Delhi Electric Supply ... vs Victor Cable Industries Ltd.
2001 Latest Caselaw 1848 Del

JUDGMENT

V.S. Aggarwal, J.

1. The arbitrator Shri O.P. Anand had filed the award along with the proceedings. On 7th January, 1994 notices were issued to the parties regarding the filing of the award and objections, if any. On 8th March, 1994 the matter came up before the Deputy Registrar. On behalf of the applicant/objector it was stated that objections have been filed on 14th February, 1994 vide diary No. 4703. The Deputy Registrar directed the office to trace the same and place the objections on the record. It was again taken up for hearing on 27th October, 1994 and the order of the Deputy Registrar reads:-

"On 8.3.1994, learned counsel for the respondents had stated that he had filed the objections on behalf of the respondents. On enquiry from the office, it is revealed that the objections in fact have been filed in Suit No. 35/93 and not in the present suit. No one is present on behalf of the respondents to clarify the petition. Let the matter be renotified for 8.11.1994 for clarification by the respondents about the objections."

2. Again the matter was listed on 8th November, 1994 and on that date also there was no appearance on behalf of the objector. In the absence of any clarification, the Deputy Registrar directed the matter to be listed before the court.

3. On 12th January, 1995 on behalf of the claimant no appearance had been put in and this court made the award a rule of the court and decree in terms of the award was passed. The order reads:-

"Shri O.P. Anand, Additional General Manager (T-D), the sole arbitrator made his award dated 29th September, 1993 on the dispute which had arisen between the parties regarding purchase of LT XLPE cable of size 3-1/2 x 95 mm2.

After the award was filed in Court, notice was issued to the parties. Parties were served. On behalf of the respondent a statement was made before the Deputy Registrar on 8th March, 1994 that objections to the award were preferred in the Registry vide DD No. 4703 on 14th February, 1994. Since the objections were not on the record, an enquiry was made from the office and on 27th October, 1994, it was noticed at objections were filed in Suit No. 35/93 and not in the present suit. No one was present on behalf of the respondents before the Deputy Registrar on 27th October, 1994. On the next two dates of hearing, nobody appeared for the respondents and nobody is appearing today for the respondents.

The claimant has not filed any objection. There are no objections on behalf of the respondents on the record. There is also no reason why the award made by the arbitrator be not made rule of the court. I, accordingly, proceed to make the award rule of the court and pass a decree in the sum of Rs. 40,07,225/- in favor of the claimant and against the respondents along with interest at the rate of 18% p.a. from 1.1.1994 till payment. The award shall form part of the decree."

4. The objector has filed an application (IA 3034/96) invoking the Order 9 Rule 13 Code of Civil Procedure seeking setting aside of the judgment and decree of this court referred to above. It is accompanied by an application under Section 5 of the Limitation Act seeking condensation of delay.

5. It had been asserted that on 8th March, 1994 the counsel for the applicant Shri U. Hazarika presented himself and had apprised the court that objections have been filed. The Deputy Registrar had directed the registry to trace the same. There was a typographical mistake and the objections were typed to have been filed in another suit rather than the present suit. Shri Hazarika was the regular counsel of the objector. On enquiries he always informed the objector/applicant that objections have been filed and never informed about the mistake that has occurred. He informed the applicant that the matter was progressing in normal course and that various formalities have to be completed such as filing of the reply, rejoinder and affidavits. Shri Hazarika had contained to handle the cases of the applicant. In the beginning of 1996 the Managing Director of the objector/applicant asked Shri Hazarika and Shri Hazarika was evasive and vague in the reply. After waiting for sufficient time, Shri V.K. Gupta, Managing Director of the applicant moved an application for inspection of the record and was shocked to learn that the decree in terms of the award has already been passed.

6. It is alleged that there was a typographical error in mentioning the suit no. When this fact that decree has been passed came to the light attention of Shri Hazarika, he then returned the brief. It is in these facts it is claimed that ex parte order may be set aside and on the same facts it is prayed that delay in filing of the application may be condoned.

7. In the reply filed the application as such has been contested. As per the applicant/decree holder the objector did not bother to comply with the order of the court and there was no appearance on behalf of the objector. The result was that decree in terms of the award had been passed. The time for filing the objections in accordance with Section 17 of the Limitation Act, 1940 had expired. There is no ground thus to set aside the award.

8. On merits of the matter it had been asserted that Managing Director of the objector Shri V.K. Gupta was well aware of the procedure of the court. It has been pointed that the objector was unnecessarily blaming the counsel Shri Hazarika and there is no ground to condone the delay or to set aside the award that had been made a rule of the court.

