by striking out the words  “ @ of Tk. 36 per One US Dollar” .
 
Delays of 129 days  in filing these appeals before the High Court Division were condoned subject to payment of  50% of the decreetal amount against  which the  appellant- petitioner filed civil petition for leave to appeal  before the Appellate Division whereupon the aforesaid  orders of the High Court Division were set aside with direction to register the appeals by the order  dated 6-1-2010 and  accordingly  these  appeals  were  registered.
 
The facts relating to these leave petitions, in brief, are that the Government of Bangladesh represented by the Ministry of Food is the buyer and the Kothori Fermentation and Biochem Ltd as the  seller entered into 3 (three)   contracts being Nos. BG.-13/95 dated 06.04.1995, IMP 3/4/95 dated 24-5-1995 and IMP 3/3/95 dated 8-6-1995 for buying/selling of 20,000, 50,000 and 26,000 metric tons (M.T) parboiled rice respectively and the Government of Bangladesh represented by the Ministry of Food is the buyer and M/S. Sampat Industrial and Construction Co. Ltd as the seller entered into a contract being No. IMP 3/2/95 dated  8-5-1995 for buying and selling of 16,000 M.T of parboiled rice. The respondents-sellers stated that they fully performed the contracts and claimed sale proceeds of rice. But the appellant-buyer raised counter claims as to quality and quantity. Since common questions of facts and law are involved, for the sake of brevity, the facts of the  instant leave petitions are being stated in brief separately:-
 
Civil Petition for leave to appeal No. 1578 of 2012
 
The Respondent (Kothari Fermentation and Biochem Ltd) and the petitioner ( Government of Bangladesh, represented by the Ministry of Food) had entered into a contract being  No. BG 13/95 dated 06.04.1995  for the sale and purchase of 20,000 MT of parboiled rice at the rate of US$259.78 per M.T. The respondent claimed that the contract was performed, however, a dispute arose between the parties and the matter was referred to arbitration wherein the Respondent was the claimant-1st Party and the petitioner was the respondent-2nd party. The Arbitrators comprising of two retired Judges of the High Court Division passed  a unanimous award amounting to US$1,52,566.60 on 12-09-2004 in favour of the Respondent  to be paid by the petitioner “ @ Tk. 36 per one US Dollar’’.
 
The respondent filed an application under Section 14 of Arbitration Act, 1940 in the Court of Joint District Judge, 1st Court, Dhaka on 15.01.2005 praying for a direction upon the Arbitrators to cause the award to be filed in the Court. It was registered as Tile Suit No. 18 of 2005. The petitioner received the Court’s notice on 17.02.2005 and filed written statement and written objection on 25.08.2005 under Sections 30 and 33 of the Arbitration Act, 1940.

The petitioner filed Arbitration Miscellaneous Case No. 79 of 2005 under Sections 30 and 33 of the Arbitration Act, 1940 for setting aside the Award on 27-08-2005. The Title Suit No. 18 of 2005 and the Arbitration Miscellaneous Case No. 79 of 2005 were heard analogously since the subject matter and the parties are one and the same.

The learned Joint District Judge, First Court, Dhaka by judgment and decree dated 28-03-2007 decreed the Title suit No. 18 of 2005 making the Award Rule of the Court in modified form by striking out the words- “@ Tk. 36 per one US Dollar” from the operative portion of the order of the Award  and dismissed the Arbitration Miscellaneous Case No. 79 of 2005.

Against the Judgment and decree dated 28-03-2007 passed in Title Suit No. 18 of 2005 the petitioner as appellant filed First Appeal (F.A) No. 127 of 2011 before the High Court Division but no First Miscellaneous Appeal (F.M.A) was preferred against the judgment and order passed in Arbitration Miscellaneous Case No. 79 of 2005.   A Division Bench of the High Court Division heard the F.A. No. 127 of 2007 analogously with F.A. No. 131 of 2011, F. M. A. No. 134 of 2011 and F. M. A.  No. 133 of 2011 and by a common judgment and order dated 28-02-2012, dismissed the appeals on the ground that no amount was deposited or security was furnished as required to the satisfaction of the Court for payment of the award in compliance with the proviso to Section 33 of the Arbitration Act, 1940.

Against the judgment and order dated 28-02-2012 passed by the High Court Division in F.A. No. 127 of 2011, the present petitioner – Government of Bangladesh preferred Civil Petition for leave to Appeal (C.P.) No. 1578 of 2012 before this Division.
 
