Delhi High Court
The Executive ... vs Shree Ram Construction Co. on 12 November, 2010
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.665/2009 & CM No.18944/2009
The Executive Engineer ....Appellant through
(Irrigation & Flood Control) Ms. Aruna Tiku & Ms. Ruby
Nahar, Advs.
versus
Shree Ram Construction Co. ....Respondent through
Mr. G.K. Sharma, Adv.
WITH
FAO(OS) No.444/2009 & CM No.13776/2009
Power Grid Corpn. of India Ltd. .....Appellant through
Mr.A.T.M. Rangaramanujam,
Sr. Adv. with Mr. Pawan
Upadhyay, Adv.
versus
BWL Limited .....Respondent through
Ms. Tanya Khare, Adv.
WITH
FAO(OS) No.132/2009 & CM No.5212/2009
Union of India .....Appellant through
Mr.Parag P. Tripathi, ASG
with Ms. Arti Gupta &
Ms. Prem Lata Bansal, Advs.
versus
Ogilvy & Mather Ltd. .....Respondent through
Mr. Vinod Bhagat with
Mr. Amiet Andley, Advs.
FAO(OS)665/2009 Page 1 of 51
WITH
FAO(OS) No.259/2010 & CM No.7202/2010
Union of India .....Appellant through
Mr. Anshuman Sinha, Adv.
versus
Harbhagwan Harbhajan Lal & .....Respondent through
Arun Construction Co. Mr. A.K. Singla, Sr. Adv. with
Mr. J.K.Sharma, Adv.
WITH
FAO(OS) No.49/2009 & CM Nos.11595/09 & 5016/10
Saibaba CGHS Ltd. .....Appellant through
Mr. S.S. Mishra, Adv.
versus
Vishnu Promoters Pvt. Ltd. .....Respondent through
Ms. Rashmi Jain & Mohd.
Amanullah, Advs.
% Date of Decision : November 12, 2010
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA
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 the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. This Appeal assails the Order dated 5.9.2007 wherein the
learned Single Judge has taken the view that the filing of the
Objections under Section 34 of the A&C Act in the Court of the
District Judge, Delhi was not carried out in good faith; and that
the refiling in the Court possessing jurisdiction, that is, the High
Court of Delhi was carried out after 45 days of its return
disclosed lack of diligence. The learned Single Judge held that
even assuming that the period of one year and seven months
could be excluded for filing (refiling) while computing the period
of limitation, by availing Section 14 of the Limitation Act, 1963,
the Objections were nevertheless time barred.
2. The facts of the case are that the subject arbitral Award
was published on 10.11.2004 and was received by the Appellant
on 17.11.2004. The period of three months set-down in Section
34(3) of the A&C Act commenced running from 17.11.2004 and
in its ordinary course culminated on 15.2.2005. The Objections
were filed in the Court of District Judge, Delhi on 25.1.2005,
that is, leaving unutilized/unavailed twenty two days in the
permissible period. The Respondent filed an application in the
Court of the Additional District Judge, Delhi to whom the lis was
assigned, predicated on Section 42 of the A&C Act, praying that
the Objections should not be entertained as Court of District
Judge did not possess jurisdiction for their adjudication.
Indubitably, since the appointment of the Arbitrator had been
made by this Court, "all subsequent applications arising out of
that agreement and the arbitral proceedings" would have to be
filed in the High Court of Delhi. The Appellant did not contest
this position and asked for the withdrawal of the Objections on
14.8.2006. It has been clarified that the Objections were
filed in the Court of District Judge because the Award had
granted ` 5,37,160/- and the pecuniary jurisdiction of the
High Court of Delhi is from ` 20,00,001/- and upwards. It is
also not in dispute that the Objections alongwith the entire
records were returned by the Additional District Judge, Delhi to
the Appellant on 25.8.2006 and were filed/refiled in this High
Court on 10.10.2006. Mr. G.K. Sharma, learned counsel for the
Respondent, however, submits that when the filing/refiling was
carried out by the Petitioner in this Court on 10.10.2006, the
Objections already stood time barred.
3. We had occasion to consider this interesting question of
law in Bharat Sanchar Nigam Limited -vs- Haryana Telecom
Limited, 2010 VII AD (Delhi) 331. We think it necessary to
reproduce the relevant paragraphs of the said Judgment:
11. We have expressed the opinion, hereinabove, that
since the Arbitral Award was not delivered by the
Arbitral Tribunal [as envisaged in Section 31(5) of the
A&C Act] to the party, the period for filing of
Objections must be held not to have commenced.
Would this view remain steadfast even in
circumstances where Objections have actually been
filed by the concerned party albeit in the wrong Court.
This is the legal nodus which remains to be answered.
It is axiomatic jurisprudence that there is no estoppel
against the statute. In this case, however, this principle
would not apply for the reason that the party
concerned, upon having filed Objections, has exercised
a right vested and bestowed upon it by virtue of a
statute. Moreover, law unhesitatingly and
unquestionably acts on admissions made by a litigating
party. In this case the Appellant has itself stated that
copies of the Award were received by it (from the
Respondent/Decree Holder) on 6.11.2000, and thus, we
find good reason to take this date as the
commencement of the period of limitation. On
principles analogous to Section 14 of the Limitation
Act, 1963, the period expended in a Court not
possessing jurisdiction would have to be excluded.
Exclusion of time is an exercise totally distinct from
condoning the delay in filing an action. On the rejection
or return of the Plaint/Objections, the period for
refiling cannot be left open-ended. High Courts have
taken the position that the Court rejecting the
plaint/petition is not possessed with powers to fix a
date within which the action must be filed in another
Court. By the introduction of Section 10(a) in Order VII,
by Act 104 of 1976, this position has been changed and
the vacuum has been filled. It is now open to the
Plaintiff/Petitioner to move an application in the First
Court, thereby specifying the Court in which he
proposes to present the plaint or refile the action after
its return, and pray that the First Court may fix a date
for the appearance of the parties. If the First Court
passes such orders, Sub-rule(4) clarifies that in this
event the transferee Court would not be required to
once again issue notice to the Defendant/Respondent.
12. It is trite that the Plaintiff/Petitioner may consider
it expedient or prudent to challenge the return or
rejection order before the Appellate forum; or it may
decide to abide and comply with the Order. In the first
case, the time spent before the Appellate Court may
also have to be excluded. In the latter case, the
question that arises is how much time should be
reasonably allowed to the Plaintiff/Petitioner to file the
rejected Plaint in the Court which it considers rightly
possesses territorial jurisdiction. It seems incongruent
to us that if the Petitioner stands restricted to an initial
period of 90+30 days, a larger period can be allowed
for the purpose of such refiling. So far as this is
concerned, we are in virgin legal territory as no
statutory provision appears to have been prescribed by
any legislation. We would, in these circumstances, hold
that the refiling must be carried out within the total
span of 90 days, leaving the Court with the discretion
to condone any delay restricted to a further period of
30 days provided sufficient cause has been disclosed.
The date of rejection in Ambala Court was 16.5.2001; in
Chandigarh on 19.11.2001 and in the High Court of
Himachal Pradesh on 16.7.2001. As already noted
above, the Objections were initiated in this Court in
OMP No.215/2001 on 31.8.2001 and in OMP
No.17/2002 on 3.1.2002 respectively.
13. Mr. Sharma, learned counsel for the
Respondent/Decree Holder, has contended that since
the Objections were rejected under Order VII Rule 11
of the CPC in the Ambala Court, the relief permitted by
Section 14 of the Limitation Act would not be available.
