Union Of India vs M/S Konark Electric Sales ...
2009 Latest Caselaw 1277 Del

*     IN THE HIGH C0URT OF DELHI AT NEW DELHI

            Judgment reserved on: 04.03.2009
%           Judgment delivered on: 09.04.2009

+         FAO(OS)NO.172 OF 2008 & C.M. No.5559/2008


      UNION OF INDIA                                 ..... Appellant
                        Through:    Ms. Satya Siddiqui, Advocate

                  versus


      M/S KONARK ELECTRIC SALES CORPORATION ..... Respondent
                     Through:  Mr. R.D. Sah, Advocate


CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE VIPIN SANGHI


1. Whether the Reporters of local papers may          No
be allowed to see the judgment?

2. To be referred to Reporter or not?                 No

3. Whether the judgment should be reported            No
in the Digest?

                            J U DG M E N T
VIPIN SANGHI, J.

1. This appeal is directed against the order dated 01.02.2008

passed by the learned Single Judge in O.M.P. No.78/2008, whereby the

objections preferred by the appellant to the arbitral award dated

20.08.2007 under Section 34 of the Arbitration and Conciliation Act,

1996 (the Act) have been dismissed on the ground that the same were

barred by limitation.

2. In relation to a dispute arising between the parties arising out

of a contractual relationship the matter was referred to arbitration.

The learned arbitrator rendered an award dated 20.08.2007 partly

allowing the claims of the respondent-claimant and dismissing the

counter claims of the appellant. According to the appellant, a copy of

the said award was received in the office of the appellant on

29.08.2007. This is so stated in a supplementary/additional affidavit

filed before us dated 15.05.2008. The appellant under a mistaken

impression that the Civil Court in Gurgaon has jurisdiction to entertain

the objections to the said award, lodged its objections before the Court

of the District Judge, Gurgaon on 14.11.2007. The objection petition

was disposed off by the District Judge, Gurgaon for want of jurisdiction

on 27.11.2007. Thereafter, the appellant filed the objections in this

Court on 15.01.2008.

3. The learned Single Judge has dismissed the objections as

being barred by limitation on the premise that the appellant had not

disclosed as to when it received the copy of the award and, therefore,

it had been presumed that the award was received by the appellant on

the same day, as it was published. The learned Single Judge observed

that the time for filing the objections under Section 34(4) against the

award dated 20.08.2007 expired on 20.11.2007, and even if the delay

for the period of 30 days, for which the Court had the power to

condone the delay on the appellant showing sufficient cause, were to

be condoned, the said period expired on or about 20.12.2007. He

further held that the objections preferred before the District Judge,

Gurgaon having been dismissed on 20.11.2007, the appellant had

sufficient time to file the objections before this Court by 20.12.2007.

Had that been done, the appellant would have made out a case for

condonation of delay in the filing of the objections under proviso to

Section 34(3) of the Act. Learned Single Judge further held that even

in invoking Section 13 of the Limitation Act, the appellant had to show

that it had acted bona fide and with due diligence. However, the

appellant had not made any pleading in the application for seeking

condonation of delay to show that the appellant had acted bona fide

and with due diligence, and the appellant had failed to establish these

factors even during the arguments. On this basis the objections

preferred by the appellant were dismissed.

4. Before us learned counsel for the appellant has sought to

place reliance upon the decision of the Supreme Court in "M/s

Consolidated Engineering Enterprises v. Principal Secretary

Irrigation Department & Ors." JT 2008 (6) SC 22 to contend that

the applicability of Section 14 of the Limitation Act is not excluded by

the Act. The Supreme Court has held that Section 14 of the Limitation

Act is available to the applicant who prefers objections to an arbitral

award.

5. Having considered the submission of learned counsel for the

appellant, we are of the view that there is no merit in this appeal and

the same is liable to be dismissed as the objections preferred by the

appellant, even after being granted the exclusion of time spent by the

appellant in pursuing its remedy in the District Court, Gurgaon, are

barred by limitation, and the delay is still beyond the period of 30 days

for which the same could be condoned.

6. Assuming that the appellant was served with the award on

29.08.2007 and not on 20.08.2007, the objections could have been

preferred within a period of three months i.e. by 29.11.2007. In the

meantime, the appellant preferred objections before the District Court,

Gurgaon on 14.11.2007, which came to be rejected for want of

jurisdiction on 27.11.2007. From 14.11.2007 to 27.11.2007 (both days

inclusive) 14 days were consumed. Therefore, upon application of

Section 14 of the Limitation Act these 14 days would be excluded. The

limitation for filing the objections, therefore, expired on 13.12.2007

(after adding 14 days after 29.11.2007). The power of the Court to

condone delay under proviso to Section 34(3) of the Act is limited to

the extent of 30 days. Even if it were to be assumed that the appellant

is entitled to condonation of delay of 30 days beyond 13.12.2007, that

would take us to 12.01.2008. However, the objections, admittedly,

were preferred in this Court on 15.01.2008. It is well settled that the

Court has no power to condone the delay in the filing of objections

beyond the period of 30 days. Consequently, there is no way that the

objections preferred by the appellant can be saved from the bar of

limitation.

7. For the aforesaid reasons, we see no merit in this appeal and

dismiss the same, leaving the parties to bear their own respective

costs. The respondent shall be entitled to withdraw the amount

deposited by the appellant towards satisfaction of the decree arising

from the award by moving an appropriate application before the

Registrar of this Court and the amount deposited along with interest, if

any, shall be released to the respondent within eight weeks of moving

an application for withdrawal of such deposited amount.

VIPIN SANGHI, J.

MUKUL MUDGAL, J.

APRIL 09, 2009 rsk