Crest Education (P) Ltd. vs Career Launcher (I) Ltd.
2014 Latest Caselaw 5403 Del

$~9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgement delivered on: 31.10.2014

+                          O.M.P. 201/2013

CREST EDUCATION (P) LTD.                                     ..... Petitioner

                           Versus

CAREER LAUNCHER (I) LTD.                                     .... Respondent

Advocates who appeared in this case:

For the petitioner: Mr Jayant Bhushan, Sr. Adv. with Mr Rajat Malhotra & Mr Ojasvi Khaneja, Advs.

For the respondent: Mr D.K. Sharma & Mr O.S. Punia, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

IA No. 3467/2013 (condonation of delay in re-filing)

1. This is an application seeking condonation of delay of 66 days in re- filing the petition. Notice in this application was issued on 01.03.2013. Since then pleadings have been completed in the captioned application. The relief sought in the application is opposed by the respondent. Briefly, for the purposes of disposal of this application, following dates and events need to be noted.

2. The award, which is impugned by the petitioner, and which is subject matter of the main petition, is dated 18.08.2012. The said award was served on the petitioner on 24.08.2012. The petition under Section 34 of the Arbitration & Conciliation Act, 1996 (in short the 1996 Act), was filed on

22.11.2012. Therefore, the initial filing was within the period of 90 days as provided in the 1996 Act.

3. The record shows that on 23.11.2012 seven (7) objections were raised by the registry, whereupon the main petition was received back by the counsel for the petitioner on 24.11.2012. The petition was re-filed after removal of objections on 29.11.2012. On 29.11.2012, one of the objections raised by the registry was that amount awarded ought to be mentioned, and the, requisite court fee be paid accordingly, at the rate of 1%. Notably, this objection was set out as item no. 8 in the objection note of the registry. Furthermore, the aforementioned objection was similar to objection no.4 raised by the registry on 23.11.2012.

4. Evidently on 04.12.2012, the petitioner once again received the main petition with objections. According to the petitioner, after removing the objections, the petition was re-filed on 10.12.2012. It appears that, the registry raised yet another objection which was referred to as objection no. 9, whereby it directed filing of the original award. The reason for raising this objection was that the signature of the arbitrator were appended in black ink, and that, the registry was finding it difficult to come to a conclusion as to whether or not the award filed was the original award. The counsel for the petitioner, apparently, retrieved the petition with objections on 04.01.2013. After rendering relevant explanation to the concerned officer in the registry, the petition was re-filed on 15.01.2013.

5. It appears, that thereafter, the registry raised nine (9) objections on 16.01.2013, some of which formed subject matter of objections raised on 23.11.2012. Consequently, the petition was taken back on 07.02.2013. Simultaneously, it appears that the petitioner wrote to his clients that it

should arrange necessary funds for payment of court fee in the matter. The court fee, evidently, was purchased on 26.02.2013, and thus, the petition along with the court fee was re-filed on 27.02.2013. The delay in re-filing is, therefore, obtaining between the period dated 23.11.2012 and 26.02.2013. It is this period, which the petitioner seeks condonation of delay.

6. Learned counsel for the respondent has opposed the application on the following grounds:

(i) That under the Rules Relating to Proceedings in High Court of Delhi (Vol. V of Delhi High Court Rules and Orders), Chapter -I, Judicial Business, Part-A(a) Rule 5(1), a petition returned on account of objections raised by the registry has to be re-filed within the time not exceeding seven (7) days at a time and thirty (30) days in the aggregate. In case the petition is filed beyond the time prescribed above [i.e., in sub-rule (1) of Rule 5], then the petition would have to be considered as a "fresh institution". The petition in the present case was re-filed on 27.02.2013, after a delay of nearly 97 days. In other words, the re-filing was beyond the period prescribed under the aforementioned rules.

(ii) The period prescribed under Section 34(3) of the Act for filing objections is three (3) months, and in case of delay, within a maximum period of thirty (30) days thereafter - this period being sacrosanct, any delay in re-filing of the petition would have to be construed strictly. If construed strictly, the captioned application would have to be dismissed, especially, in the circumstances that the objection pertaining to court fee remained outstanding till 27.02.2013, though admittedly raised in the very first instance on 23.11.2012.

(iii) The condonation of delay application was itself defective, as it did not

bear the signatures of the authorized representative of the petitioner.

