Delhi High Court
National Highways Authority Of India vs M/S Jsc Centrodorstroy on 17 September, 2009
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 04, 2009
Date of Order: September 17, 2009
+ IA No.1361/09 in OMP NO.46/2009
% 17.09.2009
NATIONAL HIGHWAYS AUTHORITY OF INDIA
..... Petitioner
Through: Mr. Sumit Gahlawat with
Ms. Padma Priya, Advs.
versus
M/S JSC CENTRODORSTROY ..... Respondent
Through: Mr. Sandeep Sharma, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1 This application has been made by the petitioner for condondation of delay of 78 days in re-filing the petition.
2. This petition under Section 34 of the Arbitration and Conciliation Act challenging the award was preferred within the period of limitation. Along with this, another petition challenging an identical award dated 2nd June, 2008 between the same parties was also filed before the Court on 13th August, 2008.
3. The Registry raised certain objections against the petition at the initial stage. It is submitted that since the other IA No.1361/09 in OMP NO.46/2009 Page 1 of 5 petition between the same parties with same title, being OMP No.473/2008, was registered and put up before the Court, the clerk of the counsel for the petitioner got confused between the other petition and the present petition and because of bonafide impression that matter had already been listed for hearing did not notice that the objections have been raised by Registry in this petition and he did not bring this to the notice of the counsel. It is only when on 9th January, 2009 while checking the office record and status of pending cases, the petitioner asked the counsel about the status of this case, the counsel found that this petition had not been listed and was lying under objections. It is stated that the delay in refilling was due to this bona fide mistake.
4. Counsel for the respondent has opposed the application on the ground that the affidavit which has been filed along with the application affirming the facts was contrary to the affidavits filed in another similar application explaining the delay. Here it is stated that the clerk got confused and in another application it is stated that the clerk had gone to his native place and did not return.
5. During arguments, the counsel who was retainer of the solicitors and was looking after the work of the petitioner, explained that both the petitions were filed within the period of limitation before the Court. However, the other OMP No.473/08 with the same title was listed and since the title of the two petitions was same, IA No.1361/09 in OMP NO.46/2009 Page 2 of 5 confusion crept. When the officials and authority asked for the status of both the objections, it is only then that confusion was removed and it was found that the other petition was lying under objections. She stated that it was a co-incidence that the two petitions of the same title were filed on the same day and this fact was not noticed by the counsel and the objections could not be removed in time. Regarding plea taken about the clerk she had no explanation.
6. This Court in Delhi Jal Board vs. Digvijay Singh Sanitations & Anr. dated 26.5.2009 in a similar situation observed as under:-
"6. Counsel for the petitioner, on the other hand, relied on 2007 (10) ADL 42 DDA v R.S. Jindal wherein a Division Bench of this Court observed that the statutory authority had to rely on their counsels who conduct cases and when the counsel admitted that there was default and mistake by his office, the statutory authority should not be made to suffer for the mistake of the counsel.
7. A perusal of record would show that the initial filing was done on 26th August 2006 i.e. within the period of three months and refilling was done on 18th July 2007. It is obvious from the affidavit filed by the petitioner's counsel that after the file was taken back from Registry for removing the objections, it got misplaced in another file with same cause title and the counsel could not pay attention due to ailment of his uncle. The other OMP between the same parties though came up for hearing in May, 2007 but in that only an adjournment was sought by respondent. In view of this fact, there seems to be no chance of the IA No.1361/09 in OMP NO.46/2009 Page 3 of 5 counsel for petitioner stumbling upon the objections lying in the file. It only seems that after execution was filed by respondent, the petitioner's counsel realized that objections filed by the petitioner were to be refilled after removing objections and then made efforts to trace the objections.
8. The petitioner in this case had filed objections against the award within the stipulated period. It is only the counsel who did not rectify the petition after removing objections. The petitioner (Delhi Jal Board) in this case being a statutory body has to depend upon on its advocate. The counsel, who had taken back the petition for removing office objections, could not re-file the petition due to intervening circumstances. I consider that the petitioner, who had filed objections within the prescribed period under the law, cannot be made to suffer for the negligence on the part of its counsel. The delay in refilling is though is of about ten and half months but due to circumstances explained by counsel and in view of the fact that nothing has come on record to show that what has been stated by counsel for the petitioner was not correct, the application deserves to be allowed. It is not a case of the respondent that the uncle of the petitioner's counsel had not suffered from heart attack or he had not left Delhi. In DDA v. R.S. Jindal's case (supra), this Court had considered condonation of delay of 216 days in filing Intra Court Appeal and observed that since DDA had to rely on the counsel, for the mistake of counsel, the petitioner should not be made to suffer.
9. Section 5 of the Limitation Act is not applicable as far as filing of petition under Section 34 is concerned, however, I consider that once the petition is filed within time, if there is delay in refilling, the Court can consider condonation of delay under Section 5 of the Limitation Act and if it is found that the reasons are justified, such delay can be condoned."IA No.1361/09 in OMP NO.46/2009 Page 4 of 5
7. I consider that delay in re-filing in this case has been explained and has occurred due to two petitions having been filed simultaneously in respect of two awards between the same parties. I find no negligence on the part of the petitioner. However, there seems to be a negligence on the part of the counsel who despite having been assigned two petitions had not performed his professional duty properly and had not bothered to see if both the petitions had been listed or not.
8. The application is allowed with the costs of Rs.10,000/- to be deposited by the counsel with Prime Minister Relief Fund. Costs shall be paid by counsel from his own account and not by the petitioner.
OMP NO.46/2009
List on 8th December, 2009.
September 17, 2009 SHIV NARAYAN DHINGRA J.
ak IA No.1361/09 in OMP NO.46/2009 Page 5 of 5