Neena Bansal Krishna JUDGMENT
Neena Bansal Krishna, J.
I.A.3293/2020 (Condonation of Delay)
1. An application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the petitioner for condonation of delay of 85 days in re-filing of petition under Section 34 of the Arbitration & Conciliation Act, 1996.
2. It is submitted in the application that the petition was filed on 06th November, 2019 which was within the limitation period. However, there was a delay of 85 days in removing the defects and refilling of the present petition. It is stated that the applicant is a resident of Varanasi, Uttar Pradesh and after Winter Vacations started on 25th December, 2019 to 05th January, 2020, there was unavoidable delay of 85 days in removing the defects and refilling the petition. A prayer is, therefore, made that the delay may be condoned.
3. The respondent by way of his reply has opposed the condonation of delay of 85 days in refilling. It is that that defects noticed on filing of the petition on 06th November, 2019 should have been cured till 05th December, 2019, but there is no explanation as to why no steps were taken by the petitioner to cure the defects within this period or even thereafter till 25th December, 2019 or after the reopening of the Courts on 05th January, 2020 till 27th February, 2020. Merely stating that one of the partners was a resident of Varanasi cannot be any reason or impediment on the part of the applicant to have removed the defects. Moreover, no explanation has been given as to why none of the partners could travel to Delhi during this period from 06th November, 2019 to 27th February, 2020. There is no reason given for delay in rectification of the defects at the time of refilling and the application is liable to be dismissed.
4. The respondent has placed reliance on the following judgments:
(i) Telecommunication Consultants India Ltd. Vs. Next Generation Business Power Systems Ltd. MANU/DE/0296/2019
(ii) DYNA Technologies Private Limited vs. Crompton Greaves Limited MANU/SC/1765/2019 : (2019) 20 SCC 1
(iii) Dr. R.N. Gupta Technical Educational Society & Anr. Vs. Intec Capital Limited, OMP (COMM) 290/2021, dated 30.09.2021
(iv) UOI vs. TRG Industries Pvt. Ltd. (DB) MANU/DE/2965/2009 : 2009 (4) Arb Lrd., 4701
(v) D.D.A. & Ors. v. P.C. Sharma & Co. & Anr. MANU/DE/4771/2009
(vi) Puri Construction Pvt. Ltd. v. Larsen & Toubro Ltd. MANU/DE/1316/2015
(vii) Essar Procurement Services Ltd. vs. Paramount Constructions, MANU/MH/2511/2016
(viii) South East Asia Marine Engineering and Constructions Ltd. vs. Oil India Ltd. MANU/SC/0441/2020 : (2020) 5 SCC 164
(ix) Union of India vs. Om Construction Co. MANU/DE/2117/2019
5. The petitioner in its written submissions has explained that petitioner is a Partnership concern based at Varanasi, U.P. On receipt of the Award, the copy was forwarded to the office of the petitioner via courier in the end of August, 2019, as the entire record of the arbitration was retained and maintained by the petitioner at their office at Varanasi, Uttar Pradesh. Post Diwali which was 27th October, 2019, the petitioner contacted his advocate and requesting him to prepare and file the present petition. The record was extremely voluminous and in order to ensure that there was no delay in filing of the petition under Section 34 of the Arbitration & Conciliation Act, the present petition was prepared in November, 2019 and was filed within time before this Court on 06th November, 2019. The petition though complete in all respects was returned by the Registry on 08th November, 2019 noting certain defects. It was to be refilled within thirty days i.e. 07th December, 2019. The counsel for the petitioner contacted the partner who is stationed at Varanasi. The Courts were shut for Winter break and the Counsel for the petitioner was not available during the vacations. Immediately on reopening of the Courts in January, 2020 the partners of the petitioner visited Delhi with the entire arbitral record which runs into six volumes. Several documents were sent for retyping as per requirement of the Registry which took longer time than was anticipated. The petition was re-filed on 28th February, 2020 after removal of all the defects. It is stated that the filing of the petition was within the prescribed statutory period of 120 days, but the delay that occasioned only in the refilling of the petition which was unintentional and the same may be condoned.
6. Submissions heard.
7. In the present case the arbitral Award was announced on 09th August, 2019 and the objections in terms of Section 34(3) of A&C Act could have been filed within three months thereafter and the further grace of thirty days could have been sought by the petitioner on showing sufficient cause. Admittedly, the objections were filed on 06th November, 2019 which was within the prescribed period of three months.
