Unique Jewellery And Ors. vs Mmtc Limited And Ors.
2006 Latest Caselaw 407 Del

JUDGMENT

Badar Durrez Ahmed, J.

IA No. 2674/2006

1. This is an application for restoration of the petition under Section 34 of the Arbitration and Conciliation Act, 1996 which was dismissed for non- prosecution on 25.01.2006. This was not for the first time when the said petition had been dismissed. On an earlier occasion also, the petition had been dismissed in default on 19.09.2003. An application being IA No. 10441/2003 was filed for restoration of the said petition consequent upon the dismissal in default on 19.09.2003. The said application was disposed of by an order dated 31.08.2005, whereby this court, having regard to the circumstances disclosed in the application and submissions made on behalf of the respondent, allowed the application. The order dated 19.09.2003 was recalled and the petition was restored to its original number subject to costs of Rs. 5,000/-. These costs were not paid. On the next date, i.e., on 25.01.2006, nobody entered appearance on behalf of the petitioner. As such, the petition was dismissed for non- prosecution. The present application has been filed for restoration of the petition which was dismissed for non-prosecution on 25.01.2006. The restoration itself was conditional upon the petitioner paying costs of Rs. 5,000/- to the contesting defendant No. 1. Those costs were not paid. Today, the learned counsel appearing for the petitioner submits that on 25.01.2006, he had come with the said amount of Rs. 5,000/- and that he has the amount with him. However, he could not pay the said amount on 25.01.2006 because of an error of the judgment on his part of the manner in which the cases were being disposed of by the different Benches of this court. It is for this reason that he could not be present when the matter was called out and, therefore, the petition was dismissed for non-prosecution. According to him, the non-appearance was unintentional and, therefore, this application should be allowed and the petition be restored. The costs of Rs. 5,000/- awarded earlier are handed over to the learned counsel for the respondent No. 1 and the same has been accepted by him.

2. For the reasons stated in the application and upon considering the submissions made on behalf of the parties, this application stands allowed and the petition is restored to its original number. The same is being taken up for hearing today itself.

OMP No. 150/2001

1. The primary ground taken under this petition under Section 34 of the Arbitration and Conciliation Act, 1996 is that the petitioner No. 1 was unable to present its case and defend itself properly before the Arbitral Tribunal. It may be noted that the Arbitral Tribunal comprised of Justice K.S. Sidhu (Retd.)[Presiding Arbitrator], Late Mr Justice M.C. Kochhar (Arbitrator) and Mr Chand K. Tikku (Arbitrator). The first two arbitrators are former Judges of the High Court of Rajasthan and in the proceedings before them, it had been clearly understood that evidence would be by way of affidavits and there would be no scope for oral examination of the witnesses or cross-examination. This procedure had been settled at the threshold of the arbitral proceedings. Therefore, the grounds taken in the petition with regard to the petitioner No. 1 not being permitted to cross-examine the witnesses is untenable.

2. As regards the prime objection that the petitioner No. 1 was unable to present its case and defend itself properly, the respondent No. 1 has filed a detailed reply to the same which reads as under:-

(i) Contents of ground (i) are misconceived and are denied. The Objections were represented by counsel and repeated opportunities were granted to the respondents. On 12.05.1999, the Objections were allowed to file their written statements and counter claims by 14.07.1999. On 14.07.1999, it was decided that proceedings would be conducted on the basis of documents, affidavits and other materials filed by the parties and opportunity was given to both the parties to file documents, affidavits and other materials by way of evidence by 20.08.1999. On 20.08.1999, further adjournment was requested on behalf of the Objectors. On 07.01.2000, the counsel for the respondents made ad statement that they did not wish to file any other document or material by way of evidence. On 17.01.2000, an adjournment was requested on behalf of the Objectors. Again on 14.02.2000 request was made for adjournment on behalf of the Objectors. After amendment of the Statement of Claim in respect of additional claim, which was eventually disallowed in the Award, on 02.08.2000 time was granted to the Objectors to file their reply, which was not filed. Again on 30.08.2000 Objectors sought further postponement which was allowed up to 13.09.2000. On 13.09.2000, the reply which was filed was in response to the application under Order 6 Rule 17 CPC, which had been allowed on 02.08.2000. Final arguments were heard thereafter, which had also been heard earlier, but on 09.11.2000 yet another request was made on behalf of the Objectors to file a reply to the amended Statement of Claim, which was declined. The said order became final, where after the Award was published. As such, the plea of the Objectors expressing its inability to present and defend the case is misconceived. Moreover, having failed to pay the fee the Arbitral Tribunal, the Objectors forfeited their defense / counter-claims.

3. An examination of the statements made in the said reply indicates that ample opportunity had been given to the petitioner to make out its case and that on 07.01.2000, the counsel for the objector / petitioner herein, made a statement that he did not wish to file any other document or material by way of evidence. Therefore, in the wake of such a statement having been made, the prime objection of the petitioner is clearly not tenable.

4. In these circumstances, this application is liable to be rejected. It is accordingly dismissed with costs which are quantified at Rs. 2,000/-.