Delhi Jal Board vs M/S Digvijay Sanitations & Anr.
2009 Latest Caselaw 2257 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                  Date of Reserve: April 01, 2009
                                                     Date of Order: May 26, 2009

+ OMP 396/2007
%                                                                               26.05.2009
    Delhi Jal Board                                                      ...Petitioner
    Through : Mr. Parminder Singh, Advocate

      Versus

      M/s Digvijay Sanitations & Anr.                                ...Respondents
      Through:


      JUSTICE SHIV NARAYAN DHINGRA

1.    Whether reporters of local papers may be allowed to see the judgment? Yes.

2.    To be referred to the reporter or not?                                                Yes.

3.    Whether judgment should be reported in Digest?                                        Yes.


      ORDER

1. This petition was dismissed in default on 21st September 2007.

Thereafter, two applications being IA No.3810 of 2008 under Section 9 Rule 4

of CPC and another application being IA No.3811 of 2008 for condonation of

delay were filed, which were listed on 31st March 2008. On 31st March 2008,

none appeared for the applicant, the aforesaid two applications were

dismissed in default on 31st March 2008. Then another application being IA

No.6660 of 2008 was filed under Section 151 CPC for restoration of

application under Section 9 Rule 4 CPC.

2. For the reasons stated in IA No.6660 of 2008 under Section 151 CPC,

the same is allowed and IA No.3810 of 2008 is hereby restored to its original

number.

OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 1 Of 6

3. IA No.3810 of 2008 is for restoration of the petition under Section 34 of

the Arbitration & Conciliation Act, 1996, which was dismissed in default on

21st September. The application is allowed for the reasons stated therein. The

petition is restored to its original number.

IA No.7975/2007

1. By this order, I shall dispose of this application under Section 34(5) of

the Arbitration & Conciliation Act, 1996 (for short, "the Act") and Section 5 of

Limitation Act for condonation of delay in refilling the instant petition.

2. The award in this case was passed by the learned Arbitrator on 27 th

May 2006. It is not known as to when the Arbitrator sent this award to the

parties. However, the objections against the award were filed by the

petitioner in this Court on 26th August 2006. Even if three months' period is

counted from 27th May, 2006, the objections were filed within the period of

three months as set out under Section 34(3) of the Act. However, certain

objections were raised by the Registry on the petition and the petition was

returned back for removing those objections. Thereafter, this petition was

filed after about 11 months on 18th July 2007. It is this delay in refilling the

instant petition for condonation of which this application has been made by

the applicant/petitioner.

3. This application made by the petitioner's advocate is accompanied by

an affidavit. It is submitted by the petitioner's counsel that the petition was

taken back for curing the defects as pointed out by the Registry. Thereafter,

uncle of the counsel for petitioner suffered a heart attack and the counsel for

petitioner remained out of his office for more than 20 days. Since the matter

OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 2 Of 6 was not listed before the Court, it was not reflected in the diary maintained

by the counsel and it slipped from his memory when he resumed working in

the office. The clerk of the counsel for the petitioner, who collected papers of

the case from the Registry, placed the same in wrong file of the same cause

title. It is only when the petitioner made inquiries from the counsel after

receipt of a notice of execution proceedings that the counsel realized that the

present petition has not been rectified and then counsel for the petitioner

took steps for rectifying the petition.

4. This Court vide order dated 20th July 2007 observed its dissatisfaction

regarding the reasons stated by the counsel and wanted the counsel to file

additional affidavit with supporting documents giving further details and

particulars with regard to listing of OMP 90 of 2005 from the time when the

papers of present petition were stated to have been taken back. In the

additional affidavit, counsel for the petitioner/applicant stated that OMP No.