Civil Petition for leave to Appeal No. 1580 of 2012
 
The Respondent, (Sampat Industrial and Construction Co. Ltd.) and the petitioner (Government of Bangladesh, represented by the Ministry of Food) had entered into a contract being No. IMP 3/5/95 dated 08-05-1995 for the sale and purchase of 16,000 MT of parboiled rice at the rate of US$256.50 per M.T.  The respondent seller claimed that the contract was performed, however, a dispute arose between the parties and the matter was referred to arbitration wherein the respondent was the claimant- 1st Party and the petitioner was the respondent-2nd party. The Arbitrators passed a unanimous  award amounting  to US$ 4,46,727.60 in favour of  the respondent  on 12-09-2004  to  be paid by the petitioner “ @ Tk. 36 per one US Dollar.”
 
The respondent filed an application under Section 14 of Arbitration Act 1940 in the Court of Joint District Judge, 1st Court, Dhaka on 15.01.2005 praying for a direction upon the Arbitrators to cause the award to be filed in the Court. It was registered as Tile Suit No. 15 of 2005. The petitioner received the Court’s notice on 17.02.2005 and filed written statement and written objection on 25.08.2005 under Sections 30 and 33 of the Arbitration Act, 1940.
 
The petitioner filed Arbitration Miscellaneous Case No. 78 of 2005 under Sections 30 and 33 of the Arbitration Act, 1940 for setting aside the Award on 27-05-2005. The Title Suit No. 15 of 2005 and Arbitration Miscellaneous Case No. 78 of 2005 were heard analogously since the subject matter and the parties are one and the same. The learned Joint District Judge by judgment and decree dated 28-03-2007 decreed the suit and dismissed the miscellaneous case. No appeal was preferred against the decree passed in the Title Suit No. 15 of 2005 but F.M.A. No. 134 of 2011 was preferred against the judgment and order dated 28-03-2007 passed in the Arbitration Miscellaneous Case No. 78 of 2005. C. P. No. 1580 of 2012 has arisen out of the judgment and order dated 28-02-2012 passed in the F.M.A. No. 134 of 2011.
 
Civil Petition for leave to Appeal No. 1579 of 2012
 
The Respondent (Kothari Fermentation and Bichem Ltd.) and the petitioner (Government of  Bangladesh, represented by the Ministry of Food) had entered into a  contract being No. IMP 3/3/95 dated 08-06-1995 for the sale and purchase of 26,000 MT of parboiled rice at the rate of US$ 256.50 per M.T. The respondent claimed that the contract was performed, however, a dispute arose between the parties and the matter was referred to arbitration wherein the respondent was the claimant- 1st Party and the petitioner was the respondent- 2nd party. The Arbitrators passed a unanimous award amounting to US$ 2,74,455.29  in favour of the respondent on 12-09-2004 to be paid by the petitioner “ @ Tk. 36 per one US Dollar.”
 
The respondent filed an application under Section 14 of Arbitration Act 1940 in the Court of Joint District Judge, 1st Court, Dhaka on 15.01.2005 praying for a direction upon the Arbitrators to cause the award to be filed in the Court. It was registered as Tile Suit No. 16 of 2005. The petitioner received the Court’s notice on 17.02.2005 and filed written statement and written objection on 25.08.2005 under Sections 30 and 33 of the Arbitration Act, 1940.
 
The petitioner filed Arbitration Miscellaneous Case No. 77 of 2005 under Sections 30 and 33 of the Arbitration Act, 1940 for setting aside the Award on 27-08-2005. The Title Suit No. 16 of 2005 and Arbitration Miscellaneous Case No. 77 of 2005 were heard analogously since the subject matter and the parties are one and the same. By judgment and decree dated 28-03-2007, Title Suit No. 16 of 2005 was decreed making the award rule of the Court in modified form by striking out the words “ @ Tk. 36 per one  US Dollar” from the operative portion of the order of the award and the Arbitration Miscellaneous Case No. 77 of 2005 was dismissed. F.M.A. No. 133 of 2011 was preferred against the judgment and order passed in Arbitration Miscellaneous Case No. 77 of 2005.  F.A. No. 131 of 2011 was preferred against the judgment and decree dated 28-03-2007 passed in Title Suit No. 16 of 2005 making the award Rule of the Court in modified form. C.P. No. 1579 of 2012 has arisen out of judgment and order dated 28-02-2012 passed in F.A. No. 131 of 2011.
 
