R.C.Gupta & Brothers vs B.S.E.S. Rajdhani And Anr.
2015 Latest Caselaw 3938 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Judgment reserved on Apri l 9, 2015
                                          Judgment delivered on May 18 , 2015

+                           CS (OS) No. 3306/2012 & IA 3177/2014
R.C.GUPTA & BROTHERS                                             ..... Plaintiff

                            Through:        Mr.Udayan Khandelwal, Adv.

                            Versus

B.S.E.S. RAJDHANI AND ANR.                                     ..... Defendant

                            Through:        Mr.Manish     Srivastava    with
                                            Mr.Divij    Kumar,       Mr.Arav
                                            Kapoor, Advs.
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

IA 3177/2014 in CS (OS) No. 3306/2012 (under Section 5 of the Limitation Act for condonation of delay)

1. By this order, I shall decide IA 3177/2014 filed under Section 5

of the Limitation Act by the defendant No. 1 BSES Rajdhani

(„defendant-applicant‟ in short ) seeking condonation of delay in filing

the objections under Section 30 & 33 read with Section 14 & 17 of the

Arbitration Act, 1940 as well as CS (OS) No. 3306/2012, for making the

award dated September 20, 2010, rule of the Court.

2. It is the case of the defendant/applicant that on the filing of the

award, the notice of the proceedings was served upon it on April 26,

2013. On May 29, 2013, the date of hearing, a request was made before

the Court to grant some time to file reply and this Court vide its order

dated May 29, 2013, had granted four weeks time to the

defendant/applicant to file reply and adjourned the matter to August 26,

2013. Immediately thereafter, the counsel appearing for the

defendant/applicant sought comments and documents from the

defendant/applicant department for preparation of the objections to the

award.

3. It is the case of the defendant/applicant that the record as well as

the disputes relating to the present case are more than 20 years old,

pertaining to the year 1990, and various legal proceedings at various

stages were required to be collated from various departments i.e.

Enforcement Department, Billing Department, Corporate Department,

Legal Department etc. That in the meantime, on August 26, 2013, the

matter came up for hearing, the counsel for the defendant/applicant

sought time for examination of the matter. The information collated

could only be handed over to the counsel on September 9, 2013 for

preparation of objections. The draft reply prepared on September 21,

2013 was sent to the department along with the comments, which

suggested for some material amendments and certain other documents

were sent to the office of the counsel. Necessary changes were effected

on September 27, 2013 and the same was returned to the office of the

counsel on September 29, 2013 and the same was filed with the registry

of this Court on the same day, which resulted in the delay of 95 days in

filing the accompanying objections.

4. The plaintiff/non-applicant filed reply to the application wherein,

it was stated that the award was passed by Mr. H.P.Sharma, learned

Arbitrator on September 20, 2010. On November 23, 2012, this Court

had issued notice to the respondent No. 2 i.e. the learned Sole Arbitrator

to file in the Court the original award as well as the entire arbitral record

forthwith. This Court received the arbitral record on April 9, 2013, on

which date, notice was issued to the defendant/applicant. It is stated by

the plaintiff/non-applicant that the defendant/applicant had conceded that

the notice was served on the defendant/applicant on April 26, 2013. It

also highlighted that the objections were filed on September 29, 2013.

The plaintiff/non-applicant would rely upon Article 119 (b) of the

Limitation Act which prescribes the limitation for filing objections for

setting aside the award as 30 days from the date of service of the notice

of the filing of the award.

5. The plaintiff/non-applicant would also state that there is a delay of

126 days in filing the objections by the defendant/applicant. The stand

of the plaintiff/non-applicant is also that the defendant/applicant has

failed to furnish any reasonable explanation for the delay in filing the

objections.

6. Learned counsel for the defendant/applicant would rely upon the

following judgments in support of his contentions, on delay as well as on

merit of the award.

(i) Orissa Mining Corporation Ltd. Vs. M/s. Prannath Vishwanath

Rawlley, AIR 1977 SC 2014

(ii) M/s. Industrial Development Corporation of Orissa Ltd. Vs. Jajodia

Overseas (P) Ltd., AIR 1980 Orissa 66

(iii) Chaudhary Transport & Co. Vs. The Motor General Finance Ltd.

& Ors., 108 (2003) Delhi Law Times 654

(iv) Union of India Vs. Delhi School Teachers Assn., 158 (2009) Delhi

Law Times 132(DB)

(v) Telefonaktie Bolaget Lm Ericsson (Pubi) Vs. Mercury Electronics

& Anr., 206 (2014) DLT 423

(vi) Collector, Land Acquisition Anantnag and Another Vs. Mst Katiji

and Ors., AIR 1987 SC 1353

7. On the other hand, learned counsel appearing for the plaintiff/non-

applicant would rely upon the judgments in the case of R.B.Ramlingam

Vs. R.B.Bhavaneshwari 2009 (2) Scale 108, Ram Lal and Ors. Vs.

Rewa Coalfields Ltd., AIR 1962 SC 361, Oriental Aroma Chemical

Industries Ltd. Vs. Gujarat Industrial Development Corporation,

(2010) 5 SCC 459 and Post Master General and Ors. Vs. Living Media

India Ltd. & Anr., (2012) 3 SCC 563

8. Having heard the learned counsel for the parties on this

application, I note that the notice was received by the

defendant/applicant on April 26, 2014. The limitation under Article 119

(b) of the Limitation Act being of 30 days, it is clear that the limitation

would start running immediately thereafter. Unfortunately, no

objections were filed till May 29, 2013 when time was sought from this

Court for filing reply. This Court granted four weeks time to file reply

and adjourned the matter. There was no occasion for the

defendant/applicant to seek time from the Court for filing the reply

which necessary has to be objections. Even if time was sought and

granted by this Court, nothing prevented the defendant/applicant to file

objections immediately thereafter. The plea that the present case is more

than 20 years old and pertains to the year 1990, cannot be accepted as the

disputes between the parties were referred to the Arbitrator, who decided

the disputes in terms of the award only in the year 2010. In other words,

it is not the case where, after the year 1990, the files have to be retrieved

for the first time for preparing the objections. The defendant/applicant

had filed the reply before the Arbitrator and had contested the claim. All

that was to be done was to refer to the pleadings and the documents filed

before the learned Arbitrator and to file objections to the award. This

would not have entailed any extra efforts nor was time consuming.

