Continental Construction Ltd. vs Continental Float Glass Ltd.
1997 Latest Caselaw 34 Del

JUDGMENT

Anil Dev Singh, J.

(1) An award was made and published by the Arbitrators on July 24,1984. The same was filed in Court. Notice of the award was given to the parties. The respondent-applicant filed objections to the award vide I.A. 8611 /94. The matter came up before the Court for hearing on 8th March, 1995. On that date, no one appeared for the respondent-applicant. Accordingly, the objections were dismissed, the award was made a rule of the Court and a decree in terms thereof was passed. Thereafter the applicant-respondent filed an application, being I.A. 2800/ 95, under Order 9 Rule 13, Civil Procedure Code for setting aside the ex-parte decree alongwith an application under Section 5 of the Limitation Act for condensation of delay in filing the application. The matter came up on December 15,1995 before Jaspal Singh, J. On that date, the order sheet shows that none of the parties appeared in the matter and a notice was directed to be issued to the parties. Subsequently on March 13,1996 the matter came up before Arun Kumar,J, who directed it to be listed for May 15,1996. On May 15,1996 there was no appearance on behalf of the applicant-respondent and accordingly, the application was dismissed.

(2) Thereafter on July 6, 1996 the respondent-applicant filed an application, being I.A. 6257/96, under0rder9 Rule 13 for recalling the order dated May 15,1996. In the application it is averred that on March 13,1996 both the parties were present in Court and were represented by their Counsel; that the Court adjourned the case to July 18,1996 and accordingly the Advocate of the applicant informed the Senior Counsel that the matter had been adjourned to 18th July, 1996; that the applicant came to know about the order dated May 15, 1996, dismissing I.A. 2800/95, only on June 15,1996 through the letter of the same date received from the petitioner. In the circumstances it is prayed by the applicant that the order May 15, 1996 be recalled as wrong date was noted due to a sheer unintentional mistake. This application is accompanied by I.A. 6258/96 under Section 5 of the Limitation Act in which the stand taken in the application under Order 9 Rule 13 has been reiterated. Both the applications are accompanied by affidavits of Mr. J. L.Malhotra, Administrative Officer of the applicant-Company. There is also a third application by the respondent being I.A. 6259/96 under section 151,CPC for stay of the warrant of attachment issued by this Court in execution of the decree passed on March 8, 1995.

(3) Learned Senior Counsel appearing for the applicant submitted that the absence of the applicant on May 15, 1996 was unintentional and resulted from a bonafide mistake in noting down the date. He also contended that the applicant had taken every possible step to prosecute the case and it had engaged a Counsel in the matter. He further submitted that the interest of the client should not be permitted to be permanently prejudiced for the bonafide mistake in noting the date by the Counsel. On the other hand, learned Counsel for the petitioner/non-applicant submitted that the non-appearance of the applicant on May 15,1996 should not be excused as the absence was not a bonafide one. He also invited my attention to the fact that even on a previous occasion the applicant did not appear in the matter with the result that its objections were dismissed and the award was made a rule of the Court. Leaned Counsel for the petitioner/non-applicant further contended that no useful purpose would be served even if the application seeking recall of the order dated May 15, 1996, is granted and I.A. No. 2800/95 under Order 9 Rule 13, Cpc for setting aside of the ex-parte order is restored as provisions of Order 9 Rule 13, Cpc cannot be invoked in a matter where the objections to the award of an Arbitrator are dismissed for non-appearance. I have considered the submissions of learned Counsel for the parties. It is the categorical stand of the applicant that it has noted a wrong date as a result of which the applicant could not appear before the Court on May 15,1996. There is nothing on record to throw any doubt in regard to the factual stand taken by the applicant. A bonafide mistake on the part of the Counsel should not be allowed to jeopardise the interest of a litigant. Similar considerations would prevail in regard to the request for condensation of delay in filing the instant application as the delay, if any, in filing the same is also based upon the mistake of the Counsel in noting the date of hearing of the matter.

(4) Now turning to the question whether an application under Order 9 Rule 13, Cpc lies where an award has been made a rule of the Court as a result of the objections having been dismissed for absence of the objector, I need only to refer to the decision of this Court in M/s. Bhagwan Das Bros v. Ghulam Ahmed Dar and Others, . In that case the respondent/judgment debtor had filed objections to the award within the statutory period prescribed for filing the same. On the date when the matter came up for hearing, no one appeared on behalf of the objector with the result the objections were dismissed in default. Consequently the award was made a rule of the Court and decree in terms thereof was passed. The respondent/applicant debtor thereafter filed an application under order 9 Rule 13, CPC. The petitioner/non-applicant contended that the provisions of Order 9 Rule 13 were not attracted where an award was made a rule of the Court for default of appearance of the objector. Rejecting the submission, this Court held as follows: "IN none of those cases was an order passed under Section 17 for the award to be made a rule of the Court and a decree passed in terms thereof after the objections had been filed and dismissed because at the hearing of those objections Counsel or the objector failed to appear. It appears to me, with respect, that after the objections are filed, the objector is entitled to show that the conditions as mentioned in sections 14 and/or 17 of the Act have not been complied with and that good grounds exist for either setting aside the award or emitting it. Therefore, if after having filed the objections to the award, the objector or his Counsel is unable to appear when the objections are taken up for hearing and if the application containing the objections is dismissed resulting in the award being made a rule of the Court and a decree being prepared in terms of the award then it may be difficult to accept the absolute proposition in law that the provisions of Order 9, Rule 13 would not apply or for that matter that such a decree would not be in the nature of an ex-parte decree."