After the filing of the Objections in this Court, the
Appellant avowedly preferred a Review before the
Ambala Court praying that the Objections ought to
have been returned under Order VII Rule 10 and not
rejected under Order VII Rule 11 of the CPC. Where a
Court arrives at a conclusion that it does not possess
jurisdiction, it should not proceed further and should
only pass orders which would consequentially ensue; in
most cases for the rejection of the
plaint/petition/Objection or with the dismissal thereof,
with liberty for filing them in a competent court in
accordance with law. The Review was dismissed on the
ground that it had been preferred beyond the period of
limitation; secondly that the High Court of Delhi was
already seized of the Objections and no prejudice was
shown to have been caused. Therefore, the Review was
not dismissed on merits. This being the situation, we
think that there is no alternative but to treat the action
of the Ambala Court as one standing and predicated on
Order VII Rule 11 of the CPC, thereby rejecting the
Objections and not dismissing them.
4. Ms. Aruna Tikku, learned counsel for the Appellant, has
argued that since the filing of the Objections in the Court of
District Judge was carried out within the statutory period of
three months, the provisions of Section 34(3) of the A&C Act,
which vests power in the Court to condone a delay of thirty days
beyond the initial three months period, do not come into play. It
is her argument that since the Objections had been filed in
Court within the period allowed in the statute, the refiling would
have to be carried out within a reasonable period. She submits
that the Additional District Judge, Delhi was duty-bound to
prescribe the period within which the Objections could be filed
in the competent Court and having failed to do so, this Court
should only consider whether the filing/refiling was effected
within reasonable time. It is her contention that since the
Objections were returned by the Orders of the learned
Additional District Judge, Delhi on 25.8.2006 and were refiled
within forty-five days, on 10.10.2006, it would not be justifiable
to take the view that an inordinate or unreasonable time had
been taken for the refiling of Objections in this Court.
Therefore, without alluding to Section 34(3) of the A&C Act, she
submits that there is no delay in preferring the Appeal before
the High Court of Delhi.
5. The Appeal is strongly opposed by learned counsel for the
Respondent. Firstly, it is contended by Mr. G.K. Sharma,
learned counsel for the Respondent, that the action of filing of
Objections in the Court of the District Judge, Delhi was not
bonafide and, therefore, the provisions of Section 14 of the
Limitation Act cannot be resorted to. Secondly, the filing of the
Objections in this Court do not attract Order VII Rule 10A of the
Code of Civil Procedure, 1908 (CPC for short) as neither of the
two Courts can be viewed as transferor or transferee courts. In
this regard reliance has been placed on Harshad Chimanlal
Modi -vs- DLF Universal Limited, 2006(1) SCC 364. No doubt,
the Court held that presentation of a plaint in the correct Court
after its return is not a case of „transfer‟ but those observations
were made in a totally different context. The argument was that
the proceedings in the transferee Court should continue from
the very stage it was at when the transfer was ordered. It was in
these circumstances that the Hon‟ble Supreme Court clarified
that where a Court lacks jurisdiction to an extent that the
litigation requires to be transferred, none of the actions taken
by it would have the status necessitating the Court properly
possessing jurisdiction to take up proceedings from the stage
they stood in the wrong Court. This is no wise the case before us
and, therefore, Harshad is not relevant. It is further contended
by Mr. Sharma that the initial filing in the Court of the District
Judge, Delhi must be treated as non est with the result that
when the Petition came to be preferred in this Court on
10.10.2006, it constituted the first filing and it was clearly
barred by time. Reliance is sought to be placed by Mr. Sharma
on Vishnu Horticultural Pvt. Ltd. -vs- Shampiyan Viniyard Ltd.,
2010(2) CCC 128 (Bombay). We are of the view, however, that
this case is also not of relevance. It is true that there are
observations to the effect that a lis will always be treated as
having been filed afresh, thereby making it subject to limitation,
pecuniary jurisdiction and payment of Court Fee etc., as opined
in Hanamanthappa -vs- Chandrashekharappa, AIR 1997 SC
1307. In Vishnu, the learned Single Judge of the Bombay High
Court has applied Harshad. We think that the observations
alluding to pecuniary jurisdiction and payment of Court Fee
have not been relied upon contextually. In both these cases
different High Courts or State Courts have prescribed varying
stipulations. Let us take the instance of a matter being filed in
the Delhi High Court. If it is found that Delhi has no territorial
jurisdiction and Uttar Pradesh does, it cannot be contended that
the Court Fee already paid would be proper in that State and/or
that the case must be heard in the High Court of Uttar Pradesh.
6. Order VII Rule 10A of the CPC now ordains that if the
initial Court is of the opinion that the plaint/objections/petition
should be returned, the Court shall, before doing so, intimate its
decision to the plaintiff. This is for the reason that the second
sub-section obliges the Court, no doubt on the application of the
plaintiff, to specify and indicate the Court in which the plaintiff
proposes to present the plaint. Order VII Rule 10A(2) further
states that the Plaintiff can make an application to the Court
requesting it to specify the Court in which the returned Plaint is
to be filed, the date on which the parties are to appear before
the said Court and that the notice of the date filed to be given to
him and the Defendant. Sub-section(3) of Order VII Rule 10A
thereafter mandates that these actions should be taken by the
Court on an application being made by the Plaintiff. Sub-
section(4) of Order VII Rule 10A removes the rigour of having to
serve the Defendant/Respondent once again for the simple
reason that the latter is put to notice of the transferee Court as
well as the next date of hearing. All these provisions, it appears
to us, are salutary in nature and have the avowed purpose of
protecting the interests of all the parties to the lis.
7. The last and fifth sub-section of Order VII Rule 10A should
not be lost sight of. It clarifies the position that where a Court is
of the opinion that it does not possess jurisdiction, pecuniary or
otherwise, it is duty-bound to return the plaint or petition or
objection, as the case may be, after giving due prior notice of its
decision to the Plaintiff. The Plaintiff may or may not agree with
this decision. If, as a consequence of the prior intimation by the
Court of its prima facie view, the Plaintiff is of the opinion that
the return of the plaint is in consonance with law, and an
application under sub-section(2) is moved, then an appeal
stands disallowed under sub-section (5) of Order VII Rule 10A of
the CPC. The Plaintiff may not agree that the Court in which he
had initiated the lis is devoid of jurisdiction and hence he has
the right to challenge an Order returning a plaint. It is for this
simple reason that he has been allowed the option to file
applications under Order VII Rule 10A(2) of the CPC.
8. In the event, the Appellant did not file an application
under Order VII Rule 10A(2) of the CPC and, therefore, the next
date of hearing in this Court was not fixed by the Additional
District Judge, Delhi before whom the Objections were initially
filed. However, the Appellant obviously accepted the Order
since it was not assailed by him in Appeal. The nodus which
arises relates to the manner in which the period of limitation is
to be computed. We may reiterate that Section 14 of the
Limitation Act provides an exclusion and not extension of
time. If the provisions are advantageously available to the
Plaintiff/Petitioner/ Objectioner, the time expended bonafide in
the Court which was not possessed of jurisdiction would have to
be excluded, which, in the present case, is one year and seven
months. The manner of calculation is akin to that of computing
the period of limitation so far as applying for and obtaining a
certified copy of the Order sought to be impugned. If, for
example, if a period of three months is prescribed for filing an
appeal and the certified copy is applied for fifteen days later,
and is made available after fifteen days thereof, the period of
limitation would expire after 90+15 days. The rationale may be
different but the result is the same. So far as the certified copy
is concerned, the Appellant would be deemed to be capable of
taking requisite action only on the perusal of the certified copy.
9. We are unable to accept the submission of learned counsel
for the Appellant that the very factum of having filed Objections
within three months would render other provisions of the A&C
Act superfluous and irrelevant. This argument would defeat the
purpose of the A&C Act which is for the expeditious conclusion
of the arbitration proceedings. It is a tenet of our jurisprudence
that procedure is merely a handmaid of the law. Procedure
cannot defeat the purpose of the law. On the other hand, it will
be available to alleviate an apparent miscarriage of justice
because of a pedantic or punctilious reading of the law. Order
VII Rule 10A of the CPC provides for harmonizing hardship.
