Delhi High Court
Food Corporation Of India vs M/S. Jawala Rice Mills & Ors. on 20 December, 2013
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.12.2013
+ OMP No.1283/2013
FOOD CORPORATION OF INDIA ..... Petitioner
Versus
M/S. JAWALA RICE MILLS & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr S. Kumar Pattjoshi, Sr. Adv. with Mr Manohar Lal Sharma,
Advocate.
For the Respondents:
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
IA No. 20828/2013 (condonation of delay of 59 days in re-filing the
petition)
1. This is an application which has been filed by the petitioner, i.e., the
Food Corporation of India (in short FCI) to seek condonation of delay in re-
filing the petition under Section 34 of the Arbitration & Conciliation Act,
1996 (in short the Act). According to the FCI, there is a delay of 59 days
in re-filing the petition.
2. The averments made in the petition reveal that the impugned award
dated 20.06.2013 was received by FCI on 29.06.2013. It is the case of the
FCI that the petition was filed on 19.09.2013.
OMP 1283/2013 Page 1 of 7
2.1 In so far as the registry of this court is concerned, they have submitted
a report, which establishes the fact that the petition was initially filed on
19.09.2013. The registry, on examination of the petition, recorded its
objections on 20.09.2013 and, returned the same to the filing counter for
being handed over to the counsel for the FCI on the very same date. There
were twelve (12) objections listed out by the registry.
2.2 The FCI's counsel re-filed the petition on 16.12.2013 whereafter it
was cleared for listing on 19.12.2013.
3. In so far as condonation of delay in re-filing is concerned, it is the
stand of the FCI that, even according to it, there is a delay of 59 days,
however, the registry of this court has stated in its report that the FCI took
89 days in removing the objections and if it is given credit of 30 days, which
is the maximum cumulative period permissible for removing the objections,
under Section 5 of Chaper I (Volume V) of the High Court Rules, 1967 (in
short Rules) the net delay in re-filing is OF 59 days. To be noted, under the
aforementioned Rules, a party is given seven days at a time for removing
defects, as pointed out by the registry, after a petition is filed.
3.1 There is no gainsaying that the court is empowered to condone the
delay in re-filing, provided there is no neglect and sufficient cause is shown
to explain the delay. The sufficiency of cause would depend on the facts
and circumstances of the case. (See Union of India vs M/s Ravinder Kapoor
decision dated 23.09.2013 in OMP No.477/2013 and IA Nos.7795/2013
and 7796/2013; as affirmed by the order dated 06.11.2013 of the Division
Bench in FAO (OS) No.478/2013 titled Union of India vs. M/s. Ravinder
Kapoor; The Executive Engineer (Irrigation & Flood Control) vs. Shree
Ram Construction Co. 2010 (120) DRJ 615; Delhi Transco Ltd. and Anr.
OMP 1283/2013 Page 2 of 7
vs. Hythro Engineers (P) Ltd. 2012 (3) Arb. L.R. 349 (Delhi); and Delhi
Development Authority vs. M/s. Durga Construction Co.; decision dated
07.11.2013 passed in FAO (OS) Nos.485-86/2011.
3.2 The expression 'sufficient cause', which is the measure adopted for
condonation of delay, itself pre-supposes the absence of negligence or
inaction on the part of the applicant seeking condonation. The expression
implies presence of 'legal' and 'adequate reasons' and, therefore, it is
imperative that besides, the applicant, acting in a bonafide manner, it should
be able to demonstrate that it had taken all possible steps within its power
and control to approach the court without unnecessary delay. The test
articulated by the courts as to whether the cause is sufficient or not is one
whereby the party is able to demonstrate that it could not have avoided the
delay despite due care and attention. [See Balwant Singh (Dead) vs
Jagdish Singh & Ors. (2010) 8 SCC 685].
4. While examining the issue of condonation of delay in re-filing, the
crucial question which the court is often faced with is: what should be the
measure for condoning the delay? Should it depend on the span of the period
involved? Or the bonafides/ quality of the explanation tendered to seek
condonation of delay.
4.1 In my opinion, both factors would be required to be kept in mind,
especially in the context of the Act, one is presently dealing with and, the
view taken by the Supreme Court, in the case of UOI vs Popular
Construction Co. (2001) 8 SCC 470, which clearly mandates that once the
period provided in Section 34(3) of the Act for instituting a petition under
Section 34 is exhausted, the provisions of Section 5 of the Limitation Act,
1963 would have no applicability. In effect the court would have no power
OMP 1283/2013 Page 3 of 7
to condone the delay in regard to the period provided under Section 34(3) of
the Act.
4.2 A large period of time spent in re-filing would itself tend to
demonstrate negligence on the part of the party desirous of impugning the
award; unless a credible explanation is setforth. This is more so, in view of
the fact that once a petition is filed under Section 34 of the Act, the other
party to the litigation, which wishes to execute the award is statutorily
restrained from doing so by virtue of provisions of Section 36 of the Act.
