Delhi High Court
The Irrigation & Flood Control ... vs Naresh Kumar Gupta on 9 January, 2020
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.01.2020
+ FAO 10/2020
THE IRRIGATION & FLOOD CONTROL
DEPARTMENT ..... Appellant
versus
NARESH KUMAR GUPTA ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. Shlok Chandra, Advocates
For the Respondent: Mr. Moni Cinmoy, Advocate
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL. 202/2020 (Exemption)
Allowed, subject to all just exceptions.
CM APPL. 203/2020 (condonation of delay) & CM APPL.
204/2020 (condonation of delay)
Issue Notice. Notice is accepted by learned counsel appearing
for the Respondent.
Learned counsel for the respondent submits that the in view of
the grounds stated he has no objection to condonation of delay
provided a direction is issued to the trial court to expedite the
proceedings.
For the reasons stated in the applications and the fact that
appellant has given day to day explanation of the delay that has
occurred in filing of the appeal and re-filing of the appeal, the
applications are allowed. The delay of 105 days in filing the appeal
and the delay of 5 days in re-filing the appeal are condoned.
FAO 10/2020 & CM APPL. 201/2020 (stay)
1. Issue notice. Notice is accepted by learned counsel for the
respondent. With the consent of the parties, the petition is taken up for
hearing today.
2. Learned counsel for the appellant submits that on account of a
clerical error copy of the application under Section 5 of the Limitation
Act filed before the trial court has not been placed on record.
Photocopy of the application has been produced and the same is taken
on record.
3. Learned counsel for the appellant submits that the petition
under Section 34 of the Arbitration & Conciliation Act, 1996
(hereinafter referred to as the Act) was filed with a delay of 30 days
and in terms of proviso to Section 34(3), the Court has the power to
condone the delay of 30 days.
4. Learned counsel for the appellant submits that the impugned
order was passed ex-parte and did not take into account the grounds
mentioned in the application under Section 5 of the Limitation Act
filed before the trial court.
5. Learned counsel for the appellant submits that three successive
counsels, who were appointed to file objections under Section 34 of
the Act, returned the file citing valid reasons because of which delay
occurred in filing the objections under Section 34 of the act.
6. Appellant had filed objection under Section 34 of the Act,
impugning award dated 01.08.2016. Objections were filed on
30.11.2016.
7. By the impugned order, trial court has dismissed the objections
under Section 34 of the Act solely on the ground that same were filed
beyond the statutory period of three months as prescribed under
Section 34 of the Act.
8. Trial court relying upon the judgment of the Supreme Court in
Union of India Versus Popular Construction Co. (2001) 8 SCC 470,
held that the Supreme Court has directed that the Court does not have
the power to condone the delay beyond the period mentioned in
Section 34 i.e. three months and 30 days thereafter.
9. Award was passed on 01.08.2016 and the three months' period,
as stipulated under Section 34(3) of the Act, expired on 31.10.2016.
Thereafter under the proviso to Section 34(3) a delay of 30 days is
condonable subject to condition sufficient cause is shown.
10. Objections under Section 34 of the Act were filed on
30.11.2016 i.e. within a period of 30 days from the expiry of three
months' period as stipulated under Section 34 (3) of the Act.
11. The application under Section 5 of the Limitation Act was filed
seeking condonation of delay of 30 days was really an application in
terms of the proviso to Section 34(3) of the Act.
12. The grounds stated in the application are that one -- Ms. Sakshi
Popli was appointed as a Government Counsel on 05.10.2016,
however, on 19.10.2016 she returned the file on account of personal
reasons stating that the parties were known to her personally.
Thereafter, another Government Counsel - Mr. Iram Majid was
appointed as Government Counsel on 24.10.2016 but he returned the
file on 26.10.2016 stating that he was empanelled counsel in High
Court and accordingly could not file the petition. Thereafter one -
Mr. Brijesh Kumar Saini was appointed as a Government Counsel, but
he also returned the file by letter dated 17.11.2016 stating that he had
been diagnosed with dengue fever and accordingly he could not file
the objections under Section 34 of the Act. Thereafter, Mr.
Ramraghvendra Kumar was appointed as Government Counsel on
22.11.2016 to whom the file was transmitted on 23.11.2016 and he
immediately drafted the objection and filed the same on 30.11.2016.
13. The reasons for delay, mentioned in the application seeking
condonation, constitute sufficient cause.
14. I am of the view that the trial court has erred in not appreciating
the reasons for delay mentioned by the appellant in the application
seeking condonation of delay and also the error in not noticing the
delay period was covered under the proviso to Section 34(3) of the
Act.
15. In view of the above, impugned order dated 25.03.2019 is set
aside. The objections under Section 34 are restored to its original
number. The matter is remitted to the trial court for consideration of
the objections on merit.
16. Trial court is directed to expeditiously consider the objections
under Section 34 of the Act and dispose of the same in accordance
with law.
17. Parties shall appear before the trial court for directions on
17.01.2020.
18. The appeal is allowed in the above terms.
19. Order dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J.
January 09, 2019
'rs'