Without it, the taking of an ill advised but bonafide action would
result in the remedy being rendered nugatory. Rule 10A of
Order VII of the CPC steps in by permitting the
plaint/petition/objection filed in a Court not possessing
jurisdiction to be returned for filing in a Court actually
possessed of jurisdiction. This empowerment is bestowed by
Rule 10. These provisions do not recognize or articulate the
fiction that the filing of the action in the initial Court shall be
deemed to be a filing in the Court contemplated under Rule 10A.
Despite this lacuna, that this is what occurs is obvious from Rule
11 to 13 of Order VII of the CPC which deal with the case of the
rejection of the plaint.
10. In Haryana Telecom, we had expressed the opinion that
the filing of the Objections in the Court possessing jurisdiction
cannot possibly extend to a period beyond what has been
prescribed by the statute. We think that this statement needs to
be further amplified. The period for refiling cannot be left open-
ended, with the only requirement being that the refiling or fresh
filing should be carried out within a reasonable time, as if the
Court has not specified any period while deciding an application
under Order VII Rule 10A of the CPC. We reiterate that the
period spent bonafide in the Court not possessing jurisdiction
has to be excluded. In the case before us, it is exactly one year
and seven months. The effect will be that this period would have
to be added to the prescribed period of three months together
with the discretionary thirty days. Since the period of limitation
in the case in hand would ordinarily have expired on 15.2.2007,
a period of one year and seven months (that is 25.1.2005 to
25.8.2006) would have to be added, thus bringing it to
15.9.2008. Since 68 days had been exhausted in the initial filing,
if the Objections had been filed in this Court within the
remainder of 22 days, no delay would have been occasioned,
bringing us to 9.9.2006. The Objections, in the case in hand,
however, were filed in this Court only on 10.10.2006, that is,
beyond the period of three months after allowing exclusion of
one year and seven months as prescribed by Section 34 of the
A&C Act.
11. Learned counsel for the Respondent has vociferously and
repeatedly reminded us that no application has been filed by the
Appellant under Section 34(3) of the A&C Act. This provision,
we think, ought to be reproduced for a comprehensive analysis
of the law:-
Section 34 : Application for setting aside arbitral award
....
(3) An application for setting aside may not be made
after three months have elapsed from the date on
which the party making that application had received
the arbitral award or, if a request had been made under
section 33, from the date on which that request had
been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the
applicant was prevented by sufficient cause from
making the application with the said period of three
months it may entertain the application within a further
period of thirty days, but not thereafter.
In contradistinction to the opening words of sub-section(3), the
proviso does not postulate the filing of an application. It only
contemplates the Court‟s satisfaction that the
Applicant/Objector was prevented by sufficient cause from
making the application/Objections within the said period of
three months. We do not find ourselves constrained in any
manner whatsoever from doing complete justice because of the
absence of an application seeking condonation of delay if we are
otherwise satisfied that sufficient cause exists. While doing so,
we are fully mindful of the fact that we are not expanding the
scope of the main provision. We say this despite the fact that
learned counsel for the Appellant had argued that Section 34(3)
of the A&C Act has no application to the present case for the
reason that the initial filing had been carried out within the
prescribed period of three months, albeit in the wrong Court. It
also appears to us that where a remedy of an appeal has been
provided for, the interpretation of the provision for computation
of the period should be carried out liberally so that the remedy
is not rendered illusory (See State of Bihar -vs- Kameshwar
Prasad Singh, (2000) 9 SCC 94, Bhag Mal -vs- Munshi, (2007)
11 SCC 285 and Sandhya Rani Sarkar -vs- Sudha Rani Debi,
(1978) 2 SCC 116. This is why the Hon‟ble Supreme Court has,
time and again, condoned the delay in filing appeals sometimes
even beyond a period of a year.
12. This brings us to the question of whether the case for the
exclusion of time envisaged in Section 14 of the Limitation Act
has been made out by the Appellant. The test is that the Plaintiff
should have been prosecuting the proceedings all through out
with due diligence. This perforce will cover the initial filing as
well as the manner in which the action was prosecuted in that
Court. It is no longer res integra that Section 14 of the
Limitation Act applies to the A&C Act as it has explicitly been
held so in State of Goa -vs- Western Builders, (2006) 6 SCC
239. Their Lordships, inter alia, opined that the "general
proposition is by virtue of Section 43 of the Act of 1996 the
Limitation Act, 1963 applies to the Act of 1996 but by virtue of
sub-section(2) of Section 29 of the Limitation Act, if any other
period has been prescribed under the special enactment for
moving the application or otherwise then that period of
limitation will govern the proceedings under that Act, and not
the provisions of the Limitation Act. In the present case under
the Act of 1996 for setting aside the award on any of the
grounds mentioned in sub-section(2) of Section 34 the period of
limitation has been prescribed and that will govern. Likewise,
the period of condonation of delay i.e. 30 days in the proviso".
Their Lordships referred to Union of India -vs- Popular
Construction Company, 2001(8) SCC 470 which case
relentlessly emphasizes the words "but not thereafter"
contained in Section 34(3) of the A&C Act, thereby clarifying
that the provisions of Section 5 of the Limitation Act do not
apply to the A&C Act.
13. This also demolishes the argument of learned counsel for
the Appellant that the Court is required to inquire only as to the
reasonableness of the period which has been taken by the
Plaintiff in presenting the returned Plaint/Petition/Objection to
the Court possessing jurisdiction.
14. The decision in Amar Chand -vs- Union of India, AIR 1973
SC 313 immediately comes to mind. This is for the reason that
their Lordships had enunciated that the filing of an action in a
wrong Court would, for all intents and purposes, including the
Limitation Act, be non est and secondly that the presentation of
the action in another Court would not be construed as its
continuation. Harshad, in fact, takes support of this precedence
and, therefore, we quote the relevant paragraph thereof:-
8. It was contended for the appellant that even if the
Karnal Court was not the proper Court in which the suit
should have been filed, the plaintiff was entitled to the
benefit of Section 4 of the Act. Section 4 of the Act
provides that where the period of limitation prescribed
for any suit expires on a day when the Court is closed,
the suit may be instituted on the day the court reopens.
But, if the Karnal Court was not the proper court in
which the suit should have been filed, the plaintiff would
not be entitled to the benefit of Section 4. The decision
of the Privy Council in Maqbul Ahmad v. Pratap Narain
Singh, AIR 1935 PC 85 is an authority for this
proposition. In that case the Privy Council said:
...the language of Section 4 is such that it seems to
Their Lordships to be impossible to apply it to a case
like the present. What it provides is that, where the
period of limitation prescribed expires on a day when
the court is closed, the application may be made on the
day when the Court reopens. In Their Lordship‟s view
that means the proper Court in which the application
ought to have been made....
If the plaintiff had filed the suit in the trial court, on
March 2, 1950, then certainly the suit would have been
within time under Section 4, as that was the proper
Court in which the suit should have been filed. As the
Karnal Court had no jurisdiction to entertain the plaint,
it was not the proper Court. The fact that the plaintiff
would be entitled to take advantage of the Provisions of
Section 14 of the Act would not, in any way, affect the
question whether the suit was filed within the time as
provided in Section 4 in the Karnal Court. Section 14 of
the Act only provided for the exclusion of the time
during which the plaintiff has been prosecuting with
due diligence another civil proceeding against the
defendant, where the proceeding is founded upon the
same cause of action and is prosecuted in good faith in a
Court which, from defect of jurisdiction, or other cause
of a like nature, is unable to entertain it. Even if the
plaintiff was entitled to get an exclusion of the time
during which he was prosecuting the suit in the Karnal
and Panipat Courts, the suit would not be within time as
the filing of the suit in the Karnal Court was beyond the
period of Limitation. It was, however, argued by
Counsel for the appellant that the suit instituted in the
trial court by the presentation of the plaint after it was
returned for presentation to the proper Court was a
continuation of the suit filed in the Karnal Court and,
therefore, the suit filed in Karnal Court must be deemed
to have been filed in the trial court; We think there is no
substance in the argument, for, 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. In other words, the suit
instituted in the trial court by the presentation of the
plaint returned by the Panipat Court was not a
continuation of the suit filed in the Karnal Court (see
the decisions in Harachand Succaram Gandhy v. G.I.P.