Civil Petition for leave to Appeal No. 1577 of 2012
 
This leave petition is directed against the judgment and order dated 28-02-2012 passed in FMA 133 of 2011 arising out   of Arbitration Misc. Case No. 77 of 2005. C.P No. 1577 of 2012 and C. P. No. 1579 of 2012 relate to Contract No. IMP 3/3/95 dated 08-0501995 and Award of the Arbitrators amounting to US$ 2,74,455.29.
 
Mr. Murad Reza, the learned Additional Attorney General appearing for the petitioner in all the leave petitions submits that the Arbitrators committed  misconduct in passing the awards  against the petitioner- Government without considering the papers and documents filed by the petitioner and the terms and conditions of the contracts and the awards were otherwise invalid but the learned Joint District Judge erred in law in making the awards Rules of the Court and that the applications for furnishing Securities as required by law were filed on behalf of the Petitioner but the High Court Division  was pleased not to consider the applications, this Court  may interfere and set aside the judgment and order of the High Court Division and send the appeals on remand  to the  High Court Division with a direction for giving an opportunity to the  petitioner for furnishing security as provided under the law exercising the power conferred to this Court under Article 104 of the Constitution for complete justice. He submits that the High Court Division was pleased to dismiss all the appeals for the failure of the petitioner to deposit 50% of the decreetal amount as per order of the Court for condoning the delay in presenting the appeals beyond the period of limitation, this Court may interfere and accord a chance to the petitioner  to comply with the order of the High Court Division and press the appeals on merits by exercising the power of this  Court conferred by Article 104 of the Constitution for complete justice because huge amount of Government money is involved in the case. He then submits that the High Court Division erred in law in dismissing the appeals from Original decree Nos.127 and 131 of 2011 as not maintainable and incompetent because of the failure of the petitioner in depositing in the Court the amount which he was required to pay under the awards or failed to furnish securities to the satisfaction of the Court. The learned Additional Attorney General finally submits that the High Court Division was pleased to observe that the appellant having received  the courts notice on 17.02.2005 filed the written objection on 25.08.2005 after the statutory period of limitation which is barred as per provisions of Article 158 of the Limitation Act,1908 this Court may accord a chance to the petitioner by exercising the powers conferred to this Court under Article 104 of the Constitution for complete justice and as such this Court be pleased enough to grant leave against the aforesaid judgment and order.
 
Mr. Habibul Islam Bhuyan, the learned Senior Advocate for the respondents submits that there is no illegality in the impugned judgment and order passed by the High Court Division and as such no interference is called for by this Court. He then submits that the amount of money required to be paid under the awards or any security to be  furnished to the satisfaction of the Court for the payment of  such sum of  money as awards or for the fulfillment  of any other obligation by him under the awards as contemplated under the proviso to Section 33 of the Arbitration Act, 1940 is a condition precedent for entertainment of an application under section 33 challenging the award and that without such deposit it is to be construed that there was  no application in the eye of law. He then submits that in the facts and circumstances of the cases there is no scope for sending the Appeals on remand to the High Court Division with a direction for giving an opportunity to the petitioner for furnishing security as contemplated in the proviso to Section 33 of the Act, 1940 invoking the powers of this Division under Article 104 of the Constitution for doing complete justice and as such these leave petitions are liable to be dismissed.     
 
We have heard the learned Additional Attorney General for the petitioner and the learned Senior Advocate for the respondents and perused the leave petitions, impugned judgment and order passed by the High Court Division and other materials on record. 
 
Since common questions of law and facts are involved in all the leave petitions, for the sake of brevity, we are discussing only the C.P. No. 1578 of 2012 in details. In this case the respondent having supplied 20,000 metric tons of parboiled rice at the rate of US $ 259.98 per metric ton claimed payment of US $ 4, 74,814.09 but the petitioner raised a dispute for short supply of the consignment and the dispute was referred to an Arbitral Tribunal consisting of two Arbitrators. The petitioners raised a counter- claim of US$ 78,486.59. The Arbitrators after hearing both the parties passed a unanimous award amounting to US $ 1,52,566.60 at the rate of “Tk. 36 per One US Dollar’’ allowing the respondent-seller’s claim on 12.09.2004.  The respondent filed an application under Section 14 of the Arbitration Act 1940 before the First Court of Joint District Judge, Dhaka praying for a direction upon the Arbitrators to cause the award to be filed in the Court for making the same rule of the Court.  This was registered as Title Suit No. 18 of 2005. Though the petitioner received the Court’s notice on 17.02.2005 yet written statement and written objection under sections 30 and 33 of the Arbitration Act, 1940 were filed on 28.05.2005 which was long after the period of limitation.  The petitioner filed Arbitration Miscellaneous Case No. 79 of 2005 under Sections 30 and 33 of the Act challenging the award after the period of limitation. These cases were heard analogously and the learned Joint District Judge by a common judgment and decree dated 28.03.2007 decreed the Title Suit 18 of 2005 making the award amounting to US$ 1,52,516.66 rule of the Court in modified form striking out the words “@ Tk. 36 per one US Dollar” from the operative part of the order of the award under section 15 of the Arbitration Act, 1940 and dismissed the Arbitration Miscellaneous Case No. 79 of 2005.
 
