Delhi High Court
Mcd vs Prabhat Construction on 13 February, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: February 04, 2009
Date of Order: February 13, 2009
+ IA No. 8359/2007 in CS(OS) 228/2003
% 13.02.2009
MCD ...Plaintiff
Through: Mr. Uttam Dutt, Mr. Gaurang Kanth, Advocates
Versus
Prabhat Construction ...Defendant
Through: Mr. Raman Kapoor, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
IA No. 8359/2007
1. This application has been filed by the applicant for condonation of delay in
filing the award in the Court for making the same Rule of law.
2. The dispute between the parties was referred to the Arbitrator under old
Arbitration Act, 1940. The arbitration proceedings were started sometime in 1993 and
the Arbitrator gave its award in October 2002. After giving award, he wrote a letter to
the applicant/petitioner for publication of the award which was received by the
petitioner on 30th October 2004. Thereafter, the petitioner filed this award in the
Court on 24th January 2003 along with an application for condonation of delay as the
stipulated period for filing the award in the Court under Section 14 of the said Act is
30 days. This Court vide order dated 10th July 2007 observed that the only
submissions made in the application in paragraph 2 is a one line statement that
because of the departmental constraints, the application under Section 14 of the said
Act was filed with delay. The Court considered that this was no explanation and
dismissed the application. However, the counsel for the applicant/plaintiff sought
some time to examine the matter and to move an appropriate application within 15
CS (OS) 228/2003 MCD vs.Prabhat Construction Page 1 Of 3
days. This Court observed that in case no such application is made within 15 days,
the suit shall be dismissed and the objections filed by the respondent shall also stand
dismissed. The applicant filed fresh application for condonation of delay within 15
days giving detailed reasons as to why the delay occurred.
3. The non-applicant/respondent has taken the objection that the second
application under Section 5 of the Limitation Act would not lie as the first application
has already been dismissed and only an appeal would lie against the order of
dismissal of the first application. The order of this Court dated 10th July 2007 makes it
abundantly clear that the plaintiff/applicant was given a liberty to move a fresh
application within 15 days. If this liberty had not been given to the plaintiff/applicant
to move a fresh application within 15 days, the Court would have dismissed the suit
filed by the plaintiff under Section 14 and 17 of the said Act then and there and the
matter would have been set at rest. However, the very fact that this Court did not
dismiss the suit and gave 15 days time to the plaintiff/applicant to move a fresh
application under Section 5 of the Limitation Act, shows that although this Court while
passing earlier part of the order observed that the application was without merit as it
gave no explanation, but still in the later part, a liberty was granted to the
plaintiff/applicant to move fresh application.
4. It is settled law that an order has to be read as a whole and an order cannot
be read in piecemeal. If the order dated 10th July 2007 is read as a whole, it is
apparent that a liberty was given to the plaintiff to make a fresh application.
5. In the fresh application, the applicant has stated that the moment the award
was received, it was forwarded to the concerned department on 12 th November 2002
itself for contacting counsel for department for further action. A copy of the letter has
been placed on record. The applicant then sought opinion of MCD counsel regarding
action to be taken who gave his opinion that the application under Section 14 and 17
of the said Act for making the award a rule of court was to be moved immediately.
This opinion was given vide letter dated 22nd November 2002. Applicant's previous
CS (OS) 228/2003 MCD vs.Prabhat Construction Page 2 Of 3
counsel Mr. Sanjeev Jha then filed an application before the Tis Hazari Court for
making the award as a rule of court but since the pecuniary jurisdiction exceeded
Rs.5 lac, it was returned. To avoid any further delay, Executive Engineer requested
the same counsel to file an application before High Court and the same was filed on
24th January 2003 and he intimated to the Executive Engineer vide his letter dated
24th January 2003.
6. It is submitted that the post facto approval was obtained from Chief Law
Officer for filing this application before this Court. This shows that the department
wanted to avoid any further delay and was diligent in pursuing the matter.
7. The dispute in this case was arisen sometime in 1987 and was referred to the
Arbitration for adjudication in 1993. The Arbitrator took around 10 years for
adjudicating the matter and his award was received by the department/MCD. The
MCD was not that negligent that it delayed the matter for any unreasonable period.
Since MCD works in different manner and the sanctions are to be obtained from
senior officers, it takes time for obtaining sanctions. It is settled law that the matter
should not be dismissed merely on technical grounds and wherever reasonable
grounds are given, the court should condone the delay. There is no doubt that
Section 5 of the Limitation Act is applicable in this case but the delay in filing the
present suit has been sufficiently explained.
8. I allow this application under Section 5 of the Limitation Act. The application
stands disposed of.
CS(OS) 228/2003
List for further on 31st March, 2009.
February 13, 2009 SHIV NARAYAN DHINGRA J.
rd
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