M/S. Model Furnishers vs Delhi Development Authority & Anr
2009 Latest Caselaw 3454 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CS(OS) No.2359/2008 and IA No.13667/2008 (U/s.5
       of the Limitation Act)


%                       Date of decision: 31st August, 2009

M/s. MODEL FURNISHERS                           ....Petitioner
                        Through: Ms. Kailash Golani,, Advocate


                                Versus



DELHI DEVELOPMENT AUTHORITY & ANR.                   ... Respondents

                        Through: Mr. Rajesh Mahajan, Advocate for DDA.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?   No

2.     To be referred to the reporter or not?   No

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


RAJIV SAHAI ENDLAW, J.

1 The suit has been filed under Section 14 and 17 of the

Arbitration Act, 1940 for directing the respondent No.2 arbitrator to

file the arbitral award dated 26th April, 1990 in this court and for

making the same rule of the court. The suit was filed in this court

first on 23rd October, 2008 i.e. after more than 18 years from the

date of the arbitral award. The long delay is sought to be condoned.

2 The suit has been preferred by one Mrs. Soni Dave claiming to

be the daughter and only legal heir of late Mrs. Raj Kumari Berar

who is stated to have been the Proprietor of the petitioner.

3 The plaintiff had immediately after the award and within the

prescribed period of limitation made an application under Section 14

and 17 of the Arbitration Act, 1940 in the court of the Additional

District Judge Delhi. The said suit came to be decided vide order

dated 3rd August, 1991. Though the respondent / DDA had preferred

objections to the award and the court held the said objections to be

time barred, the court also found that the court of the Additional

District Judge was not the court having pecuniary jurisdiction for

making the award a rule of the court inasmuch as the claims before

the arbitrator were for an amount in excess of the minimum

pecuniary jurisdiction of that court, even though the award was for

an amount within the pecuniary jurisdiction of that court. The said

order attained finality. The petitioner remained quiet for over 17

years after the said order and has thereafter filed this suit. On 15th

April, 2009 the statement of the counsel for the petitioner was

recorded that the petitioner will not claim interest on the awarded

amount for the period of the delay.

4 Now the application for condonation of delay is for

consideration. The counsel for the petitioner has placed reliance on

N.Balakrishnan Vs. M.Krishnamurthy (1998) 7 SCC 123 wherein

it has been held that the length of the delay is not relevant and the

acceptability of the explanation is the only criteria. Reliance is also

placed on Bharat Coking Coal Ltd. Vs. M/s. L.K. Ahuja & Co. AIR

2001 Supreme Court 1179 and Ram Nath Sao @ Ram Nath Sahu

& Others Vs. Gobardhan Sao & Others (2002) 3 SCC 195.

5 As far as sufficiency of explanation is concerned, in the

application for condonation of delay it is stated that the petitioner

being an old lady could not move the court, she was bed ridden and

she wrote a letter dated 16th August, 2007 to the DDA and on a reply

dated 18th March, 2008 was received from the DDA and from which

she came to know that the court has not made the award rule of

court.

6 The said explanation of the petitioner does not appear to be

bona fide. The petitioner in the letter dated 16th August, 2007 to the

DDA did not mention that the arbitral award had been made rule of

the court. The petitioner did not at all refer to the proceedings

before the Addl. District Judge. The DDA also in its reply dated 18th

March, 2008 did not state that the award had not been made rule of

the court; DDA asked the petitioner for details of case. In fact in the

application also it is not expressly stated that the petitioner had no

knowledge of the order aforesaid of the court of the Additional

District Judge returning the suit filed under Section 14 and 17 of the

Act; only an impression to that effect is sought to be conveyed. From

the certified copy of the order of the Additional District Judge filed

before this court the date when the same was applied for or when

the certified copy was ready is not very clear. Though at most of the

places the certified copy appears to have been applied for and made

available in the year 2003, at couple of places 2003 appears to have

been changed to 2008. The counsel for the petitioner of course

contends that the certified copy was applied for only in April, 2008.

Even if that were to be correct, the same was ready in April, 2008

itself but the present petition was filed as aforesaid only in October,

2008. There is no explanation for the said delay even.

7 The certificate of illness filed along with the petition is of the

year 2007 only. There is nothing to show as to what happened

between 1991 and the year 2007. Though the counsel for the

petitioner has repeatedly urged that the petitioner was aged about

80 years but 17 years ago she would have been much younger. The

record shows that the petition before the Additional District Judge

was being pursued by the daughter of the petitioner and not by the

petitioner herself. Thus daughter was fully aware of the proceedings.

It is not as if she become aware of the award only after the demise of

the petitioner.

8 The petitioner was carrying on business of furniture. Nothing

has been disclosed as to what happened to the said business. It is

not the case that on account of the age or illness of the petitioner,

the business was stopped in 1991 or not carried on thereafter. In

fact the correspondence with DDA shows that the son-in-law of the

petitioner was also the attorney of the petitioner for the said

business.

9. The counsel for the petitioner has also emphasized on the

petition having been filed before the Addl. District Judge on time.

However, the institution before a court not raising jurisdiction, is no

institution. The same can at best entitle the petitioner to seek

exemption of the time the proceedings were pursued before that

court. The petitioner however thereafter slept over her rights for

over 17 years; she has shied from stating that she was not aware of

the order returning the petition.

10. The reason given for condonation of delay therefore does not

inspire any confidence. The application is very vague. The counsel

for the respondent/DDA has rightly contended that if such

explanation/causes are to be accepted, the same will bring the

limitation law to a naught. No ground having been found to condone

the delay, the suit as well as the application are dismissed. However

in the circumstances, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

August 31st, 2009 J