N.D.M.C. vs M/S Airtech (P) Ltd.
1998 Latest Caselaw 291 Del

ORDER

Y.K. Sabharwal, J.

1. This appeal is directed against the decision of the learned Single Judge dated 6th May, 1997 whereby the petition of the respondent (petitioner in suit) under Section 20 of the Arbitration Act was allowed and Mr.Justice D.R. Khanna, a retired Judge of this Court was appointed as an arbitrator for adjudication and determination of claims. An application for obtaining certified copy of the judgment was filed by the appellant on 16th May, 1997 and the certified copy was prepared on 20th May, 1997. The delivery of the certified copy from the Registry was obtained by the appellant on 2nd June, 1997. The appeal was filed on 28th August, 1997 and again refiled on 4 and 6th September, 1997.

2. There was delay of eighty days in filing the appeal. Thus, CM-3166/97 has been filed by the appellant under Section 5 of the Limitation Act seeking condensation of delay only two paragraphs of this application may be said to be of some relevance, which read as under :

That as the matter was relating to an important factor, which affects the entire system of the NDMC on the basis of which the general agreements for arbitration are formulated. Therefore, the matter was intensively discussed and thus the delay upto the Chairperson including the Heads of the Departments in decision to file the appeal, therefore the delay is not deliberate.

The delay in filing the appeal is not intentional and has been occasioned due to the reasons beyond the control of the appellant and due to movement of the file in the office.

3. As can be seen from the aforesaid averments in the application, hardly any reason has been set out resulting in delay in filing of the appeal. Learned counsel for the appellant, however, places strong reliance on decision of this in the case of Union of India Vs. R.P. Builders particularly the observations of Justice Ramaswamy of Supreme Court noticed therein. The paragraphs relied upon read as under :-

"Justice Ramaswamy, after referring to the above said decision, summarised the legal position that the approach of the Court must be to advance substantial justice but should not be a pedantic or a legalistic approach. While "Law" makes no distinction between a private party and Government", it must be remembered that a private party "would take instant decision and would purse the appellate or revisional remedies promptly but Government acts through its officers who delay in their deliberations resulting in procrastination, "unmindful and insensitive to bar of limitation" and this was their "routine" behaviour. Sometimes files are even kept back for obvious reasons or by maneuvers of the parties. Experience shows that the "public exchequer is the easy prey "on account of the delay in taking decisions to file appeals. Courts must take into consideration the "hard realities and prevailing condition" and cannot ignore them for that may breed corruption, nepotism or inefficiency. The Courts must note that delays occur in Government because nobody wants to take the responsibility for the final decision. A pragmatic approach is necessary particularly when public exchequer is involved, pointed out his Lordship. On these principles, the appeal was allowed and delay condoned. The other learned Judge in the Bench, Justice Sahai pointed out that Government cannot claim different treatment . His Lordship pointed out that there cannot be a rigid principle in these cases and that if there was loss to Governmental revenue, action should be taken against the officials responsible for the delay. His Lordship referred to Ramegowda's case and observed that for a common man, it may be that his ignorance, illiteracy, delayed communication and poor legal advice may be good cause and likewise, for the State, the consultative process. Justice Sahai condoned the delay in that case and concurred in the appeal being allowed.

In our view, the judgment of Justice K. Ramaswamy is based upon a large number of earlier decisions of the Supreme Court and certain broad guidelines are, drawn rather than a legal principle differentiating the State from the ordinary litigant. In fact, the learned Judge clearly observed, "Law makes no distinction between a private person and Government". Justice Sahai emphasised that as a matter of law, it cannot be said that the State should be treated differently,. His Lordship too accepted that the consultative process followed by the State before filing the appeal, if bonafide, could be sufficient cause. Therefore, treating the views expressed by Ramaswamy, J. as guidelines or factor which are 'relevant' in dealing with delays by the State/Public Sector and not as a differentiating legal principle, we do not find any conflict between the two views. In fact, the appeal was allowed on facts by both the learned Judges and sufficient cause pleased was merely based upon the delay in the movement of the file and obtaining the legal opinion or sanction for filing the objections to the award and in filing the appeal."

4. In our considered view, the decision relied upon has no applicability. It is not a case where anyone had kept back the file . It is also not a case where there were any manoeuvres. The Supreme Court or this court has not held that even in absence of any cause, delay has to be condoned. It is no doubt true that this Court has been adopting very liberal approach while dealing with applications seeking condition of delay but that does not mean that the moment an application is filed by a public authority though without disclosing any cause, the court has no option but to condone the delay. The delay cannot be condoned on mere asking. Reverting now to the present application; who discussed the matter; when was it discussed; when was decision taken and when was the file sent to the counsel for filing the appeal, are factors which are all absent from the application. We can understand the liberal approach while considering application seeking condensation of delay if some facts are pleaded in the application.

5. On the facts and circumstances of the present case we are of the view that the application is devoid of any force and the appellant is not entitled to condensation of delay in filing the appeal. In this view, the application is dismissed and consequently the appeal is also dismissed as time barred.