Power Grid Corporation Of India ... vs M/S Bwl Ltd.
2009 Latest Caselaw 3766 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Ex. P. No.366/2008

%                                          Date of decision:15.09.2009

M/S BWL LTD.                                          ....Decree Holder

                            Through: Mr. T.K. Ganju, Sr. Advocate with Ms.
                                     Sandhya Kohli and Mr. Puneet Parihar,
                                     Advocates.

                                     Versus

NATIONAL HYDRO ELECTRIC POWER CORP...Judgment Debtor

                            Through:    Mr. A.T.M. Rangaramanujam, Sr.
                                       Advocate with Mrs. Shubhra Goyal
                                       Rana, Advocate.

                                   AND

              OMP No.518/2009 & IA No.11403/2009

POWER GRID CORPORATION OF INDIA LTD. .. Petitioner
(Formerly known as NHPC Ltd.)


                            Through:    Mr. A.T.M. Rangaramanujam, Sr.
                                       Advocate with Mrs. Shubhra Goyal
                                       Rana, Advocate.

                                   Versus
M/S BWL LTD.                                         ...... Respondent
                            Through: Mr. T.K. Ganju, Sr. Advocate with Ms.
                                     Sandhya Kohli and Mr. Puneet Parihar,
                                     Advocates.

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
       in the Digest? No


RAJIV SAHAI ENDLAW, J.

1. The execution petition was filed of arbitral award dated 14 th

March, 2006 stated to having the force of a decree under the

Arbitration Act, 1996. Notice of the execution was ordered to be

issued to the judgment debtor who appeared through counsel on 14th

January, 2009 and sought time to file reply to the execution. No

reply was filed and on 22nd April, 2009 a statement was made that

the judgment debtor was ready to make the payment as per the

award subject to verification of calculations. The matter was

adjourned. On the next date i.e. 14th July, 2009, again statement was

made by the counsel for the judgment debtor in court that the

judgment debtor was in negotiation with the decree holder and shall

pay the amount awarded/agreed between the parties within four

weeks. It was ordered that if the payment is not made within four

weeks, the bank account of the judgment debtor shall stand attached

for the monies claimed in the execution.

2. Neither was any payment made nor any attachment effected.

Before the next date the judgment debtor filed OMP No.518/2009

under section 34 of the Act along with an application under section 5

of the Limitation Act for condonation of delay in preferring the OMP.

The OMP came up before this court first on 4st September, 2009

when the senior counsel for the judgment debtor (petitioner in OMP)

sought time for filing an additional affidavit in support of the

application for condonation of delay. The additional affidavit has

been filed.

3. Condonation of delay in preferring the OMP is sought on the

ground that the judgment debtor had within the prescribed time

preferred petition under Section 34 of the Act before the court of the

District Judge, Delhi. At this stage, the contention of the senior

counsel for the decree holder may be noted. It is stated that the

objections before the District Judge were preferred on 3rd July, 2006

and which were also barred by time and objection in which respect

was taken before the court of the Additional District Judge.

4. The decree holder made an application in the petition

preferred by the judgment debtor before the Additional District

Judge, pleading that the court of the District Judge was not the court

within the meaning of Section 2 (e) of the Act, competent to

entertain the objections. The said application of the decree holder

was allowed vide order dated 21st January, 2008 of the Additional

District Judge. It was held that the claims before the arbitral tribunal

being in excess of Rs.20 lacs, which was the maximum pecuniary

jurisdiction of the court of the Additional District Judge, the court

within the meaning of Section 2 (e) of the Act competent to entertain

the objection petition under Section 34 of the Act was this court.

The objection petition preferred by the judgment debtor was

accordingly dismissed and liberty was given to the judgment debtor

to collect the original documents if any filed in that court in

accordance with law for presentation before the court of competent

jurisdiction.

5. The petition under Section 34 of the Act came to be filed

before this court only on 26th August, 2009 i.e. after more than 18

months from the date of the order aforesaid of the Additional District

Judge and which has attained finality.

6. The senior counsel for the judgment debtor (petitioner in the

OMP) has contended that as per Section 43(1) of the Act, the

Limitation Act applies to these proceedings. Section 151 of the CPC

is also sought to be invoked for condonation of delay. It is contended

that on the basis of the facts pleaded in the application for

condonation of delay and in the additional affidavit filed in support

thereof, the judgment debtor is entitled to condonation of delay.