Admittedly, after service of the Court’s notice on 17.02.2005 upon the petitioner, written statement and written objection were filed on their behalf long after the statutory period of limitation on 25.08.2005 and the Arbitration Miscellaneous Case No.79 of 2005 was filed on 28.08.2005. It appears that the High Court Division having considered the relevant provisions of law  and the reported decisions of Cases  rightly observed that the Government-petitioner failed to deposit the required amount under the award or failed to furnish security to the satisfaction of the Court for the payment of such sum of money as the deposit contemplated under the law is a condition precedent for entertainment of the application challenging the award and without deposit it is to be construed that there was no application in the eye of law and as such the application filed by the defendant-petitioner before the trial Court is non-existent in the eye of law and the learned Joint District  Judge rightly rejected the  written objection.  It appears that the defendant-petitioner at the time of filing of the  application for objection  under section 33 of the Arbitration Act,1940  challenging the award did not make any deposit nor furnished any security  as was required  under  the proviso to Section 33 of the Arbitration Act  and that rendered the  application  under Section 33 of the Arbitration Act a nullity in the eye of law for non-compliance  with the  aforesaid provision of law and the learned Joint District  Judge rightly held that the default  of the petitioner in making the deposit of the  amount as required under the award or furnishing the security to the satisfaction of the Court in compliance with the proviso to Section 33 of the  Act rendered the    application for challenging the award  under section 33 of the Arbitration Act as non -existent in the eye of law.
 
In the instant Cases, admittedly, the petitioner failed to deposit in the Court the amount which it was required to pay under the awards or failed to furnish securities for the payment of such sums as contemplated in the proviso to Section 33 of the Arbitration Act. It appears from the judgment of the High Court Division that when the petitioner’s notice was brought to the situation that no deposit was made in the trial Court nor in the High Court Division at the time of filing of the appeals the petitioner filed separate applications   in all these appeals seeking permission to furnish securities which were not allowed by the High Division as the said applications were hopelessly barred by limitation under Article 158 of the Limitation Act. 1908 which provides that the period of limitation to challenge the validity of the award is 30 days from the date of service of the notice of filing of the award. The petitioner invoked Article 104 of the Constitution seeking complete justice for sending the appeals on remand to the High Court Division with a direction for giving an opportunity to the petitioner for furnishing a security incompliance with the proviso to Section 33 of the Arbitration Act and also to allow the petitioner to press the appeals on merit by exercising powers of this Court conferred by Article 104 of the Constitution for complete justice. Article 104 of the Constitution confers extraordinary powers on this Court to do complete justice between the parties under special circumstances and for special reasons. There is no exhaustive list of special circumstances and special reasons. According to this Court “Cases may vary, situation may vary and the scale and parameter of complete justice also vary. Sometimes it may be justice according to law, sometimes it may be justice  according to fairness, equity and good conscience, sometimes it may be justice tempered with mercy, sometimes it may be pure commonsense, sometimes it may be  the  inference of an ordinary reasonable man and so on”. [ National Board of Revenue –Vs-  Nasrin Banu, 48 DLR(AD) 171, 178.] In the case of Nazimuddin Vs. Hamida Banu 45 DLR(AD) 38 at page 44 this Court observed :- “ Considering the vagaries of legal proceedings and the technicalities involved in adjudication, Art. 104 of the Constitution has invested  as a measure of abundant caution, the last court of the country with wide power, so that it may forestall a failure of justice and to do complete justice in an appropriate case.  It is an extraordinary procedure for doing justice for completion of or putting an end to a cause or matter pending before this court. If a substantial justice under law and on undisputed facts can be made so that parties may not be pushed to further litigation then a recourse to the provision of Art. 104 may be justified. Complete justice may not be perfect justice, and any endeavour to attain the latter will be act of vanity.”
 
