Union Of India vs M/S Sunrise Enterprises, Panipat
2012 Latest Caselaw 713 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
20
+                                 O.M.P. 382/2006

       UNION OF INDIA                               ..... Petitioner
                     Through Mr. Jaswinder Singh, Advocate.

                         versus

       M/S SUNRISE ENTERPRISES, PANIPAT           ..... Respondent
                     Through Mr. Shiv Khorana, Advocate.

        CORAM: JUSTICE S. MURALIDHAR

                           ORDER

%                          02.02.2012
IA No.9086/2006

1. This is an application by the Petitioner seeking condonation of delay in re-

filing the petition being OMP No. 382 of 2006 under Section 34 of the

Arbitration & Conciliation Act, 1996 ('Act').

2. The facts relevant to the present application are that the impugned Award was

passed on 21st February 2006. According to the Petitioner, it received a copy of

the Award on 28th February 2006. In terms of Section 34 (3) of the Act, the

petition for setting aside the Award had to be filed within three months from the

date of receipt of the Award. Admittedly, the OMP was filed within time on

22nd May 2006.

3. The petition was scrutinized and the following defects were pointed out by

the Registry:

(i) Court fee of Rs. 20/- be affixed;

(ii) No annexures filed with the petition;

(iii) Vakalatnama not filed; and

(iv) index should be properly paginated.

4. It appears that the petition was collected from the Registry and re-filed by the

Petitioner first on 30th May 2006 without curing the above objections. The

noting of the Registry on the file of 30th May 2006 was that "all above

objections are still pending". Then for the second time the petition was re-filed

on 5th July 2006. The noting on file of 6th July 2006 reads "all above objections

are still not removed". For the third time, the petition was re-filed by the

Petitioner on 27th July 2006. The noting on file of 30th July 2006 added another

objection "the application seeking condonation of delay for re-filing be filed."

5. It requires to be noticed at this stage that as per the original scrutiny report,

the objections were to be removed and the petition re-filed within one week of

the Registry pointing out the defects. It is stated by Mr. Jaswinder Singh,

learned counsel for the Petitioner that this rule is not rigorously applied by the

Registry and usually an application for condonation of delay for re-filing is

required to be filed only where the delay in re-filing is beyond 30 days. Be that

as it may, in the present case, the re-filing for the fourth time took place on 18th

August 2006 together with an application for condonation of delay.

6. A perusal of the said application, i.e., IA No. 9086 of 2006 reveals that it is

some kind of an omnibus application which is captioned as an application for

"exemption from filing the typed copies of dim annexures". In fact, para 3 talks

of dim annexures and para 4 about inadequate left margins. Para 5 of the

application states: "It is also prayed that this Hon'ble Court may condone delay,

if any, in re-filing of the accompanying OMP." Para 6 again talks of dim

annexures and inadequate left margins. Prayers (a) and (b) are to the same

effect. Prayer (c) reads: "Condone delay, if any, in re-filing of the

accompanying OMP, if any."

7. In effect, therefore, there is absolutely no explanation whatsoever in the

application for the delay in re-filing the OMP.

8. Although the Registry has not computed the actual delay in re-filing, it

should be computed from one week after 23rd May 2006, i.e., 30th May 2006 till

18th August 2006. This is over 75 days.

9. The question that now arises is whether the above delay in re-filing should be

condoned. Mr. Jaswinder Singh, learned counsel for the Petitioner urges that the

delay in re-filing is not considerable and ought to be condoned. To make up for

the absence of an explanation in the application for the delay in re-filing,

learned counsel for the Petitioner prays that one more opportunity should be

given to the Petitioner to file an affidavit to explain the delay. He relies on the

decision of the Supreme Court in Indian Statistical Institute v. M/s. Associated

Builder UJ (SC) 1977 805 to urge that the application for condonation of delay

in re-filing should not be rigorously scrutinized. He submits that as long as the

main petition is within time, the subsequent re-filing would relate back to the

date of the original filing. As long as the delay is not extraordinary, it should be

condoned. He also relies on the decision of the Division Bench of this Court in

D.C. Sankhla v. Ashok Kumar Parmar (1995) 1 AD (Delhi) 753.