Rly. Co., AIR 1928 Bom 421, Bimla Prasad Mukerji v.
Lal Moni Dev, AIR 1926 Cal. 355, and Ram Kishun v.
Ashirbad, AIR 1950 Pat 478. Therefore, the presentation
of the plaint in the Karnal Court on March 2, 1959,
cannot be deemed to be a presentation of it on that day
in the trial court.
15. The ratio of Western Builders has been upheld in
Consolidated Engineering Enterprises -vs- Principal
Secretary, Irrigation Department, (2008) 7 SCC 169. The Three-
Judge Bench reiterated that Section 14 of the Limitation Act has
the effect of bestowing the benefit of exclusion of time,
restricted however to the period prescribed, that is, three
months and thirty days only. Beyond this period, even if
sufficient cause is shown the Court is powerless to condone the
delay. Their Lordships opined that the Commissioner of Sales
Tax, U.P., Lucknow -vs- M/s. Parson Tools and Plants, Kanpur,
(1975) 4 SCC 22 had not declared that Section 14 of the
Limitation Act is not available with regard to the A&C Act.
These passages from Consolidated Engineering are
instructive:-
23. At this stage it would be relevant to ascertain
whether there is any express provision in the Act of
1996, which excludes the applicability of Section 14 of
the Limitation Act. On review of the provisions of the
Act of 1996 this Court finds that there is no provision in
the said Act which excludes the applicability of the
provisions of Section 14 of the Limitation Act to an
application submitted under Section 34 of the said Act.
On the contrary, this Court finds that Section 43 makes
the provisions of the Limitation Act, 1963 applicable to
arbitration proceedings. The proceedings under
Section 34 are for the purpose of challenging the award
whereas the proceeding referred to under Section 43
are the original proceedings which can be equated with
a suit in a court. Hence, Section 43 incorporating the
Limitation Act will apply to the proceedings in the
arbitration as it applies to the proceedings of a suit in
the court. Sub-section (4) of Section 43, inter alia,
provides that where the court orders that an arbitral
award be set aside, the period between the
commencement of the arbitration and the date of the
order of the court shall be excluded in computing the
time prescribed by the Limitation Act, 1963, for the
commencement of the proceedings with respect to the
dispute so submitted. If the period between the
commencement of the arbitration proceedings till the
award is set aside by the court, has to be excluded in
computing the period of limitation provided for any
proceedings with respect to the dispute, there is no
good reason as to why it should not be held that the
provisions of Section 14 of the Limitation Act would be
applicable to an application submitted under Section
34 of the Act of 1996, more particularly where no
provision is to be found in the Act of 1996, which
excludes the applicability of Section 14 of the
Limitation Act, to an application made under Section 34
of the Act. It is to be noticed that the powers under
Section 34 of the Act can be exercised by the court only
if the aggrieved party makes an application. The
jurisdiction under Section 34 of the Act, cannot be
exercised suo motu. The total period of four months
within which an application, for setting aside an
arbitral award, has to be made is not unusually long.
Section 34 of the Act of 1996 would be unduly
oppressive, if it is held that the provisions of Section 14
of the Limitation Act are not applicable to it, because
cases are no doubt conceivable where an aggrieved
party, despite exercise of due diligence and good faith,
is unable to make an application within a period of four
months. From the scheme and language of Section 34
of the Act of 1996, the intention of the legislature to
exclude the applicability of Section 14 of the Limitation
Act is not manifest. It is well to remember that Section
14 of the Limitation Act does not provide for a fresh
period of limitation but only provides for the exclusion
of a certain period. Having regard to the legislative
intent, it will have to be held that the provisions of
Section 14 of the Limitation Act, 1963 would be
applicable to an application submitted under Section
34 of the Act of 1996 for setting aside an arbitral
award.
.....
53. Sub-section (3) of Section 34 of the AC Act
prescribes the period of limitation for filing an
application for setting aside an award as three months
from the date on which the applicant has received the
arbitral award. The proviso thereto vests in the court
discretion to extend the period of limitation by a
further period not exceeding thirty days if the court is
satisfied that the applicant was prevented by sufficient
cause for not making the application within three
months. The use of the words "but not thereafter" in
the proviso makes it clear that even if a sufficient cause
is made out for a longer extension, the extension
cannot be beyond thirty days. The purpose of proviso to
Section 34(3) of the AC Act is similar to that of Section
5 of the Limitation Act which also relates to extension
of the period of limitation prescribed for any
application or appeal. It vests a discretion in a court to
extend the prescribed period of limitation if the
applicant satisfies the court that he had sufficient
cause for not making the application within the
prescribed period. Section 5 of the Limitation Act does
not place any outer limit in regard to the period of
extension, whereas the proviso to sub-section (3) of
Section 34 of the AC Act places a limit on the period of
extension of the period of limitation. Thus the proviso
to Section 34(3) of the AC Act is also a provision
relating to extension of period of limitation, but differs
from Section 5 of the Limitation Act, in regard to
period of extension, and has the effect of excluding
Section 5 alone of the Limitation Act.
16. To clarify the position, so far as the present case is
concerned, had the refiling been carried out in this Court after
three months plus thirty days plus one year and seven months,
then a jural consideration of „sufficient cause‟ would have
become irrelevant altogether. The Award was served on the
Objector on 17.11.2004. The time would ordinarily have expired
on 17.3.2005; discretion to condone further delay would have
been obliterated. After a further period of one year and seven
months, that is, 17.10.2006, limitation would have irretrievably
and irremediably run out. Fortunately, for the Plaintiff the filing
of Objections in this Court was carried out on 10.10.2006, ergo,
within the condonable period. We have found it fortunate since
we are mindful of the fact that this position has not been argued
by learned counsel for the Appellant.
17. What now remains to be considered is whether the
Appellant has been prevented by sufficient cause from filing
Objection/Application within the period of aforementioned three
months and the discretionary thirty days. The explanation given
by learned counsel for the Appellant is that since the arbitral
Award was for a sum of ` 5,37,160/-, it was filed in the Court
of the District Judge, Delhi which normally possesses pecuniary
jurisdiction even disputes above ` 5,00,000/-. It was only when
the Respondent highlighted that the operation of Section 42 of
the A&C Act that it was allegedly realized by the Appellant that
the filing should have been done in the High Court of Delhi,
regardless and irrespective of the fact that the value of the
Award was much below the ordinary pecuniary jurisdiction of
the High Court of Delhi. While we appreciate the consequences
of Section 42 of the A&C Act, it should not be overlooked that it
could well be seen as restricting provisions of Section 20 of the
CPC. Section 42 of the A&C Act is salutary since it restricts
jurisdiction to the Court whose portals have been initially
visited. But a mistake on this count would not manifest
recklessness or lack of diligence. Even where the initial filing in
the Court not possessing jurisdiction may have been bonafide,
the prosecution of the case thereafter may have been negligent
leading to the dismissal for non-prosecution or for non-
appearance. In the latter cases, therefore, time would not be
excludable under Section 14 of the Limitation Act. Therefore,
the twin tests have to be complied with and we are satisfied on
this score. In the facts of the case, therefore, we are unable to
agree with the conclusion of the learned Single Judge that the
delay on the part of the Appellant was not bonafide.
