Employee State Insurance ... vs Ms Mathur And Kapre Associates Pvt ...
2022 Latest Caselaw 1344 Del

                          $~29(2022)

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                  Date of Decision: 05th May, 2022
                          +      O.M.P. (COMM) 216/2022 & I.A. Nos. 6872/2022,
                                 6873/2022, 6874/2022 (delay)

                                 EMPLOYEES' STATE INSURANCE
                                 CORPORATION (ESIC)                     .... Petitioner
                                              Through: Mr V.K. Singh, and Mr Sawarn
                                                       Kumar, Advocates..

                                                    versus

                              M/S MATHUR AND KAPRE ASSOCIATES
                              PVT LTD                                 ..... Respondent
                                            Through: Mr Sudhanshu Batra, Senior
                                                     Advocate with Mr Bhuvan
                                                     Gugnani, Advocate.
                          CORAM:
                          HON'BLE MR. JUSTICE VIBHU BAKHRU

                          VIBHU BAKHRU, J. (ORAL)

1. At the outset, it is pointed by Mr Batra, learned senior counsel appearing for the respondent, that the arbitral award dated 22.04.2018 was received by the petitioner on the same date. This was affirmed on behalf of the petitioner in the proceedings filed before the District Court. A photocopy of the petition filed by the respondent on 23.02.2018 before the District Judge has been shown to this Court, wherein it has been so affirmed. However, the affidavit affirmed before this Court is in variance with the said statement. In the above captioned petition, the petitioner states that it had received the

Signature Not Verified Digitally Signed By:Dushyant Rawal

impugned award on 09.05.2018. It is thus, obvious that at least one of the statements affirmed on behalf of the petitioner (one made before the District Court and the other made before this Court) is false.

2. The said affidavit has been affirmed by Mr Murthy, Superintending Engineer, ESIC. He is cautioned not to file such affidavits in a casual manner. Although, this Court was inclined to initiate proceedings for perjury against the deponent, this Court is refraining from doing so.

3. Mr Batra also states that the present petition is barred by limitation. The petitioner had filed the petition before the District Court on 23.07.2018 and withdrew the same on 25.03.2021. However, there is no application seeking any condonation of delay. Since the petitioner has filed the petition before the District Court on 23.07.2018, which was subsequently withdrawn on 25.03.2021 and the present petition was filed on 17.11.2021, the petition is ex facie barred by limitation. The petitioner has also not filed any application under Section 14 of the Limitation Act, 1963 seeking exclusion of the period spent before the District Court.

4. Mr V.K. Singh, learned counsel appearing for the petitioner, submits that although the petitioner has filed an application seeking condonation of delay in filing the petition but has incorrectly mentioned the same as an application under Section 5 of the Limitation Act, 1963. He submits that the said application may be considered as an application under Section 14 of the Limitation Act,

Signature Not Verified Digitally Signed By:Dushyant Rawal

1963.

5. On merits, the counsel for the petitioner has assailed the impugned award on a solitary ground. He states that the impugned award is non-est since it was rendered by the Sole Arbitrator appointed by the petitioner and the same is impermissible in view of the decision of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCC (India) Limited: Arbitration Application No 32 of 2019, decided on 26.11.2019 and as further followed by this Court in Proddatur Cable TV Digi Services v. Citi Cable Network Limited: (2020) 267 DLT 51.

6. A perusal of the said application filed by the petitioner under Section 5 of the Limitation Act, 1963 seeking condonation of delay (IA 6874/2022) indicates that there is no averment to the effect that the petitioner had pursued the petition before the District Court in a bona fide belief that the said court had jurisdiction. On the contrary, the first four paragraphs of the application advert to the decision of the Supreme Court in Re: Cognizance for Extension of Limitation, Suo Moto Writ Petition (Civil) No. 3 of 2020 and the orders passed by the Court. In the fifth paragraph, the petitioner has referred to certain authorities in support of the contention that liberal approach should be applied in condonation of delay. Paragraph nos. 6 and 7 are relevant and read as under:-

"6. That the previous counsel who was appearing in the Ld. Trial Court could not file the present petition before this

Signature Not Verified Digitally Signed By:Dushyant Rawal

Hon'ble Court despite of several request and reminder by the petitioner and the best reason known to him.

7. That the petitioner corporation has sent several emails and also made telephone calls to the Ld. previous counsel of the petitioner and asked about the status of the petition but the Ld. Previous Counsel did not acted as requested by the petitioner and best reason known to Ld previous counsel. The petitioner Corporation has assigned a new counsel that is the Present counsel to file the present petition before this Hon'ble court."

7. It is apparent that, in fact, it is the petitioner's case that it had been pursuing its advocate to file the present petition in this Court but for reasons best known to that advocate, the petition was not filed. Clearly, there are no averments in the said application to support a plea of condonation of delay under Section 14 of the Limitation Act, 1963. Thus, even if this Court overlooks the nomenclature of the application - which this Court is inclined to do - and accepts it as an application for seeking condonation of delay under Section 14 of the Limitation Act, 1963 and not under Section 5 of the Limitation Act, 1963, the same cannot be allowed. This is because there are no averments seeking exclusion of the time consumed in pursuing the challenge before the District Court.

8. The petition is clearly barred by limitation and is, accordingly,

Signature Not Verified Digitally Signed By:Dushyant Rawal

dismissed.

9. In view of the decision that the present petition is barred by limitation, this Court is not examining the question whether the impugned award is liable to be set aside as the Sole Arbitrator was ineligible to act. However, it is apparent that this plea is clearly not bona fide. The petitioner's Director General had appointed the Arbitrator. The petitioner had diligently pursued the arbitration before the Arbitral Tribunal without any reservation. It is pointed out that there is no averment in the present petition challenging the appointment of the learned Arbitrator. This ground, appears to be an afterthought. However, considering the nature of the question raised, this Court considers it apposite to leave the question open.

10. The petition is disposed of. All pending applications are also disposed of.

VIBHU BAKHRU, J MAY 5, 2022 pkv Click here to check corrigendum, if any

Signature Not Verified Digitally Signed By:Dushyant Rawal