Delkon India Pvt. Ltd. vs Bharat Heavy Electricals Ltd.
2010 Latest Caselaw 5280 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

               Date of hearing & decision 22.11.2010

+                              FAO(OS) No.571/2010

       DELKON INDIA PVT. LTD.                           .....Appellant

                       .....Through      Mr. Sunil K. Pandey, Advocate

                       Versus

       BHARAT HEAVY ELECTRICALS LTD.                   .....Respondent

......Through Mr. J.C. Seth, Advocate

CORAM:

* HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE G.P.MITTAL

1. Whether reporters of local papers may be allowed to see the Order? No

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

3. Whether the Order should be reported in the Digest? Yes

VIKRAMAJIT SEN, J (ORAL)

CM APPL. 16725/2010 (delay) in FAO (OS) No.571/2010

1. This Appeal assails the Order passed by the learned Single

Judge in OMP No.317/2001. The impugned Order dated

15.07.2009 is very short since it relies almost entirely on

the judgment and order passed in OMP No.215/2001

which also concerns the conduct of the Arbitral

Proceedings by the Sole Arbitrator Mr. C.N. Gard.

2. Mr. J.C. Seth, learned Counsel appearing for BHEL

contends that on a reading of Paragraph 2 of the

impugned Order, it is amply clear that the facts of the

present case were considered in detail. We are unable to

agree with Mr. Seth, since the learned Single Judge has

predicated the entire impugned order on the decision

rendered in OMP No.215/2001. Mr. Seth is not in a

position today to apprise us of the outcome of the Appeal

in respect of OMP No.215/2001, beyond stating that it is

pending.

3. There is an application for condoning the delay of 37 days

in refiling the present Appeal. This

statement/computation is not correct. After some hearing,

Counsel for the Appellant concedes that the actual period

of delay is 327 days in addition to 69 days delay in refiling

the Appeal. The impugned Order was passed on

15.07.2009. A Review appears to have been preferred

which was eventually dismissed on 24.5.2010. The

present Appeal came to be filed on 8.07.2010. It is not in

controversy that the Court had closed for the summer

vacation on 4.06.2010 and had reopened on 1.07.2010.

4. Despite the pendency of the Appeal against the detailed

decision in OMP No.215/2001, the Respondent has

appointed a fresh Arbitrator. Those Arbitration

proceedings are currently pending. Likewise, even

though in the present Appeal notice was issued on

17.09.2010, Arbitration proceedings before the new

Arbitrator are also pending. Counsel for the Appellant

states that a letter of protest has been filed with the new

Arbitrator drawing his attention to the pendency of the

present Appeal.

5. The application sets out that the delay that was caused

was attributable to an accident which the Clerk of the

Advocate had met with. The Application seeking

condonation of delay is hopelessly devoid of any details.

Learned counsel for the respondent has pointed out that

even the name of the concerned Clerk has changed

between the filing of the Application and the filing of the

Rejoinder.

6. Learned counsel for the Appellant relies on the decision of

the learned Single Judge of this Court in 'Colgate-

Palmolive Co. vs. Hindustan Rimmer & Ors., AIR

1995 Delhi 95'. He contends that the period that has

been spent in prosecuting a Review, bonafide, must be

excluded while computing limitation. The learned Single

Judge has infact found in Colgate Palmolive (supra)

that the Review was being prosecuted bonafide and

therefore the time spent in that exercise, albeit futile,

should be condoned. We think that the learned Single

Judge was not correct in holding that this period is to be

"excluded" while computing the period of limitation, on

the analogy of Section 14 of the Limitation Act. There is

a significant difference between „condoning delay‟ and

„excluding time‟ spent in prosecuting a particular remedy.

Learned Single Judge in Colgate-Palmolive (supra) has

referred to the decision of the Privy Council in „H.H. Brij

Indar Singh vs. Lata Kanshi Ram and Ors., AIR 1917

P.C.156'. We have perused that judgment, the ratio of

which is that the time spent in Review is condonable

under Section 5 of the Limitation Act. However, after

noting Section 14, their Lordships pointedly observed

that "This, it will be observed, does not in terms apply, as

it deals with suits and not appeals.....". We are,

therefore, unable to subscribe to the conclusion arrived at

by the learned Single Judge in Colgate-Palmolive

(supra). Be that as it may, even if we are to accept the

flimsy ground on which condonation of delay is prayed

for, attributable to the Clerk of the Advocate of the

Appellant, the Application seeking condonation of delay

does not deserve acceptance since it is barred by time.

This is for the reason that the Review was dismissed on

24th May, 2010. The Appellant should obviously have been

mindful of the fact that in respect of the delay at every

day thereafter a valid explanation should be available for

not filing the present Appeal immediately. Even though

ten days were available to the Appellant for filing the

Appeal before the closure of the High Court for summer

vacation, no explanation is forthcoming as to why the

Appeal was not filed in this period. Assuming that this

may not have been possible, for valid reasons, for the

Appellant to prefer his Appeal before the closure of the

Court for summer vacation. If the period of recess is to

be excluded, filing must be done on the first day of the

reopening, that is 1.07.2010 in the present case. The

Appeal has been filed, however, on 8.07.2010. It was

essential for the Appellant to also seek condonation of

delay giving details of why the Appeal could not have

been filed on reopening day. This is what has been

statutorily ordained by Section 4 of the Limitation Act.

7. There can be no gainsaying that the Alternative Dispute

Resolution System in the shape of arbitration, which has

now become an integral part of legal remedy, would

become sterile, inefficacious and thus meaningless, if the

Arbitrator were to be biased in favour of one or the other

party. This is the finding which has been returned by the

learned Single Judge. Fresh proceedings are already

underway and ongoing in which the Appellant is

participating. It is in this respect that we think that it

would be a failure of justice if the delay of total 396 days

is condoned. The Application is dismissed.

FAO (OS) No.571/2010

In view of the dismissal of condonation of the delay

Application, the Appeal stands dismissed.

(VIKRAMAJIT SEN) JUDGE

(G.P. MITTAL) JUDGE November 22th, 2010 vk