18. The Appeal is accordingly allowed. CM No.18944/2009
stands disposed of. The Objections/Application under Section 34
of the A&C Act are restored to the Board of the learned Single
Judge for decision in accordance with law.
19. Parties to appear before the learned Single Judge on
14.12.2010.
FAO(OS) No.444/2009 & CM No.13776/2009
20. At the threshold, it should be noted that in the impugned
Order dated 15.9.2009, the learned Single Judge had issued
Warrants of Attachment with respect to the Appellant‟s Bank
Accounts with the State Bank of India, Jawahar Lal Nehru
University, New Delhi and State Bank of India, Gandhi Nagar,
Jammu for a total sum of ` 83,75,576/-. The learned Single had
clarified that if the amounts in one Account are sufficient, then
the other Account shall not stand attached. What is significant
is that on the submission of Mr. Rangaramanujam, learned
Senior Counsel for the Judgment Debtor/Appellant, the
Warrants were deferred for a period of two weeks to enable
voluntary payment by the Appellant. Instead of complying with
the tenor and purpose of the indulgence given by the learned
Single Judge, the present Appeal has been filed.
21. While perusing the impugned Order, we have come across
a multitude of errors in the reproduction/typing. This led us to
locate the Certified Copy of the Order on the record. On the first
date of hearing, the Plaintiff‟s application from filing the
Certified Copy of the impugned Order had been allowed, subject
to all just exceptions. This was in view of the assertion of the
Appellant in the Application that it had applied for a Certified
Copy of the impugned Order. Till date, the impugned Order is
not on record. It has been held in a catena of cases that in the
absence of the filing of the Certified Copy the Appeal is not
maintainable. The position may be appreciably different if the
Certified Copy had not been made available to the Appellant till
today. Our inquiry with the Registry discloses that the Certified
Copy was delivered to the Appellant on 20.10.2009. It is
repeatedly argued that in respect of the government as well as
public sector undertakings (PSUs), that the normal law of
limitation should not be applied. However, the indulgence and
latitude extended by Courts to such entities has resulted in their
disdainfully ignoring the obligations cast upon them vis-à-vis the
period set down in the Limitation Act, 1963. Obviously, this has
led to the altering the view of their Lordships, as is evident from
a reading of State of West Bengal -vs- Administrator, Howrah
Municipality, (1972) 1 SCC 366 : AIR 1972 SC 749, State of
Rajasthan -vs- Nav Bharat Construction Company, (2005) 11
SCC 197 : AIR 2005 SC 2795 and State of Karnataka -vs- Y.
Moideen Kunhi, (2009) 13 SCC 192. Very recently, in Oriental
Aroma Chemical Industries Ltd. -vs- Gujarat Industrial
Development Corporation, (2010) 5 SCC 459 their Lordships
have emphasized that whilst a liberal approach may be justified
where a short period has to be condoned, a stricter approach is
called for where delay is of an inordinately long duration.
22. The Appeal is accordingly dismissed as being barred by
limitation.
23. Nevertheless, we shall also consider the merits and
substance of the arguments addressed before us by learned
Senior Counsel for the Appellant. We must straightway set down
the factual matrix. The Award was published on 14.3.2006. The
Objections have undisputedly been filed on 3.7.2006. The High
Court Notification for the relevant period stated that the period
between 5.6.2006 and 30.6.2006 would not be taken into
reckoning for the purposes of limitation. Accordingly, the
Objections to the Award having not been filed on the reopening
day, the Appellants are not entitled to deduct the vacation
period. This was the contention of the Respondent before the
learned Additional District Judge, Delhi. However, since a
period of thirty days is permitted by proviso to Section 34(3) of
the Arbitration & Conciliation Act, 1996 (A&C Act for short),
even though not specifically invoked before us, we desist from
dismissing the Appeal on this ground. The Objections were filed
after 109 days. What requires underscoring is that only 11 days
remained from the maximum period, that is, three months plus
thirty days.
24. Assuming that the Objections were initially filed within the
period provided and permitted in law, it is contended before us
that the subsequent delay in refilling the Objections after
removal of the objections recorded by the Registry would not
fall within the ambit of Section 34(3) of the A&C Act. The
Objections have been re-filed in this Court on 26.8.2009, and
not 19.8.2009, as has been incorrectly contended before us by
learned Senior Counsel for the Appellant. Details pertaining to
the pendency of the Objections in the Court of the District
Judge, Delhi are not forthcoming. On a reading of the
Application under Section 5 of the Limitation Act filed before
the learned Single Judge, it appears that the learned Additional
District Judge, Delhi had, vide Order dated 21.1.2008,
dismissed/returned the Objections on the ground of lack of
pecuniary jurisdiction as the Award was in excess of
` 20,00,000/-. Anyone dealing in legal matters, whether a
practicing lawyer or an officer of the Legal Department of a
company as large as the Appellant, would be deemed to know
that such an Award is ordinarily challengeable in the High Court
of Delhi. We are constrained to make these observations for the
reason that whenever and whatever latitude and indulgence has
been extended, it has only been misused with sheer negligence.
The Additional District Judge, Delhi, in his Order dated
21.1.2008, granted an opportunity to the Appellant to collect
original documents, if any, after furnishing certified copies
thereof. This was to enable the Objections/Petition to be
presented before the Court of competent jurisdiction, which in
this case is the High Court of Delhi. However, even though the
certified copies were available on 7.2.2008, the refilling/filing
was carried out as late as on 26.8.2009 that is, after
approximately eighteen months.
25. The Application under Section 5 of the Limitation Act sets
out, in the context of the plea for condonation of delay, as
follows:-
.....
3. That in its reply, the respondent raised an issue
regarding the jurisdiction of the Court of Ld. Additional
District Judge in entertaining the said objection petition
preferred by the petitioner. On the basis of the said
objections, the Ld. Trial Court framed a preliminary
issue on the jurisdiction of the Court of Additional
District Judge in entertaining and adjudicating upon
the present case.
4. That the said issue remained pending adjudication
before the Ld. Trial Court till January 2008 and vide
order dtd. 21.01.2008, the Court of Ld. Additional
District Judge, rejected the objections filed by the
petitioner with a liberty to present the same before the
Court of Competent Jurisdiction. The last part of the
order dtd.21.1.2008, read inter alia, "However, the
petitioner is given liberty to collect the original
documents if any after furnishing the certified copies so
that the petition may be presented before the Court of
Competent Jurisdiction".
5. That the said matter was being looked after by Sh.
C. Mitra, AGM, Northern Region Headquarter, Jammu,
who in between got retired and his duties were
assigned to one Mr. Manoj Kumar. Mr. Manoj Kumar
also left the job and joined some multi-national
corporation and left India.
6. That the aforesaid order of the Ld. Trial Court
would not be brought to the notice of the petitioner,
either by the counsel or by any person, consequently
the necessary steps regarding re-filing of the case
before a competent court not be initiated.
7. That the respondent preferred an execution
petition before this Hon‟ble Court which was registered
as Execution Case No.366/08 and a notice was issued
by this Hon‟ble Court for appearance.
8. That during the course, the petitioner tried to find
out as to why this Execution Petition has been filed and
this pertains to which matter of the petitioner? During
the course of such inquiry it was revealed that the
present case which was to be presented before this
Hon‟ble Court, pursuant to the order of the Ld. ADJ,
dtd. 21.01.2008, escaped the attention and could not be
field in this Hon‟ble Court.