10. Mr. Shiv Khorana, learned counsel appearing for the Respondent on the

other hand opposes the application by referring to the decision of the Division

Bench of this Court in The Executive Engineer (Irrigation & Flood Control) v.

Shree Ram Construction Co. 2010 (4) Arb LR 314 (Delhi) (DB) which affirms

the decisions of the learned Single Judge of this Court in Gautam Associates v.

Food Corporation of India 2009 (111) DRJ 744 and Union of India v. M/s.

Harbhagwan Harbhajan Lal 2010 (6) RAJ 310 (Del).

11. The above submissions have been considered. There is, as already noticed,

no explanation whatsoever offered in the application for seeking condonation of

delay in re-filing the present petition. The application was filed way back on

18th August 2006 and has been pending for over five years. During this entire

period, the Petitioner did not seek leave of the Court to file an affidavit to

explain the reasons for the delay. In the circumstances, this Court does not find

any reason to grant the Petitioner any indulgence to do so now. In any event,

even when the application was filed on 18th August 2006, in light of the defect

pointed out by the Registry, the Petitioner was aware that it had to offer some

valid reason for the delay. Considering the number of times that the petition was

collected and re-filed, it is not possible to excuse the totally lackadaisical

manner in which no effort has been made by the Petitioner to offer an

explanation let alone a credible one, for the delay in re-filing the petition.

Clearly, the Petitioner was smug about the delay being condoned by the Court.

12. In The Executive Engineer (Irrigation & Flood Control) v. Shree Ram

Construction Co., the Division Bench of this Court was dealing with a batch of

appeals assailing the orders of the learned Single Judges declining to condone

the delay in re-filing of petitions. Two of the appeals, which were considered by

the Division Bench, concerned condonation of delay in re-filing petitions under

Section 34 of the Act. In FAO (OS) No. 132 of 2009 (Union of India v. Ogilvy

& Mather Limited), the facts were that the original OMP under Section 34 was

filed within time. However, there was a delay of 258 days in re-filing the

petition after curing the defects. After considering the decision of the Supreme

Court in Union of India v. Popular Construction Company (2001) 8 SCC 470

it was observed by the Division Bench that "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 inelastic period limitation is rendered futile." On

facts, the Division Bench concurred with the learned Single Judge that no

satisfactory explanation had been furnished for the delay. In FAO (OS) 259 of

2010 (Union of India v. Harbhagwan Harbhajan Lal & Arun Construction

Co.) also, although the OMP under Section 34 of the Act was filed within time

there was a delay of 195 days in re-filing the petition. The decision of the

learned Single Judge declining to condone the delay on the ground that the

deficiencies ought to have been removed "within thirty days as an outer limit",

was affirmed by the Division Bench.

13. It appears that the Court has, in the matter of condonation of delay in re-

filing the petitions under Section 34 of the Act, adopted a stricter scrutiny than

it does while considering an application for condonation of delay filed under

Section 5 of the Limitation Act. What weighs with the Court is the express

legislative intent in Section 34 (3) of the Act, that the total permissible period

within which an application can be permitted to be filed under Section 34 of the

Act, is 90 days plus an additional 30 days. If the delay in re-filing the petition

exceeds the above period, then the scrutiny becomes rigorous. Unless there is a

satisfactory and credible explanation for the delay, the Court would be reluctant

to condone it. Otherwise, the legislative object of not permitting the delay in the

original filing beyond 30 days would get defeated.

14. In the present case, no attempt has been made to explain even a single day's

delay. A delay of 75 days becomes fatal when the Petitioner does not care to

offer any explanation whatsoever. The Court ought not to be taken for granted.

15. This Court is, therefore, not persuaded to condone the delay in re-filing the

present petition. I.A. No. 9086 of 2006 is dismissed.

OMP No. 382 of 2006 & IA Nos. 9085, 9087/2006

16. In view of the dismissal of IA No. 9086 of 2006, this petition and the

pending applications are dismissed.

S. MURALIDHAR, J FEBRUARY 02, 2012 rk