Oriental Insurance Co.Ltd. vs M/S Oceanic Solvent Industries ...
2015 Latest Caselaw 748 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision: January 28, 2015
+                        O.M.P. 681/2009
       ORIENTAL INSURANCE CO.LTD.
                                                      ..... Petitioner
                         Through:     Mr.Vishnu Mehra, Advocate

                         versus

       M/S OCEANIC SOLVENT INDUSTRIES LTD.
                                        ..... Respondent
                         Through:     Mr.Virender Sharma, Adv.

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

O.M.P. 681/2009 and IAs 14944/2009, 14945/2009 & 20889/2014

The present petition under Section 34 of the Arbitration &

Conciliation Act, 1996 („Act‟ for short) lay a challenge to arbitral

award dated May 04, 2009 of the learned Sole Arbitrator.

2. The petition was filed on September 02, 2009 with an

application bearing IA No.14943/2009, seeking exemption from

filing certified copy of the award. When the matter was listed on

May 28, 2010, the learned Joint Registrar has on the application

bearing IA No.14943/2009 after recording the consent of the

counsel for the respondent granted four weeks time to the petitioner

to file the original award dated May 04, 2009. It appears that the

award has not been filed within the time given by the petitioner.

3. I note that applications bearing IA Nos.14944/2009 and

14945/2009 were also filed seeking condonation of 22 days delay in

filing the petition and condonation of 45 days in re-filing the

petition.

4. The petition was dismissed for non-prosecution on September

06, 2011. The petitioner had filed an application bearing IA

No.22357/2012 along with IA 22358/2012 seeking restoration and

condonation of delay in filing the restoration application. The

application was allowed by this Court on October 30, 2014.

5. IA No.20889/2014 has been filed by the petitioner praying,

the attested/certified copy of the impugned award dated May 04,

2009 be taken on record. A perusal of the said application would

reveal as under:-

"XXX XXX XXX

3. That the present OMP was filed along with the photocopy of the Award dated 4.5.2009 at pages 29-50 of the OMP No.681/2009. An application being I.A. no.14943 of 2009 was filed for seeking exemption to file the attested certified/ certified copy of the Impugned Award since the same was

not available with the petitioner.

4. That the petitioner has not obtained another Certified Copy of the Award as certified on 1.10.2014, which is being filed along with this application.

5. That it may be submitted here that the authenticity of the impugned award dated 4.5.2009, as filed by the petitioner Oriental Insurance Co. Ltd. in the OMP No.681/2009 is beyond doubt as the Respondent has also filed the same in the Execution Petition No.87 of 2012."

6. This Court while considering the application bearing IA

No.20889/2014 had passed the following order:-

"XXX XXX XXX

9. Issue notice to the non-applicant/respondent.

10. Mr. Sharma accepts notice. He seeks time to file a reply. Let the same be filed within four weeks. Rejoinder thereto, if any, be filed before the next date of hearing.

11. It is important to note that the petitioner had earlier moved an application, which was IA No.14943/2009 for seeking exemption from filing

a certified copy of the award dated 04.05.2009. This application was allowed on 28.05.2010. On that date, the counsel for the respondent had given his no objection to the application being allowed though the operative directions, based on the submission of the counsel for the petition, was that, the original award may be filed in four weeks. The original award has not been filed.

11.1 Therefore, the petitioner will file an affidavit stating therein as to whether or not it received the award and, if it did, why it was not filed within the time frame given on 28.05.2010.

11.2 This has become relevant as there are applications to which reference has been made hereinabove where condonation of delay in initial filing of the award and re-filing, is sought.

11.3 It is the contention of the counsel for the respondent that because original award was not filed, the initial filing of the petition under Section 34 of the Arbitration and Conciliation Act was virtually non-est. For this purpose, he relies upon the observations made in paragraph 45 of the judgment of a Division Bench of this Court in the case of Executive Engineer Vs. Shri Ram

Construction Co., 2010 (4) Arb. LR 314 (Delhi).

11.4 This is an aspect which the court will examine after an affidavit has been filed by the petitioner."

7. The respondent has filed reply to the IA 20889/2014. From

the perusal of the order of this Court as reproduced above, this

Court had directed the petitioner to file an affidavit stating therein as

to whether or not it had received the award and if it did why it was

not filed within the time frame given on May 28, 2010. The

affidavit has been filed. I have seen the affidavit, wherein it is the

case of the petitioner that it has not been able to trace its own case

file till date despite best efforts made by it. Meaningfully read, it

appears that it is the case of the petitioner that the award could not

be filed within the time as the file was not traceable. The petitioner

in the affidavit has also relied upon the Practice Direction

No.26/Rules/DHC dated 30.08.2010, which has been issued by this

Court on objections filed under Section 34 of the Act. Suffice to

state, the said Rule states that as soon as notice is issued in the

petitions filed under Section 34 of the Act, the Registry is obligated

to send a letter of request to the Arbitrator to transmit the record of

the arbitral proceedings as well as the award to this Court.