9. That accordingly all the papers were collected and
inquiries were made from the trial court regarding the
original records. Since the courts have transferred
many times, therefore, the petitioner could not get the
requisite Goshwara number and the necessary
application for obtaining the certified copies also could
not be made.
10. That in the circumstances the present petition is
being preferred on the basis of the photocopies of the
documents which are available.
11. That in the course such delay was caused in re-
filing the case before this Hon‟ble Court.
12. That the said delay is neither intentional nor
deliberate, but has happened on account of the
circumstances beyond the control of the petitioner.
13. That the petitioner has a prima facie good case and
shall suffer irreparable loss and injuries if the delay so
caused in re-filing the present case is not condoned.
PRAYER
In the facts and circumstances of the case and in the
interest of justice this Hon‟ble Court may graciously be
pleased to:
(i) condone the 681/1159 days from filing the present
case; and
(ii) may pass such other and further order(s) as this
Hon‟ble Court may deem fit and proper in the facts
and circumstances of the case.
It is significant that the Applicant is unable to decide whether
the delay is of 681 days or 1159 days. This is the reason for our
analysis that the grating of latitude to the Government as well
as PSUs has had a deleterious effect on integrity as well as
diligence. If these entities are held subservient to the rigorous
of law, as all other persons, the constraints of limitation will be
adhered to. Especially, in the realm of arbitration, the
compulsions of expeditious disposals and the rights of the
successful litigant, so far as enjoying the fruits of a decree
validly won are concerned, should not be sacrificed for a
careless and slothful party.
26. Learned counsel for the Appellant/Applicant seeking
condonation of delay also for the period of refiling has
predicated is contention on the decision in Indian Statistical
Institute -vs- M/s. Associated Builders, AIR 1978 SC 335. We
must at once emphasise that he Court had to decide the case in
the context of the Arbitration Act, 1940, which, unlike the A&C
Act, does not specifically stated that the delay cannot be
condoned beyond thirty days of the expiry of three months from
the date on which the concerned party had received a signed
copy of the arbitral award. Their Lordships, relying on Section
149 of the Code of Civil Procedure, 1908 (CPC for short),
observed that the deficiency in Court Fee could be permitted to
be made up at any stage. So far as failing to fix the date of the
verification is concerned, the Court found that the objection was
not one that should be taken serious note of.
27. Our attention has also been drawn to S.R. Kulkarni -vs-
Birla VXL Limited, 1998 V AD (Delhi) 634 where the Division
Bench was faced with the delay in refilling an application under
Order XXXVII of the CPC seeking leave to Defend. On the facts,
which were unfolded in that case, our learned Brothers were of
the view that the delay could be condoned on payment of costs.
It once again bears highlighting that the provisions of Order
XXXVII of the CPC are not of the same preemptory nature as
Section 34(3) of the A&C Act. The Division Bench also analysed
Rule 5 of Chapter-1 of Volume V of High Court Rules & Orders
which ordains that if the refiling is carried out beyond the time
permitted by the Registry, it shall be construed as a fresh
institution. Rule 5 requires reproduction for ease of reference:-
Rule-5. Amendment - The Deputy Registrar, Assistant
Registrar, In-charge of the Filing counter, may specify
the objections (a copy of which will be kept for the
Court Record) and return for amendment and re-filing
within a time not exceeding 7 days at a time and 30
days in the aggregate to be fixed by him, any
memorandum of appeal, for the reason specified in
Order XLI, Rule 3, Civil Procedure Code.
(2) If the memorandum of appeal is not taken back for
amendment within the time allowed by the Deputy
Registrar, Assistant Registrar, In-charge of the filing
Counter under sub-rule (1), it shall be registered and
listed before the court for its dismissal for non-
prosecution.
(3) If the memorandum of appeal is filed beyond the
time allowed by the Deputy Registrar, Assistant
Registrar, In-charge of the filing counter, under sub-
rule(1) it shall be considered as fresh institution.
28. Even in the backdrop of these Rules, our learned Brothers
had opined that "delay in refiling is not subject to the rigorous
tests which are usually applied in excusing the delay in a
petition under Section 5 of the Limitation Act". Reference was
also made to Single Bench decisions in Smt. Parvati -vs- Anand
Parkash, AIR 1987 Delhi 90 ; State Bank of India -vs- Amritsar
Engineering Works, 40(1990) DLT 463. Ashok Kumar Parmar -
vs- D.C. Shankhla, 1995 ILR (1995) II Delhi 60 also considered
this conundrum. The learned Single Judge drew out a distinction
between defects of such gravity as would negate the character
of filing itself on the one hand and objections of the Registry on
the other hand that are formal or ancillary in nature.
29. Reliance on the decision in Improvement Trust, Ludhiana
-vs- Ujagar Singh, (2010) 6 SCC 786 to the effect that "justice
can be done only when the matter is fought on merits and in
accordance with law rather than to dispose it off on such
technicalities and that too at the threshold" is of no avail in the
backdrop of the A&C Act which decidedly and calculatedly shuts
off curial discretion after the expiry of thirty days beyond three
months having elapsed from the date on which a copy of the
Award had been received by the appealing party. In the context
of the A&C Act, it appears to us that liberality in condoning
delay in refiling would run counter to the intention of
Parliament which has employed plain language to facially
prescribe a cut off date beyond which there is no latitude for
condonation of delay. And this is for very good reason. Across
the Globe, it has been accepted that there is a pressing need to
bring adjudicatory proceedings to a prompt and expeditious
conclusion, especially where commercial and business conflicts
arise. We think it wholly impermissible to extend or expand the
time for concluding judicial proceedings at the second stage,
that is, that of refiling, when this is impermissible at the very
initial stage, that is, of filing objections to an award. It will be
apposite to immediately recall the dicta of Union of India -vs-
Popular Construction Company, (2001) 8 SCC 470. We can do
no better than reiterate the words therein - "the history and
scheme of the 1996 Act supports the conclusion that the time-
limit prescribed under Section 34 to challenge an award is
absolute and unextendible by Court under Section 5 of the
Limitation Act". This very reasoning has also been clarified and
followed in Chief Engineer of BPDP/REO, Ranchi -vs- Scoot
Wilson Kirpatrick India (P) Ltd., (2006) 13 SCC 622 in these
words:-
8. The decision in Union of India -vs- Popular
Construction Company, (2001) 8 SCC 470 did not deal
with specific issues in this case. In that decision it was
held that in respect of "sufficient cause cases" the
provisions of Section 34(3) of the Act which are special
provisions relating to condonation of delay override the
general provisions of Section 5 of the Limitation Act,
1963 (in short "the Limitation Act"). The position was
reiterated in State of Goa -vs- Western Builders, (2006)
6 SCC 239 and also in Fairgrowth Investments Ltd. -vs-
Custodian, (2004) 11 SCC 472. There can be no quarrel
with the proposition that Section 5 of the Limitation Act
providing for condonation of delay is excluded by
Section 34(3) of the Act.
30. As has already been mentioned above, reference to
decisions condoning delay in the filing of Objections under the
Arbitration Act, 1940 are of very little relevance. State of A.P. -
vs- I. Chandrasekhara Reddy, (1998) 7 SCC 141 and G.
Ramegowda, Major -vs- Special Land Acquisition Officer,
Bangalore, (1988) 2 SCC 142 are of no avail to the protagonists
for condonation of delay. For the very same reasons, the opinion
of the Division Bench in Radhey Shyam Gupta -vs- Kamal Oil &
Allied Industries Ltd., 2006(88) DRJ 676, where the Court was
concerned with the provisions of Order XXII Rule 3 of the CPC,
cannot be extrapolated to the mandates of A&C Act.
