Shivshakti Enterprises Vs. Telecommunications Consultants India Ltd. - (High Court of Delhi) (09 Jan 2023)

When an application filed within the time prescribed, the question of condonation of delay in re-filing have to be considered by Court in context of the explanation given for the delay

MANU/DE/0114/2023

Arbitration

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 and Conciliation Act, 1996.

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.

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.

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 and 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. 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.

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 The Executive Engineer vs. Shree Ram Construction Co., that justice requires that matters be decided on merits, the delay in refilling of the petition is condoned. Application allowed.

Tags : REFILING DELAY CONDONATION