M/S. V2 Retail Ltd. vs M/S. S.S.Enterprises
2014 Latest Caselaw 4810 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         O.M.P. 740/2013
%                                Judgement Reserved on: 11.09.2014
                                 Judgement pronounced on: 25.09.2014

      M/S V2 RETAIL LTD                           ..... Petitioner
                     Through: Mr.M.S. Ahluwalia, Advocate.

                                 versus

      M/S S.S.ENTERPRISES                         ..... Respondent
                     Through: Mr. Sudhir Naagar, Advocate alongwith
                     Mr.Mohit Singh, Advocate.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

IA No. 11785/2013 (for condonation of delay in re-filing the petition)

1. The petition under Section 34 of Arbitration & Conciliation Act, 1996

(hereinafter referred to as 'the Act'), has been filed by the petitioner

challenging the award dated 27.12.2012. There is no dispute to the fact that

the said petition was filed on 23.03.2013. It is submitted in the application

that the petition although was filed within time but there was delay of 80

days in refilling which was neither deliberate nor intentional. It is submitted

that the clerk took back the file on the objection that some relevant

documents were untraceable which were required to be filed along with the

petition and thereafter the petition could be filed only after the delay of 80

days. It is submitted that 80 days in refilling be condoned.

2. The petition is contested by the respondent. It is submitted that the

petition in the present format is not maintainable. It is submitted that

petition was re-filed on 10th July, 2013 and no sufficient grounds have been

shown for condonation of delay in re-filing. It is submitted that petition is

liable to be dismissed.

3. The law regarding condonation of delay in re-filing is well settled.

Even for condonation of delay in re-filing, the petitioner is required to show

the sufficient cause which prevented him from re-filing it within the time

given by the Registry.

4. This court in the case titled as Brij Mohan vs. Sunita, 166 (2010)

DLT 537 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."

5. 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."

6. 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."

7. From the above case law, it is apparent that the reasons for

condonation of delay in refilling has to be more logical and justifiable

and the Courts are not required to adopt the same approach which they

take while condoning the delay under Section 5 of the Limitation Act

while entertaining the application.

8. 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.

9. It is therefore apparent that the Supreme Court in the case of Popular

Construction (supra) has clearly held that the phrase " but not thereafter"

used in Sub-Section (3) of Section 34 of the Arbitration Act clearly bars the

application under Section 5 of the Limitation Act while entertaining the

petition under Section 34 of the Act.

10. It is also a settled law that what is not permitted to do directly

cannot be permitted to do indirectly. Also, the court has to take

stringent views while dealing with condonation of delay in re-filing.

11. In the present case, only reason which has been shown by the

petitioner is the misplacement of certain documents which were required

to be filed along with the petition. Let us examine how far this

contention of the petition is true from the record of the Registry. The

record of the Registry shows that initially the petition was filed on 21st

March, 2013. It was not found to be in the proper format and therefore

was returned to be filed in accordance with the new format. Also, it was

observed that rest of the objections would be raised later on. The

petition was returned on 25th March, 2013 and the petitioner filed the

petition in the new format only on 10 th July, 2013. Several objections

were raised on 11th July, 2013 which are enumerated as under:-

"1. Please file a soft copy of complete petition in compact disc (CD). A certificate to the effect that, the soft copy filed herewith is a replica of the hard copy filed, be given. (22)

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

3. ...(107)

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

5. Please check title of OMP.

6. Arbitrator cannot be a party."

12. It is clear from the objections raised by the Registry on 23 rd

March, 2013 and 11th July, 2013 that the objections did not deal with

non-filing of important documents by the petitioner. First, it was

returned as the petition was not in proper format and thereafter the

objections raised by the Registry on 11th July, 2013 were of procedural

nature like non filing of CD/soft copy, refiling after obtaining caveat

report, filing of vakalatnama in proper form mentioning of the

particulars and checking of title of the OMP and also for misjoinder of

name of the arbitrator etc. None of these objections relates to the non-

filing of relevant documents.

13. It further shows that when the objections were raised on 11th July,

2013, the petitioner could remove it only by 24th July, 2013 and the

refiling was done on 25th July, 2013. The delay in re-filing is therefore

from 25th March, 2013 to 25th July, 2013 i.e. of about 5 months. The

delay is therefore of more than 80 days in refiling.

14. The question that arises is if the petitioner does not file the

petition in proper format and objections are raised and these objections

were not removed within the given time but were removed beyond the

period of 30 days and the Registry gives a new registration date then as

such refiling whether the date on refiling should be the date of filing of

the petition, or the date on which defective petition was filed.

15. 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.]....

16. 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'.

17. This court in Delhi Transco Ltd. & Anr Vs. Hythro Engineers Pvt.

Ltd. vs. Hythro Engineers Pvt. Ltd. 2012(3) ARBLR 349 (Delhi) 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. .... .....

18. From the above discussion, it follows that the date of filing of

the petition actually is 10th July, 2013 on which date, after removing

the objections of, not filing the petition in proper format, the petition

was refiled by the petitioner. The expression used in the relevant

provision is "it shall be considered as fresh institution."

19. From the reasons discussed above, the petitioner has failed to

show any sufficient cause for the delay in re-filing.

The application for condonation of delay is hereby dismissed.

O.M.P. 740/2013 Since the present petition is barred by limitation as discussed above,

the petition is dismissed.

DEEPA SHARMA (JUDGE) SEPTEMBER 25, 2014 sapna