31. Learned counsel for the Appellant/Applicant has relied on
the recommendation for reconsideration of Popular
Construction as contained in State of Madhya Pradesh -vs-
Anshuman Shukla, (2008) 7 SCC 487. Firstly, learned counsel
is unable to state affirmatively whether his Lordship, Chief
Justice of India, has constituted a Larger Bench. Secondly, as
noted above, the rationale of Popular Construction has been
reaffirmed by a Coordinate Bench in Scoot Wilson. Faced as
we are with the opinion of the two altogether different Benches
of the Supreme Court, we have no alternative but to disregard
the referral order in Anshuman Shukla. It is more than likely
that had both the earlier decisions been disclosed, their
Lordships may not have thought it necessary to refer the matter
to a larger Bench.
32. Coming back to the facts of the present case, the delay of
1159 days in filing the Objections in the correct Court cannot be
condoned under the provisions of A&C Act and the ratio of
Popular Construction is fully binding on us.
33. Appeal along with CM No.13776/2009 is dismissed.
FAO(OS) No.132/2009 & CM No.5212/2009
34. The Appellant assails the Order of the learned Single
Judge dated 13.3.2009 dismissing the Objections filed by the
Appellant on the ground that insufficient cause has been shown
for condoning the delay of 258 days in its preferment.
35. The Award in question was passed on 2.6.2007. The
Objections under Section 34 of the A&C Act were initially filed
on 9.8.2007, that is, within sixty seven days. The Registry raised
three objections on 13.8.2007 - (a) Caveat Report to be obtained
(b) Memo of Parties to be filed and (c) Urgent application not
signed. After meeting the Registry‟s noting, the Objections were
refiled on 31.8.2007. The Registry, at this stage, required the
filing of an application seeking condonation of delay in the
refiling. (It is certainly arguable that this may not have been
essential). The Objections were refiled on 10.4.2008 but the
Registry now repeated its previous defect, that is, that the
Caveat Report had not been obtained and the details of delay in
refiling were incorrect. This position continued even in respect
of the refiling on 23.5.2008. The fourth refiling took place on
28.5.2008. The reason stated in the application for condonation
of delay was the ill health of the Standing Counsel.
36. The application seeking condonation of delay has been
opposed by learned counsel for the Respondent predicated on
the argument that Section 5 of the Limitation Act, 1963 is
inoperative after the expiry of thirty days after the prescribed
period of three months; that Section 5 of the Limitation Act, in
fact, does not apply at all so far as Section 34 of the A&C Act is
concerned. It is further contended that the question of
intentional or unintentional delay is rendered irrelevant in the
context of Section 34 of the A&C Act because even one day‟s
delay is irretrievably fatal. Therefore, the observations of the
Hon‟ble Supreme Court recommending a liberal approach for
condoning the delay are not contextual.
37. The learned Single Judge applied Popular Construction
Company as well as Consolidated Engineering in the
impugned Order. The learned Single Judge also applied
Damodaran Pillai -vs- South Indian Bank Ltd., (2005) 7 SCC 300
in which their Lordships had to interpret Rule 106(3) of Order
XXI of the CPC. This provision prescribes that "an application
under sub-rule (1) shall be made within thirty days from the
date of the order, or where, in the case of an ex parte order, the
notice was not duly served, within thirty days from the date
when applicant has the knowledge of the order". It was
reiterated that Civil Courts, in the absence of any express
power, cannot condone delay by invoking the inherent power;
that Section 5 of the Limitation Act is not maintainable while
deciding applications under Order XXI Rule 106(3); that
hardship or injustice may be a relevant consideration in
applying the principle of interpretation of statue, but cannot be
a ground for extending the period of limitation. The full import
of this Judgment would become apparent on a reading of
Section 5 of the Limitation Act itself which states, in
circumstances similar to the A&C Act, that Section 5 would not
be applicable to motions under Order XXI of the CPC. It would
also be relevant to mention that the learned Single Judge had
applied S.R. Kulkarni -vs- Birla VXL Limited, 1998 V AD (Delhi)
634, which in our analysis, cannot be extrapolated to the A&C
Act. The learned Single Judge rightly concluded that the
alleviations contained in the Limitation Act cannot come to the
succour of the Objector under Section 34 of the A&C Act after
the expiry of three months and thirty days. The learned Single
Judge thereafter looked into the question of whether the delay
of 258 days in refiling was condonable. In the event, the
conclusion was against the Appellant.
38. In our view, the Court should not lose sight of the fact that
the Registry records, not infrequently, different notings to
motions filed before it at various stages of its scrutiny.
Sometimes, as in the case in hand, it overlooks the notings
already made only to revive and retrieve them at a later stage,
to the consternation of the concerned party. The attention of the
learned Single Judge was not drawn to Ashok Kumar Parmar
-vs- D.C. Sankhla, ILR 1995 Delhi 60 where the Court perceived
a watershed between defects of a trivial nature in
contradistinction to defects of such gravity and import as would
transform the filing into a non-filing. The matter was
unsuccessfully carried in Appeal to the Division Bench in
D.C.Sankhla -vs- Ashok Kumar Parmar, 1995 I AD (Delhi) 753.
Parmar has been followed in DSA Engineers (Bombay) -vs-
Housing & Urban Development Corporation (HUDCO), 2003(66)
DRJ 466 to condone the delay which occurred inter alia in
converting the motion from one under Section 14 of the
Arbitration Act, 1940 to Section 34 of the A&C Act. We must
immediately mention the decision of the very same learned
Single Judge in State Bank of India -vs- Indian Utility Products,
AIR 2001 Del 30. We are unable to agree with the conclusion in
that decision, viz. that deficiency in filing Court Fee would place
it in the category of non-filing. There is a distinction between
deficiency of Court Fee and complete lack of Court Fee. In Asha
Sharma -vs- Sanimiya Vanijiya P. Ltd., 162 (2009) DLT 542(DB),
the Division Bench, (of which one of us, Vikramajit Sen, J. was a
member), had arrived at this very conclusion after applying
Mannan Lal -vs- Chhotaka Bibi, 1970(1) SCC 769 as well as
State of UP -vs- Rehmatullah, AIR 1971 SC 1374 and P.K.
Palanisamy -vs- N. Aruanugham, (2009) 9 SCC 173. It is
crucially important that several other defects, such as Memo of
Parties not having been signed, cuttings not having been
initialed, certain paragraphs having been left blank and Power
of Attorney not having been stamped, as recorded by the
Registry, were ignored by the learned Single Judge in that case.
With all deference to the learned Single Judge, the ratio in
Mannan, Maltex Malsters (P) Ld. -vs- M/s. Allied Engineers,
AIR 1975 Delhi 123 and Mahashay Ganesh Prasad Ray -vs-
Narendra Nath Sen, AIR 1953 SC 431 should have persuaded
him to condone the delay. The abiding and enduring principle is
that substance will prevail over the idle form. A pedantic
approach should be abjured.
39. We have already mentioned that the defects pointed out
by the Registry were (a) Caveat Report not obtained (b) Memo
of Parties be filed and (c) urgent application not signed. None of
these objections are of such profundity and gravity as would
render the filing of the Objections, which in this case took place
within sixty seven days, as a futile exercise. So far as the urgent
application is concerned, we must clarify that this is only in
respect of the listing of the case and, therefore, should be seen
as a non-essential. Our view would remain steadfast despite the
contention of learned counsel for the Respondent that the
noting was - "entire paper book be properly signed and dated".
It also needs clarification that a motion may be filed bearing
only the signature of the concerned Advocate, provided a valid
vakalatanama is available therein. If the motion is filed on the
signatures of the concerned party, then any irregularity relating
to the vakalatanama pales into insignificance. While we are of
the opinion that the condonation of delay on a liberal scale has
not had the desired effect, procedural provisions should not be
read only to defeat the lis. Learned counsel for the Respondent
underscores that there were five refilings and that the Appellant
did not make inquiries for almost six months; and that while the
Senior Standing Counsel may have been unwell, the
Vakalatanama had been signed by another panel lawyer who
ought to have been diligent.
