Food Corporation Of India vs M/S Shree Ganesh Flour Mills
2013 Latest Caselaw 4114 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                           FAO No.131/1985

                                     Decided on : 12th September, 2013

FOOD CORPORATION OF INDIA                                  ...... Appellant

                   Through:     Mr. Deepak Dewan, Advocate.

                      Versus

M/S SHREE GANESH FLOUR MILLS                           ...... Respondents

                   Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM No.11995/2013 (Restoration) CM Nos.11996-11997/2013 (Condonation of Delay)

1. This is an application for restoration of the appeal along with

applications for condonation of delay of 416 days and 15 days

respectively in filing and refiling the restoration application. The learned

counsel has sought for restoration of the present appeal which was

dismissed for non prosecution by my learned predecessor on 26.03.2012.

The ground which has been stated in the application for restoration is that

the matter was appearing in the category of 'Regular Matters'. However,

as and when the matter appeared in the Regular List on 26.03.2012, it

went unnoticed and, therefore, the matter got dismissed. It has been

stated that it was only when the appellant asked the counsel Mr.Deepak

Dewan about the status of the matter that they checked up from the

website of the High Court and that it was learnt by then that the appeal

had been dismissed for non prosecution on 26.03.2012. It has been

further stated that between the Month of February, 2012 till 15.05.2013,

the counsel Mr.Deepak Dewan did not attend the court as his father was

suffering from liver cancer, because of which he had to be hospitalized on

four occasions in different hospitals and this resulted in disturbed state of

mind of the counsel and consequent disruption of his work. It has been

further stated that the absence of the counsel Mr. Deepak Dewan at the

time when the matter was dismissed in default was neither intentional nor

deliberate, therefore, the appeal be restored to its original number and

same be heard on merits. The application is supported by an affidavit of

Mr.Deepak Dewan, Advocate.

2. I have gone through the contents of the application as well as the

record.

3. Before dealing with the appeal, it will be pertinent to give a brief

background of the appeal itself. This is an appeal filed by the appellant

under Section 39 of the Arbitration Act, 1940 against the order of

Sh.K.S.Khurana, Sub Judge, 1st Class, Delhi in Suit No.12/80 and 13/80

by virtue of which the award in question was sought to be made rule of

the court.

4. Briefly stated the facts of the case are that the appellant herein,

Food Corporation of India, had given a tender to M/s Shree Ganesh Flour

Mills/respondent for the purpose of conversion of 163.116 tonnes of

Gram Whole into Gram Dal as per the terms and conditions contained in

the tender documents. On 31.05.1977, the tender was accepted by the

appellant and the respondent herein was, in terms of the contract, required

to furnish a security deposit and 15% of the value of the allotted Gram

Whole within 10 working days.

5. It was the case of the appellant that although the security deposit

was made, but 15% of the value of the Gram Whole was not deposited.

As a result of this, it was treated as a breach of the contract and the

contract was cancelled and a fresh tender was floated for the purpose of

awarding the conversion of Gram Whole into Gram Dal. It has been

stated that because of this the appellant had suffered damages and

accordingly the matter was referred to the arbitration for adjudication of

claim of damages. The learned arbitrator, after adjudicating not only the

claim of the appellant but also the counter claim of the respondent, passed

an award regarding forfeiture of the security amount and granted damages

to the tune of `13,000/- to the appellant. He also awarded forfeiture of

`3,000/- out of the earnest money of `5,000 deposited by the respondent

which was permitted to be adjusted and the balance amount of `8,000/-

was to be recovered from the respondent.

6. It is this award which was sought to be challenged before the court

of Sh.K.S.Khurana, Sub Judge, 1st Class, Delhi by filing objections.

Cross objections were also filed by the respondent. These objections

were dismissed and the court of learned Sub Judge held that the learned

arbitrator has rightly directed the contractor/respondent herein to pay a

sum of `8,000/- to the appellant/Food Corporation of India.

7. Feeling dissatisfied, the present appeal had been preferred way

back in 1985. The appeal originally had been filed belatedly along with

an application seeking condonation of delay under Section 14 of the

Limitation Act, 1963 contending that a wrong remedy was being pursued

in a forum which was not competent enough to give the relief.

8. The matter has been pending in this court for the last more than 28

years and no sincere efforts have been made by the appellant so that the

arguments are addressed and the matter is disposed of. Once the matter

was heard by the learned Judge of this court, however, the matter was

thereafter released as the said Judge was transferred out of this court.

9. Be that as it may, despite the fact that the matter stood admitted, it

was the responsibility of the appellant to ensure that there is proper

representation as and when the matter is taken up for the purpose of

regular hearing especially when the amount involved in the matter is a

very small amount.

10. The appellant does not seem to be realizing the fact that a colossal

time of the court is wasted in handling a matter every time it gets listed in

the court and the fact that it increases the workload of the court and the

dockets with regard to the pending matters. The explanation which has

been given by the appellant with regard to the illness of the father of the

appellant cannot be disputed but it is not as if the legal department of the

company had stopped the functioning. It was the responsibility of its

legal department to have followed up the matter. Nevertheless, keeping

in view the fact that the amount involved in the matter is quite small, I

feel that the delay of 416 days in filing and of 15 days in refiling the

restoration application is not sufficiently explained by giving a general

statement that the father of the counsel Mr.Deepak Dewan was down with

cancer. Even otherwise, if one counsel was unable to appear for the

appellant for some reason for such a long period, some other counsel

could have been engaged to appear in the matter.

11. Keeping in view the totality of the circumstances and the fact that

there is an inordinate delay in approaching the court for restoration of the

appeal and the amount involved is meager, I disallow the applications

seeking condonation of delay in filing and refiling the restoration

application and the same are accordingly dismissed. Consequently, the

restoration application becomes barred by time and the same is also

accordingly dismissed.

V.K. SHALI, J.

SEPTEMBER 12, 2013 dm