Delhi Development Authority vs Amita Nand Aggarwal Through Its ...
2008 Latest Caselaw 373 Del

ORDER

Shiv Narayan Dhingra, J.

1. By this order I shall dispose of an application under Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) filed by the applicant/petitioner for condensation of delay in filing the Petition/Objections under Section 34 of the Act beyond 90 days.

2. It is undisputed that under Section 34 of the Act, Objections can be filed by the aggrieved party within 90 days of receipt of award and this period can be extended by the Court on showing reasonable causes, by another period of 30 days and not beyond.

3. It is stated by the applicant that the impugned award was published by the Arbitrator on 16th October, 2006. The Petition under Section 34 of the Act was initially filed in the Court on 12th February, 2007, about 20 days after expiry of 90 days. Registry raised certain objections against the Petition. These objections of the Registry were removed and the Petition under Section 34 of the Act was re-filed on 28th February, 2007.

4. In the instant application, condensation of delay has been sought in respect of 20 days delay beyond the period of 90 days. It is stated that this Court was within its jurisdiction to condone the delay. The condensation of delay is sought on the ground that after the award was published, it was sent to engineer concerned for study, who prepared a detailed claim-wise summary and sent it to the office of Superintending Engineer. Thereafter, it was sent to Arbitration Board of Delhi Development Authority for approval for filing objections. Approval was granted by the Board to challenge the award in respect of few claims viz. 1(e), 1(f), 1(l), 7, 8 and 10 to 13 and the file was sent to the concerned office of the DDA, who received it on 17th January, 2007. Thereafter, the file was sent to Advocate for appointment of an Advocate and entrusted to Panel Lawyer on 19th January, 2007, who prepared Objections in consultation with the Department and filed Objections. The applicant explained that due to long administrative procedure in the Petitioner Department, the Objections were filed with a delay of 20 days, however, within the period of 30 days after the expiry of 90 days. In reply to the application, it is stated by the respondent that the application under Section 5 of the Limitation Act was not maintainable and the delay of more than 30 days after expiry of initial period of 90 days cannot be condoned. This plea must be rejected outrightly because there is no application under Section 5 of Limitation Act and the application filed is under Section 34(3) of the Act.

5. Learned Counsel for the Respondent pleaded that the date of filing of the Petition/Objections under Section 34 of the Act must be the date on which it was re-filed after removing all objections. Since, it was re-filed on 28th February, 2007, there was delay of about 11 days even beyond 120 days and this Court had no jurisdiction to condone the delay after 120 days. In the present case, Objections were re-filed beyond 120 days i.e. after 132 days and therefore, this application should be dismissed.

6. The issue arises, if the period under which the objections were removed by the applicant should be added to the period of initial filing or the Petition under Section 34 of the Act and should the Petition be considered to have been filed on 12th February, 2007 or 28th February, 2007.

7. In the present case, the objections raised by the Registry were that vakalatnama was not properly signed, the court fees of Rs. 1,000/- which was to be attached along with Petition/Objections was not attached. The Counsel for Respondent had relied upon State Bank of India v. Indian Utility Products and Ors. wherein this Court observed that by reason of representation of the plaint, after more than a year of the time allowed for rectification of objections, a valuable right under the Law of Limitation had accrued to the Defendants and mere admission of plaint by Registrar of which no notice was given to Defendants, cannot deprive the Defendants of that right. In State of Bank of India case, the objections raised by the Registry against the plaint were not removed for more than a year. In the present case, the objections were removed by the applicant within a period of 15 days.

8. The other judgment relied upon by the Respondent is Govt. of NCT of Delhi v. Shakuntala Gupta (Deceased) by LRs 125 (2005) DLT 63. In this case, the original petition was filed on 16th December, 2004. Thereafter, the Petition was returned by the Registry and the same was to be re-filed after removing objections. The Petition was stated to have been lost by the clerk. No details were given by the applicant as to when the Petition was misplaced, when it was located and when the objections were removed. Considering that the application was lacking in all material particulars, it was dismissed but still the Court considered the objections on merits and found that there was no merits in the Petition under Section 34 of the Act. Respondent also relied upon Smt. Sharda Garg v. Union of India and Ors. CS(OS) No. 1313-A/1998 decided on 12th March, 2007, wherein application under Section 5 of Limitation Act was moved for condensation of delay in filing Objections. The award was made on 24th February, 1998 and objections were filed on 24th September, 1999. The Court held that the reasons given in the application were neither bonafide nor reasonable and dismissed the application. Similarly, in Delhi Jal Board v. Khub Chand Tyagi OMP No. 186/2003, this Court found that objections against the award were filed within the period of 90 days but they were returned by the Registry of the High Court on 19th December, 2002. The plea was taken that the returned objections were retained in a wrong file by the then court clerk of the Counsel for the Petitioner unintentionally. On having come to know about the mistake, fresh Objections were filed by the Petitioner on 29.4.2003. The Court refused to entertain the plea that it was a case of re-filing of objections and found that there was unexplained delay of 102 days and accordingly dismissed the application for condensation of delay.

9. In all the judgments, which have been relied upon by the Respondent, there was extraordinary delay in either re-filing the Objections or in filing the Objections or after the Objections were returned they were either lost or fresh Objections were not filed in reasonable time. The facts of the present case are altogether different. In the present case, the Objections were filed though beyond 90 days but within the period of 120 days and the objections raised by the Registry were also removed within the period of two weeks. I consider, since the Petition/Objections under Section 34 of the Act was returned for want of court fees and certain technical reasons and the objections raised by the Registry were complied with and after rectification, the Petition was re-filed within a reasonable period, the Petition must be considered to have been filed on the original date when it was filed in the Registry and not on the date when it was re-filed after removing objections. Making up a deficiency of court fees or signatures on the vakalatnama etc. are not material to the admission of the Petition under Section 34 of the Act. Even under Section 149 CPC, an application can be made before the Court seeking time to file court fees and saving the limitation.

10. I consider that in the present case, the Petition under Section 34 of the Act should be considered to have been filed on 12th February, 2007, since it was filed within the period of 120 days and the Petitioner has explained the reasons for its filing beyond 90 days. I consider that Application under Section 34(3) of the Act deserves to be allowed. It is settled law that, it is not each day's delay, which is to be explained but the applicant must show a reasonable cause in filing the Petition beyond 90 days but within 120 days. The Petitioner has successfully explained the case. The Petitioner was not supposed to explain the delay of 90 days of period, the petitioner was only to explain the delay in filing the Objections beyond 90 days, which has been explained. I, therefore, allow this application and condone the delay.

OMP No. 115/2007

Counter Affidavit be filed within four weeks. Rejoinder, if any within four weeks thereafter. List for arguments on 19th August, 2008.