Delhi High Court
Prominent Tours & Travel Pvt. ... vs Kotak Mahindra Bank Limited on 2 May, 2018
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 2nd May, 2018
+ O.M.P. (COMM) 412/2017 & IAs 13658/2017, 14720/2017
PROMINENT TOURS & TRAVEL PVT. LTD.&ORS...... Petitioners
Through: Mr.Varun Singh, Mr.Gaurav and
Ms.Pranati Bhatnagar, Advs.
versus
KOTAK MAHINDRA BANK LIMITED ..... Respondent
Through: Mr.Arun Aggarwal, Ms.Jyoti Gautam,
Advs. for R-1
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
IA 14720/2017(delay)
1. This is an application seeking condonation of 203 days' delay in re-
filing of the petition under Section 34 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the 'Act') challenging the Arbitral
Award dated 13th January, 2017.
2. The petition was filed on 20th April, 2017 and was returned under
objections on 21st April, 2017. It was refiled only on 10th November, 2017.
On further defects being pointed out by the registry, it was returned again on
13th November, 2017. It was again refiled on 14th November, 2017,
however, as all defects had not been removed, it was again returned with
objections on 15th November, 2017. It was again refiled on 17th November,
O.M.P. (COMM) 412/2017 Page 1
2017. It was finally refiled on 18th 2017 and was registered on 18th
November, 2017. In this manner there was in all a delay of 182 days in
refiling of the petition.
3. The two reasons given for the delay in re-filing of the petition are the
pendency of Writ Petition No.4066/2017 before the High Court of
Judicature at Bombay challenging an order of the Debt Recovery Appellate
Tribunal, Mumbai challenging proceedings initiated by the Respondent
under the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 ('SARFAESI Act') and the
orders passed therein whereunder the petitioners have deposited a sum of
Rs.1.10 crores with the Registry of the High Court of Judicature at Bombay.
Counsel for the petitioners submits that the delay in re-filing occurred
because the petitioners were busy in arranging for the amount of Rs.1.10
crores to be deposited in terms of the order dated 12 th April, 2017 passed by
the High Court of Judicature at Bombay. The petitioners further assert that
the petitioners had also submitted a proposal for One Time Settlement with
the respondent on 3rd October, 2017 followed by the letter dated 21st
October, 2017, which was rejected by the respondent only on 3 rd November,
2017.
4. The second ground urged by the petitioners is that the petitioner no.3
is 70 years old and is not maintaining good health. It is further asserted that
the elder brother of the petitioner no.3 had passed away on 30 th October,
2017, which caused further delay in re-filing of the petition.
5. I have considered the grounds urged by the petitioner for seeking
condonation of delay in re-filing of the petition, however, do not find them
as sufficient to condone the inordinate delay.
O.M.P. (COMM) 412/2017 Page 2
6. As far as the first reason with respect to pendency of the petition
before the High Court of Judicature at Bombay is concerned, it would in fact
show that the petitioners are aware of their legal rights and remedies and
have been availing of the same before the Court of appropriate jurisdiction.
Merely because a writ petition is filed against a particular action of the
respondent in one Court, it would not justify the delay in re-filing of the
present petition in this Court. The petitioners are not laymen who may not
understand the difference between the two litigations that have been filed
and their respective scope and would rather consider one of such litigations
to be otiose or something which is not to be prosecuted any further. In my
opinion, the above cannot be a ground for total abandoning of the present
petition after filing the same. Clearly, the petitioners were not interested in
pursuing the present petition for almost seven months and suddenly woke up
after their proposal for One Time Settlement was rejected by the respondent.
7. As far as the second contention is concerned, I may only emphasize
that there are in all five petitioners in the present petition. Petitioner nos.1
and 2 are incorporated companies and; petitioner no.5 is being represented
through petitioner nos.3 and 4. Admittedly, the petitioners were pursuing
their writ petition before the High Court of Judicature at Bombay. If the
said litigation could be pursued, there is no reason to accept the explanation
offered by the petitioners that due to ill-health or passing away of the brother
of petitioner no.3, the present litigation could not be pursued by the
petitioners.
8. Equally, submission of the proposal for One Time Settlement with the
respondent and / or rejection thereof by the respondent has no bearing on re-
filing of the present petition.
O.M.P. (COMM) 412/2017 Page 3
9. Section 34(3) of the Act, though strictly not applicable to a case of re-
filing of the petition, would certainly have to be kept in mind while
considering the reasons submitted by the petitioners for seeking condonation
of delay in re-filing of the petition. As held by this Court in Delhi Transco
Ltd. & Anr. vs. Hythro Engineers Pvt. Ltd. 2012 SCC OnLine Del 3557, if
the delay in re-filing is such as to go well and substantially beyond the
period of three months and 30 days, the matter would require a close
scrutiny and adoption of more stringent norms while considering the
application for condonation of delay in re-filing, and the Court would
conduct a deeper scrutiny in the matter. The leniency shown and the liberal
approach adopted otherwise by the Courts in the matters of condonation of
delay in other cases, would in such cases not be adopted, as the adoption of
such an approach by the Court would defeat the statutory scheme contained
in the Act which prescribes an outer limit of time within which the
objections could be preferred.
10. In the present case, the explanation being offered by the petitioners
for almost seven months' delay in re-filing the petition, is certainly not
reasonable or sufficient.
11. Counsel for the petitioners has placed reliance on the judgment of the
Supreme Court in Northern Railway vs. Pioneer Publicity Corporation Pvt.
Ltd. (2017) 11 SCC 234 to contend that Section 34 (3) of the Act has no
application in re-filing the petition but only applies to the initial filing of the
objections under Section 34 of the Act. As observed earlier, this is the
correct proposition of law, however, in the peculiar facts of the present case,
would not be of any assistance to the petitioners. In Pioneer Publicity
(supra), the Supreme Court found that the petitioner therein had offered an
O.M.P. (COMM) 412/2017 Page 4
explanation for the delay after the extensions. In the present case, however,
I do not find the explanation given by the petitioner to be sufficient or
reasonable.
12. Counsel for the petitioners has further relied upon the order dated 7th
August, 2014 of the Supreme Court in Mahanagar Telephone Nigam Ltd. vs.
M/s Prakash & Company, Civil Appeal No.7598-7599/2014, wherein the
Supreme Court had condoned the delay of 233 days in re-filing the
application under Section 34 of the Act, subject to the condition that the
appellant therein deposits the entire awarded amount.
13. Though not initially inclined, I had given a similar offer to the counsel
for the petitioners. Counsel for the petitioners submits that he has no
instructions to make any commitment in this regard. I may also note that by
the order dated 19th March, 2018, the parties were referred to the Delhi High
Court Mediation and Conciliation Centre for exploring the possibility of an
amicable settlement. Even this endeavour has failed.
14. In view of the above, I see no reason for condoning the delay in re-
filing of the petition. The application is accordingly dismissed with no order
as to costs.
O.M.P. (COMM) 412/2017 & IA 13658/2017
As the delay in re-filing of the petition has not been condoned, the
application and the petition are dismissed.
NAVIN CHAWLA, J
MAY 02, 2018
RN
O.M.P. (COMM) 412/2017 Page 5