(5) I respectfully agree with the above said adumbration of the principle of law. Learned Counsel for the non-applicant/petitioner, however, submitted that the decision of the learned Single Judge in the case of M/s. Bhagwan Dass Bros. v. Ghulam Ahmed Dar, (supra) is in conflict with the decision of a Division Bench of this Court in Union of India v. M/s. W. S. Duggal & Co. Pvt. Ltd., E.F.A. (OS) 6 and C.M. 1290/94 dated October 10,1996 read with an earlier order dated February 5,1996. I have gone through the two orders of the Division Bench in the said case. In that case the judgment debtor did not file objections to the award within time and even the objections alleged to have been filed were not on record. Consequently, a decree was passed in terms of the award on the basis that there were no objections. Thereupon the applicant-Union of India filed an application under Order 9 Rule 13, Civil Procedure Code for setting aside the ex-parte decree. Later the applicant itself made a statement that Order 9 Rule 13 would not be attracted and consequently, the Division Bench allowed the application to be withdrawn. In that matter objections alleged to be filed were not within time and were not on record. Decree was passed on the basis that no objections were filed by the Union of India. But in the present case situation is different. Objections were filed in time and they are on record. It may be noted that where no objections are filed to the award, the Court under Section 17 of the Arbitration Act is required to pass a decree in terms of the award. Therefore, when the objections are not filed to the award, it cannot be said that the decree passed in terms of the award was an ex-parte decree. Thus the order of the Division Bench has no application to the facts of the case in hand. Learned Counsel for the judgment debtor also cited a decision of Andhra Pradesh High Court in Government of Andhra Pradesh and Another v. Bactcltala Balaia, . In that case the respondent/defendant did not file objections to the award with the result the award was made a rule of the Court and a decree in terms thereof was passed. Respondent's application under Order 9 Rule 13 for setting aside the decree was dismissed on the ground of the provisions of Order 9 Rule 13 not being attracted. That was not a case where the defendant had filed objections and thereafter had absented himself as a result whereof the objections were dismissed ex-parte and a decree was passed in terms of the award. There is a qualitative-difference between the two situations, one which arises in the case in hand and the other in the case of Government of Andhra Pradesh v. Bactchala Balaiash, (supra).

(6) Having regard to the above discussion. I am of the opinion that the provisions of Order 9 Rule 13, Civil Procedure Code are attracted where objections to the award are dismissed ex-parte. In any event the instant application under Order 9 Rule 13,CPC is to be treated as one under Section 151, Civil Procedure Code as Order 9 Rule 13, Civil Procedure Code permits the Court to set aside an ex-parte decree if it is shown that the summons were not duly served or that the defendant was prevented from appearing due to any sufficient cause when the suit was called for hearing. The present application is not for setting aside the ex-parte decree but for restoration of I.A. 2800/95 for setting aside the ex- parte decree, which application was dismissed on May 15, 1994 in default of appearance of the applicant/defendant. The Code of Civil Procedure contains no express provision for dismissing an application under Order 9 Rule 13, Civil Procedure Code for default of appearance. If such an application is dismissed, the order dismissing the application must be treated as one under Section 151, Civil Procedure Code and when restoration of such an application is sought it can be at lowed under Section 151, CPC. Therefore, the applicant/respondent was not right in filing the application I.A. 6257/96 under Order 9 Rule 13, CPC. However, this technical defect can be overcome by treating the application under Section 151, CPC.

(7) Having regard to the aforesaid reasons, the application, I.A. 6258/96, for condensation of delay in filing the application for setting aside the order dated May 15,1996 and I.A. 6257/96 for recalling the order dated May 15,1996are allowed and the order dated May 15, 1996 is set aside. Consequently, IA. No. 2800/95 under Order 9 Rule 13, Civil Procedure Code for setting aside the ex-parte decree dated March 8,1995 is restored. Till further orders, there shall be stay of the execution of the decree dated March 8, 1995. The above order, however, will be subject to payment of conditional costs of Rs. 5,000.00 within three weeks. All the three applications stand disposed of. LA. 2800195 List this application on 10th July, 1997 alongwith Ex. No. 150/95 and CCP- 117/96.