7. Having heard the learned counsels for the parties, what clearly emerges from the record is as follows:

(i) There is no dispute that the copy of the award dated 18.08.2012, was received by the petitioner, on 24.08.2012. Therefore, the initial filing by the petitioner was within the period of three (3) months, as prescribed under Section 34(3) of the Act; the petition having been filed on 22.11.2012.

(ii) The record shows that on 23.11.2012, the registry had raised seven (7) objections, which pertained to the following:

1. Condonation of delay for refilling be filed (9)

2. Non-filing statement should be given (15)

3. Please insert a part of pecuniary and territorial jurisdiction in the petition/ plaint (17)

4. Awarded amount should be mentioned in the plaint and the court fee shall be paid accordingly. (18)

5. Caveat report be obtained and at the time of each subsequent refilling and proof of service be filed (101)

6. Petition/ applications/ MOP/ Index/ Power of attorney be signed and dated. (110)

7. Vakalatnama be filed/ dated and signed by the counsel and all petitioners. Each Advocate must mention their name/ address/enrolment number and phone number in Vakalatnama. Title on the Vakalatnama be checked. Welfare stamp be affixed. Signature of the client be identified. (137)

(iii) The petitioner, evidently, after removing objections re-filed the same on 29.11.2012; whereupon two more objections were added in the form of objection nos. 8, which as indicated above, required the petitioner to mention the awarded amount and pay the court fee accordingly at the rate of 1% and objection no.9 which required filing of the original award. The objection no.8 was identical to objection no.4, raised on 23.11.2012.

Notably, the petitioner had also in paragraph 32 of the petition stated not only the value of the award but also averred that an appropriate court fee had been affixed. To be noted, at that stage, the value of the award was indicated as Rs. 1,35,59,123/-. There was, in fact, no court fee filed at that stage. The record shows that the court fee was secured only on 26.02.2013, and deposited alongwith the re-filed petition on 27.02.2013.

(iv) Be that as it may, apart from the objections with regard to court fee, the petitioner was also required to remove objection no.5 which required it to obtain a caveat report at the stage of each re-filing, with proof of service. The petition was, thereafter, re-filed on 10.12.2012.

(v) On 11.12.2012, evidently, once again objection was taken that original award had not been filed. The petitioner took back the file on 04.01.2013, and re-filed, the same on 15.01.2013.

(vi) On 16.01.2013, nine (9) objections were raised by the registry out of which three (3) objections pertained to those which had been raised in the first instance on 23.11.2012. The said nine (9) objections were as follows:

1. Please insert a part of pecuniary and territorial jurisdiction in the petition/ plaint (17)

2. Awarded amount should be mentioned in the plaint and the court fee shall be paid accordingly. (18)

3. Caveat report be obtained and at the time of each subsequent refilling and proof of service be filed. (101)

4. Original award/ proof of service be placed in document.

5. Left side margin of 4 c.m. be maintained. (111)

6. Certified copy of annexures be filed. (117)

7. Application for condonation of delay in filing/ refilling be filed along with affidavit. (130)

8. Blanks be filled. (131)

9. Petition/ Annexures should be typed in double space with font size 14. Petition be filed in first typed copy. (148)

8. It may be noted that while assertions with regard to territorial jurisdiction and caveat could not have been raised for the reason that not only were they part of the objections raised, in the first instance, i.e., on 23.11.2012 and had been liquidated to the satisfaction of the registry but also on account of the fact that there was a specific assertion with regard to the same in paragraph 31 of the petition. Similarly, as regards the requirement to obtain a caveat report, the fact of the matter is that, no caveat had been filed by the respondent.

8.1 However, in so far as the aspect of court fee was concerned, the same, admittedly, remained outstanding and was liquidated, as noted above, only on 27.02.2013. As regards objection no.4, which is that original award had not been filed and proof of service had not been placed on record, the same had also been raised on 11.12.2012, which was removed on 15.01.2013. Objection numbers 5, 6, 8 & 9, were fresh objections which were raised for the first time on 16.01.2013. These were objections which the registry could have raised in the very first instance, i.e., on 23.11.2012. In so far as the application for condonation of delay was concerned, that was a logical step that the petitioner was perhaps required to take in view of the objections raised by the registry on at least three (3) occasions prior to 16.01.2013.

9. In my view, apart from the fact that the delay was caused on account of the registry failing to raise objections at one go, none of the objections were of the nature which would place the petition in category of petitions which are inherently flawed and/or defective. The nature of objections, in a sense lacked materiality and hence could not be construed as one, which did not exist in the eye of law.

