Delhi High Court
M.L. Mahajan vs Delhi Development Authority And Anr. on 1 April, 1992
Equivalent citations: 1992(22)DRJ620, 1992RLR242
JUDGMENT Jaspal Singh, J.
(1) Quantum physicists reveal that the world inside the atom - with its whizzing elementary particles and clouds of electrons - is just as grand as the universe itself. The point in issue is also microscopic and it too constructs a magnum opus though, unfortunately, of grand contusion, callousness and utter chaos in none other but the big blooming Delhi Development Authority.
(2) First the facts. Disputes and differences having arisen between the parties, reference was made to the Arbitrator who made his award on 5th of March, 1987. This was followed by a petition under section 14 of the Arbitration Act, and a consequent notice of filing of the award and the proceedings, to the parties. The Delhi Development Authority was served with the notice on July 28, 1987. Since no objections were filed by either of the partics, the award was made the rule of the court and decree was passed in terms thereof. This was on September 14, 1987. On May 11, 1988, the Delhi Development Authority moved two applications, one under Order 9 rule 13 of the Code of Civil Procedure and the other under Section 5 of the Limitation Act seeking condensation of delay in the making of the application under Order 9 rule 13 of the Code.
(3) Has the Delhi Development Authority made out a case for condensation of delay? It is this question which contains in its embryo a sad spectacle of how the things work (or is it: do not work?) in that organisation.
(4) On July 28, 1987, as noticed already, notice of the filing of the Award and the proceedings was served on the parties. The claimant, of course, did not chose to file objections. He could not have any, for the obvious reason that the award was in his favor. However, what requires to be noticed is that even the Delhi Development Authority did not care to file any. The result was that on September 14, 1987 the award was made the rule of the court and decree was passed in terms thereof. On September 26, 1987 the claimant sent a letter to the respondent which was served dusty on September 28, 1987. It gave full information regarding the decree and contained a request for payment of the decretal amount. The letter elected no response. On February 11,1987 the claimant wrote yet another letter making reference to the decree and requesting for payment. It did not cause even a ripple. On January 19, 1988 the claimant filed an execution application in which notice was issued for March 10, 1988. As we all know, the present applications were moved in May, 1988.
(5) How is the Delhi Development Authority trying to surmount this unsurmountable delay? It says, the notice of filing of the award and the proceedings, though served, was misplaced and is (Heavens help them) still not traceable. It admits that its concerned Executive Engineer was informed by the claimant about the passing of the decree and that he in turn had informed the authorities concerned about it. What happened thereafter also does not elevate the spirits. It is said that after this information steps were taken to "locate" the notice (What steps? We are not told. When? We are not informed.) and one Mr.K-C.Dua, Advocate, was entrusted with the job to inspect the record of this case. (When? The question remained unanswered even during arguments). We are told that he did inspect the record (but we are not told when?) which revealed unto him that the notice had actually been sent and served. It was thereafter only that the said notice was found to have been "diarised on 28.7.1987". This was followed by a departmental probe to fix "individual fault of the officer concerned" and the taking of "legal opinion" and the decision to move the court for setting aside the decree. Significantly we are not told when was Mr.Dua appointed, on which date he came to know that the notice had been served and on which date he communicated the information to the Authority. We are also kept in dark about the date when the so-called legal opinion was sought and given and which was that day when the a!l important decision to move the application was taken. The Delhi Development Authority may have a fancy for darkness, Courts love sun-shine. More so when the law, which is as old and as well- entrenched as the hills, requires a party seeking condensation of delay to explain such day's delay. Not a fraction of this requirement is met. In any case, the perusal of the applications, both under Order 9 rule 13 of the Code of Civil Procedure and under section 5 of the Limitation Act shows that they were ready on May 5, 1988, for that is the date they bear. However, both the applications were filed on May 11, 1988. Not a word is said as to why the Delhi Development Authority sat over them from May 5, till May 11.
(6) It was submitted, and I could discern signs of exasperation from the lingering tone and the shrugging of the shoulders, that in Government offices files keep shuffling from one table to the other at snail's pace making it difficult to keep a vigilant eye and all this entails delay. Neither the Government nor any of its agencies nor any Authority like the present one can have better privilege than any other party. Working of the office procedure or administrative reasons offers neither respite nor refuge. Rather, it is irrelevant.. It was observed by the Supreme Court in State ofW.B. v Howrah Municipality : "MR.D.MLIKHERJI,learned counsel for the first respondent, is certainly well founded in his contention that the expression 'sufficient cause' cannot be construed loo liberally, merely because the party in default is the Government. It is no doubt, true that whether it is Government or a private party, the provisions of law applicable arc the same, unless the statute itself make any distinction. But it cannot also be gainsaid that the same consideration that will be shown by court to a private party when he claims the protection of section 5 of the Limitation Act should also be available to the State."