In the case of State of Punjab Vs. Bakshish Singh (1998)8 SCC 222 the Supreme Court of India held that Art. 142 even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.  In the Case of  Supreme Court Bar Association Vs. Union of India (1998)4 SCC  409,    the Supreme Court of India,   has described the power of the Court under Article 142  as the plenary power which  cannot be exercised ignoring  any substantive statutory provision dealing with the subject.  In this case the Supreme Court of India observed:- “ 47.......  “It however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring  express statutory provisions dealing with a subject and thereby achieve  something indirectly which cannot be achieved directly. Punishing a contemner Advocate, while dealing with a contempt of Court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an Advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz, to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of Court, the contemner and the Court cannot be said to be litigating parties.

         “48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice “ between  the parties in any cause or matter pending before it.” The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by “ ironing out the creases” in a cause or mater before it. Indeed this Court is not a court of restricted jurisdiction of only dispute settling. It is well recognised and established that this Court has always been a law maker and its role travels  beyond merely dispute settling. It is a problem solver in the nebulous areas (see K. Veeraswami V. Union of India) but the substantive statutory provisions dealing with the subject matter of a given case cannot be altogether ignored by this Court, while making an order under Article   142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.”
 
In the case of M.C. Mehta Vs. Kamal Nath (2000)6 SCC 213 para- 19) Supreme Court of India held that complete justice cannot be pressed into aid where it would amount to contravention of specific provisions of the statute. Article 104 of the Constitution  envisages that  the Appellate Division shall have the power to issue such directions, orders, decrees or writs  as may be necessary for doing complete justice in any cause of matter pending before it. In the case of Raziul Hasan Vs. Badiuzzaman Khan 1996 BLD (AD) 253 this Court observed :-  “ We now find that no remedy is available  to the appellant , though a gross injustice has been done to him for no fault or laches of his own. A valuable right accrued to the appellant in law and this fact should not be lost.  In that view of the matter we thought it be a most appropriate case to exercise our jurisdiction under Article 104 of the Constitution.......... But in the scheme of our Constitution we can only do complete justice under Article 104 of the Constitution in a matter or cause which is pending in appeal under Article 103 of the Constitution.”  The Appellate Division further observed  that “ in the name of complete justice this court may not grant relief which the court of first instance will not be able under the law to grant, otherwise no litigant, in search of complete justice, will rest till he reaches the end of the long tunnel of litigation in this court.”
 
The power under Article 104 being an extra ordinary power is  conferred on  the Apex Court of the country  to do complete justice but it cannot all together ignore the substantive provision of statute.  In a number of cases the Apex Courts of the Sub-continent consistently held to the same effect. In this context it is pertinent to quote with approval Mahmudul Islam’s Constitution Law of Bangladesh (3rd Ed.) page 893 para- 5.200 which reads as under:- “ Power to do complete justice is an extraordinary power given to the highest tribunal of the land and the power is to be exercised sparingly and in exceptional circumstances to remove manifest and undoubted injustice. Facts   may be of such varied pattern, that it is difficult to lay down any fixed principles for doing complete justice. All that can be said is that ‘ complete justice’ should be done not according to the personal views of the Judges, but in exceptional circumstances on clear showing of injustice for the   removal of which the existing laws have not made any provision.”
 
In the case of Abdul Malek Vs.  Abdus Salam 61 DLR (AD) 124  this Court held that the power of doing complete justice can be exercised in a case which is pending  in appeal under Article 103 when the Court finds that no remedy is available to the appellant though gross injustice has been done to him for no fault or latches of his own. In the case of Hussain Muhammad Ershad Vs State 6 BLC (AD) 30 this Court held that it would not be proper to invoke Article 104 of the Constitution by ignoring the provisions of sections 68 and 69 of the Penal Code when exercise of Article 104 comes in direct conflict with the express provision of the law.
 
In the facts and circumstances of the case there is no scope to argue that this Court should interfere and set aside the judgment of the High Court Division and send the appeals on remand to the High Court Division with a direction for giving opportunity to the petitioner for depositing the required amount or furnishing security under the law exercising the power of this Court conferred by Article 104 of the Constitution for complete justice. The provisions of  proviso to section 33 of the Arbitration Act, 1940, in our opinion, requiring  deposit  of the award money or security in lieu thereof  is a condition precedent for entertainment of any application challenging the award and as such the power of this  Court  to do complete justice  invoking  Article 104 of the Constitution  cannot be availed  of to fill up the lacuna of the petitioner’s case or to  ignore the express statutory provisions or the vested rights of the respondents which they have   acquired by lapse of time cannot be taken away under the guise of complete justice. Therefore the irresistible conclusion is that when a party to a proceeding, has deliberately committed a default or is guilty of laches or gross negligence, cannot be allowed to invoke Article 104 of the Constitution for the exercise of the Supreme Court’s power and jurisdiction seeking relief in the name of complete justice.
 
