Madhukar Anant Pathak vs M/S. Hdb Financial Services ...
2017 Latest Caselaw 1630 Bom

                                                            1           21.app-685.16(org).doc

sbw 
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       ORDINARY ORIGINAL CIVIL  JURISDICTION

                                   APPEAL NO.685 OF 2016
                                            IN
                        NOTICE OF MOTION (SUITS) (L)NO.2449 OF 2016
                                             IN
                            ARBITRATION PETITION (L)NO.2127 OF 2015
                                         
       Madhukar Anant Pathak                          ... Appellant
             vs.
       M/s. HDB Financial Services Limited
       & Ors.                                         ...Respondents


       Mr. Deepak M. Gupte  for the appellant.
       Mr. Devendra V. Nawadkar i/b. Ashish Aggrawal  for the respondent 
       no.1.

                                             CORAM : A.S.OKA, &
                                                       A. K. MENON, JJ.

DATE : 11th APRIL, 2017

ORAL JUDGMENT (PER A.S.OJA, J.)

1. The order dated 31st January, 2017 records that on 14 th February,

2017 the appeal was kept for disposal. Accordingly, we have

taken up the appeal for final disposal.

2. The appellant and the respondent no.6 filed a petition under

section 34 of the Arbitration and Conciliation Act, 1996. The

Notice of Motion No.521 of 2016 was taken out for condonation

of delay of 5 days. By the order dated 15 th June, 2016, the Notice

of Motion was made absolute by the learned Single Judge. The

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learned Single Judge directed the petitioners in the Arbitration

Petition to remove all office objections within a period of two

weeks from the said date, failing which the petition shall stand

dismissed for non-prosecution. As the petitioners in the said

petition did not remove office objections within the stipulated

time, the above order became operative and the Arbitration

Petition stood dismissed for non-prosecution. A Notice of Motion

is taken out for restoration of the Arbitration Petition. By the

impugned order, the learned Single Judge dismissed the Notice of

Motion for restoration. The reasons were recorded by the

learned Single Judge in paragraph 2 of the impugned order

which reads thus:-

"2. The present notice of motion has been lodged on 16th August, 2016 for restoring the petition which came to be dismissed with effect from 29th June, 2016. First of all, the application has been taken out after almost 7 weeks. Moreover, in the affidavit in support no satisfactory explanation has been given as to why the petitioners did not comply with the directions of this Court passed on 15 th June, 2016. The petitioners have only stated that the petitioner no.2 was out of Pune in Rajkot in his factory. No explanation has been given as to why he could not come from Rajkot and what were the dates he was away."

3. The learned counsel appearing for the appellant has invited our

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attention to the affidavit in support of the Notice of Motion which

was filed by the appellant as well as the respondent no.6. In the

affidavit, it is stated that the objections have been removed. It is

further submitted that the delay be condoned. He submitted that

the petitioners in the Arbitration Petition should not suffer due to

technical lapse. The learned counsel for the respondent no.1

vehemently opposed the appeal. He urged that while condoning

the delay in filing the Arbitration Petition, time of two weeks was

granted to remove the office objections in the Arbitration Petition.

He submitted that no reasons have been assigned for the delay in

removing the office objections and for the delay in filing the

Notice of Motion.

4. We have considered the submissions. The Arbitration Petition

filed by the appellant and the respondent no.6 has been

dismissed only on the ground of non-removal of office

objections. In the affidavit in support filed by the appellant and in

particular paragraph 2, he has made a statement that the office

objections have been removed.

5. The Arbitration Petition stood dismissed on technical ground of

non-removal of office objections. While deciding the Notice of

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Motion for restoration, in our view, a liberal and justice oriented

approach ought to have been adopted especially when the case

made out in the affidavit in support was that all the office

objections were removed. The order of restoration could have

been passed by imposing costs on the petitioners in the

Arbitration Petition.

6. Hence, we propose to set aside the impugned order and make the

Notice of Motion absolute subject to appellant and the

respondent no.6 paying costs quantified at Rs.25,000/- to the

respondent within a period of six weeks.

7. Hence, we pass the following order:-

(i) The impugned order dated 6 th September, 2016 is hereby set

aside;

(ii) Notice of Motion (L) no. 2449 of 2016 is made absolute in

terms of prayer clauses (a) and (b) thereof subject to appellant

and the respondent no.6 paying costs quantified at Rs.25,000/- to

the first respondent within a period of six weeks from the date on

which this judgment is uploaded;

(iii) Payment of costs shall be condition precedent. On the failure

of the appellant and the respondent no.6 to pay the amount of

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costs within the stipulated time, the Arbitration Petition shall

stand dismissed for non-prosecution;

(iv) If the amount of costs is paid within the stipulated time, the

Arbitration Petition shall stand restored and shall be placed

before the appropriate Court.

(v) The appeal is allowed on above terms.

          (A. K. MENON, J.)                                    (A. S. OKA, J.)