Delhi High Court

North Municipal Corporation Of ... vs M/S Harchan Dass Gupta Const. Pvt. ... on 25 August, 2014

$~58
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         O.M.P. 114/2013

%                        Judgement Reserved on: 11th August, 2014
                        Judgement pronounced on: 25th August, 2014
NORTH MUNICIPAL CORPORATION OF DELHI
                                                      ..... Petitioner
                          Through:     Ms.Shobhaa Gupta, Adv.

                          versus

M/S HARCHAN DASS GUPTA CONST. PVT. LTD.
                                        ..... Respondent
                 Through: Mr.Virender Kumar Sharma,
                          adv.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

I.A.2285/2013 (for delay)

1. The present petition has been filed by the petitioner

challenging the award dated 19.9.2012. Along with the said petition,

the petitioner has also filed an application for condonation of delay in

refiling the petition. It is submitted in the said application that

petition was filed on 9.11.2012 which was returned with objection on

16.11.2012. Since then the petition has been under objection time

and again with different objections including for retyping of a large

number of annexures and all the objections were diligently removed

and the petition was refiled on 15.01.2013. A fresh objection

regarding the format of the petition was raised by the registry on

18.1.2013 which has also been removed. It is submitted that the

petition was delayed by approximately 48 days. It is submitted that

the delay in refiling was neither intentional nor deliberate but due to

reasons mentioned above.

2. The application is contested by the respondent who was issued

notice of this application. It is submitted that the petition was filed

on 9.11.2012. Thereafter it was admittedly refiled on 15.1.2013 and

thus there was a delay of two months. It is an admitted fact that there

is a delay of 60 days in refiling the petition and not 48 days as

contended. It is further submitted that even after 18.1.2013 the

refiling has been delayed by more than two weeks as is apparent from

the date of attestation of the affidavit. It is denied that the delay in

refiling was neither intentional nor deliberate. It is submitted that no

justification has been shown in delay in refiling and it is prayed that

the application as well as the petition be dismissed being barred by

limitation.

3. I have heard the arguments and have considered all the

contentions of the learned counsels for the parties.

4. In this case the award is dated 19.9.2012. The petition was

first filed on 9.11.2012. The period of limitation prescribed for filing

petition under Section 34 of the Arbitration and Conciliation Act,

1996 (hereinafter referred to as 'the Act') is 90 days. The proviso to

the said section provides that the period of filing of petition under

Section 34 can be extended upto a further period of 30 days, if the

court is satisfied that the applicant was prevented by sufficient cause

from making the application within the said period of three months.

The Supreme Court in the case (2001) 8 SCC 470 titled as Union of

India vs. Popular Construction Co. has clearly held as under :

12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar

the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.

5. It therefore is a settled principle of law that provisions of

Section 5 of the Limitation Act are not applicable to the petition filed

under Section 34 of the Act, while calculating the period of limitation

for filing of the petition. There is no dispute to the fact that in the

present case, the petition was filed within 90 days of period of

limitation prescribed under Section 34 (3) of the Act. The award in

this case was passed on 19.9.2012 and the petition was filed on

9.11.2012. The petition so filed suffered with defects and registry

returned it for removal of defects on 16.11.2012. What happened

thereafter, adds to the delay. The sequence of events shows that the

petition, which was filed on 9.11.2012, was found "not being filed as

per the new format" and it was returned on 16.11.2012 with direction

to file the same as per new format. The petition was shown as refiled

on 30.01.2013 on removal of objections. Again registry raised

objections on refiling on 30.01.2012 which are enumerated as under:

1. It should be stated how OMP is maintainable as per pecuniary jurisdiction.

2. Caveat report be obtained and at the time of each subsequent refiling and proof of service be filed.

3. 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. No modification is allowed. It should be re-typed and attested.

4. Fair typed copy of dim and hand written annexures be filed.

5. Annexures be made true copy and signed. Annexure number should be marked properly in the index as well as on top of the annexure filed with the petition.

6. Total awarded amount be mentioned in petition and court fee be paid on the same.

7. Provision of law be given on JA.

8. Please check the subject matter in petition. Total awarded amount be mentioned

6. All these objections were removed by the petitioner only on

8.2.2013 and on 11.2.2013 it was considered that all the objections

have been removed. It is apparent that after filing a defective petition

on 9.11.2012 which was not as per the format prescribed, the petition

as per prescribed format was filed only on 30.1.2013. It was also full

of defects, mentioned above and before the registry the objections

remained pending. As per own contention of the petitioner, after the

petition was returned on 16.11.2012, the objections could be removed

only on 15.1.2013.

