Gurbir Kaur vs B D R Builders & Developers Pvt Ltd.
2015 Latest Caselaw 6279 Del

$~5

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 25.08.2015

+       FAO (OS) 173/2015 & CM Nos.6474/2015, 6475/2015

GURBIR KAUR                                                   .... Appellant

                             versus

B D R BUILDERS & DEVELOPERS PVT LTD.                          ..... Respondent

Advocates who appeared in this case:

For the Appellant     :      Mr Keshav Hegde with Ms Neetu Matella, Advocates.

For the Respondents   :      Mr Sanjay Goswami, Advocate.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the order dated 22.01.2015 passed

by a learned Single Judge of this Court in OMP 253/2014. The said

petition was filed under Section 34 of the Arbitration & Conciliation Act,

1996 challenging the ex-parte Award dated 25.02.2011. The learned

Single Judge dismissed the said petition on the ground that, since it was

filed on 09.02.2014, it was beyond the statutory period of limitation in

terms of the proviso to Section 34 (3) of the said Act and that no

convincing explanation for the delay had been furnished.

2. We are unable to agree with the conclusions arrived at by the

learned Single Judge. We note that the appellant had, in fact, filed

objections under Section 34 of the said Act on 03.02.2012. Unfortunately

for the appellant, he had filed those objections in Ex. Pet. No.304/2011,

which had been filed by the respondent herein. The execution petition

went on for some time. When it was pointed out to the appellant that he

should file an independent petition under Section 34 of the said Act, it is

thereafter that OMP No.253/2014 was filed by the appellant on

09.02.2014. The learned Single Judge has taken the date of this filing i.e.

of OMP No.253/2014 as a date on which the appellant had filed

objections under Section 34 of the said Act. However, we feel that the

actual date of filing of the objections was 03.02.2012, when the appellant,

for the first time, filed objections under Section 34, though in the

execution petition filed by the respondent. Therefore, in our view, the

period of limitation ought to have seen with reference to the first

objections under Section 34 of the said Act which was filed on

03.02.2012 and not with reference to the second objections under Section

34 in the independent OMP 253/2014, which was filed much later.

3. The learned Single Judge has not examined this aspect of the

matter. As a result, we find that dismissal of the appellant's petition under

Section 34 was not warranted on the ground of limitation.

4. The consequence of this would be that we set aside the impugned

order dated 22.01.2015 and remit the matter to the learned Single Judge

to consider the objections of the appellant under Section 34 as if the same

had been filed on 03.02.2012. If that filing was within the limitation

prescribed under Section 34 of the said Act, then the appellant's petition

would be within time. The matter is remitted to the learned Single Judge

for examining as to whether the petition under Section 34, as filed on

03.02.2012, is within time or not. We may also point out that the

objections filed on 03.02.2012 and the OMP 253/2014 are virtually

identical. The original objections, which were filed on 03.02.2012,

should be independently numbered as an OMP and that OMP should be

considered by the learned Single Judge from the stand point of limitation

and, if it passes the threshold test of limitation, then on merits. OMP

No.253/2014 shall be treated as superfluous and of no consequence. In

the first instance, the matter be listed before the learned Single Judge on

28.08.2015.

5. The appeal stands disposed of.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J AUGUST 24, 2015 st