Surely, there was no requirement to collate any information and

documents. I note, the objections were filed only on September 29, 2013,

after more than a month from August 26, 2013. A reading of the

contents of the application would not show sufficient cause but rather a

lethargicness and without appreciating the urgency in the matter. The

contents also reveal lack of bona fide on the part of the

defendant/applicant. The law as summarized by the Supreme Court in

various judgments on the aspect of limitation is well settled.

9. The reliance placed by the learned counsel for the

defendant/applicant on the judgment of this Court in Chaudhary

Transport & Co. (supra) is totally misplaced inasmuch as, the same is

not applicable to the facts of this case as the controversy in the said case

was with regard to the applicability of Section 5 of the Limitation Act

seeking condonation of delay in filing the objections under Section 30 of

the Arbitration Act, 1940 and not on the merit, seeking condonation of

delay.

10. Insofar as the reliance placed by the learned counsel for the

defendant/applicant on the judgment of the Supreme Court in Collector,

Land Acquisition Anantnag and Another (supra) is concerned, in the

said case, the Supreme Court, inter alia, was of the view that when an

application for condonation of delay is filed by the State Government,

treatment, similar to other litigants ought to be accorded and there is no

warrant for according a step-motherly treatment when the 'State' is the

applicant praying for condonation of delay. Insofar as other judgments

are concerned, the same do not relate to the issue of condonation of

delay, hence are not being considered insofar as this application is

concerned.

11. Insofar as the judgment referred to by the counsel for the

plaintiff/non-applicant in his reply in the case of R.B.Ramlingam

(supra) is concerned, the Supreme Court has said that in each and every

case, the Court has to examine whether delay in filing the petition stand

properly explained. It was observed that this is the basic test which needs

to be applied. The true guide is whether the petitioner has acted with

reasonable diligence in the prosecution of his appeal/petition.

12. In Ram Lal and Ors. (supra), the Supreme Court held that it is

necessary to emphasise that even after sufficient cause has been shown, a

party is not entitled to the condonation of delay as a matter of right. The

proof of sufficient cause is a discretionary jurisdiction vested in the

Court under Section 5 of the Limitation Act. If sufficient cause is not

proved, nothing further has to be done; the application seeking

condonation of delay has to be dismissed on that ground alone.

13. Similarly, the Supreme Court in Oriental Aroma Chemical

Industries Ltd. (supra) has held that the law of limitation is founded on

public policy. The legislature does not prescribe limitation with the

object of destroying the rights of the parties but to ensure that they do

not resort to dilatory tactics and seek remedy without delay. The idea is

that every legal remedy must be kept alive for a period fixed by the

legislature. The law of limitation prescribes a period within which legal

remedy can be availed for redress of the legal injury.

14. Insofar as the judgment of the Supreme Court in Post Master

General and Ors. (supra) is concerned, it was held by the Supreme

Court that condonation of delay is an exception and should not be used

as an anticipated benefit for the Government departments.

15. Having considered the submissions by the learned counsel for the

parties, suffice to state that when a question for condoning the delay

arises, the "sufficient cause" has to be liberally construed and

condonation of delay is a matter of discretion of the Court, and

acceptance of explanation given should be the rule and refusal the

exception. The rules of limitation are not meant to destroy the rights of

the parties but to ensure that the parties do not resort to dilatory tactics

but seek their remedy promptly.

16. In an application seeking condonation of delay cogent

reasons/facts need to be divulged to form a view of sufficient cause. The

plea of condonation of delay has to be with regard to the facts of each

case. Even though the Court has discretion, it has to be exercised

judiciously. Sufficient cause cannot be liberally interpreted if negligence

in action or lack of bona fide is attributed to the party.

17. In the case in hand, the notice of filing of award was received on

April 26, 2013. The limitation started immediately thereafter. The

defendant/applicant should have filed objections on or before May 25,

2013. I find that on May 26, 2013, the counsel sought time to file reply

in other words objections to the award. Even after expiry of more than

three months i.e. on August 26, 2013, no objections were filed. The

objections could be filed on September 29 th 2013. Even though, the

defendant/applicant has given some reasons, those, in the given facts in

view of the narration above, does not show sufficient cause and bona

fide on the part of the defendant/applicant and cannot be accepted. The

reasoning seeking condonation of delay was primarily, collating the

information from various department. This Court fails to understand the

necessity of collating information/documents from various departments

when the matter was in arbitration and the award was rendered only in

the year 2010 and the material on which objections could be filed was

readily available. The said reasoning does not appeal to this Court.

18. In view of the discussion above, this Court is of the view that

reasoning given by the defendant/applicant, not being bona fide, the

condonation of delay of 95/126 days is without any merit. The present

application needs to be dismissed. It is ordered accordingly.

19. Consequently, the objections filed by the defendant/applicant are

also dismissed.

CS (OS) No. 3306/2012

20. The award dated September 20, 2010 of the learned Sole

Arbitrator is made Rule of the Court. The decree sheet be drawn

accordingly.

(V.KAMESWAR RAO) JUDGE MAY 18, 2015/akb