Delhi High Court
M/S National Highways Authority ... vs Hindustan Construction Co Ltd on 28 July, 2015
Author: Badar Durrez Ahmed
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.07.2015
+ FAO (OS) 379/2015 & CM No.12479/2015 (stay)
M/S NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Appellant
versus
HINDUSTAN CONSTRUCTION CO LTD ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Trans Juris, Mr Rajiv Kapoor and
Mr Anil Kumar, Advocates.
For the Respondent : Mr Dayan Krishnan, Senior Advocate with
Ms Malavika Lal, 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 14.05.2015 passed
by the learned Single Judge of this Court in IA No.2283/2014 in OMP
No.152/2014. The said IA No.2283/2014 was an application seeking
condonation of delay in re-filing the petition under Section 34 of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the said
Act") challenging the award dated 12.08.2013. The relevant paragraphs
of the said application are reproduced hereinbelow:-
"1. That this petition was filed on 11-11-2013 then was
re-filed on 22-11-2013. However, it was again put under
objection by the registry and was then re-filed on
30-11-2013, where-after the registry had again put the
same under objections due to various reasons including
defective CD, which was taking long time to be cured.
2. That the said petition was re-filed on 17-12-2013,
which was again put under objection on 18-12-2013.
However, when the counsel went to collect the file under
objection, it was found to be misplaced in the registrar
(sic) somewhere.
3. That after thorough search by the staff therein, the said
file was traced out by them and was returned to the
counsel on 18-1-2014 and is, being re-filed within time
now.
Hence the delay in re-filing from 18-12-2013 to
18-1-2014 and finally on 25-1-2014 amounting to 37 days
may kindly be condoned as the same was beyond the
control of the counsel and inadvertent due to the reason
mentioned above.
Prayed accordingly." (underlining added)
2. As pointed out by the learned Single Judge, the only explanation sought
to be given for the delay in re-filing the petition under Section 34 was that the
Registry had misplaced the file between 18.12.2013 and 18.01.2014. The
learned Single Judge had called for a report from the Registry. The report of
the Registrar (O), supported by the copies of the relevant pages of the
concerned register, was examined by the learned Single Judge and he came to
the definite conclusion that the file remained at the Return Counter between
19.12.2013 and 09.01.2014, when it was collected by the counsel for the
petitioner and remained with him till 25.01.2014, on which date the same was
re-filed. The learned Single Judge came to the conclusion that the record
falsified the explanation offered by the appellant for the delay in re-filing the
petition under Section 34 of the said Act.
3. Since the learned counsel for the appellant was insistent that the file had
not been taken back on 09.01.2014, as indicated in the report of the
Registrar (O), in order to ascertain the true facts, we called for the actual
register where returns of the petitions/applications are recorded. On going
through the „Return Register‟, we find that the conclusions arrived at by the
learned Single Judge are absolutely correct. The learned counsel for the
appellant also accepts the position after detailed examination of the Return
Register in Court before us.
4. That being the position, there is no infirmity in the order passed by the
learned Single Judge. The explanation offered by the appellant has been found
to be false and untrue. In these circumstances, the question of condoning the
delay does not at all arise. This Court in the case of Delhi Development
Authority v/s M/s Durga Construction Company : 2013 (139) DRJ 133(DB)
while holding that the Court had jurisdiction to condone delay in re-filing the
petition under Section 34 of the said Act also held that the jurisdiction was not
to be exercised liberally and that the applicant would have to satisfy the Court
that it had pursued the matter diligently and that the delay was beyond his
control and was unavoidable. The Division Bench, inter alia, held as under:-
"25. Thus, in our view a Court would have the jurisdiction
to condone delay in re-filing even if the period extends
beyond the time specified in section 34(3) of the Act.
However, this jurisdiction is not to be exercised liberally, in
view of the object of the Arbitration and Conciliation Act to
ensure that arbitration proceedings are concluded
expeditiously. The delay in re-filing cannot be permitted to
frustrate this object of the Act. The applicant would have to
satisfy the Court that it had pursued the matter diligently and
the delays were beyond his control and were unavoidable. In
the present case, there has been an inordinate delay of 166
days and in our view the appellant has not been able to offer
any satisfactory explanation with regard to the same. A
liberal approach in condoning the delay in re-filing an
application under section 34 of the Act is not called for as it
would defeat the purpose of specifying an inelastic period of
time within which an application, for setting aside an award,
under section 34 of the Act must be preferred."
5. The facts of the present case do not indicate that the appellant was
diligently pursuing the matter and that the delays were beyond the appellant's
control or were unavoidable. What is worse is that an entirely false explanation
had been put forth which was contrary to the record. There is a delay of 50
days beyond the time specified in Section 34(3) of the said Act. The said delay
cannot be condoned in the circumstances narrated above.
6. We find no infirmity in the decision of the learned Single Judge. The
appeal is dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
JULY 28, 2015
'sn'