The successful party is thus deprived of the fruits of adjudication.
4.3 There could be another situation where the period of delay in re-filing
may not be large, but the explanations given are false and contrived. Even
in such cases, a court could come to a conclusion that the delay in re-filing
ought not to be condoned. The reason for this, in my view, is quite simple.
The legislature in the Act has provided sufficient bandwidth, in terms of
time, to a party, aggrieved by the award of an arbitral tribunal, to institute a
petition under Section 34 of the Act. The period of three (3) months and
thirty (30) days thereafter, in my view, ordinarily provides enough leeway
for the aggrieved party to come to a decision as to whether or not it wishes
to impugn the award, with or without the assistance of counsel, and also
have the objections removed so that it is ready for listing in court.
5. In the context of the above, let me examine the explanations given for
re-filing by FCI in the present case. IA No.19457/2013 contains one
singular paragraph, which articulates that the reason for delay was that the
"paper book was inadvertently placed in a file by the clerk of the counsel
and was not traceable. The paper book has now been located and is being
re-filed".
OMP 1283/2013 Page 4 of 7
5.1 From the dates set out hereinabove, it is clear that after the registry
had returned the petition with objections for the first time on 20.09.2013,
the FCI chose to sleep over it for a good period of almost three (3) months
and re-filed the petition only on 16.12.2013. Though the application is
accompanied by the affidavit of the counsel, it does not unfortunately inspire
confidence. The reason being, that while the blame for delay has been put
on the doorstep of the clerk of the counsel for the FCI, the application is not
accompanied by the affidavit of the clerk. There is no reference to the date
on which the file resurfaced, that is, was traced by the FCI's counsel. The
sense one gets is that both FCI and its counsel forgot about the matter once
the initial filing had been made. What surprises me, is as to why the FCI did
not seek to know from its counsel as to what was the status of its petition
which was filed in September, 2013. The application demonstrates neglect
and callousness on the part of the FCI in prosecuting its matters with
expedition.
5.2 I am impelled to come to this conclusion, in view of the fact that on
my board today there are four other matters filed (apart from the captioned
matter), out of which in three matters there are applications seeking
condonation of delay in re-filing, where delay ranges from 108 days to 161
days and in one matter, which is, OMP No. 1279/2013, there is a delay of
70 days, in fact, in the initial filing itself and consequently, it had to be
dismissed in limine. The reasons advanced for seeking condonation of delay
are identical (except in OMP No. 1279/2013), that is, the case file in issue
was misplaced by the clerk. In OMP No. 1279/2013, which was dismissed
in limine, the reason advanced was that the office of the lawyer remained
under lock and key as it was being treated for termites. On the face of it the
OMP 1283/2013 Page 5 of 7
reasons supplied to explain the delay are perfunctory and that they do not
inspire confidence, as indicated above.
5.3 I have, however, passed separate orders in respect of each of the
petitions and the accompanying applications as the dates and the periods
involved are not the same.
6. In this context, I may only refer to a judgment of a Single Judge of
this court, cited on behalf of FCI by Mr Pattjoshi, learned senior counsel, in
support of his contention that the delay ought to be condoned as the delay
occurred on account of the fault committed by the counsel. Mr Pattjoshi
relied upon the judgment in the case of Delhi Jal Board vs. Digvijay
Sanitations & Anr., 2009 (2) Arb. LR 576 (Delhi). The principle echoed in
the judgment of Hon'ble Mr. Justice S.N. Dhingra is no different from, that
which has been articulated by this court in judgment after judgment. One
cannot quibble with the proposition that the court has the power to condone
the delay in re-filing, the decision, however, whether or not to condone the
delay would depend on the facts and circumstances of the case. In that case
the court found the explanation bonafide, in as much as, the reason given for
delay was that the relative of the counsel for the petitioner, i.e., his uncle,
had suffered a heart-attack, and there was nothing on record to show that
this explanation was incorrect. The fact situation here, is different. The
explanation, if it can be labelled as one, is one, which tends to fault the
clerk. There is no affidavit of the clerk filed, which would at least prima
facie demonstrate that the averments in the application are true. Therefore,
in my view, the judgment in the case of Delhi Jal Board Vs. Digvijay
Sanitations and Anr. is distinguishable.
7. For the foregoing reasons, I am of the view that the delay in re-filing
OMP 1283/2013 Page 6 of 7
ought not to be condoned. It is ordered accordingly. IA No.20828/2013 is
dismissed.
OMP No.1283/2013
8. In view of the orders passed hereinabove, the petition would have to
be dismissed. It is ordered accordingly.
RAJIV SHAKDHER, J.
DECEMBER 20, 2013 kk OMP 1283/2013 Page 7 of 7