Deconar Services Pvt Ltd vs Navodaya Vidayalaya Samiti (Nvs) ...
2012 Latest Caselaw 5474 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision: September 12, 2012

+                             RFA(OS) 82/2012

      DECONAR SERVICES PVT LTD                   ..... Appellant
              Represented by: Mr.Jatin Rajput, Advocate.

                     versus

      NAVODAYA VIDAYALAYA
      SAMITI (NVS) & ANR                         ..... Respondents
                Represented by: Mr.S.Rajappa, Advocate for R-1.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

CM No.16016/2012 Allowed, subject to just exceptions.

CMs No.16017/2012 & 16018/2012 For the reasons stated in the applications 2 days' delay in filing as well as 22 days' delay in re-filing the appeal is condoned.

Applications stand disposed of.

RFA(OS) No.82/2012

1. The appellant was awarded a construction work by NIDC which related to a building belonging to Navodaya Vidyalaya Samiti.

2. The contract in question was signed between the appellant and the authorized signatory of NIDC. Nobody from Navodaya Vidyalaya Samiti was a signatory to the said agreement. It was not recorded that NIDC was acting as an agent of Navodaya Vidyalaya Samiti. The contract is on

principal to principal basis.

3. There being disputes and differences, appellant invoked the arbitration clause and on the basis of the appellant and NIDC acting as principal-to-principal, the appellant obtained an award against NIDC.

4. Proceeding to execute the award which had been made a Rule of the Court i.e. a decree, appellant sought to recover the money from Navodaya Vidyalaya Samiti and needless to state was unsuccessful inasmuch as decree was against NIDC. Appellant's contention that NIDC was the agent of Navodaya Vidyalaya Samiti was rejected.

5. Losing the battle right up to the Supreme Court, the appellant proceeded to file a suit for recovery of the same amount in respect whereof it already has a decree under an award against NIDC and in the suit it impleaded Navodaya Vidyalaya Samiti as defendant No.1 and NIDC as defendant No.2.

6. In the suit it was pleaded that NIDC is the agent of Navodaya Vidyalaya Samiti, a plea which is at variance with the stand taken during arbitration proceedings by the appellant and NIDC i.e. of the two acting on principal-to-principal basis.

7. Realizing that the suit filed was much beyond the period of limitation prescribed i.e. 3 years when cause of action accrued to sue, the appellant filed an application under Section 5 of the Limitation Act praying that 2969 days' delay in filing the suit be condoned.

8. It would be apparent that the question of condoning the delay in filing the suit under Section 5 was a prayer wrongly made to the Court, in ignorance of the law, for the reason Section 5 has no application to a suit.

9. What the appellant was actually trying to do was to invoke Section 14 of the Limitation Act. But, the appellant forgot that Section 14

of the Limitation Act would apply where a litigation is bona-fide prosecuted against a defendant which results in it being held that the forum had no jurisdiction. Section 14 would have no application where the earlier proceeding was with reference to some other party, and before a correct forum.

10. It is apparent that being unable to execute the decree against NIDC the appellant is now desperately attempting to somehow or the other get rid of the earlier proceedings and open a front against respondent No.1.

11. We concur with the view taken by the learned Single Judge that Section 14 of the Limitation Act 1963 is not applicable on the facts of the instant case.

12. The reason is that the earlier proceedings for recovery of the amount had not resulted in it being held that the appellant was litigating at a wrong forum. On the contrary, the appellant succeeded. Award was made in favour of the appellant which became a Rule of the Court. At that stage only NIDC was impleaded as a respondent. Plea was that the appellant and NIDC acted under a contract on principal-to-principal basis. Now, the appellant cannot plead to the contrary.

13. The appeal is accordingly dismissed in limine.

14. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 12, 2012 dk