Union Of India vs C.P. Kukreja
1998 Latest Caselaw 624 Del

JUDGMENT

Y.K. Sabharwal, J.

1. The objections to the arbitration award filed by the appellant were dismissed by learned Single Judge by judgment dated 5th February, 1993 for non-prosecution since none had appeared to prosecute the objections. While dismissing the objections for non-prosecution the learned Single Judge further observed that even otherwise glance on objections shows that the same were on merits of the award which could not be gone into by the Court in proceedings under Sections 30 and 33 of Indian Arbitration Act, 1940 and thus the objections were dismissed as meritless. The application for restoration was filed by the appellant on 12th July, 1993 alongwith an application under Section 5 of the Limitation Act read with Section 151, CPC for condensation of delay in filing application seeking restoration of the objections and recalling of the order dated 5th February, 1993. The application seeking condensation of delay (I.A. 6302/93) was dismissed by the impugned order observing that the application disclose a total non-serious attitude on the part of the Department and no efforts appear to have been made to expedite the steps for restoration. As a result of dismissal of this application the restoration application (I.A. 6301/93) was dismissed as time barred. The appellant is in appeal before us.

2. We have been taken through the application (I.A. 6302/93) and also I.A. 6301/93 seeking restoration. Briefly the case set up by the appellant is that Prem Chand, Junior Engineer had contacted Mrs. Tewatia who had been conducting the case on behalf of the appellant, on 10th May, 1993 to find out about the status of the matter as the proceedings had not been received by the Department for the long time. Prem Chand was informed by the Counsel that she had resigned from the panel and someone should be sent to collect the files and that she was not aware of the proceedings in the matter and was unable to tell the officer about the stage of the proceedings. On the request of the Department a new Counsel was appointed who inspected the record on 24th May, 1993 when it revealed that the objections had been dismissed for non-prosecution on 5th February, 1993 and consequently the award had been made a rule of the Court. The Counsel applied for certificate copy of the order which was made available during vacations on 24th June, 1993. The person who was authorised to sign and swear the affidavit was on leave from 3rd July, 1993 to 10th July, 1993 and the application for restoration alongwith the application for condensation of delay was filed on 12th July, 1993. The officer who was stated to be on leave was one Mr. G.S. Likhari, Executive-Engineer of the concerned Division who has filed his affidavit alongwith the application for restoration and application for condensation of delay. In the application it has been averred that the delay was unintentional and occurred due to the aforesaid circumstances and the same was neither mala fide or international.

3. Opposing the appeal one of the contentions urged by learned Counsel for the respondent is that the objections were also dismissed on merits and, therefore, the application was not maintainable and consequently there is no merit in the present appeal. We do not agree. The application for condensation of delay has not been dismissed on the ground that the said application or application for restoration was not maintainable on the ground that the objections were dismissed on merits. The ground of dismissal of the application seeking condensation of delay is the non-serious attitude of the Department.

4. Reverting now to the delay in filing application for restoration, from the facts and circumstances pleaded in the application as noticed in brief above and considering that in such matters the Courts generally adopt a liberal approach, we feel that the delay deserves to be condoned as the appellant has been able to show sufficient cause. The delay, in the facts and circumstances of the case, is not such which may show negligence or total inaction on the part of the appellant. In the present case we need not go into the question whether the limitation would start commencing from the day the appellant learnt about the order made dismissing the objections or from the date of the order as in our view assuming the time is to be computed from the date of the order, then too the appellant would be entitled to get an order condoning delay in filing restoration application.

5. For the aforesaid reasons, we set aside the impugned order on both the applications. We allow I.A. 6302/93, condone the delay in filing application (I.A. 6301/93) for restoration which would now be decided on its merits. The parties are directed to appeal before the learned Single Judge on 8th September, 1998. The appeal is allowed in the above terms.