JUDGMENT

R. Gururajan, J.

1. An these appeals are directed against a common order dated 12-12-2003 passed in A.C. No. 2. 3,4 and 5/2003 by the principal District Judge, Mysore.

2. Facts in brief are as under:

Appellant Kondaiah, Class 1 contractor, was awarded work of providing water supply components to three villages in Mysore District under slice No. MYS 10 under the contract agreement No. 7/98-99 dated 13-7-1998. During the execution of The work and thereafter certain claims have arisen out of and in connection with the contract and were submitted by the appellant in a consolidated list of claims in letter dated 8-5-2002 to the respondent for settlement under provisions of Clause 24 of the general conditions of the contract. No reply was submitted by the respondent. Hence disputes were referred to an arbitrator in terms of condition No. 2. Claim statement was submitted to the arbitrator for settlement with a copy to the respondent. Number of meetings were held. Respondent did not attend to any one of the meetings conducted by the arbitrator. In those circumstances, the arbitrator completed his proceedings and passed an expaite award dated 19-12-2002 in terms of the Act.

3. Respondent filed Arbitration Cases before the Principal District Judge Mysore under Section 34 of the Act. An application was filed seeking for condonation of delay in the matter. Objections were filed by the appellant. Thereafter the learned Judge passed the impugned common order. This common order is challenged in these appeals.

4. Heard the Learned Counsel for the parties.

5. Sri Gangireddy, learned Counsel for the appellant would argues that the learned Judge is wrong in declaring that the impugned awards are void and cannot be executed against the appellant. He would invite our attention to the Arbitration Act 1996 to contend that the order of the learned Judge requires interference. He would strongly rely on several judgments in support of his submission.

6. After hearing, we have care fully perused the common impuged order in these appeals.

7. Admitted facts would reveal that claims were made in terms of the contract and in the absence of settlment. Claims were referred to an arbitrator. Despite notice, respondent did not enter appearance. In those circumstancs, exparte awards were passed against the respondent by the arbitrator. Respondent subsequently filed petitions under Section 34 of the Act to set aside the award in terms of the various appliacations filed before the learned Sessions Judge, condonation application was also filed in the matter. Learned Sessions Judge, allowed the said applications in terms of the impugned order. Let us see as to whether the impugned order requires interference or not in the given circumstances.

8. Admittedly, it is seen that an application under Section 5 of the Limitation Act was filed for condoning the delay.

9. In Union Of India v. Popular Construction Co. (2001 )SCC 470 the Supreme Court has rules that Section 5 of the Limitation Act is not applicable to the proceedings under Section 34 of Arbitration and Conciliation Act, 1996 for setting aside the arbitral award.

10. A Division Bench of this Court in has also ruled that Section 34 of the Arbitration and Conciliation Act expressly exclude the application of Section 5 of the Limitation Act.

11. Recently, another division Bench of this Court in MFA No. 3557/2004 has chosen to hold that Section 5 is not available in such cases.

12. In the light of the clear pronouncement of law, what is clear to this Court is that the application filed by the respondent seeking to condone the delay under Section 5 of the Limitation Act is not maintainable. In fact the learned Judge has also chosen to hold that the contention with regard to inapplicability of Section 5 of the Limitation Act to these proceedings has to be accepted.

13. The learned Judge having held that the application is barred by time has chosen to hold that the awards are unenforceable since the award passed by the arbitrator is void in the matter. Learned Sessions Judge has chosen to give these findings in the light of Section 16(5) of the Act. Section 16 of the arbitration and Conciliation Act reads as under:

16. Competence of arbitral tribunal to rule on its jurisdiction. -(1) the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,-

a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A pica that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in Sub-section (2) or Sub-section (3), admit a laterplea if it considers the delay justified.

(5) The arbitral tribunal may, in either of the cases referred to in Sub-section (2) or Sub-section (3) and, where the arbitral tribunal takes a decision rejecing the plea, continue with the arbitral proceedings and make an arbitral award.

(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34.

14. It is no doubt true that in the event of any factual foundation the arbitrator has to give a finding with regard to the jurisdiction in terms of the Act. However Under Section 16(2) what is clear to us is that the plea that the tribunal has no jurisdiction has lo be raised not later than submitting of the statement of defence, however a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

15. Unfortuntely, in the case on hand, despite notice no applications were filed and no statements were recorded for want of jurisdiction in terms of the Act. In these circumstances, it cannot be said that the arbitral tribunal has committed any error in passing the arbitral award in the absence of no plea of want of jurisdiction. Learned sessions Judge in terms of Section 16 has chosen to say that a duty is cast on the arbitrator to give a decision regarding the jurisdiction to entertain the claim. Unfortunately, what the learned Sessions Judge has forgotten is that Section 16(5) has to be read along with Section 16(2) of the Act. Section 16(2) positively requires a plea in this regard. So long that plea is not available in terms of Section 16(2), the learned Sessions Judge could not have ruled that the impugned award is void in the case on hand. There is no reason to rule that the impugned award is void solely on the ground of Section 16(5) without referring to Section 16(2). We therefore find substance in the argument of the Learned Counsel for the petitioner that the order of the Learned Sessions Judge requires to be interfered with.

In these circumstances, these appeals are accepted. The order of the learned Sessions Judge is set aside. Award is confirmed. No costs.