Madras High Court
Religare Broking Limited vs Joseph J.Naduvilaparampil on 4 November, 2024
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
O.S.A.No.310 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2024
CORAM :
THE HON'BLE MR.K.R.SHRIRAM, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
O.S.A.No.310 of 2019
and C.M.P.Nos.25447 of 2019, 4243 of 2021,
19155, 19158 and 19160 of 2024
RELIGARE BROKING LIMITED
GYS GLOBAL A-3, 4, 5, PLOT NO.11,
SECTOR 125, NOIDA - 201 301,
REP BY ITS ASSOCIATE VICE PRESIDENT
AND AUTHORIZED SIGNATORY, V.ELUMALAI .. Appellant
Versus
1. JOSEPH J.NADUVILAPARAMPIL
2. V.PAUL DAS (DELETED)
PRESIDING ARBITRATOR,
APPELLATE ARBITRATORS PANEL,
NATIONAL STOCK EXCHANGE OF INDIA LTD,
8TH FLOOR, ARIHANT NITCO PARK,
NO.90, DR.RADHAKRISHNAN SALAI,
MYLAPORE, CHENNAI - 600 004.
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O.S.A.No.310 of 2019
3. P.CHANDRASEKHAR(DELETED)
CO-ARBITRATOR, APPELLATE ARBITRATORS PANEL,
NATIONAL STOCK EXCHANGE OF INDIA LTD,
8TH FLOOR, ARIHANT NITCO PARK,
NO.90 DR.RADHAKRISHNAN SALAI,
MYLAPORE, CHENNAI - 600 004
4. C.MADASAMY(DELETED)
CO-ARBITRATOR, APPELLATE ARBITRATORS PANEL,
NATIONAL STOCK EXCHANGE OF INDIA LTD,
8TH FLOOR, ARIHANT NITCO PARK,
NO.90 DR.RADHAKRISHNAN SALAI,
MYLAPORE, CHENNAI - 600 004.
[R2 to R4 deleted vide order of Court
dated.19.08.2024]
Prayer : Appeal under Order 36 Rule 1 of the Original Side Rules and
Clause 15 of the Letters Patent to set aside the judgment and decreetal
order dated 10.07.2019 in O.P.No.312 of 2015 on the file of this Court,
allow the appeal by setting aside the award dated 12.7.2014 passed by the
Arbitral Tribunal of the National Stock Exchange (NSE) and confirmed by
award dated 10.12.2014 passed by the Appellate Tribunal of the National
Stock Exchange (NSE).
For Appellant : Mr.Sundar Narayan
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O.S.A.No.310 of 2019
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O.S.A.No.310 of 2019
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
The appeal was filed against a judgment dated 10.7.2019 dismissing
the Original Petition bearing No.312 of 2015 filed by appellant under
Section 34 of the Arbitration and Conciliation Act, 1996 (the Act)
confirming the award dated 12.7.2014 passed by the Arbitral Tribunal of
the National Stock Exchange (NSE), which was confirmed by an award
dated 10.12.2014 passed by the Appellate Tribunal of the NSE. Therefore,
this appeal has been filed after losing in three rounds.
2. Appellant has been enjoying an injunction which was passed vide
an order dated 28.11.2019 by this court restraining NSE from disbursing
the amounts covered under award dated 12.7.2014 passed by the Arbitral
Tribunal of NSE and confirmed by the Appellate Tribunal of NSE vide
order dated 10.12.2014. This amount was to be disbursed from the
security deposit made by appellant consequent to the dismissal of
O.P.No.312 of 2015 by order dated 10.7.2019 passed by this court.
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3. When appellant was enjoying this interim injunction and during
the pendency of this appeal, respondent died. The appellant, therefore,
filed applications for condoning the delay of 728 days in filing the
application to set aside the abatement caused by the death of erstwhile
respondent No.1; to set aside the abatement; and, to bring on record one
N.Alice Grace Joseph as legal representative.
