Delhi High Court
M/S Bansal Constructions Company vs Sr Den Iv Northern Railway on 11 December, 2019
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11.12.2019
+ FAO 460/2019 & CM APPL. 50367/2019
M/S BANSAL CONSTRUCTIONS COMPANY ..... Appellant
versus
SR DEN IV NORTHERN RAILWAY ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. S.W. Haider, Ms. Pooja Dua and Mr. Raghav
Agrawal, Advocates
For the Respondent: Mr. Ashok Singh, Advocate for UOI
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Appellant impugns order dated 28.09.2019 whereby application
of the appellant under Section 5 of the Limitation Act has been
dismissed.
2. Learned counsel for the appellant submits that the petition filed
by the appellant under Section 34 of the Arbitration & Conciliation
Act, 1996 (hereinafter referred to as the Act) impugning award dated
12.07.2018 was delayed by 27 days beyond three months period as
provided under Section 34 of the Act.
3. He further submits that on account of an error, in the
nomenclature of the application it was mentioned as an application
under Section 5 of the Limitation Act instead of application under
proviso to Section 34(3) of the Arbitration & Conciliation Act, 1996.
4. Learned counsel submits that the application has been
dismissed primarily on the ground that an application under Section 5
of the Limitation Act is not maintainable though a passing reference is
made that application does not show sufficient cause.
5. Issue notice. Notice is accepted by learned counsel appearing
for the respondent. With the consent of parties the appeal is taken up
for final hearing today itself.
6. Perusal of the impugned order dated 28.09.2019 shows that the
order primarily dismisses the application on the ground that same was
filed under Section 5 of the Limitation Act and not in terms of proviso
to Section 34(3) of the Act.
7. There are not reasons stated in the order as to how the court
formed an opinion that the cause disclosed by the appellant was not
sufficient to condone the delay.
8. No doubt that the appellant had given heading to the application
as an application under Section 5 of the Limitation Act, however, the
contents of the application clearly shows that the application was filed
with a delay of 27 days beyond three months period as provided under
Section 34(3) of the Act and the period is covered by the proviso to
Section 34(3) of the Act.
9. Merely because incorrect provision has been cited on the
heading of the application would not denude the court of its powers to
consider the same in accordance with the correct provisions. The
heading of the application is a mere procedural requirement. What is
material is the contents of the application.
10. In view of the above, impugned order dated 28.09.2019 is set
aside. Consequently, the appeal is allowed. Application filed by the
appellant before the Trial Court seeking condonation of delay and the
objections under Section 34 of the Act are restored to the file of the
trial court.
11. The Application filed by the appellant seeking condonation of
delay and the objections under Section 34 of the Act shall be listed
before the concerned trial court on 21.01.2020. Trial court shall
consider the application seeking condonation of delay on merits.
12. The appeal is disposed of in the above terms.
13. Order dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J.
DECEMBER 11, 2019
'rs'