7. In the case 166 (2010) DLT 537 titled as Brij Mohan vs.

Sunita, this court while dealing with contention of delay in refiling

and discussing the expression "sufficient cause" has clearly held that

the court cannot mechanically condone the delay in refiling the

appeal if no reasonable ground is shown at all. In the case 162

(2009) DLT 542 (DB) titled as Asha Sharma & Ors. vs. Sanimiya

Vanijiya P.Ltd. & Ors., the division bench of this court has discussed

the situation where the appeal was refiled after expiry of 30 days and

has observed as under

"9. It is quite clear from a bare perusal of the above Rule that the Deputy Registrar cannot grant time of more than 30 days in aggregate for re-filing of a Memorandum of Appeal, for the reasons specified in Order 41 Rule 3 of the Code of Civil Procedure. If the Memorandum of Appeal, after removing the defects notified by the registry, is filed after more than 30 days, it shall be considered as a fresh appeal, filed on the date on which it is presented after removal of the defects."

8. In Asha Sharma's case (supra), this court has further observed

as under:

"23. It is trite law that Rules of Procedure being hand- mades of justice, a party should not be refused relief merely because of some mistakes, negligence or inadvertence. Rules of Procedure are designed to facilitate justice and further its ends. But, even if we take a rather liberal approach in this matter, we are unable to find any good ground for condonation of delay in filing this appeal. None of the reasons given in the application is convincing or logical. The impression we gather is that the appellants deliberately delayed filing of the appeal so as to prolong the litigation. It cannot be said that even if the appellants were totally negligent and careless and have not come forward with any worthwhile explanation for the delay, the court ought to condone the delay in re-filing. The Rules framed by the High Court cannot be allowed to be taken so casually and there will be no sanctity behind the rules if every delay in re-filing, is to be condoned irrespective of howsoever unreasonably long and unexplained it be, and howsoever mandatory be the nature of the documents, non-filing of which renders the Appeal defective.

We cannot condone the delay merely because an application for condonation of delay has been filed. No court would not like to reject an appeal as time-barred unless there are strong reasons, which compel the court to take such a view. Some indulgence and a liberal view in such matters is well-accepted but to say that the court has no option in the matter and must accept the Memorandum of Appeal irrespective of the nature of the objections and delay in re-filing, even where there is no reasonable explanation to justify the delay, would only be

travesty of justice and will be as good as removing the relevant Rule in High Court Rules and Orders, from the Statute Book.

24. These days we find a growing tendency to file an incomplete Memorandum of Appeal and then take unreasonably long time to remove the defects, even where such defects can be cured within a very short time. Such a practice cannot be said to be conducive to be fair and reasonable and therefore needs to be curbed. An unduly liberal and benevolent approach will only give encouragement to such unfair practices and therefore is not called for. When an Appeal comes up for hearing long after expiry of the prescribed period of limitation, it springs surprise on opposite party, which assumes finality in his favour on account of non-filing of Appeal within a reasonable period."

9. The division bench of this court in case 2010 (120) DRJ 615

(DB) titled as Executive Engineer vs. Shree Ram Construction Co.

(which judgment has been upheld by the Supreme Court with the

dismissal of SLP) in paras 29 and 41 has observed as under:

29. Reliance on the decision in Improvement Trust, Ludhiana -vs- Ujagar Singh,MANU/SC/0417/2010 : (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, MANU/SC/0613/2001 : (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 inextensible 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.,MANU/SC/8646/2006 : (2006) 13 SCC 622 in these words:-

8. The decision in Union of India -vs- Popular Construction Company,MANU/SC/0613/2001 : (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) FAO (OS) 665 : 2009 6 SCC 239 and also in Fairgrowth Investments Ltd. -vs- Custodian, MANU/SC/0898/2004 : (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.

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.

10. Relying on the findings in Shree Ram Construction Co.'case

(supra), the division bench of this court in case 2012 (3) ARBLR349

(Delhi) titled as Delhi Transco Ltd. & Anr. Vs. Hythro Engineers

Pvt.Ltd. has observed as under:

9. ..... ..... .... If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in re-filing, and the Court would conduct a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise, by the Courts in matter of condonation of delay in other cases would, in such cases, not be adopted, as the adoption of such an approach by the Court would defeat the statutory scheme contained in the Act which prescribes an outer

limit of time within which the objections could be preferred. It cannot be that what a petitioner is not entitled to do in the first instance, i.e. to file objection to an award beyond the period of three months & thirty days under any circumstance, he can be permitted to do merely because he may have filed the objections initially within the period of three months, or within a period of three months plus thirty days, and where the re-filing takes place much after the expiry of the period of three months & thirty days and, that too, without any real justifiable cause or reason.