Reliance is also placed on Rajpura Gas House Vs. B.S. Koli 2009

(3) Arb. LR 38 (Punjab & Haryana) holding Section 14 of the

Limitation Act applicable in relation to Section 34 of the Arbitration

Act.

7. Relying upon Radhey Shyam Gupta Vs. Kamal Oil & Allied

Industrial Ltd. 2006 (88) DRJ 676 (DB), it is contended that the

condonation of delay in re-filing is less rigorous than the condonation

of delay in filing.

8. Need is not felt to go into the facts justifying the delay. The

Supreme Court in Union of India Vs. Popular Construction Co.

(2001) 8 SCC 470 held on an interpretation of Section 34 (3) of the

Act that the court is empowered to condone delay of one month only

beyond the period prescribed for preferring the objections and no

more. Though Section 43(1) of the Act does not appear to find

mention in the said judgment but the specific issue of power of the

court to condone the delay in preferring the objections having been

considered by the Supreme Court in the said judgment, the said

judgment is binding on this court.

9. The Supreme Court has undoubtedly, subsequently in

Consolidated Engg. Enterprises Vs. Principal Secretary,

Irrigation Department (2008) 7 SCC 169 held that Section 14 of

the Limitation Act would still apply in the matter of preferring

objections. However even if, in computing the period of limitation

for preferring the petition, the time during which the judgment

debtor has been prosecuting the proceedings before the District

Judge is to be excluded, even thereafter there is delay of more than

the time which the court as per Popular Construction Co. (Supra)

is empowered to condone. It is for this reason that necessity is not

felt to go into the reasons set out for condonation of delay.

10. As far as the contention of the senior counsel for the petitioner

as to "re-filing" is concerned, re-filing is in the same court and not in

a different court. The Supreme Court in Sri Amar Chand Inani Vs.

Union of India AIR 1973 SC 313 had held that when the plaint was

returned for presentation to the proper court and was presented in

that court, the suit can be deemed to be instituted in the proper

court only when the plaint was presented in that court; that suit in

the proper court cannot be treated to be a continuation of suit filed

in the wrong court. Thus, institution in a court which has no

jurisdiction to entertain, is no institution and the only advantage

which can be availed thereof is to have the time spent in the said

other court excluded under Section 14 of Limitation Act, if conditions

thereof are satisfied. Thus the institution of the petition by the

judgment debtor in this court cannot be said to be an act of "re-

filing" for principles with respect thereto, to apply. I have even

otherwise in Gautam Associates Vs. Food Corporation of India

MANU/DE/1750/2009 held that the Original Side Rules of this court

do not permit condonation of delay in re-filing even. It was further

held that the legislative intent in Section 34 of Arbitration Act cannot

be defeated by condoning liberally the delay in re-filing.

11. The senior counsel for the decree holder has also contended

that the action of the judgment debtor in this case of having

preferred the petition under Section 34 of the Act after having made

statements on two dates in the execution proceedings assuring

payment is mala fide.

12. The application for condonation of delay is thus dismissed and

consequently the OMP No.518/2009 is also dismissed as barred by

time.

13. With the dismissal of the OMP, there is no bar to execution.

The senior counsel for the judgment debtor again states that

execution be deferred for two weeks. In the circumstances issue

Warrants of Attachment with respect to the Bank Account No.CA

10596547153 with State Bank of India, Jawaharlal Nehru University,

New Mehrauli Road, New Delhi-110067 and Current Account

No.10315031267 with State Bank of India, Gandhi Nagar, Jammu -

181152 in the total sum of Rs.83,75,576/- stated to be due under the

decree. If the amount in one account is sufficient for the aforesaid

purposes the other account shall not stand attached. Else the

monies in the two accounts for the aforesaid total amount shall stand

attached. However in view of the submission of the senior counsel

for the judgment debtor the warrants be issued after two weeks from

today. Upon the decree holder filing affidavit after two weeks that

the payment has not been made, the registry to give Warrants of

Attachment dasti to the counsel for the decree holder.

14. List the execution awaiting report of warrants, on 25th

November, 2009.

RAJIV SAHAI ENDLAW (JUDGE)

September 15th, 2009 J