8. Mr.Vishnu Mehra, learned counsel for the petitioner would

press the applications bearing IA Nos.14944/2009 and 14945/2009

so also IA 20889/2014. IA 14944/2009 is an application seeking

condonation of 22 days delay in filing the petition. The application

reads as under:-

"XXX XXX XXX

2. That the final Award was passed on 04.05.2009 and a copy of the same was received by the Petitioner on 11.05.09. The petitioner took steps to seek legal opinion in the matter from their Advocate and the file was received back from them on 26.06.09 and thereafter the said file along with legal opinion sent to Head Office. The Head Office referred the matter to RO-I at New Delhi who entrusted the matter to the Advocate who drafted the Petition and the same is filed on 02.09.09.

3. The delay is not intentional or deliberate.

4 That the delay of 22 days in filing the Petition has occurred in the aforesaid circumstances. It is in the interest of the justice that the delay in filing the Petition be condoned."

9. As stated above, IA 14944/2009 is an application seeking

condonation of 22 days delay in filing the petition. Learned counsel

for the petitioner states that the award dated May 04, 2009 was

received by the petitioner on May 11, 2009 and the petition was

filed on September 02, 2009. Hence, there is delay of 22 days

beyond the period of 90 days as permissible under the provisions of

the Act. Be that as it may, what is important for the purpose of this

case is the application filed by the petitioner seeking condonation of

delay in re-filing the petition. The said application reads as under:-

"1. That the Petitioner has filed aforesaid petition for setting aside of the impugned Award dated 04.05.2009 passed by the Justice A.P. Chowdhri (Retd.), Sole Arbitrator.

2. That delay has occurred due to some unavoidable circumstances which is deeply regretted.

3. That delay in re-filing of OMP petitioner was occurred in the aforesaid unavoidable circumstances. It is in the interest of justice that the delay 45 days in filing the OMP be condoned. The petitioner will suffer irreparable loss, if the delay in re-filing the OMP is not condoned.

4. The delay is not intentional or deliberate.

5. That the delay of 45 days in re-filing the Petition has occurred in the aforesaid circumstances. It is in the interest of the justice that the delay in filing the Petition be condoned."

10. As noted from the above, the application is bereft of any

material particulars. That apart, I note on the back side of page No.B

of the petition, the petition in total was filed 4 times after removing

the objections.

11. Learned counsel for the petitioner would state that if IA

14945/2009 which is for condonation of delay in re-filing the

petition is allowed then the petition would be within the permissible

limit of 120 days, and the petition would be maintainable.

12. Learned counsel for the respondent, on the other hand, has

vehemently opposed IA 14945/2009 on the ground that the

application is bereft of any material particulars. He would state that

the petitioner initially had not filed the original/certified copy of the

arbitral award. Even assuming that the learned Joint Registrar has

given 4 weeks time to file the award, the same has not been filed

within the time granted. It is only on October 27, 2014, the attested

copy of the award has been filed on the record of this Court. It is on

the said date, it can be said that the objections against the award has

been said to have been filed and the aspect of limitation would come

into play. He relies upon the judgment of Division Bench of this

Court in the case of The Executive Engineer (Irrigation & Flood

Control) vs. Shree Ram Construction Co. reported in 2010 (4)

Arb. LR 314 (Delhi) (DB), more specifically he rely on para No.29

and 45 of the said judgment.

13. Having considered the submissions made by the learned

counsel for the parties, it is noted that the present petition which is

basically objections to the award was filed within the stipulated

period of 90 days as it is the case of the petitioner that it had

received the award dated May 04, 2009 on May 11, 2009. It is also

a conceded position that the certified copy or the original award was

not filed by the petitioner at the time of filing of the petition. Rather

an application bearing IA No.14943/2009 was filed seeking

exemption from filing the same. Despite order of the learned Joint

Registrar to file the certified copy of the award within 4 weeks from

May 28, 2010, the same has not been filed.

