Green Valley C.G.H.S. Ltd. vs M/S Gurcharan Singh
2016 Latest Caselaw 2730 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on: 21st March, 2016
                                    Judgment pronounced on: 7th April, 2016

+                   O.M.P. 238/2015 & I.A. No.7015/2015

       GREEN VALLEY C.G.H.S. LTD.                   ..... Petitioner
                    Through    Mr.B.N.Singhvi, Adv.

                           versus

       M/S GURCHARAN SINGH                                  ..... Respondent
                   Through               Mr. Raman Kapoor, Sr. Adv. with
                                         Mr. Karan S. Thukral, Adv.
       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of this order, I propose to decide the above mentioned application under Section 151 CPC for condonation of delay of 118 days in re-filing the objection. The respondent's allegation is that there is in fact a delay of total 159 days after the expiry of three months from the date of publishing the award.

2. The petitioner has filed the abovementioned petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') against the Award of the Sole Arbitrator dated 23rd July, 2014.

3. The first filing of objections was within time on 27th October, 2014 as this Court re-opened after Diwali holidays on that day.

4. The objections under Section 34 of the Act were thus returned back for removal of objections on 30th October, 2014.

5. The petition remained lying under objections. As per details available it appears that the Registry raised objections from time to time but all the objections were not removed.

6. The petition was re-filed on 16th January, 2015 but without removing the objections raised by the Registry. Again the petition was taken from the Registry and was re-filed on 28th January, 2015 but the objections raised by the Registry were yet not removed by the petitioner. Finally after removing the defects, the petition was re-filed on 4th April, 2015 and came to be listed before this Court on 8th April, 2015.

7. The explanation given in the application for delay in re-filing the petition is that for the period from 27th October, 2014 to 22nd December, 2014 i.e. the day on which the application for condonation of delay has been filed. But for the subsequent period from 22nd December, 2014 to 4th April, 2015, no grounds were given to condone the delay.

8. The petitioner in its application for condonation has only taken the ground that there has been delay but the same was not intentional as the time was being taken either on re-typing of pages or on some confusion that arose during re-filing the petition. There is no other ground or has given any valid reason in order to show sufficient cause.

9. The actual number of delay in re-filing is 159 days after the expiry of three months period prescribed under Section 34 of the Act. However, the petitioner in its application has mentioned 118 days in re-filing the application.

10. Learned counsel for the respondent submits that all the objections raised by the Registry were supposed to be removed within thirty days as per rules otherwise, it would become the fresh filing. He submits that as

per the Act, the period for filing objection under Section 34 of the Act is restricted to 3 months. The power of the Court to condone the delay has been restricted to a period of 30 days and no further. This discretion conferred on the Court is also qualified by the requirement of the applicant satisfying the court that there was 'sufficient cause' which prevented the applicant from filing the petition in time.

11. Mr. Raman Kapur, learned Senior counsel for the respondent submits that as there is delay of more than 30 days in re-filing after removing the objection, therefore, it is fresh filing and in case of such situation, the petition becomes time barred. The delay hence is not condonable as per the decision of Supreme Court in the case of Union of India v. M/s Popular Construction Co. (2001) 8 SCC 470.

12. It is argued by him that since the objections are time barred, the said decision of Popular Construction (supra) have been followed many times wherein it has been held that the intention of the legislature to provide a definite and inelastic period of limitation will be defeated if parties are allowed to delayed listing of the petition by delaying its re-filing. A stricter scrutiny, both for the reasons that prevented the party as also the number of days, is to be adopted to give effect to statutory provisions of Section 34. Reliance is placed on Union of India v. Sunrise Enterprises, Panipat, 187(2012) DLT 244 (paras 12-13).

13. The following decisions are also relevant for the purpose of deciding the present application:-

i.) The Food Corporation of India v. Pratap Rice and General Mills, 2014 IV AD (Delhi) 773 has held that delay in re-filing has been recognized as a cause for delay which is most commonly prevalent

and the explanations in this context are more often than not false contrived or at least demonstrate that the party had been negligent. These factors do not qualify as sufficient cause for condoning a delay, especially in the context of the strict timelines provided by Section 34.

ii.) In Delhi Development Authority v. M/s Durga Construction Co.

2013 (139) DRJ 133, the Division Bench of this Court in paras 17, 18, 21 & 24 has held as under :-

"17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party 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 the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 & 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla, 1995 RLR 85, whereby a Single Judge of this Court held as under:

"Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of

presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit."

A Division Bench of this Court upheld the aforesaid view in D.C. Sankhla v. Ashok Kumar Parmar, 1995 (1) AD (Delhi) 753 and while dismissing the appeal preferred against decision of the Single Judge observed as under:

"5....... In fact, that is so elementary to admit of any doubt. Rules 1 and 2 of (O.S.) Rules, 1967, extracted above, do not even remotely suggest that the re-filing of the plaint after removal of the defects as the effective date of the filing of the plaint for purposes of limitation. The date on which the plaint is presented, even with defects, would, therefore, have to be the date for the purpose of the limitation act."

18. In several cases, the defects may only be perfunctory and not affecting the substance of the application. For example, an application may be complete in all respects, however, certain documents may not be clear and may require to be retyped. It is possible that in such cases where the initial filing is within the specified period of 120 days (3 months and 30 days) as specified in section 34(3) of the Act, however, the re-filing may be beyond this period. We do not think that in such a situation the court lacks the jurisdiction to condone the delay in re-filing. As stated earlier, section 34(3) of the Act only prescribes limitation with regard to filing of an application to challenge an award. In the event that application is filed within the prescribed period, section 34(3) of the Act would have no further application. The question whether the Court should, in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whether sufficient cause has

been shown which prevent re-filing the petition/application within time.

