Delhi High Court - Orders
Modi Construction Company Through Its ... vs Ircon International Limited on 19 February, 2019
Author: Navin Chawla
Bench: Navin Chawla
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. Nos.11797-98/2018 in ARB.A. 37/2015
MODI CONSTRUCTION COMPANY THROUGH ITS
AUTHORIZED REPRESENTATIVE ..... Appellant
Through: Mr.Rajiv Shankar Dwivedi, Adv.
versus
IRCON INTERNATIONAL LIMITED ..... Respondent
Through: Mr.A.S. Chandiok, Sr. Adv. with
Mr.R.K. Joshi, Mr.Ojusya Joshi,
Ms.Sweta Kakkad & Mr.Priya
Agarwal, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 19.02.2019 IA No. 11797/2018 (CM for Restoration) and IA No. 11798/2018 (Delay) in ARB.A. 37/2015
1. These applications have been filed by the petitioner seeking restoration of the present appeal that was dismissed for non-prosecution on 28.11.2016 and for seeking condonation of delay of 593 days in filing of the said application seeking restoration.
2. The appellant has filed the above appeal challenging the order dated 11.02.2015 passed by the Arbitral Tribunal adjudicating the disputes that have arisen between the parties in relation to two Agreements regarding work of a 'Widening and Strengthening of Warangal-Karimnagar Road (APSH 1-A)'.
3. On 28.11.2016 the present appeal was dismissed for non-prosecution recording as under:-
"1. Learned counsel for the Appellant states that he has no instructions despite writing to the Appellant.
2. It seems that the Appellant is not interested in pursuing the matter. Accordingly, the appeal is dismissed for non- prosecution."
4. The application seeking restoration of the appeal has been filed by the appellant only on 29.08.2018, that is, almost two years after the passing of the said order.
5. The appellant has sought to justify this delay on the ground that the counsel for the appellant had assured the appellant that on completion of pleadings the matter will now take some time and the appellant was under
the impression that the matter is going on smoothly and his counsel will inform whenever it is required. It is further asserted that only when the appellant travelled to Delhi in connection with the filing of another application under Section 14 of the Arbitration and Conciliation Act, 1996 that it was informed of the dismissal of the appeal. Thereafter the appellant filed the present application.
6. The learned senior counsel for the respondent on the other hand submits that the present application is a gross abuse of the process of the Court. Not only is the appellant unable to show any reason for non- prosecution of the appeal leading to its dismissal, but has also filed the present application with gross delay.
7. He further submits that the assertion of the appellant that it came to know of the dismissal of the present appeal only in August 2018 after coming to Delhi is also incorrect as in separate proceedings, being C.O.P. Nos. 9 and 10 of 2018, filed by the appellant in the City Civil Court at Hyderabad, the respondent by way of an affidavit dated 12.04.2018 filed on 26.04.2018 had clearly asserted about the dismissal of the appeal as also placed the copy of the order on record of that case.
8. The appellant by order dated 26.10.2018 was given time to file rejoinder to the reply. As the rejoinder was not filed, further time was granted to the appellant to file the same by order dated 20.12.2018 and thereafter, by order dated 01.02.2019 further time was granted, subject to payment of the cost.
9. In spite of opportunities being granted, the appellant has chosen not to file any rejoinder. In that view, the assertion of the respondent that the appellant was fully aware of the dismissal of the present appeal in April 2018 stands unrebutted. Therefore, the appellant has premised this application on false assertion and does not deserve any indulgence of this Court.
10. In any case, the appellant cannot put entire blame for the dismissal of the appeal and delay thereafter on the counsel. In the order dated 28.11.2016 submission of the counsel appearing for the appellant was recorded to the effect that inspite of writing to the appellant, no instructions were forthcoming. It is not asserted in the application that this submission was incorrect. The appellant being a litigant has also to take interest in the litigation filed by it. It cannot abandon the litigation only on the counsel's shoulder. No averment has been made as to what steps were taken by the appellant to atleast know the status of the appeal filed by it before this Court from 26.11.2016 till the filing of the application in August 2018.
11. I therefore, find the justification of non-prosecution of the appeal by the appellant to be completely frivolous and unsustainable.
12. The applications are, therefore, dismissed, with no order as to cost.
NAVIN CHAWLA, J FEBRUARY 19, 2019/rv