14. I do not think that in this petition this Court should go into the

effect of non-filing of the certified copy of the award within a

period of 4 weeks as directed by the learned Joint Registrar or for

that matter the filing of the certified copy along with IA 20889/2014

as by this order I intend to consider the issue whether the delay of

45 days in re-filing the OMP can be condoned. I note that there is

already an application seeking condonation of 22 days in filing the

petition beyond a period of 90 days. The issue of delay in re-filing

the objection petition which is different from delay in filing the

objections has been considered by the Division Bench of this Court

in the Delhi Development Authority vs. M/s Durga Construction

Co. 2014 (1) R.A.J. 490 (Del). In the said case, the Division Bench

of this Court has held that the delay in cases of re-filing is different

from delay in cases of filing inasmuch as in such cases the parties

have already evinced its intention to take recourse to the remedies

available in the Courts and have also taken steps in this regard.

However, in certain cases where the petitions or applications filed

by the parties are so hopelessly inadequate and insufficient or

contain defects which are fundamental to the institution of the

proceedings, then in such cases the filing done by the party would

be considered non-est and of no consequence. In such cases, the

party cannot be given the benefit of initial filing and the date on

which the defects are cured, would have to be considered as the date

of the initial filing. The Division Bench of this Court has considered

the judgment relied upon by the learned counsel for the respondent

in the case of Shree Ram Construction Co.'s case (supra) to hold

that the conclusion of the Division Bench of this Court in Shree

Ram Construction Co.'s case (supra) does not imply that the Court

would have no jurisdiction to condone the delay in re-filing beyond

the period as specified in Section 34(3) of the Act. Suffice to state,

the Division Bench in Delhi Development Authority case (supra)

has held that the Court has the jurisdiction to condone the delay in

re-filing subject to the fact that the approach in exercising such

jurisdiction cannot be liberal and conduct of the applicant will have

to be tested on the anvil of whether the applicant acted with due

diligence and dispatch. The applicant has to show that the delay was

on account of reasons beyond the control of the applicant and could

not have been avoided despite all possible efforts by the applicant.

15. Coming to the facts of this case, I note that the petition was

initially filed on September 02, 2009. The following six objections

were marked and they were not removed:-

 S.No.    Defects                                                Marked on           Removed
1.       Caveat report be obtained/at the time of each 03-SEP-09                    No

subsequent filing and proof of service be filed.

2. Petition/applications/annexures/order/power of 03-SEP-09 No attorney should be stamped. (109)

3. Petition/applications/power of attorney be signed 03-SEP-09 No and dated. (110)

4. Left side margin of 4 c.m. be maintained. (111) 03-SEP-09 No

5. Affidavit be filed in support of the 03-SEP-09 No 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. (112)

6. Vakalatnama be filed and signed/dated. Advocates 03-SEP-09 No must mention their enrolment number in Vakalatnama. Title on the Vakalatnama be checked.(137)

16. It is noted that on September 25, 2009 itself when the re-

filing was done, the Registry notified 7th objection "petition is time

barred" and had observed "Please remove rest of the objections and

re-file within a week". The re-filing was done on October 22, 2009,

after more than one week. The Registry on October 22, 2009

observed "please remove objection Nos.(1), (7) & (8) and re-file

within a week". It appears that defect No.(8) was added by the

Registry calling upon the petitioner to file an application for

condonation of delay in re-filing with exact number of days to be

condoned. It is noted, the objections were not removed. On

November 10, 2009, the petition was again re-filed by the

petitioner, on which also the Registry had notified the petitioner

"Please remove objection Nos. (1), (7) & (8) and re-file within a

week". After removing the objections, the petition was eventually

filed on November 17, 2009.

17. It is noted, the objections raised by the Registry were of such

nature that would not have taken 45 days to be removed. It is also

noted that four opportunities were taken before the petition could

actually be registered and listed before the Court. As stated above,

on September 02, 2009 itself the petition was barred by 22 days. If

45 days of re-filing is added then it would go beyond the period of

120 days. Be that as it may, even the application to condone the

delay of re-filing does not specify the reasons at all except stating

that it had occurred due to some unavoidable circumstances. As per

the ratio laid down by the Division Bench in the case of Delhi

Development Authority (supra) and being a settled law while

considering an application for condonation of delay surely right

reasons need to be highlighted in the application which would

demonstrate the bona fides on the part of the applicant for not re-

filing the petition on time and which would also show that the

reasons were beyond the control of the applicant and could not be

avoided despite all possible efforts by the applicant.

18. In view of the above, I find that it is not the case where the

delay in re-filing needs to be allowed. I accordingly dismiss the

application bearing IA No.14945/2009. Consequently IA

No.14944/2009 and IA No.20889/2014 are dismissed and hold that

OMP 681/2009 is not maintainable.

(V.KAMESWAR RAO) JUDGE JANUARY 28, 2015 km