40. We think it necessary to treat the Objections as having
been filed on the initial date, that is, 9.8.2007 and not on the
date when the deficiency of Court Fee had been made good or
on the several occasions when they were refiled.
41. The question, which still requires to be answered, is
whether a reasonable explanation has been given with regard to
delay of 258 days in the refiling of the Objections. Since this
delay crosses the frontier of the statutory limit, that is, three
months and thirty days, we need to consider whether sufficient
cause had been shown for condoning the delay. The conduct of
the party must pass the rigorous test of diligence, else the
purpose of prescribing a definite and unelastic period of
limitation is rendered futile. The reason attributed by the
Appellant for the delay is the ill health of the Senior Standing
Counsel. However, as has been pithily pointed out, the
Vakalatnama contains the signatures of Ms Sonia Mathur,
Standing Counsel for the Department; in fact, it does not bear
the signature of Late Shri R.D.Jolly. Because of the explanation
given in the course of hearing, we shall ignore the factum of the
Vakalatnama also bearing the signature of another Standing
Counsel, namely, Ms Prem Lata Bansal. We have called for the
records of OMP No.291/2008 and we find that the Objections
have not been signed by Late Shri R.D.Jolly but by Ms Sonia
Mathur on 9.8.2007, on which date the supporting Affidavit has
also been sworn by the Director of Income Tax. In these
circumstances, the illness of Late R.D.Jolly is obviously a
smokescreen. No other explanation has been tendered for the
delay. The avowed purpose of the A&C Act is to expedite the
conclusion of arbitral proceedings. It is with this end in view
that substantial and far reaching amendments to the position
prevailing under the Arbitration Act 1940 have been carried out
and an altogether new statute has been passed. This purpose
cannot be emasculated by delays, intentional or gross, in the
course of refiling of the Petition/Objections. The conduct of the
Appellant is not venial. We find no error in the conclusion
arrived at by the learned Single Judge and accordingly dismiss
the Appeal. CM No.5212/2009 is also dismissed.
FAO(OS) No.259/2010 & CM No.7202/2010
42. We shall now consider the facts of FAO(OS) No.259/2010.
The Award, which was impugned before the learned Single
Judge, was passed on 7.3.2009. Objections under Section 34 of
the A&C Act were filed on 29.5.2009, that is, within the
statutory period of three months; of which two months and
twenty two days have been utilized. Several defects were noted
by the Registry which are as follows:-
1. Caveat report be obtained at the time of each
subsequent filing and proof of service be filed.
2. Petition/applications/annexures/order/power of
attorney should be stamped.
3. Petition/applications/power of attorney be signed
and dated.
4. Left side margin of 4 c.m. be maintained.
5. Affidavit be filed in support of
petition/appeal/application and attested/identified.
Parental details/age/complete address be given.
Necessary averments be given since the affidavit has
been signed in vernacular.
6. Fair typed copy of dim annexures and hand written
annexures be filed.
7. Annexures be made true copy of their original.
8. Underline and highlighting be deleted.
9. Annexures be filed on foolscape and one side of
paper.
10. Vakalatnama be filed and signed/dated. Advocates
must mention their enrolment number in Vakalatnama.
Identify the sign of client. Please mention phone
number on Vakalatnama.
11. Certified copy of the award be filed or an
application seeking exemption be filed.
43. The Objections were refiled on 27.11.2009 but since the
Affidavit was still not attested, it was once again returned. The
Objections were refiled on 11.1.2010 with an Affidavit attested
on 18.12.2009. The reasons why the refiling was not carried out
on 18.12.2009 itself, or immediately thereafter, are not
forthcoming.
44. The learned Single Judge has recorded that a delay of 195
days has occurred in the refiling process. Two grounds were
urged, namely, that since two hundred pages were required to
be retyped a lot of time was taken up. Secondly, it has been
argued that certain documents were so dim that they have to be
retyped by the concerned Department. In the Rejoinder, the
Appellant had raised a third excuse before the Learned Single
Judge, namely, that the papers had got mixed up with another
matter between the same parties. The Learned Single Judge
concluded that with a modicum of diligence the Objections could
have been removed within thirty days. So far as the third
excuse, that is, the papers having got wrongly tagged with
another matter is concerned, the Learned Single Judge has
opined that necessary details had not been pleaded and relied
on the decision of another Learned Single Judge in Gautam
Associates -vs- Food Corporation of India, 2009 111 DRJ 274,
the ratio of which he rightly felt was binding on him. We have
perused the decision in Gautam Associates, which we
respectfully affirm.
45. So far as the nature of the defects recorded by the
Registry is concerned, we find that the Objection Petition (OMP
No.30/2010) dated 29.05.2009 bears the signatures of Shri
Jitender Kumar Singh, who is the Advocate for the
Appellant/Northern Railways Department. The Objections are
supported by an Affidavit of the Deputy Chief Engineer,
Construction, Northern Railways dated 17.5.2009. The
Vakalatnama is also dated 17.5.2009. The Registry has failed to
record the date on which the alleged deficiency in Court Fee on
the Vakalatnama had been made good. Of the several defects
raised, the eleventh pertains to the absence of a certified copy
of the Award; and significantly this defect had not been
recorded at the initial scrutiny. Admittedly, only a photocopy of
the Award had been filed. The Registry has required that a
Certified Copy, which must be read as a signed copy of the
Award, should have accompanied the miscellaneous
Petition/Objections. Failure to do so would be fatal and would
have the effect of deeming the filing to be a non filing.
46. Keeping the nature of the defects raised by the Registry in
perspective, the learned Single Judge has rightly concluded that
they could have been removed within thirty days as an outer
limit. We find no perversity in his conclusion that no credible
explanation for condoning the delay for the entire period from
August to November 2009 has been given.
47. Appeal is dismissed. CM No.7202/2010 is also dismissed.
FAO(OS) 49/2009 & CM Nos.11595/09 & 5016/10
48. The Appellant assails the Order dated 27.01.2009 passed
by the learned Single Judge declining to condone the delay of
844 days in filing Objections against the Arbitral Award dated
12.9.2005. The Appellant had initially filed the Objections under
Section 34 of the A&C Act on 13.12.2005 but, on his own
showing, did not pursue the matter further for the reason that
the Respondent had allegedly approached it for the purpose of
arriving at an amicable and out-of-Court settlement. The
Appellant‟s case is that he came to learn that Warrants of
Attachment had been passed by the Execution Court on
26.11.2007. Even in these circumstances, it appears that on
11.04.2008 it was the Court which sought a Report from the
Registry with regard to the Objection Petition whilst the
Appellant was in blissful slumber. The Court was informed that
in respect of the said Objection Petition, defects had been
recorded by the Registry on 13.12.2005 and the Petition came
to be returned on the following day. These Objections were
refiled on 07.04.2008. The Learned Single Judge has noted that
several months had elapsed even after the issuance of Warrants
of Attachment. The Learned Single Judge correctly opined that
Objections were required to be filed within three months of the
receipt of a signed copy of the Award and that thereafter the
Court possessed power to condone delay limited only to thirty
days. The matter could have been ended there but nevertheless
the learned Single Judge has found that sufficient cause for
condoning the delay has not been shown. It is evident that the
learned Single Judge was greatly influenced by the fact that
several months had elapsed even after the issuance of Warrants
of Attachment. We find no perversity in the exercise of
discretion.
49. The Appeal is without merit and is dismissed. CM
Nos.11595/09 & 5016/10 are also dismissed.
( VIKRAMAJIT SEN )
JUDGE
( MUKTA GUPTA )
JUDGE
November 12, 2010
tp/nt
