Delhi High Court - Orders
Union Of India vs M/S Navayuga Engineering Co Ltd on 6 October, 2021
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 50/2020
UNION OF INDIA ..... Appellant
Through: Mr. Shlok Chandra with Mr. Shrey
Chakraborty, Advs.
versus
M/S NAVAYUGA ENGINEERING CO LTD ..... Respondent
Through: Mr. Arvind Minocha, Sr. Adv. with
Mr. Mukesh Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 06.10.2021
1. The present appeal is directed against the order dated 28.11.2019 passed by the learned Single Judge in O.M.P.(COMM) 97/2017. The learned Single Judge by the impugned order decided I.A. No. 2599/2017 - which was an application filed by the appellant/petitioner to seek condonation of delay of 15 days in filing the objection petition under Section 34 of the Arbitration and Conciliation Act, 1996, in respect of the award dated 14.10.2016 rendered by Sole Arbitrator. The learned Single Judge has held in the impugned order that the appellant/petitioner had not set out any explanation whatsoever to seek condonation of delay of 15 days and „sufficient cause‟ had not been disclosed.
2. Mr. Chandra, learned counsel for the appellant/petitioner points out that the petitioner had, in fact, invoked I.A. No. 13968/2019, which was also an application under Section 5 of the Limitation Act, 1963 to seek Signature Not Verified CONT.CAS(C) 524/2020 & other connected matters Page 12 of 25 Digitally Signed By:AMIT ARORA Signing Date:11.10.2021 14:51:38 condonation of delay by making disclosure of the reasons leading to the delay in filing of the objection petition. Thereafter, the petitioner had also moved I.A. No.15763/2019 under Order IV Rule 17 to amend I.A. No. 13968/2019 so as to furnish better particulars. The said application was listed before the Joint Registrar on two occasions. No reply was filed to I.A. No. 15763/2019.
3. Mr. Chandra points out that when the matter came up before the learned Single Judge on 28.11.2019, the learned Single Judge proceeded to consider I.A. No. 2599/2017 and on that premise passed the impugned order, unmindful of the fact that the appellant/petitioner had already moved I.A. No. 13968/2019 and the application for amendment being I.A. No. 15763/2019. Mr. Chandra further points out that these applications were disposed of with the observation "since the application for condonation of delay has been dismissed, for the reasons stated above, present petition, along with the pending applications, is accordingly dismissed."
4. Mr. Chandra submits that the Court should have considered the application for amendment and thereafter, if the same was allowed, considered amended I.A. No. 13968/2019. However, the learned Single Judge has not considered either the amended I.A. No. 13968/2019 or the application for amendment, I.A. No. 15763/2019. Mr. Chandra further submits that the delay in filing the objection petition was 15 days which was well within the 30-day period. Therefore, the said delay could be condoned by the learned Single Judge. He further submits that the appellant/petitioner had furnished sufficient cause to explain the delay. He has drawn our attention to the list of dates and Signature Not Verified CONT.CAS(C) 524/2020 & other connected matters Page 13 of 25 Digitally Signed By:AMIT ARORA Signing Date:11.10.2021 14:51:38 events. Present appeal shows that after the award was published on 14.10.2016, on 31.12.2016, the appellant/petitioner had paid Rs. 1,33,87,786/- in respect of 4 claims, out total 5 claims, to the respondent.
5. The counsel was appointed with issuance of Brief Transmission Form (BTF) on 12.01.2017 to challenge the impugned award. This was well within the period of limitation. The Government Counsel drafted the petition under Section 34 of the Arbitration and Conciliation Act, 1996 on 18.01.2017 and the same was sent to the Public Works Department (PWD), Legal Cell for final vetting. On the same day, an e-mail was sent by the PWD Department to the counsel regarding comments/amendments for the finalization of the draft of the objection petition. On the very next day, a meeting was held between the counsel and the representatives from the PWD Department. On the following date i.e. 20.01.2017 amended objection petition was finalised and e- mailed by the PWD Department to the counsel for final vetting. On 22.01.2017, further amendments were made in the final draft as per the instructions of the Department and the modified final draft was sent to the Project Manager (Housing)-IV of PWD Department for vetting. On 23.01.2017, the final draft of the Section 34, petition was received by the Department. On 25.01.2017, the counsel received the final signed, stamped and notarized copy of the Section 34 petition. It took 15 days from the date of appointment of the counsel to compile all the documents and file the petition on 27.01.2017, resulting in delay of 15 days.
6. We have heard learned counsels. In our view, the intent of the Signature Not Verified CONT.CAS(C) 524/2020 & other connected matters Page 14 of 25 Digitally Signed By:AMIT ARORA Signing Date:11.10.2021 14:51:38 appellant/petitioner is clearly to file the objection petition within the period of limitation since the counsel was appointed within time. The steps taken by the counsel and the appellant‟s PWD Department show a sense of urgency as actions were being taken by them practically on a daily basis.
7. In our view, therefore, there was sufficient justification for condonation of delay. The impugned orders proceeded on the basis of the earlier application moved by the appellant/ petitioner which, admittedly, did not provide the particulars. However, the learned Single Judge has failed to take notice of subsequent application i.e. I.A. No. 13968/2019 as also the application moved to seek amendment thereof by the I.A. No. 15763/2019.
8. In our view, the impugned order is erroneous and cannot sustain. We may also refer to our decision in FAO (OS) (COMM) 17/2020, wherein we have observed as follows:
7. Considering the fact that the only remedy available to the aggrieved party against the arbitral award is by way of objection petition under Section 34 of the Arbitration and Conciliation Act, generally speaking, the approach of the Courts while dealing with the applications seeking condonation of such delay has been liberal. It is only in cases where a party prefers objections either in time, or within the extended period of 30 days, and thereafter keeps delaying the matter by keeping the objection petition under office objections for months on end, that the Courts have taken a strict view keeping in mind that the object of expeditious disposal of the objection petition for conclusion of arbitral process is defeated.
9. We accordingly set aside the impugned order and condone the delay in Signature Not Verified CONT.CAS(C) 524/2020 & other connected matters Page 15 of 25 Digitally Signed By:AMIT ARORA Signing Date:11.10.2021 14:51:38 filing of the petition under Section 34 of the Arbitration and Conciliation Act, 1996, since the appellant/petitioner has made out sufficient cause for the delay.
10. The appeal is allowed.
11. The objection petition is restored. Party shall appear before the learned Single Judge on 10.11.2021.
VIPIN SANGHI, J JASMEET SINGH, J OCTOBER 6, 2021 Sahil Sharma Signature Not Verified CONT.CAS(C) 524/2020 & other connected matters Page 16 of 25 Digitally Signed By:AMIT ARORA Signing Date:11.10.2021 14:51:38