Delhi High Court
M/S International Engineers & ... vs M/S Asea Brown Boveri Ltd. ... on 18 August, 2008
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
#26
+ FAO(OS) 465/2007
M/S INTERNATIONAL ENGINEERS &
PROJECT CONSULTANTS LTD. ..... Appellant
Through : Mrs. Rachna Gupta, Advocate
versus
M/S ASEA BROWN BOVERI LTD. (A.B.B.) ..... Respondent
Through : Mr. Ratan Kumar Singh, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
ORDER
% 18.08.2008
This appeal is directed against the impugned order dated 3rd September, 2007
passed by the learned Single Judge of this Court rejecting the appellant's application IA
No. 10044/2007 in OMP No. 484/2007 for condonation of delay in refiling the Objection
Petition under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act).
2. The Award in the present case was pronounced on 6th September, 2006, whereas
the Objection Petition was filed by the appellant on 26th May, 2007. Earlier the appellant
had filed an application before the Arbitral Tribunal under Section 33 of the Act for
modification of the Award. The said application under Section 33 was allowed on 27 th
January, 2007 and the award was modified to the extent of correcting a typographical
error regarding award of interest to the appellant. Dissatisfied with this order, the
appellant filed an application under Sections 13 and 18 of the Act which came to be
dismissed on 28th February, 2007 on the ground of maintainability.
FAO(OS) 465/2007 Pg.1 of 3
3. It is submitted that the copies of the orders dated 27th January, 2007 and 28th
February, 2007 passed by the Arbitral Tribunal were received by the Appellant only on
5th March, 2007 and that in terms of Section 34(3) of the Act, the period of three months
had to be completed from that date. Therefore, it is contended that the application was
filed in time. The explanation offered for the delay in refiling the petition under Section
34 of the Act is that the clerk of the learned counsel for the appellant was remiss in
following up the defects pointed out by the Registry after the Objection Petition was
filed. The refiling of the application was further delayed on account of the illness of the
counsel herself. However, the learned Single Judge was not satisfied with the
explanation and accordingly dismissed the application for condonation of delay.
4. We have heard learned counsel for the parties.
5. The Chairman of the appellant company has filed an affidavit dated 11th August,
2008 stating that the envelope in which the order dated 28th February, 2007 of the learned
Arbitrator was sent was received in the office of the appellant only on 5th March, 2007. It
is contended that in terms of Section 34(3) of the Act, the period of limitation would
expire three months after receiving the Arbitral Award or "if a request had been made
under Section 33, from the date on which that request had been made disposed of by the
arbitral tribunal". It is submitted that inasmuch as the order dated 27th January, 2007 was
received only on 5th March, 2007, the objections which were filed on 26th May, 2007
were within time. This Court is satisfied with this explanation.
6. It also appears that the counsel for the appellant was indeed unwell and therefore
could not follow up on the defects pointed out by the Registry. Taking into account the
above circumstances, this Court is of the view that sufficient reasons have been furnished
by the appellant for the delay in refiling the petition under Section 34 of the Act. The
delay ought to have been condoned.
FAO(OS) 465/2007 Pg.2 of 3
7. Accordingly, the impugned order is set aside. The delay in refiling the Objection
Petition under Section 34 of the Act is condoned and accordingly IA No. 10044/2007 is
allowed.
8. OMP 484/2007 will now be listed before the learned Single Judge on 20th
October, 2008. The appeal is accordingly allowed with no order as to costs.
CHIEF JUSTICE
S.MURALIDHAR, J
AUGUST 18, 2008
Pk
FAO(OS) 465/2007 Pg.3 of 3
