Union Of India vs M/S Raitani Engineering Works ...
2021 Latest Caselaw 1227 Gua

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GAHC010167612019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Civil)/3132/2019

            UNION OF INDIA
            REP. BY THE GENERAL MANAGER/CON, NORTH EAST FRONTIER
            RAILWAY, MALIGAON, GUWAHATI, PIN- 781011, ASSAM



            VERSUS

            M/S RAITANI ENGINEERING WORKS (PVT.) LTD.,
            M.M. CHOUDHURYS COMPOUND (EX. CM ASSAM), P. B. ROAD,
            REHABARI, GUWAHATI- 781008.



Advocate for the Petitioner   : MR S CHAKRABORTY

Advocate for the Respondent : MRS. S ROY




             Linked Case : Arb. A. No. 10273 / 2019

            UNION OF INDIA



             VERSUS

            M/S RAITANI ENGINEERING WORKS(PVT.) LTD
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         ------------
         Advocate for :
         Advocate for : appearing for M/S RAITANI ENGINEERING WORKS(PVT.) LTD



                                  BEFORE
                 HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                          ORDER

30-03-2021 Heard Shri S. Chakrabarty, learned counsel for the applicant (appellant)- Railways. Also heard Shri R. Hussain, learned counsel for the opposite party / respondents.

The present application has been filed under Section 5 of the Limitation Act seeking condonation of delay in preferring the connected appeal against the Judgment dated 02.01.2019 passed by the learned District Judge, Kamrup (M) in Misc (Arb) Case No. 27 / 2013 whereby the application under Section 34 of the Arbitration and Conciliation Act, 1996 has been dismissed and the award dated 14.03.2013 has been upheld.

Shri Chakrabarty, learned counsel for the applicant has drawn the attention of this Court to the averments made in the application, more particularly, those made in paragraphs 4 & 5 wherein apart from the delay caused in the office formalities, the health issue of the conducting counsel has also been cited as a ground. The learned counsel for the Railways further submits that the award involves public money and therefore, a justice oriented approach be taken by this Court whereby the applicant be given a chance to contest the award on merits by condoning the delay.

On the other hand, Shri Hussain, the learned counsel for the opposite party submits that none of the reasons cited in the application are liable for any consideration. He has submitted that office formalities cannot be an adequate ground for condonotion of delay. As regards the ground taken on account of health issue of the conducting advocate, Shri Hussain has referred the provisions of Order 17 Rule 2 (e) where illness of a pleader cannot be taken Page No.# 3/5

even as ground for adjournment and accordingly submits that such reasons cannot therefore be a ground for condonation of delay.

This Court on an earlier occasion vide order dated 17.02.2021 had also considered the law holding the field settled by the Hon'ble Supreme Court in the case of N.V. International Vs. State of Assam and Ors. reported in (2020) 2SCC 109 and also an earlier decision of Consolidated Engineering Enterprises Vs. Principal Secretary (Irrigation Department) and Ors reported in (2008) 7 SCC 169.

This Court had also observed that though in the later decision of N.V. International, it was held that there is no provision for condonation, in the earlier decision, the view was otherwise and it appears that the earlier decision which was of a larger Bench was not placed before the Hon'ble Supreme Court while deciding the case of N.V. International. The aforesaid confusion however appears to be settled by a recent decision of the Hon'ble Supreme Court in the case of Government of Maharashtra vs. Borse Brothers Engineers & Contractors Pvt. Ltd. reported in 2021 SCC Online SC 233 whereby the decision rendered in the earlier case of Consolidated Engineering Enterprises has been upheld.

Having come to a situation where the scope to apply the provisions of Section 5 of the Limitation Act for condonation of delay is available, this Court is required to see two aspects, firstly the duration of delay and secondly the reasons cited for such delay. Another aspect which may also have some relevance is the aspect of public interest involved with the award.

In the instant case, the delay is of 89 days and the reasons cited is completion of office formalities and the illness of the learned counsel for the Railways conducting the case.

At this stage, Shri Hussain, the learned counsel for the opposite party submits that the delay as per their calculation is 184 days.

Be that as it may, this Court will go by the calculation made by the office as per which the delay is 96 days.

In the latest case of Government of Maharashtra (supra) the Hon'ble Page No.# 4/5

Supreme Court had interfered with the Judgment of the Hon'ble High Court of Delhi whereby a delay of 227 days was condoned. The Hon'ble Court came to a finding that apart from the delay being a long one, there was no sufficient cause to explain the same.

For ready reference, the relevant part of the Judgment is extracted herein below:

"67. This explanation falls woefully short of making out any sufficient cause. This appeal is therefore allowed and the condonation of delay is set aside on this score also.

68. In the Civil Appeal arising out of SLP (C) Diary No. 18079 of 2020, there is a huge delay of 227 days in filing the appeal, and a 200-day delay in refilling. The facts of this case also show that there was no sufficient cause whatsoever to condone such a long delay. The impugned judgment of the High Court of Delhi dated 15.10.2019 cannot be faulted on this score and this appeal is consequently dismissed."

Each case has to be decided on its own facts. In the instant case, though the delay is 96 days, the explanation cited mainly with regard to that of the illness of the counsel appears to be a reasonable one.

The Honb'ble Supreme Court in a catena of cases relating to the subject has laid down that in matters of condonation of delay, the approach of the Court should be pragmatic and justice oriented and the rights of the parties should not be defeated on the ground of technicalities. At the same time, this Court cannot simply brush aside the fact that because of the delay, certain rights have accrued upon the opposite party (Claimant) in terms of the award attaining finality.

Balancing the aforesaid factors, this Court is of the view that the present application filed for condonation of delay be allowed subject to a cost of Rs.10,000/- (Rupees Ten Thousand) to pay the Railways. Such cost be deposited within a period of 6(six) weeks in the Registry of this Court and the opposite party would be entitled for release of the same on being properly identified by the counsel.

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Interlocutory Application accordingly stands disposed of.

JUDGE

Comparing Assistant