11. From the above discussed case laws, it is apparent that it is

incumbent upon the petitioner to explain the reasons of delay in

refiling. A casual approach is certainly not tolerable especially when

the petitioner is having the advantage of a legal cell to advise him on

the legal positions. There is no dispute to the fact that the petitioner

is maintaining a legal cell wherein several intelligent minds in this

field, renders and provides the expert opinions to petitioner. It is not

expected from such a petitioner to commit absurd mistakes like not

filing the petition in its proper format at the first instance and then

filing a petition full of defects (mentioned above). It is not expected

that petition be filed without an affidavit and will have no mention of

the pecuniary jurisdiction. It is also not expected that petition would

be filed with deficient court fee and without mentioning the relevant

provisions of the law on the interim application. All this shows the

casual approach of the petitioner in preparation of a petition under

Section 34 of the Act especially when they are supposed to know the

outer limit of prescribed period of limitation under Section 34 (3) of

the Act. It is certainly not expected from the petitioner to file the

illegible documents without being properly numbered and indexed.

The affidavit was also not found in proper format. The petitioner

also took unduly long time in removing these objections. The only

explanation forthcoming is that the documents were lengthy and

huge. This certainly cannot be said to be a reasonable explanation for

delay in refilling. It is clear that when the petition was filed for the

first time on 9.11.2012, it was not in proper format and after being

returned on 16.11.2012, it was refiled only on 30.01.2013 and refiling

was beyond the period of ninety plus thirty days prescribed under

Section 34 (3) of the Act for filing the objections. Subsequently,

further objections were removed and record of registry shows the

filing date as 8.2.2013.

12. The question that arises is if a party does not file the petition in

proper format and objections were raised regarding improper format

of petition, and the objections were not removed within the given

time by registry, but is done beyond the period of 30 days of raising

the objections in such situation should this refiling be considered first

filing? The answer lies in Part G of Delhi High Court Rules which

relates to the proceedings in the High Court of Delhi and Chapter I,

Part A (a) deals with Judicial business relating to presentation and

reception of Appeals, Petitions etc. and Rule 5 reads as under:

5. Amendment--The Deputy Registrar Assistant Registrar, Incharge 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, Asstt. 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, Asstt. Registrar in charge of the Filing Counter, under sub- rule (1) it shall be considered as fresh institution. Note--The provisions contained in Rule 5(1), 5(2) and 5(3) shall mutatis mutandis apply to all matters, whether civil or criminal.]....

13. It thus empowers the Deputy Registrar, Assistant Registrar,

Incharge of the Filing Counter to return the appeal, petition etc.with

objections requiring refiling within a time not exceeding 7 days at a

time and 30 days in the aggregate. Sub rule (3) specifically and

categorically stipulates that if the refiling is done beyond the time

allowed under Sub rule 1, it "Shall be considered as fresh institution".

The expression used is 'Shall'.

14. This court in Delhi Transco Ltd.'s case (supra) has clearly

held that such filing shall be considered first filing. Court has

observed as under:

11. .... ..... .... Moreover, there is no answer with the

appellant to the reliance placed by the learned Single Judge on Rule 5, Chapter "I", Part A of Vol.5 of High Court Rules and Orders, according to which, the objections should have been re-filed within a time not exceeding 7 days at a time, and 30 days in aggregate to be fixed by the Deputy Registrar/Assistant Registrar, Incharge of Filing Counter. Rule 5 (3) read with the note also makes it abundantly clear that in case the petition is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, Incharge of Filing Counter under Sub-Rule 1, it shall be considered as a fresh institution. .... .....

15. In the present case also in exercise of its power under the said

rules, the Registry had considered the refiling as a fresh filing on

30.01.2013. As discussed above, although the petition was initially

filed on 9.11.2012, it was not as per format and was returned under

objections, for refiling within seven days after removing of the

objections. The petitioner filed it only on 30.01.2013 i.e. beyond the

period of 30 days and the registry had considered it as a fresh filing.

A petition which is not in a proper format, actually is no petition. It is

also apparent that not filing petition in a proper format is actually no

filing of petition. For all practical purposes, therefore, the petition

was filed only on 30.01.2013. The award is dated 19.9.2012. The

petition was filed much beyond the period of limitation of 90 days