Delhi High Court
M/S Himachal Futuristic vs I.T.I Ltd. on 28 April, 2017
$~OS-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28.04.2017
+ O.M.P. 54/2013
M/S HIMACHAL FUTURISTIC ..... Petitioner
Through Mr.Rakesh Tiku, Sr.Advocate with
Mr.Vivek Ojha & Mr.Sandeep
Kumar, Advocates for the HFCL
versus
I.T.I LTD. .... Respondent
Through Mr.Ashok Kumar Singh, Sr.Advocate
with Mr.Prannoy Raikhy, Advocate
for ITI
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
I.A.No.1105/2017
1. This is an application filed under Section 5 of the Limitation Act
seeking condonation of delay of 40 days in re-filing of the objections under
Section 34 of the Arbitration and Conciliation Act.
2. The petitioner has filed objections to the award dated 07.07.2012. The
dispute centres around the delay in re-filing of the objections. This court on
09.01.2015 allowed this application noting that there was a genuine issue
regarding objections raised by the Registry about the court fees that was
required to be paid on the amount awarded by the arbitrator. The court
concluded that sufficient cause has been shown by the petitioner to condone
O.M.P. 54/2013 Page 1
the delay in re-filing the objections and allowed the application.
3. The above order of this court was impugned before the Division
Bench. The Division Bench on 07.04.2015 concluded that the delay in re-
filing for the period between 09.10.2012 to 27.11.2012 has not been
considered by the learned Single Judge. Hence, the matter was remitted back
to consider the application a fresh regarding delay in re-filing of the
objections for the said period in question. The petitioner was permitted to
file an additional affidavit giving explanation for the period in question.
4. Hence, the present arguments are confined only to the directions of
the Division Bench dated 07.04.2015 whereby the explanation of the
petitioner for the period from 09.10.2012 to 27.11.2012 for condonation of
delay in re-filing the objections has to be considered.
5. In compliance with the directions of the Division Bench dated
07.04.2015, the petitioner has filed an additional affidavit. The additional
affidavit states that in terms of the objections raised by the Registry on
09.10.2012, the main objection raised was regarding the „new format‟ which
was recently introduced for the purpose of filing of the petition. It is urged
that there was some ambiguity among lawyers regarding the new procedure/
format for filing. Inquiry was made and the petition was reformatted in
terms of the „new format‟. It is further stated that during this period from
09.10.2012 to 27.11.2012, there were vacations due to festive seasons, i.e.
Dussehra on 24.10.2012, Eid on 27.10.2012, Diwali on 13.11.2012,
Moharram on 25.11.2012 and Guru Nanak Birthday on 28.11.2012. It is
urged that the court and the office of the lawyer remain closed during
Dussehra and Diwali vacations. The papers of the present case were also
accidentally misplaced. The clerk of the counsel also went to his hometown
O.M.P. 54/2013 Page 2
Uttarakhand during Diwali and returned after celebrating Diwali. It is also
urged that during this period, time was spent in attempting to remove the
objections, which were raised by the Registry.
6. I have heard the learned senior counsel for the parties.
7. The learned senior counsel for the respondent has vehemently
opposed the condonation of delay in re-filing the objections relying upon the
various judgments of this court, which are as follows:
i. Gautam Associates v. Food Corporation of India, 2009
(111) DRJ 274;
ii. Prakash Atlanta JV v. National Highways Authority of
India, EFA(OS) No.4 of 2013 dated 12.02.2013;
iii. NTPC Limited v. Gannon Dunkerley & Co. Ltd., FAO(OS)
No.89 of 2013 dated 12.02.2013;
iv. Union of India v. M/s Popular Construction Co., AIR 2001
SC 4010;
v. Delhi Transco Ltd. & Anr. v. Hythro Engineers Pvt. Ltd.
2012(3) ARBLR 349 (Delhi);
vi. The Executive Engineer (Irrigation & Flood Control) v.
Shree Ram Construction Co., 2010(10) AD Delhi 180;
vii. Union of India v. Harbhagwan Harbhajan Lal, O.M.P.
No.30 of 2010, dated 11.03.2010 and
viii. Delhi Development Authority v. M/s Durga Construction
Co., ILR(2014) 1 Delhi 153."
8. The legal position regarding condonation of delay in re-filing of
objections under section 34 of the Act were considered and settled by the
O.M.P. 54/2013 Page 3
Division Bench of this court in the case of Delhi Development Authority v.
M/s Durga Construction Co.(supra). Relevant paras are as follows:
"19. It follows from the above that once an application or an
appeal has been filed within the time prescribed, the question of
condoning any delay in re-filing would have to be considered
by the Court in the context of the explanation given for such
delay. In absence of any specific statute that bars the
jurisdiction of the Court in considering the question of delay in
re-filing, it cannot be accepted that the courts are powerless to
entertain an application where the delay in its re-filing crosses
the time limit specified for filing the application.
20. 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 M/s. 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 re-filing are not as strict as condonation of
delay of filing under Section 34(3). But that does not
O.M.P. 54/2013 Page 4
mean that a party can be permitted an indefinite and
unexplainable period for refilling the petition."
9. The twin arguments were raised by the petitioner for condonation of
delay. Firstly, about the „new format‟ having been introduced. Hence, it
took some time to re-format the objections after having obtained the correct
format. Secondly, the fact that it was festive seasons which resulted in
repeated holidays when the lawyers office was closed. Connected with this
plea is the fact that the clerk of the counsel for the petitioner had also gone
to his hometown for celebration of Diwali.
10. In this context reference may be had to the judgment of the Supreme
Court in Northern Railway vs. M/s.Pioneer Publicity Corp.Pvt.Ltd. being
Civil Appeal No.10340 of 2016. In that case the Supreme Court was dealing
with an issue of condonation of delay of 65 days in re-filing the objections
under section 34 of the Act. The Supreme Court held as follows:-
"Mr. Amarjeet Singh Chandiok, learned Senior Counsel
appearing for the Respondent submitted that Section 34(3) of
the Act bars re-filing beyond the period stipulated therein.
The said sub-section reads as follows:
"34. (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.
O.M.P. 54/2013 Page 5
We find that said Section has no Application in re-
filing the Petition but only applies to the initial filing of the
objections Under Section 34 of the Act. It was submitted on
behalf of the Respondent that Rule 5(3) of the Delhi High
Court Rules states that if the Memorandum of Appeal is filed
and particular time is granted by the Deputy Registrar, it shall
be considered as fresh institution. If this Rule is strictly
applied in this case, it would mean that any re-filing beyond
7 days would be a fresh institution. However, it is a matter of
record that 5 extensions were given beyond 7 days.
Undoubtedly, at the end of the extensions, it would amount to
re-filing.
We are not inclined to accept this contention
particularly since the Petitioner has offered an explanation
for the delay for the period after the extensions.
Having regard to the overall circumstances of the case,
we consider it appropriate in the interest of justice to set aside
the impugned Order."
11. Keeping in view the legal position and the facts above, in my opinion,
there are sufficient reasons given for the condonation of the delay which
occurred. I may also note that the Award is against the respondent and in
favour of the petitioner. The respondent has also filed objections under
section 34 of the Arbitration and Conciliation Act which are pending. In
view of the above, I allow the present application and condone the delay in
re-filing the objections.
OMP 54/2013
List on 21.08.2017.
JAYANT NATH, J.
APRIL 28, 2017/v
O.M.P. 54/2013 Page 6
