Uoi vs M/S. Texmaco Ltd.
2015 Latest Caselaw 6579 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                     F.A.O. No.110/2005 & C.M. No.6330/2014

                                       Decided on : 3rd September, 2015

UOI                                                ...... Appellant
                       Through:   Dr. Ashwani Bhardwaj, Advocate.

                         Versus

M/S. TEXMACO LTD.                                  ...... Respondent
             Through:             Mr. Gaurav Mitra, Mr. Pratik Malik,
                                  Advocates with Mr. Rajesh Dudani,
                                  AR of the respondent company.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This order shall dispose of an application filed by the appellant

bearing No.6330/2014 for restoration of the appeal. Reply to the

application has been filed and the learned counsel for the respondent has

opposed the application for restoration vehemently.

2. Before dealing with the reasons for opposition of this application

by the respondent, it may be pertinent here to mention that the respondent

was a fabricator and supplier of the stores to the appellant for the purpose

of 2000 sets comprising of 1126 sets of switches and 874 sets of

Crossings at an agreed rate and terms and conditions to the Railways. It

was alleged that subsequent to the contract entered into between the

appellant/Union of India and the respondent, the rates had fallen down

considerably for the new contract which was awarded and on account of

slow pace in delivery of the supplies; the respondent was granted

extension of time for supply of goods at the earlier rates.

3. The respondent on account of reduction in rate and by imposition

of conditions of delivery had raised disputes with the appellant which

were referred to the sole arbitration for adjudication. The learned

arbitrator, after going through the statement of claim, the defence and

after permitting the parties to adduce their respective evidence, passed an

award in favour of the respondent/claimant on 17.11.2003 granting a sum

of Rs.17,92,657/- to be paid to the respondent by the appellant within 60

days. In default of payment, it was to carry an interest @ 9 per cent per

annum.

4. The appellant aggrieved by the aforesaid award, filed objections

under Section 34 of the Arbitration & Conciliation Act bearing

No.93/2004 in the court of the learned Additional District Judge on

16.2.2004. These objections were contested and rejected by the court on

27.10.2004. The appellant feeling aggrieved by the rejection of their

objections, preferred an appeal bearing F.A.O. No.110/2005 titled Union

of India vs. M/s. Texmaco Ltd. against the said judgment. The aforesaid

appeal came to be listed before the High Court which is pending before

this court since 25.4.2005. I have been informed that the amount of

Rs.19 lacs which is purported to have been deposited by the appellant in

court has already been released to the respondents. So far as the present

appeal is concerned, this has been pending before this court for the last 11

years without any sincere effort being made on the part of the Union of

India to argue the matter. The present appeal was dismissed in default on

6.2.2004 by passing the following order :-

"There is no appearance on behalf of the appellant/UOI. On the last date of hearing also, there was no appearance on behalf of the appellant. A perusal of the order sheets show that earlier also, Union of India was not represented on various dates and the appeal has been dismissed for non- prosecution on three occasions, i.e. on 24.5.2005, 21.7.2008 and 4.8.2010. It seems that Union of India is not interested in pursuing the appeal.

Keeping in view the aforesaid facts, the appeal is dismissed for non-prosecution. No application for restoration be entertained without the appellant depositing a sum of Rs.50,000/- with the Delhi High Court Legal Services Committee."

5. Subsequent to this, an application bearing C.M. No.6330/2014 has

been filed by virtue of which the pre-condition of imposition of cost of

Rs.50,000/- was sought to be dispensed with, for the purpose of

considering the application for restoration. Keeping in view the

averments made in the application, the aforesaid cost of Rs.50,000/- was

reduced to Rs.10,000/- which is stated to have been deposited by the

appellant. That is how the application was entertained and arguments

have been heard on the said application.

6. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondent. It has been contended by the learned

counsel for the appellant that the counsel could not appear on 6.2.2014,

when the appeal was dismissed for non-prosecution on account of the fact

that on the previous date, the clerk of the counsel had failed to note the

date of the case in the diary. For the purpose of supporting his

submissions, the counsel has filed his own affidavit as well as the

photocopies of his diaries.

7. The learned counsel for the respondent has contended that the

appellant is not serious in prosecuting the matter and is unnecessarily

keeping the pot boiling. It has also been contended that the explanation

which has been furnished by the learned counsel for the appellant for

non-appearance on 6.2.2014 is not correct and genuine one. It has been

stated that earlier also, the appeal has been dismissed on three occasions

and thereafter got restored by the appellant. It has been contended that

first time the appeal was dismissed for non-prosecution on 24.5.2005 and

it was got restored by the appellant on 15.9.2005. On second occasion,

the appeal was dismissed for non-prosecution on 21.7.2008 and got

restored by the appellant on 9.3.2010. Third time, the appeal was

dismissed for non-prosecution on 4.8.2010 and restored on 15.2.2011.

On more than one occasion, this very plea has been taken by the appellant

that the learned counsel could not appear in the matter on the date fixed

on account of the correct date not being noted in the diary. This time

also, the learned counsel for the appellant is stated to have taken the plea

that the date was not noted correctly by the clerk of the counsel in the

diary because of which this confusion has been created and had resulted

in non-appearance.

8. The learned counsel for the respondent has pointed out that this is a

false plea inasmuch as the learned counsel for the appellant himself has

attached photocopies of the diaries when the matter was listed which

shows that on 23.10.2013 the matter was adjourned to 2.12.2013. Yet on

2.12.2013, nobody appeared on behalf of the appellant and consequently,

the matter was got adjourned to a later date, that is, on 6.2.2014.

9. All these facts clearly shows that the plea which has been taken by

the appellant is totally false as the photocopy of the page of the diary of

the appellant shows that correct date was noted by the clerk in the diary

itself as 2.12.2013 yet the learned counsel did not appear. It has been

stated by the learned counsel that a party more so, when it is a Union of

India, is expected to tell the truth even if it has committed a genuine

mistake. But in case a party tries to take a false plea only with a view to

get the matter restored, such a practice should be curbed by the court with

a heavy hand.

10. I have carefully considered the rival contentions and have gone

through the record. I feel that there is a considerable merit in the

submission made by the learned counsel for the respondent opposing

restoration of the appeal by the appellant. It may be pertinent here to

mention that the appellant or its counsel have not been prosecuting the

matter in its right perspective and that is why such a small matter has

been kept pending for the last more than eleven years. The dockets of

courts are already full yet the Union of India being one of the biggest

litigants in court is not taking interest in getting the pendency reduced.

11. The explanation which has been furnished by the counsel is

certainly not acceptable because it seems that they harbour some kind of

impression that being a Government body or a Government itself, the

court will be taking a liberal view. The law of limitation and the

applicability of general principles of law are to be done with an even

hand and not in a discriminatory manner. In the instant case, the appeal

having been dismissed earlier on three occasions clearly shows that the

appellant was grossly negligent in prosecuting the matter. By restoring

the matter to its original number on as many as three occasions yet not

making any sincere effort to argue the matter finally shows that the

appellants are not serious in prosecuting the matter.

12. For the reasons mentioned above, I feel that as the appellant has

been deliberately keeping the pot boiling when the appeal has already

been dismissed in default or for non-prosecution on as many as three

occasions, they could not be permitted to take undue advantage by getting

the appeal restored.

13. I, accordingly, disbelieve the appellant for its non-appearance on

6.2.2014 and reject the application bearing No.6330/2014 for restoration.

Since the application for restoration has been dismissed, therefore, the

main appeal itself also stands dismissed.

V.K. SHALI, J.

SEPTEMBER 03, 2015 'AA'