9. Certain facts which are not in controversy can well be taken note of. It is clear that on the very first date of hearing when the matter came up before the Deputy Registrar it had been pointed by the counsel for the objector that objections had been filed vide diary No. 4703. The Deputy Registrar had directed the office to trace the same. What transpired was that objections in fact had been filed but they had been filed in suit No. 35/93 rather than the suit in question which has been numbered as Suit 35/94. But the counsel for the objector thereafter has not put in appearance. It is obvious from these facts that the objector intended to file objections and in fact did file the objections but the suit number was typed as 35/93 rather than suit No. 35/94.

10. Record reveals that despite objections having been filed the counsel for the objector Shri Hazarika had never cared to appear. He did not take any steps further to correct the mistake and when there was no appearance, the court had no option but to pass a decree in terms of the award because there was no objections on the record.

11. Attention of the court has been drawn towards the order passed by this court while making the award a rule of the court. It had been noted therein that objections had been filed in Suit No. 35/93 and that there was no appearance on behalf of the objectors. This court had not adjudicated anything regarding the present controversy and therefore the learned counsel for the applicant/decree holder cannot take advantage of any such findings because there is no such attention.

12. Learned counsel for the decree holder in that event had urged that there was an appearance on behalf of the objector and thereafter the counsel did not appear and consequently it must be taken to be a case of gross negligence.

13. A clear distinction in this regard can well be drawn between the gross negligence of the party or that of his counsel. Each case necessarily has to be examined on the facts and circumstances of that particular controversy. No hard and fast rule therefore can be provided. But there can be cases where a litigant may solely be relying upon the counsel and in that view of the matter in those cases unless it is shown to the contrary a different view can be taken.

14. Reference in this connection can be made to the decision of the Supreme Court in the case of Rafiq and Anr. v. Munshilal and Anr. .

15. Therein also the Supreme Court noted that there was slackness on the part of the counsel and the sole question for controversy was should the party suffer for the slackness and negligence of the counsel or not. The answer given was in the negative and the Supreme Court held:

".....After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire a to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is out bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate......"

16. Similarly, in the case of Lachi Tewari and Ors. v. Director of Land Records and Ors. while dealing with the same controversy the court held:

"The mere narration of facts would suffice to focus attention on that point is involved in this appeal. The petitioner obtained rule nisi in 1976 and waited for 7 years for its being heard. Suddenly one day the High Court consistent with its calendar fixed the matter for hearing on April 21, 1983. The petitioner had taken extra caution to engage three learned counsel. We fail to see what more can be expected of him. Further we fail to understand what more steps should he have taken in the matter to avoid being thrown out unheard."

17. While dealing with the question as to in what circumstances the delay in filing of the application should be condoned or not the Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy JT 1988 (6) SC 242 held that Section 5 of the Limitation Act does not say that discretion can be exercised only if delay is within a certain limit. The length of delay is no matter and acceptability of the explanation is only criteria that some time delay of shortest length may be uncondonable while in certain other cases delay in long range can be condoned. These observations from the Supreme Court came in face of the well known fact that rules of limitation are not meant to destroy the rights of the parties. They are meant to see the parties do not resort to dilatory tactics but seek their remedy promptly.

18. One can also refer with advantage to the decision of the Supreme Court in the case of Malkiat Singh and Anr. v. Joginder Singh and Ors. AIR 1998 SC 258. Herein also the counsel had not appeared and the litigant was proceeded ex parte. The counsel had told the court that he has no instructions. Notice had not been issued. The Supreme Court set aside the ex parte order that had been so passed. The findings in paragraph 7 reads:-

"The appellants in their application clearly pleaded that they were neither careless nor negligent and a soon as they learnt about the ex parte decree dated 8.2.1992 and the order dated 18.11.1991, they filed the application to set aside the order and ex parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the processing. In this fact situation, the trial court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and they should not suffer.

19. It is abundantly clear from the aforesaid that if the litigant himself is not negligent in that event the blame should ordinarily not be put upon him. In the present case objections have been filed. In other words, the objector had instructed the counsel to file the objections against the award. The same were filed in another matter because of the typographical mistake. If later on the counsel stopped appearing, in that event in the peculiar facts it would be not proper to blame the objector. It is therefore a fit case for recalling the order by imposing costs on the objector.

20. For these reasons delay in filing of the application is condoned and ex parte judgment of this court is recalled.

IA 3515/96

21. In face of the reasons recorded above the present IA seeking stay of the execution has become infructuous. It is disposed of as such.

Suit 35/94

22. Objections are directed to be transferred to the file in the present suit as filed earlier in Suit No. 35/93 with advance copy to the counsel. Reply, if any, be filed within four weeks.

23. List on 9th February, 2002.