4. It is stated in the application that appellant was not aware that
respondent had died. The application says respondent died on or about
27.5.2021. It is admitted in the application, as also in a memo that was
filed on 2.7.2024 by the appellant, that on 21.2.2022 respondent's counsel
informed the court that respondent had passed away. It is appellant's case
that it could not bring on record the legal heir, which respondent's counsel
informed appellant's counsel is one N.Alice Grace Joseph, because the
details were not furnished. Counsel for appellant addressed a
communication on 20.3.2022, 27.3.2024, 1.7.2024 and 2.7.2024 calling
for details of the legal heirs of respondent, but there was no response. It is
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also stated in the application that respondent's counsel informed that she
was having difficulty in communicating with the said N.Alice Grace Joseph
due to her old age and difficulty in communicating in the local language.
However, what is glaring is the wide gap between 20.3.2022 and
27.3.2024, which is seven days more than two years. That would mean
about 738 days.
5. Since, admittedly, the appeal against only respondent had abated,
the appellant is seeking to set aside the abatement. As there is absolutely
no explanation whatsoever for this 738 days' delay, the question of setting
aside the abatement does not arise.
6. The Apex Court in Perumon Bhagvathy Devaswom v. Bhargavi
Amma1 had summarised the principles applicable while considering
applications for setting aside abatement. It is apposite to quote paragraph
13 of the said judgment hereunder:
“13. The principles applicable in considering applications for setting
aside abatement may thus be summarised as follows:
1 (2008) 8 SCC 321
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(i) The words “sufficient cause for not making the application
within the period of limitation” should be understood and
applied in a reasonable, pragmatic, practical and liberal
manner, depending upon the facts and circumstances of the
case, and the type of case. The words “sufficient cause” in
Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice, when the
delay is not on account of any dilatory tactics, want of bona
fides, deliberate inaction or negligence on the part of the
appellant.
(ii) In considering the reasons for condonation of delay, the
courts are more liberal with reference to applications for
setting aside abatement, than other cases. While the court
will have to keep in view that a valuable right accrues to the
legal representatives of the deceased respondent when the
appeal abates, it will not punish an appellant with
foreclosure of the appeal, for unintended lapses. The courts
tend to set aside abatement and decide the matter on merits,
rather than terminate the appeal on the ground of
abatement.
(iii)The decisive factor in condonation of delay, is not the length
of delay, but sufficiency of a satisfactory explanation.
(iv)The extent or degree of leniency to be shown by a court
depends on the nature of application and facts and
circumstances of the case. For example, courts view delays in
making applications in a pending appeal more leniently than
delays in the institution of an appeal. The courts view
applications relating to lawyer's lapses more leniently than
applications relating to litigant's lapses. The classic example
is the difference in approach of courts to applications for
condonation of delay in filing an appeal and applications for
condonation of delay in refiling the appeal after rectification
of defects.
(v) Want of “diligence” or “inaction” can be attributed to an
appellant only when something required to be done by him,
is not done. When nothing is required to be done, courts do
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not expect the appellant to be diligent. Where an appeal is
admitted by the High Court and is not expected to be listed
for final hearing for a few years, an appellant is not expected
to visit the court or his lawyer every few weeks to ascertain
the position nor keep checking whether the contesting
respondent is alive. He merely awaits the call or information
from his counsel about the listing of the appeal.”
7. The Courts have held that a liberal construction so as to advance
substantial justice has to be made, but what is important is sufficiency of a
satisfactory explanation. In the case on hand, there is no explanation
whatsoever, let alone a satisfactory explanation. In these circumstances,
we see no reason to set aside the abatement.
8. We also note that appellant is a corporate entity and appellant
could have deputed somebody, if it was really serious, to the address of
respondent and made inquiries. That also has not been done. We will not
be wrong in assuming that it was a deliberate inaction because appellant
was enjoying an interim injunction against the respondent. Having lost in
three rounds, appellant decided to let the matter lie.
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Therefore, applications are dismissed. The appeal having abated be
noted as disposed. A copy of this order be sent to the address of the
deceased respondent for information. There shall be no order as to costs.
(K.R.SHRIRAM, C.J.) (SENTHILKUMAR RAMAMOORTHY,J.)
04.11.2024
Index : Yes/No
NC : Yes/No
sasi
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THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY,J.
(sasi)
04.11.2024
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