(7) In Union of India v. Ram Charan also, the Supreme Court had an occasion to deal with the question and it was made clear that there was no question of construing the expression 'sufficient cause' liberally merely because the party in default happened to' be the Government. Applying the principles so enunciated to the facts of the present case, what do we find? Inertia, inactivity, inaptness. Vigilance, let no body forget, is the eternal price the law demands. Pay it or suffer the consequences.
(8) Since no sufficient ground is shown to exist for condensation of delay, the application under Order 9 rule 13 need hardly be considered.
(9) I would have called it a day with the observations made in the preceding paragraph had the learned counsel for the claimant - decree holder not challenged the very maintainability of the application under Order 9 rule 13 of the Code. It was argued that since despite service of notice of the filing of the award and the proceedings, no objections had been filed within the statutory period, the consequent passing of the decree could not be treated as an ex parte decree, and as such, the question of setting it aside under Order 9 rule 13 of the Code would not arise. It need hardly be mentioned that the learned counsel for the Delhi Development Authority found the argument totally unacceptable. Relying upon a judgment of this court in M/s.Bhagwan Dass Bros v. Ghulam Ahmed Dar & Ors , it was asserted that the application under Order 9 rule 13 was competent.
(10) I have gone through the judgment in M/s. Bhagwan Dass & Bros. with the respect it so richly deserve". However, I do feel that the judgment dealt with a situation foreign to us and as such, is clearly distinguishable. It was a case where, consequent upon the service of notice of the filing of the award and the proceedings, the party had filed objections but had subsequently absented itself inviting the order making the award the rule of the court and the passing of a decree in terms thereof. It was in the context of these facts that it was observed: "WITH great respect I am of the opinion that the principles of 'audi alteram partem' regarding hearing both sides is a principle of natural justice. Principles of natural justice are ingrained in Art. 14 of cur Constitution. Section 17 of the Act also provides that if an application to set aside the award has been made then the court shall proceed to pronounce the judgment according to the award "after refusing it", meaning thereby after refusing the application for setting aside the award. Such a refusal, if made in the absence of a party would no doubt be an ex parte refusal. Therefore, it is equally mandatory under S.17 of the Act that when an application for setting aside the award is made, it mast first be refused before the Court can proceed to pronounce the judgment according to the award after which the decree follows. Therefore, if such an application is refused and if it is done because of the non-appearance of the objector or his counsel and without hearing the objector or his counsel then it is difficult to accept that it is not an ex parte decree. If the Court proceeds to pronounce judgment according to the award; where after the decree follows; it cannot be said that such a decree is not in the nature of an ex parte decree."
(11) What will be the position where, as in the present case, no application is made to set aside the award? Obviously, in such a case the need to meet the requirement of section 17 to pronounce the judgment according to the award "after refusing" such an application, would not arise. After all, how can one "refuse" an application where no such application has actually been made?
(12) What, then, is the legal position in a case like the present one? The Andhra Pradesh High Court is categorical. It has held in Government of Andhra Pradesh and another vs. Bactchala Balaiah that provisions under Order 9 rule 13 do not apply. It was a case where, in response to the notice of the filing of the award and the proceedings, the defendants did put in appearance but as no objections were filed despite repeated adjournments, the court set the defendants exparte, and subsequently made the award the rule of the court and passed a decree in terms thereof. The defendants, thereafter, moved an application under Order 9 rule 13 of the Code. It was held: "WHENan award is passed in the Court, what the aggrieved party has to do is enunciated by S.30 gives an opportunity to the aggrieved party to file an application under S.30 for setting aside the award within 30 days from the date of service of the notice of filing of the award in the court on the grounds mentioned therein and no appeal against such an order lies under S.30 of the Act. If such a petition is not filed under S.30, the Court has to pass a degree under S.17 of the Act making the award the rule of the Court, irrespective of the fact whether the defendants do appear or do not appear and contest. S.17 makes it mandatory on the part of the Court to pass judgment and decree in terms of the award as such a decree can be pronounced even if the parties, cannot be treated as ex parte, especially when a petition under S.30 of the Act for setting aside the award was not filed within 30 days from the date of service of the notice of the filing of the award in the court. It is not an ex parte decree, the question of setting aside such a decree under O.9 R.13 does not arise. Hence the petition filed under O.9, R.13, Civil Procedure Code ., for setting aside the ex parte decree which was passed under S.17. Arbitration Act, is not maintainable. This legal position is made clear by the several High Courts and the Supreme Court."