In the instant cases the petitioner had not made the deposits as contemplated in the proviso to section 33 of the Arbitration Act, 1940 and at the time of hearing of the appeals the petitioner’s applications seeking permission to furnish security is not at all bonafide.  Because of the failure in furnishing security or  depositing the required amount at the time of filing the written statements and the application for objections under section 33 of the Act against the awards which were filed in the trial Court for making them rules of the court made  them a nullity in the eye of law and consequently, the petitioners appeals were hopelessly barred by law  and the prayer of the petitioner  at the appellate stage to furnish security cannot be entertained ignoring the express statutory provisions inasmuch as vested rights have  already been accrued to the respondents.  However, the observation of the High Court Division to the following effect does not reflect the correct position of law: “When provisions of  Limitation Act apply in a Special Law it is to be treated as mandatory and in no imagination the time limit prescribed i.e. 30 days cannot be extended following the exempted provisions of law of limitation. In this subcontinent all the Courts speaks Arbitration Act is special law, it cannot condone even one day if written objection filed out of time.” Because Section 3 of the Limitation Act, 1908 envisages that subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of the limitation prescribed thereof by the First Schedule shall be dismissed, although limitation has not been set up as a defence. The true meaning of section 3 is that any suit instituted, appeal preferred and an application made after the period of the limitation as prescribed by the First Schedule shall be dismissed unless any of the provisions of sections 4 to 25 has been invoked in the facts and circumstances of a given case. In this context Section 29 (2) of the Limitation Act, 1908 is very much relevant which reads as under:

         “(2) Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed there for by the First Schedule, the provisions of the Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special law:-
         The provisions contained in section 4, sections 9 to 18, and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special law; and
         The remaining provisions of this Act shall not apply.”

The Arbitration Act, 1940, is a special law but it does not provide any  special  provision of  limitation for filing a suit, appeal, review or application rather the period of limitation  prescribed thereof by the First schedule to the Limitation Act, 1908 as contemplated in Article 158 is applicable  in the case of an application for objection under Section 33 of the Arbitration Act to set aside an award or to get an award remitted for reconsideration and as such Section 29 (2) of the Limitation Act, 1908  has no manner of application to such matters. Therefore, it is wrong to construe that the Arbitration Act, 1940 being a special law the provisions of Section 5 of the Limitation Act is not applicable for condonation of delay in filing any application to set aside an award or to get an award remitted for reconsideration. In that view of the matter  section 5 of the Limitation Act is very much applicable for condonation of delay in filing an application for challenging any award in the trial Court under section 33 of the Arbitration Act, 1940. Therefore, we are of the view that an application for objection to challenge the existence or validity  of an award has to be filed within 30 days from the date of the service of notice of filing of the award and if filed beyond statutory period then the application for objections cannot be taken into consideration, especially in the absence of an application for condonation of delay under section 5 of the Limitation Act explaining sufficient cause for not making the application within such period.     
 
Having considered the facts and circumstances of the instant cases, we have found that the petitioner at the time of challenging the validity of the awards before the Court of Joint District Judge miserably failed to deposit the amounts which they were required to pay under the awards as contemplated in the proviso to Section 33 of the Arbitration Act. The deposit of the amount as required to be paid under the award is a condition precedent which is a mandatory provision of law for challenging the award before the trial Court inasmuch as the petitioner is entitled to maintain an application for condonation of delay under Section 5 of the Limitation Act,1908 in making such deposit under the award in the  trial Court provided that it has satisfied the Court that it had sufficient cause  within the meaning of  Section 5 of the Limitation Act,1908 for not making the deposit nor furnishing any security within the period of  limitation. But in the instant cases the petitioner has failed to pursue its cause diligently rather its failure and indifference have amounted to latches and gross negligence and as such it is hopelessly barred by limitation inasmuch as a right has already been accrued to the respondents after long lapse of time. In view of the above observations and findings we are of the view that the High Court Division rightly dismissed these appeals.
 
For the aforesaid reasons, we do not find any merit in these leave petitions and accordingly these petitions are dismissed.     
 
Ed.