10. The only objection which perhaps had material weight was with

regard to failure on the part of the petitioner to affix the requisite court fee in time. This aspect was taken up by me in court today. As to what transpired in court is extracted below:

"IA No. 3467/2013 (condonation of delay in re-filing)

1. The matter was listed for directions today on account of the fact that a discrepancy was noticed, with regard to the issue of court fee when, the order was being dictated. This has been addressed in some detail in order containing the reasons.

2. Mr Malhotra, learned counsel for the petitioner, says that the original petition was filed which also contained paragraph 32, in which an exemption was sought qua payment of court fee. He says, a fresh petition was filed with an amended paragraph 32, wherein an averment was made that appropriate court fee has been affixed on the petition. This petition though, according to him, was filed on 27.02.2013.

3. The procedure adopted by Mr Malhotra, to say the least, is unique and unknown to the court. Without a direction of the court, Mr Malhotra could not have changed, to my mind, any paragraph in the petition. All that Mr Malhotra was required to do was to remove the objections, which the registry had raised.

4. I may also notice that in the objection sheet dated 29.11.2012, there is a reference to the fact that exemption has been sought, with respect to payment of court fee, though the reference made is, to paragraph 42 of the petition. Mr Malhotra says that this is an error.

5. Accordingly, Mr Malhotra will file a personal affidavit, in the course of the day setting out these facts. Cost of Rs. 20,000/- is imposed in view of the aforesaid circumstances and on account of prejudice caused to the respondent by the consequent delay in re-filing. The said cost will be paid to the respondent within two weeks from today. A detailed order is passed today, which would accompany this order."

10.1 I would perhaps have taken a dim view in the matter had court fee

not been paid at all. The events, as indicated above, would show that the petition was re-filed on 27.02.2013 with appropriate court fee, as applicable at that point in time. Furthermore, in the judgement of the Division Bench of this court dated 09.10.2013 in WP(C) 4770/2012 titled Delhi High Court Bar Association & Anr. vs Govt. of NCT of Delhi & Anr., the issue of court fee in terms of monetary value, has lost much of its sting for the moment. But, that is not to say, the petitioner could have replaced parts of the original petition without leave of the court. I, therefore, propose to remedy appropriately, the prejudice caused to the respondent, as indicated hereafter.

11. Going further, the argument of the learned counsel for the respondent that objections had to be removed within the period of seven (7) days and the aggregate time could not exceed thirty (30) days under the extant rules, is an argument, which is, untenable in the facts of the present case as the registry itself, in a sense, added to the delay by not raising objections, in one go.

12. The petitioner's interest cannot be compromised by an act of court. The petitioner has at each stage sought to remove objections, within a reasonable period of time except one relating to court fee. The timelines given in the aforementioned rule have to be infused with certain amount of practicality. This is so, as counsels in certain instances, would take some amount of time in removing certain kinds of objections. Say for example, if there is an objection with regard to dim documents or, objection with regard to annexures not being typed in double space with requisite font size of 14; these are objections which may require typed copies of documents to be filed. Often the record in a Section 34 petition is voluminous running into hundreds of pages, if not more. Given the time constraint of counsels on

record, and often unavailability of funds, there is every possibility of delay being caused. Having said so, parties and their counsels will have to bear in mind that a petition under Section 34 of the Act cannot be delayed beyond a reasonable time. The reasonableness will have to be judged, however, in the context of the conduct of the parties and the explanation given in that behalf.

13. The argument that the condonation of delay application qua re-filing is defective, is also an untenable argument for the following reasons. The application, admittedly, bears the signature of the lawyer for the petitioner and is supported by his affidavit. Facts averred therein are true to his knowledge. The petitioner could not have better knowledge of the facts stated therein. In any event, this was a curable defect. The registry never raised this objection. Principles analogous to Order VI Rule 14 of the Code of Civil Procedure, 1908 (in short CPC), would apply. The fact that the petitioner is contesting this application shows that it ratifies the conduct of its counsel. Furthermore, this is also not an objection raised by the respondent in the reply.

14. Having regard to the overall circumstances of the case as detailed out above, I am inclined to condone the delay with costs of Rs. 20,000. This cost is imposed in view of what is stated above qua the aspect of court fee. It is ordered accordingly. The application stands disposed of. OMP No. 201/2013

15. List on 09.03.2015.

RAJIV SHAKDHER, J OCTOBER 31, 2014 kk