90 of 2005 came up for hearing on 24th May 2007 and on that date no

effective hearing took place on account of an adjournment requested by the

counsel for the respondent and, therefore, it did not come to the notice of the

counsel that the papers were lying in that file. Notice of execution of award

was received by the petitioner's central office wherefrom the same was

forwarded to Legal Section and it was registered with legal section on 4th June

2007. This execution was assigned to the same counsel Shri H.S. Kohli by the

Department and the Department forwarded the assignment to counsel on 16th

July 2007 and thereafter search was made for objections and the original

petition was refilled after rectifying the defects with the Registry on 20 th July

2007.

OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 3 Of 6

5. Counsel for the respondent has vehemently opposed the application

stating that the condonation of delay of ten and a half months in refilling the

petition cannot be allowed in view of strict provisions under Section 34(3) and

non-applicability of Section 5 of the Limitation Act. It is further submitted that

as per the High Court Rules, if the petition after removing objections of

registry is refilled within a reasonable time, then only the original date of

filing is considered as the date of filing. If the delay is more than the

reasonable period, the refilling has to be considered as fresh filing and the

Court cannot condone the delay in view of the fact that Section 5 of the

Limitation Act is not applicable.

6. Counsel for the petitioner, on the other hand, relied on 2007 (10) ADL

42 DDA v R.S. Jindal wherein a Division Bench of this Court observed that the

statutory authority had to rely on their counsels who conduct cases and when

the counsel admitted that there was default and mistake by his office, the

statutory authority should not be made to suffer for the mistake of the

counsel.

7. A perusal of record would show that the initial filing was done on 26 th

August 2006 i.e. within the period of three months and refilling was done on

18th July 2007. It is obvious from the affidavit filed by the petitioner's counsel

that after the file was taken back from Registry for removing the objections, it

got misplaced in another file with same cause title and the counsel could not

pay attention due to ailment of his uncle. The other OMP between the same

parties though came up for hearing in May, 2007 but in that only an

adjournment was sought by respondent. In view of this fact, there seems to

be no chance of the counsel for petitioner stumbling upon the objections lying

OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 4 Of 6 in the file. It only seems that after execution was filed by respondent, the

petitioner's counsel realized that objections filed by the petitioner were to be

refilled after removing objections and then made efforts to trace the

objections.

8. The petitioner in this case had filed objections against the award within

the stipulated period. It is only the counsel who did not rectify the petition

after removing objections. The petitioner (Delhi Jal Board) in this case being a

statutory body has to depend upon on its advocate. The counsel who had

taken back the petition for removing office objections, could not refile the

petition due to intervening circumstances. I consider that the petitioner who

had filed objections within the prescribed period under the law, cannot be

made to suffer for the negligence on the part of its counsel. The delay in

refilling is though is of about ten and half months but due to circumstances

explained by counsel and in view of the fact that nothing has come on record

to show that what has been stated by counsel for the petitioner was not

correct, the application deserves to be allowed. It is not a case of the

respondent that the uncle of the petitioner's counsel had not suffered from

heart attack or he had not left Delhi. In DDA v. R.S. Jindal's case (supra), this

Court had considered condonation of delay of 216 days in filing Intra Court

Appeal and observed that since DDA had to rely on the counsel, for the

mistake of counsel, the petitioner should not be made to suffer.

9. Section 5 of the Limitation Act is not applicable as far as filing of

petition under Section 34 is concerned, however, I consider that once the

petition is filed within time, if there is delay in refilling, the Court can consider

condonation of delay under Section 5 of the Limitation Act and if it is found

OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 5 Of 6 that the reasons are justified, such delay can be condoned.

10. In view of foregoing discussion, I allow this application for condonation

of delay in refilling the petition.

OMP 396/2007

1. List this petition on 7th September 2009 for further directions.

2. Response to objections be filed within six weeks. Rejoinder thereto, if

any, be filed three weeks thereafter.

May 26, 2009                                          SHIV NARAYAN DHINGRA J.
rd




OMP 396/2007         Delhi Jal Board v. M/s Digvijay Sanitations & Anr.   Page 6 Of 6