Delhi District Court
Jaiveer Singh vs Indusind Band Ltd on 22 August, 2022
IN THE COURT OF SHRI PANKAJ GUPTA:
DISTRICT JUDGE, (S/W) (COMMERCIAL COURT),
DWARKA COURTS : DELHI.
DLSW0024102019
OMP (COMM.) No. 11/19
Jaiveer Singh
S/o Sh. Nanal Chand
R/o H. No. 74, Main Guggaon Road,
Divdapur Village,
New Delhi-110043
...PETITIONER
VERSUS
1. Indusind Band Ltd.
Registered office At:
2401, General Thimmayya Road
Cantonment, Pune-411001
Branch Office at:
Bhageria House, 43,
Community Centre
New Friends Colony,
New Delhi -110026
2. D. Saravanan
Advocate & Arbitraror
Orient Chambers, 4T Floor
No. 90/73, Armania Street
Chennai-600001. ...RESPONDENTS
Date of Institution : 19.02.2019
Date of Reserving
Judgment : 22.08.2022
Date of Pronouncement
of Judgment : 22.08.2022
JUDGMENT
1. This is the petition under section 34 of the Arbitration and Conciliation Act, 1996 (the Act) filed by the petitioner being aggrieved by the arbitration award dated 19.04.2017 (the impugned award) passed by the sole arbitrator i.e. the respondent no. 2 against the petitioner.
Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 1 of 10 OMP (Comm) No. 11/19
2. Brief facts leading to filing of the present petition are that the respondent no. 1 initiated the arbitration proceedings against the petitioner on the ground that the petitioner applied for the financial assistance with the respondent no. 1 to purchase a vehicle make Maruti Swift Dzire VDI 1248CCBSIV (the vehicle). The respondent no. 1 considered the said request of the petitioner and granted a loan of Rs. 6,95,520/- to the petitioner. Consequently, the loan agreement no. DDR02609C dated 20.05.2015 was executed between the petitioner and the respondent no. 1. The petitioner agreed to repay the loan amount in 48 equated monthly installments (EMI's) and the last installment was due on 21.04.2019. However, the petitioner failed to adhere to the financial disciplines and defaulted in payment of the EMIs. Consequently, the disputes arose between the petitioner. The respondent no. 1 invoked the arbitration clause and in consequences thereof, the respondent no. 2 was appointed as an arbitrator and he initiated the arbitration proceedings.
3. Perusal of the record reveals that the petitioner failed to appear before the arbitrator / the respondent no. 2. Accordingly, the petitioner was proceeded ex-parte. The respondent no. 2 recorded the evidence and heard the arguments addressed on behalf of the respondent no. 1. Subsequently, the respondent no. 2 passed the impugned award vide which the petitioner was held liable to pay Rs. 4,72,222/- along with interest @ 18%. Cost of the arbitration was also awarded in favour of the respondent no.
1. Being aggrieved by the same, the petitioner filed the present petition.
Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 2 of 10 OMP (Comm) No. 11/19
4. Notice of the petition was issued to the respondent no.
1. The respondent no. 1 filed the written statement (WS) and contested the petition.
5. I have heard counsel for the respondent no. 1 and have perused the material on record.
6. The respondent no. 1 in para 5 of the preliminary submissions of the WS raised the objection that the petition is hopelessly barred by the period of limitation and may be dismissed accordingly.
7. The petitioner filed the application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the present petition.
8. The respondent no. 1 filed the reply to the application for condonation of delay and prayed for its dismissal.
9. The scheme of the Limitation Act, 1963 makes it clear that section 5 of the Limitation Act empowers the court to extend the prescribe period of limitation in filing the appeal and certain applications. Under Section 12 to 15 of the said Act, a certain period of time can be excluded on fulfillment of the conditions mentioned therein. Section 34 (3) of the Act prescribes a special limitation period and therefore, section 5 of the Limitation Act is not applicable to the petition u/s 34 (3) of the Act for the purpose of extension of the period of limitation.
10. Vide the present petition, the petitioner is seeking Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 3 of 10 OMP (Comm) No. 11/19 setting aside of the impugned award dated 19.04.2017 and the present petition was filed on 19.02.2019.
11. Now it is to be ascertained what is the exact delay in filing the present petition by the petitioner.
12. It is evident from the contents of the application and the petition that according to the petitioner, he came to know about the impugned award when he received the summon in the execution petition filed by the respondent no. 1 before the court of Sh. Vishal Gogne, Ld. ADJ, Dwarka Court. In response thereto, the petitioner along with his counsel appeared before the concerned court. In the said execution petition, the parties were referred to the Mediation Cell and the disputes were settled between the parties. However, the petitioner had not paid the settled amount to the respondent no. 1. Instead, the petitioner filed the present petition. According to the petitioner, from the year 2016 to 13.06.2018, his father had been suffering from Cancer and died on 13.06.2018. Hence, during the said period, the petitioner was under pressure and therefore, could not file the present petition within the stipulated period.
13. Counsel for the respondent no. 1 pleaded that on 04.05.2018, the petitioner appeared before the concerned court in the execution petition and that day, the parties were referred to the Mediation Cell and the matter got settled. However, the petitioner did not pay the settled amount. Therefore, even if, the period of limitation is computed from 04.05.2018, the present petition is hopelessly barred by the period of limitation.
Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 4 of 10 OMP (Comm) No. 11/19
14. As revealed from the record, the petitioner has denied having received any notice in the arbitration proceedings and the arbitral award. However, perusal of the record reveals that the address of the petitioner as mentioned in the petition is same as mentioned in the arbitration proceedings.