8. The defect was found in the petition and the same was returned on 08th November, 2019 for re-filing. Thereafter, the second re-filing was done on 28th February, 2020. The defects noticed on 29th February, 2020 were that "the place of attestation was different from the address given; hand written modifications in duly stamped affidavit and filing of hard copy in original of petition under Section 9, 11 and 34 of Arbitration & Conciliation Act was mandatory in addition to e-filing". Eventually, the defects were removed and the petition was marked for registration on 11th March, 2020.
9. Admittedly, the objections were initially filed within 90 days and there is no plea of the filing of objections being non-est or there being any fundamental defect in the filing of the petition. The explanation tendered by the petitioner for delay in re-filing is that it is a partnership firm based in Varanasi and all the records of arbitration were also being maintained at Varanasi. The records were voluminous and it took some time to get the documents retyped consequent to which the delay happened. It is claimed that there was no negligence or carelessness on the part of the petitioner.
10. In the case of The Executive Engineer vs. Shree Ram Construction Co., MANU/DE/3065/2010 : 2011 (2) R.A.J. 152 (Del.) wherein the Hon'ble Supreme Court observed in the case of Improvement Trust vs. Ujagar Singh, MANU/SC/0417/2010 : (2010) 6 SCC 786 that justice can be done only when the matter is fought on merits and in accordance with law rather than being disposed of on technicalities that too, at the threshold but it was observed that this may not be applicable in the backdrop of Arbitration & Conciliation Act, 1996 which decidedly and calculatedly shut of crucial discretion after the expiry of thirty days beyond three months having elapsed from the date on which the copy of the Award had been received by the appealing party. It was observed that liberality in condoning delay in refilling would run counter to the intention of the parties which had employed plain language to facially prescribe a cut off date beyond which there is no latitude for condonation of delay. In Executive Engineers (supra), it was noted that the conduct of the party must pass the rigorous test of diligence as the purpose of prescribing the definite and unelastic period of limitation is rendered futile. However, each case needs to be examined on its own facts and merits to ascertain whether or not to condone the delay in re-filing the objection petition when the initial filing is within the period of limitation. If the delay in re-filing is substantially beyond the period of three months and 30 days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in re-filing.
11. Reference was also made to the case of Union of India vs. Popular Construct Co., MANU/SC/0613/2001 : AIR 2001 SC 4010, wherein it was held that the scheme and the history of 1996 Act supports the conclusion that the time limit prescribed under Section 34 to challenge an Award is absolute and unextendable by the law under Section 5 of the Limitation Act. Similar observations were made in the case of Chief Engineer of BPDP/REO Ranch Vs. Scoot Wilson Kirpatrick India Pvt. Ltd. MANU/SC/8646/2006 : (2006) 13 SCC 622.
12. While it is true that the consistent law is that there cannot be any condonation of delay in filing of the objections beyond three months plus thirty days as prescribed under Section 34(3) of the A&C Act, but the rule applies only to the filing of the objections. The same rigours of law and interpretation are not applicable to the case of refilling for removing the technical defects as has been held in the case of Delhi Development Authority vs. Durga Construction Co. MANU/DE/4933/2013 : 2013 (139) DRJ 133 [DB]. It was further observed that when an application or an appeal has been filed within the time prescribed, the question of condonation of delay in re-filing would have to be considered by the Court in the context of the explanation given for such delay. In the absence of any specific statue that passed the jurisdiction of the Court in considering the question of delay in re-filing, it cannot be accepted that the Courts are powerless to entertain an application where the delay in its re-filing crosses the time limit specified for filing of the application.
13. In M/s. Competent Placement Services through its Director/Partner Vs. Delhi Transport Corporation through its Chairman MANU/DE/3069/2010 : 2011 (2) R.A.J. 347 (Del), the Division Bench of this Court held that though the rigors of condonation the delay in re-filing are not as strict as for condonation of delay but it does not mean that a party can be permitted an indefinite and unexplainable period for re-filing the petition.
14. In the present case, the petition had been filed within the limitation of ninety days. The delay in refilling as sought to be explained by essentially claiming that the petitioner was based in Varanasi. Though, the explanation given may not be very convincing, but considering that the initial filing had been done within time which is not claimed to be non-est and in the light of observations made in Shree Ram Construction Co., (supra) that justice requires that matters be decided on merits, the delay in refilling of the petition is hereby condoned.
15. The application is accordingly allowed.
OMP (COMM) 411/2020
16. Re-notify the matter before the Roster Bench on 24.01.2023.
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