21. Although, the courts would have the jurisdiction to condone the delay, the approach in exercising such jurisdiction cannot be liberal and the conduct of the applicant will have to be tested on the anvil of whether the applicant acted with due diligence and dispatch. The applicant would have to show that the delay was on account of reasons beyond the control of the applicant and could not be avoided despite all possible efforts by the applicant. The purpose of specifying an inelastic period of limitation under section 34(3) of the Act would also have to be borne in mind and the Courts would consider the question whether to condone the delay in re-filing in the context of the statute. A Division Bench of this High Court in Competent Placement Services through its Director/Partner v. Delhi Transport Corporation through its Chairman, 2011 (2) R.A.J. 347 (Del) has held as under:

"9. In the light of these provisions and decisions rendered by the Hon'ble Supreme Court, it is thus clear that no petition under Section 34 of the A&C Act can be entertained after a period of three months plus a further period of 30 days, subject to showing sufficient cause, beyond which no institution is permissible. However, the rigors of condonation of delay in refiling are not as strict as condonation of delay of filing under Section 34(3). But that does not mean that a party can be permitted an indefinite and unexplainable period for refilling the petition."

24. The respondent has also relied upon the order of the Supreme Court dated 22.07.2013 dismissing Special Leave Petition No. 9175-9176/2011 in India Tourism Development Corp. Ltd. v. R.S. Avtar Singh & Co. The above Special Leave Petitions arose from the judgment order dated 10.02.2011 in FAO No. 58/2011 and CM No. 2252/2011

which in turn had relied upon the judgment in The Executive Engineers v. Shree Ram Construction & Co. (supra). As the Special Leave Petitions against the decision in The Executive Engineers v. Shree Ram Construction & Co.(supra) had been dismissed, an application was moved for dismissal of the said Special Leave Petitions. The Supreme Court allowed the application and dismissed the Special Leave Petitions. The said order also cannot be read to hold that a court does not have the jurisdiction to condone delay in re-filing of an application under section 34 of the Act, beyond the period of three months and thirty days, where the initial filing was within the time as specified under section 34(3) of the Act."

14. Counsel for the respondent has argued that the petitioner has neither made effort to give any explanation for explaining the delay in re-filing nor sufficient cause was shown, despite an opportunity being granted. It is submitted that the petitioner has failed to offer any reason for the delay in re-filing which is more than one month.

15. The relevant Sub-section (3) of Section 34 reads as under:

"(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."

16. A mere reading of Section 34(3) of the Act, it would show that the period of limitation prescribed is with respect to making an application for setting aside an award and if the objections are filed after three months,

the period of limitation can only be extended upto the period of 30 days subject to the condition that if a party would be able to satisfy the Courts that it was prevented by sufficient cause, otherwise, delay is not to be condoned. In any case after expiry of 30 days after the statutory of three months, the delay of even one day cannot be condoned if the objections are not filed within three months or along with an application for condonation of delay of 30 days as provided under Section 34(3) of the Act, as it was rightly held in the case of Popular Construction (supra) that in the arbitration matters, the limitation is to be strictly construed and there is not an iota of doubt that otherwise the same very purpose would be frustrated if the delay after extended period is condoned.

17. As per Rule 5 in Chapter 1-A of Volume 5 of the Delhi High Court Rules and Orders, the objections should have been re-filed within a time not exceeding 7 days at a time, and 30 days in aggregate to be fixed by the Deputy Registrar/Assistant Registrar, In-charge of the Filing Counter. Rule 5(3) makes it clear that in case the petition is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, Incharge of the Filing Counter under Sub-Rule 1, it shall be considered as a fresh filing, and then under the settled law, the delay beyond the expiry of prescribed period cannot be condoned on any ground. The maximum period of 30 days is provided under Rule 5 Chapter-I, Part-A of Volume 5 of the High Court Rules and Orders for removing the objections by re-filing of the petition.

18. Even otherwise under Section 34 (3) of the Act the words used "but not thereafter" provides inelastic period of limitation of 3 months and 30

days which cannot be ignored. The exercise of powers under Section 151 of the CPC is to prevent the abuse of the process of the Court. Therefore, the Court exercising the powers under Section 151 CPC is to consider whether exercise of such power is expressly prohibited by any other provision as is in the Act by the insertion of words "but not thereafter". Inherent powers are to be exercised where specific provision does not meet the necessities. Section 151 of the CPC is widely worded to enable Courts to do justice in proper cases, but it cannot be used as a tool to override the express provisions of the statute.

19. In case, the decision of Durga Construction (supra) is read in a meaningful manner, it appears that if sufficient cause is shown, the delay in re-filing after the expiry of 30 days period is condonable subject to the condition, if a strong case is made out.

20. In the present case, no sufficient cause has been shown by the petitioner. The application for condonation of delay does not contain any valid grounds for which Court can consider the aspect of delay. It was mechanically drafted without any valid reason.

21. In view of the aforesaid reasons, it is clear that the petitioner has failed to satisfy the Court to disclose the sufficient cause. Thus, the application is dismissed.

22. Consequently, the objection filed by the petitioner under Section 34 of the Act are also dismissed. No costs.

(MANMOHAN SINGH) JUDGE APRIL 07, 2016