(13) In arriving at its conclusions the Andhra Pradesh High Court leaned heavily on the judgment of the Calcutta High Court in Ganeshmal v. S.Kesoram Cotton Mills . It was a case where service of notice had not been affected but the award had been made the rule of the court and decree had been passed in terms thereof. The question which arose for determination was as to whether Order 9 rule 13 of the Code applied to such a decree or not. It was observed: "IN my judgment in spite of S-43 of the Arbitration Act and S.141 of the Code strictly the provision of O.9 R.13 does not apply to pr setting aside an ex parte decree passed under S.17. In a suit the is plaintiff and defendant and O.9 deals with them differently. Strictly neither party to an award is a plaintiff or defendant and both parties are entitled to ask the Court to pronounce judgment according to the award. In a suit if the plaintiff does not appear no decree can be passed and if the defendant does not appear the plaintiff mast prove his case. Under S.17 a judgment must be pronounced and a decree must follow, if the conditions of Ss.14 and 17 arc complied with. Such a decree even if pronounced in the absence of the parties cannot be said to be passed ex parte so as to attract O.9 R. 13. Raghunath Rai Dihuk Rai v. Bndhichand Srilal 3 Pat. 839. O.9 R.13 enables the Court to set aside an ex parte decree in case where the summons was not duly served but it does not provide for a case where the decree under S.17 of the Arbitration Act is passed without complying with its mandatory provisions and before the expiry of the time for applying to set aside the award. The provision of 0.9 R.13 of the Code cannot be made applicable to the proceedings for setting aside a judgment pronounced under S.17 of the Arbitration Act. In spite of S.43 of the Arbitration Act such provisions of the Code as are not consistent with the provision of the Indian Arbitration Act will not apply to the proceedings under the latter Act."
(14) I may mention that both these judgments were noticed in the judgment of this Court in M/s. Bhagwan Dass & Bros v. Ghulam Ahmed Dar & Ors. (supra) and were distinguished on facts. However, the Court, while dealing with the Calcutta High Court judgment in Ganeshmal v. Kesoram Cotton Mills (supra) further observed: "THE reasons given by the learned single Judge of the Calcutta High Court in Ganeshmal's case (MR 1952 Cal. 10) for considering the provisions of S.17 to be mandatory in nature and for distinguishing a suit filed for making the award a rule of the Court with another suit and for coming to the conclusion that a decree passed under S.I? .cannot be said to be an ex parte decree, may not necessarily be a good reason after the amendment of O.8 R.10, Civil Procedure Code ."
(15) Has the amendment of Order 8 rule 10 of the Code changed the scenario? Let us first have a look at section 41 of the Arbitration Act. The relevant portion runs as follows:
"SECTION 41. Procedure and powers of Court. Subject to the provisions of this Act and of rules made there under:-
(A)the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings before the Court, and to all appeals, under this Act,"
(16) Even a cursory look at the provision would go to show that the Code of Civil procedure has not been made applicable in toto. Its application is "subject to the provisions of this Act and the rules made there under". This is borne out even from the judgment of the Supreme Court in Nilkantha v. Kashinath , which categorically gives the impression that a notice under sub section 2 of section 14 of the Act does not necessarily mean communication in writing. Obviously, the Supreme Court, by so observing made a departure from the provisions of Order 3 of the Code of Civil Procedure in the matter of the understanding of the words "service of notice" contemplated in sub-section (2) of section 14 of the Arbitration Act.
(17) In short thus, the Code of Civil Procedure having been made applicable only "subject to the provisions of the Act and the rules made there under", to such cases as are covered squarely by section 17 of the Act, as is the present one, Order 8 rule 10 of the Code will not apply.
