Delhi High Court

United Insurance Co.Ltd. vs Manish Kumar Gupta on 25 May, 2015

Author: Deepa Sharma

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     REVIEW PET.558/2014 & I.A.No.25459/2014 in O.M.P.1127/2013
                                Judgment reserved on: 01.05.2015
                                Judgement pronounced on: 25.05.2015

      UNITED INSURANCE CO.LTD.   ..... Petitioner/Review petitioner
                   Through: Mr.S.K.Ray and Mr.Amitava Poddar,
                            Advocates
                   versus

      MANISH KUMAR GUPTA                         ..... Respondent
                  Through:            Mr.Sanjeev Singh, Advocate

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. This Review Petition has been filed by the petitioner for review of

the order of this court dated 10th September, 2014 in OMP No. 1127/2013.

2. It is a matter of record that against the order of this court dated 10th

September, 2014, the applicant/petitioner had moved an appeal with FAO

(OS) 461/2014 listed before the Division Bench of this Court.

3. The petitioner withdrew the said appeal reserving its right to file an

appropriate application before this court. While disposing of the said

appeal, the Division Bench of this court has passed the following order on

10.11.2014:-

"1. Learned counsel for the appellant submits

that the issue concerning different objections being put at different points of time by the Registry resulting in delay in refilling which was argued before the learned Single Judge does not find a mention in the impugned order. Counsel prays that the appellant be permitted to withdraw the appeal reserving appellant's right to file an appropriate application before the learned Single Judge pointing out that this aspect of the matter, which was argued and in respect whereof written submissions have been filed, has not been dealt with by the learned Single Judge.

2. Granting liberty to the appellant to file an appropriate application before the learned Single Judge concerning the order dated September 10, 2014 the appeal is dismissed as withdrawn."

4. The Division Bench therefore granted the permission to the petitioner

to move an appropriate application and the scope of the application was

limited. The petitioner was permitted to re-agitate the matter argued before

this court and in respect whereof written submissions had been filed but had

not been dealt with by this court in its order. In the present review petition,

however, the petitioner had taken up several grounds which found no

mention in his initial application with CM No. 18845/2013 relating to the

condonation of delay in re-filing the petition under Section 34 of the

Arbitration & Conciliation Act or in his written submissions.

5. In view of the order in the Division Bench, it is apparent that

petitioner has been given the liberty only to challenge the order of this court

by an appropriate application and argue the matter which found no mention

in the order of this court dated 10th November, 2014 although same were

argued and mentioned in the written submissions. The liberty was not given

to the petitioner to raise any fresh issue or contention before this court while

challenging the impugned order. Order 47 (1) CPC bars a review petition if

an appeal had been preferred.

6. It is also the settled principle of law that petitioner can seek review of

an order on fresh grounds, if the facts forming those grounds had come to

his knowledge only subsequent to the order under review. Otherwise, he is

permitted under the law to claim review for corrections of an error apparent

on the face of record or for any other sufficient reasons.

7. It is apparent form the application with IA No. 18445/2013, for

condonation of delay in re-filing the petition that the petitioner had claimed

the delay of 24 days in refilling and had furnished explanation for such delay

of 24 days in refilling. The court on calculation in paras 11 and 12 of its

order dated 10.09.2014 reached to the conclusion that , in fact, the delay in

re-filing was of 86 days and not of 24 days.

8. In the written submissions filed alongwith main writ petition and

application, the petitioner's claim was that there was a delay in refilling only

of 24 days which according to him had occurred due to vexatious ways of

raising peacemeal objections by the Registry which was beyond the control

of the petitioner to get the case listed in court in time and has relied on the

findings in the case of:-

(i) Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors in C.A.

No. 2395/2008 decided on 09.06.2010 with C.A. No.

2397/2008 (SC) = paras 2 & 3.

(ii) Badshah Vs. Sou. Urmila Badshah Godse & Anr in Crl. Misc.

Petition No. 19530/2013 in SLP (CRL) No. 8596/2013 decided

on 18.10.2013.

(SC)= para 1

(iii) D.D.A. Vs. M/s Durga Construction Co. in FAO (OS) 485-

86/2011 decided on 07.11.2013 by the Division Bench of the

Delhi High Court = para 7

9. The findings in the Improvement Trust Case (supra) case is of no

help to petitioner since the Division Bench of this court in the case of The

Executive Engineers vs. Shree Ram Construction reported in 2010 (120)

DRJ 615 (DB) has duly distinguished this case and held that law laid down

in that case is of no avail in the backdrop of Arbitration & Conciliation Act.

The relevant paragraph is reproduced 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.

10. The petitioner in its written submission had also relied on Badshah

case (supra) and M/s Durga Construction Co. (supra). In the said case,

the question that had come up for consideration was the condonation of

delay of 360 days in filing the said leave petition and further delay of 11

days in re-filing the special leave petition. Since the matter for consideration

before the court was related to the entitlement of the maintenance under

Section 125 of the CrPC and it was on these provisions that the court

condoned the delay in filing and re-filing of the special leave petition before

it.

11. No proposition of law in condoning of delay in re-filing in the matters

under Section 34(3) of the Arbitration and Conciliation Act had been

discussed in the said order.

12. In D.D.A case (supra), the Division Bench of this court laid down the

proposition of law that this court would have the jurisdiction to condone the

delay in re-filing even if the period extends beyond the time specified in

Section 34(3) of the Act.

13. This court had duly followed this principle while disposing of the

application for condonation of delay in re-filing and has not dismissed the

application for condonation of delay in re-filing on the ground that the delay

was beyond the time specified in Section 34(3) of the Act. The application

was dismissed on the ground that the petitioner had failed to explain the

undue delay in re-filing.

14. The court has in para 25 of D.D.A. Case (supra) also held that:-

"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."

15. According to the proposition of law in DDA case (supra) , on which

the applicant has relied, he is required to explain satisfactorily the reason for

such delay and the court has clearly observed "A liberal approach in

condoning the delay in re-filing an application under Section 34 of the Act is

not called for". The petitioner was required to explain the delay

satisfactorily but here in this case, although the delay was of 84 days in re-

filing, the petitioner had claimed and explained the delay of only 24 days.

No explanation, what to say "satisfactory explanation" has come from the

petitioner of balance days of 60 days. No explanation for condonation of

delay of these 60 days in re-filing has been given by petitioner either in his

application CM No. 18445/2013 or during arguments or in written

submissions.