15. The petitioner in the application and the petition has not disclosed the exact date, when he came to know about the impugned award and received the copy of the same.
16. In view of the forgoing discussions and on perusal of record, it can be held that the petitioner received the summon in the execution proceedings initiated by the respondent no. 1 for execution of the impugned award and he appeared before the concerned court on 04.05.2018. That day itself, the petitioner and the respondent no. 1 were referred to the Mediation Cell for settlement for their disputes and the same were settled. Therefore, it can be held that on 04.05.2018, the petitioner came to know about the impugned award and also received the copy of the same.
17. Case of the petitioner is that due to illness of his father and his death on 13.06.2018, he could not file the petition within the stipulated period. No document has been filed by the petitioner to substantiate the said submissions.
18. The fact remains that the present petition has been filed by the petitioner after expiry of 120 days w.e.f. 04.05.2018. Now the question arises whether this court has the power to condone the delay beyond that period of 120 days in filing the petition.
Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 5 of 10 OMP (Comm) No. 11/19
19. In the judgment titled as "Oil And Natural Gas Corporation Ltd. Versus Joint Venture Of M/s Sai Rama Engineering Enterprises (SREE) & M/s Megha Engineering & Infrastructure Limited (MEIL) passed by the Hon'ble High Court in O.M.P. (COMM) No. 97/2019, it was held:
"22. Reading of the Section 34(3) of the Act, leaves no manner of doubt that the period of limitation is three months. If the objections are filed beyond three months, then the delay in filing can be condoned upto a maximum period of 30 days and no more. Condonation of delay in the extended period of 30 days, is at the discretion of the Court, provided, the party satisfies the Court that there was "sufficient cause" for the delay. Delay in initial filing, beyond 30 days cannot be condoned, even for one day.
23. The Apex Court in the case of Union of India vs. M/s. Popular Construction 2001 (8) SCC 471 has clearly held that the legislative intent of providing a strict and non-flexible limitation period should not be defeated by condoning the delay, without "sufficient cause‟. The relevant para is as under:
"14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by Court under Section 5 of the Limitation Act........."
Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 6 of 10 OMP (Comm) No. 11/19
24. In the case of Simplex Infrastructure Limited vs. Union of India 2019 (2) SCC 455, the Apex Court, relying on the judgment in the case of Popular construction (supra) interpreted the words "but not thereafter‟ occurring in Section 34(3) of the Act, and emphasized the importance of limitation in filing an application under Section 34 and held that not a day beyond 120 days from the date of receipt of the Award can be condoned by the Court.
25. A reading of these judgments is a pointer to the fact that while in condonation of delay, the Courts have been generally liberal, but when it comes to Section 34(3) of the Act, the limitation period is inelastic and meant to be strictly followed.
Therefore, under this jurisdiction, the applicant would have to pass a higher threshold of showing that his conduct was of due diligence and dispatch and a casual explanation for delay cannot and should not be accepted. The applicant has to show not only due diligence in filing within the 30 days period, but more importantly, "sufficient cause" has to be shown, which prevented the applicant for 3 months in filing the Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 7 of 10 OMP (Comm) No. 11/19 petition.
49. The Apex Court in the case of Bharat Barrel and Drum Mfg. Co.
Ltd. v. ESI Corpn.: (1971) 2 SCC 860, has emphasized the necessity of enacting the periods of limitation to ensure that a party exercises his right within a reasonable time and to discourage stale or fraudulent claims. Relevant para of the judgment is as under:
"7. The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore the object of the statutes of limitations is Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 8 of 10 OMP (Comm) No. 11/19 to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims."
50. No doubt the Courts have the jurisdiction to condone delay within the extended period of thirty days under Section 34(3) of the Act, but the approach in exercising such a jurisdiction cannot be very liberal and the action of the applicant will have to be tested on the touchstones of whether there was due diligence and dispatch in filing the matter and clearing the defects. The legislature has specified an inelastic period of limitation under Section 34(3) of the Act and this intent of the legislature cannot be likely brushed aside.
20. In view of the above cited judgment, it can be held that in view of section 34 (3) of the Act, the objection petition under section 34 of the Act is to be filed within the period of 3 months from the date when the petitioner received the impugned award or the date when the impugned award has come within his knowledge. Further, if the petition has been filed beyond the period of 3 months, then the delay in filing the petition can be condoned up to a maximum period of 30 days and no more than that that too on showing sufficient cause by the petitioner. As such, the Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 9 of 10 OMP (Comm) No. 11/19 petition must have been filed within 120 days from the date when the impugned award came within the knowledge of the petitioner. However, the period to file the petition cannot be extended beyond 120 days under section 34 (3) of the Act. As discussed above, there is delay of more than 120 days in filing the present petition. Hence, this court does not have the power to condone the delay beyond 120 days. Therefore, it is held that the present petition is hopelessly barred by the period of limitation.
21. Therefore, the application for condonation of delay moved by the petitioner is dismissed. Accordingly, the petition is dismissed being hopelessly barred by the period of limitation. File be consigned to Record Room.
Digitally signed by PANKAJ PANKAJ GUPTA
ANNOUNCED IN THE OPEN COURT, GUPTA Date:
2022.08.22
On this22nd day of August, 2022 16:27:11 +0530
(PANKAJ GUPTA)
District Judge, S/W
(Commercial Court):
NEW DELHI
Jaiveer Singh Vs. Indusind Bank Ltd. & Anr. Page No. 10 of 10
OMP (Comm) No. 11/19