(18) There is yet another reason for non-applicability of Order 8 rule 10 of the Code. It would be noticed that under Rule I of Order 8 of the Code, presenting written statement by the defendant, at or before (he First hearing or within such time as the Court may permit, is a statutory requirement. Similarly Rule 9 of Order 8 speaks of the Court requiring the filing of a written statement or additional written statement "from any of the parlies". Rule 10 of Order 8 deals with the situation where a party fails to present written statement called for by court under rule 1 or rule 9 of Order 8. This rule relates back to rule 1, as well as rule 9 and applies only to a specific requirement by the court to the filing of a written statement. It does not apply where there is no such requirement at all by the Court or where there is only a general direction in the summons that a written statement may be filed. Reference, in support may be made to the following observations made by B.C.Misra, J. in Union of India vs. Bhagwan Dass, : "THE requirement of filing a written statement from any of the parties is contained in R.9, the material portion of which is to the effect that the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. Apart from the provisions contained in Rule 9, the provision of Rule I of Order 8 also provides that the defendant may, and, if so required by the court, shall at or before the first hearing or within such time as the court may permit, present a written statement of his defense. The condition precedent for proceeding under Rule 10, therefore, is that the court must require the defendant to file the written statement and if on being so required the defendant fails to comply with the order within the time allowed, the court has been given the power to pronounce the judgment against him. The power in R.10 can as well be exercised against any of the parties if the court calls upon it to tile an additional written statement. However, allowing the defendant merely time to file a written statement which he wants to file on his own does not amount to an order by the court requiring the defendant to file the written statement."
(19) Coming to Sections 14 and 17 of the Arbitration Act, it would be seen that on the filing of the award, the court is obliged only to issue a notice to the parties intimating that the award has been filed. As per the Supreme Court in Nilkanth v. Kashinath Somunna (supra) communication that an award has been filed is sufficient compliance with the requirements of sub section (2) of Section 14. The Court does not, by giving such a notice require the parties to file written statement.
(20) Order 8 rule 10 of the Code does not thus get attracted. As would be borne out from the passage reproduced above, from M/s. Bhagwan Dass Bros v. Ghulam Ahmed Dar the observations made therein are not in absolute terms. They arc obiter dicta. Consequently, and further as, on facts, this case is clearly distinguishable, I have not thought of referring the matter to a larger Bench.
(21) In Soorajmull v. Golden Fibre & Products also, as in the present case, notice under sub section 2 of section 14 of the Act was duly served. No application for setting aside the award was made nor was it pending when the judgment and decree was passed. As a matter of fact, as in the present case, time to make such application had also expired. It was held: "ORDER9 rule 13 of the Civil Procedure Code enables the court to set aside an exparte decree, in the circumstances mentioned in the said rule. It is apparent that the said rule is not applicable to the instant case. Order 9 rule 13 applies only to the application made for setting aside of an exparte decree passed in a suit."
(22) Similar on facts is Alvel Sales v. Dujadwala Industries . The Court agreed with the following observations made by a Division Bench of the Patna High Court reported in Roshan Lal v. Firm Budhichand, followed in later decisions reported in Rajeshwar v. Ambika Prasad, and Ram Chander v. Jamnasankar : "The second point is equally clear. It is asserted by the appellants that as they had no opportunity to place their case before the court the decree must be regarded as exparte; but it is nothing of the sort. An exparte decree is a decree passed by the court in the absence of the defendants where the plaintiff has proved his case, but here the presence of the parties was not necessary to enable the court to pronounce judgment according to the award."
(23) With respect, I too find myself by the side of this view. In Ganeshmal's case (supra) notice under sub section (2) of section 14 of the Act was not served. The decree was thus passed irregularly. The court in the said case held that the provisions of Order 9 rule 13 were not attracted but set aside the decree in its inherent jurisdiction to set right an injustice done by the court on a party. Same principle was followed in Eusufv. David . In that case the award was made the Rule of the court and decree was passed in terms thereof before the time to make an application for setting aside the award expired. The decree was set aside not by applying Order 9 rule 13 of the Code, for that was held not applicable, but on the ground that the decree was without jurisdiction.
(24) In the instant case notice under sub section 2 of section 14 of the Act was duly served. No application was filed for getting the award set aside. As a matter of fact,the decree was passed only after time to make such an application had expired. There was thus no irregularity in passing the decree nor was it without jurisdiction. Even otherwise, the Delhi Development Authority has lost its right to seek for the setting aside of the award, as under the Limitation Act, the period has long expired. Even otherwise, for the reasons already recorded above, I find neither any ground to condone the delay, nor to allow the relief in exercise of my inherent powers.