Deepak Electric & Trading Co. And ... vs Union Of India And Ors.
2001 Latest Caselaw 1563 Del

JUDGMENT

V.S. Aggarwal, J.

1. M/s Deepak Electric and Trading Company, through its proprietor J.K. Jain have field the present petition under Section 14 and 17 of the Arbitration Act, 1940 for filing of the award of 17th June, 1996 and for making it a rule of the court besides passing a decree in terms of the award.

2. It has been asserted that the petitioner had entered into a contract agreement with respondent No. 1 Union of India for construction of PMT Complex for NSG at Manesar. The agreement contained an arbitrator clause. Disputes had arisen between the parties as a result thereto the petitioner had invoked the arbitration clause. Respondent no. 3 was appointed as the sole arbitrator. Respondent No. 3 has published his award of 17th January, 1996 and accordingly it is prayed that the award should be made a rule of the court and decree in terms of the award ma be passed.

3. In pursuance of the notice having been issued Union of India has filed the objections. It is not disputed that the parties had entered into an agreement which contained an arbitration clause. it is asserted that the arbitrator has not considered the facts that were placed before him. He has ignored the relevant provisions and travelled beyond the provisions of the contract. As a result of which he has favored the petitioner. As regards claim no. 1 it has been alleged by the objector Union of India that the arbitrator has systematically ignored important omissions and the Union of India in comparison to the omissions of the petitioner. In this process he has misconceived himself. So far as counter claim of the objector nos. 1, 3 and 4 are concerned, once again the plea offered is that the arbitrator has misconducted the proceedings and has failed to apply the correct proposition of law in view of the rescission of the contract. The objector was within its right to rescind the work. Rs. 21,217/- has been awarded to the petitioner for sub-standard work and that the award suffers from an error apparent on the face of the record. The arbitrator has ignored vital documents.

4. So far as counter claim no. 2 is concerned, once again it is pleaded that he had no jurisdiction to go into this claim even if referred to him. As regards claim no. 5 it i asserted that the arbitrator has not applied his mind and has misconducted himself.

5. Reply has been field by the petitioner. It is alleged that objector has not stated as to when the notice of filing of the award was received. In fact plea was raised that the objections are barred by time. It is denied that the arbitrator has misconducted himself or has travelled beyond the provisions of the contract or that he has not applied his mind or has conducted the proceedings while making the award.

6. During the course of submissions preliminary objection has been raised on behalf of the petitioners that the objections are barred by time and therefore the same should be dismissed.

7. Learned counsel for the petitioner highlighted the fact that the objector had been served but the objections as such are not within time while the objectors claim was that even if Union of India was served still the Executive Engineer, CPWD had not been served as alleged by the petitioners and therefore objections cannot be termed to be barred by time.

8. To set this controversy at ret, reference can be made to certain basic facts in this regard. The objections by Union of India has been field some time on 23rd July, 1997. Perusal of the record reveals that on 13th January, 1997 notice was issued to the parties regarding filing of the award. On 1st April, 1997 it was indicated that notice has been served on Union of India. On 4th November, 1996 as well as on 29th January, 1997 it was directed to be issued afresh to respondent no. 2. This fact is apparent from the record also because Union of India had been served in November 1996 and in that view of the matter it is patent that objections so filed are beyond the limitation prescribed qua objector-Union of India.

9. Learned counsel of the objector highlighted the fact that the respondent no. 2 Executive Engineer CPWD had not been served and therefore in any case the objections could be filed by the Executive Engineer, CPWD.

10. The argument in this regard must be taken to be misconceived. This is for the reason that under Section 79 of the Code of Civil Procedure when the suits have to be field against the Central Government it shall be Union of India which as to be arrayed as a party. The Executive Engineer by no stretch of imagination can be taken to be a party in such proceedings. In addition to that the objections have been field by Union of India rather than by the Executive Engineer CPWD therefore the very thrust of the argument of the learned counsel looses significance because presently the court is only considering the objections of Union of India who had been served in November 1996.

11. In that event learned counsel for the objector contended that in any case the lenient view should be taken and delay should be condoned. Reliance was placed on the decision of the Supreme Court in the case of State of Haryana v. Chandra Mani and Ors. . The Supreme Court took note of the fact that the courts have taken a liberal view in matters instituted by the State. The reason had also been recorded by taking stock of situation that certain amount of latitude in this regard is required and the Supreme Court noted the difference between the State and a private litigant. In paragraph 11 it was held:

"It is notorious and common knowledge that delay in more than 60 per cent of the cases field in this Court - be it by private party or the state - are barred by limitation and this Curt generally adopts liberal approach in condensation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condensation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files form table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are also for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases required adjustment and should authorise the officer take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to fie the appeal and he should be made personally responsible for lapses, if any. Equally, the Stated cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants....."

12. This argument that has been floated in the peculiar facts necessarily has to be ignored. This is for the reason that there is no application filed for condensation of delay. A party who seeks condensation of delay must show a sufficient cause for the condensation of delay. Sufficient cause can only be pleaded before consideration and thereupon the court can consider as to whether there is a just and proper ground for condensation of delay or not. In the absence of any such application therefore this particularly argument also must fail and necessarily has to be rejected.

13. In this regard one would take advantage in referring to the decision of the Supreme Court in the of P.K. Ramachandran v. State of Kerala and Anr. AIR 1998 SC 276. In the cited case the appeal field by the State of Kerala was barred by time and application was field seeking condensation of delay. The High Court had refused to condone the delay. The Supreme Court held that delay can only be condoned when there is a satisfactory explanation forthcoming for the inordinate delay. The law of limitation has to be applied with all its rigour prescribed by statute so prescribed but court has no power to extend the period of limitation on equitable grounds.

14. Identical is the position herein. There is no just or sufficient grounds forthcoming nor there is any such application filed. Thus the law of limitation as referred to above necessarily has to apply with all its rigour and there is no ground thus to consider and condone the delay.

15. As an of shoot of these reasons objections must fail to be time barred. The award is made a rule of the court and decree in term of the award is passed with future interest at 12% p.a. on the principal amount from the date of the decree till the payment is made.