Delhi High Court
Food Corporation Of India vs M/S Shree Ganesh Flour Mills on 12 September, 2013
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.131/1985
Decided on : 12th September, 2013
FOOD CORPORATION OF INDIA ...... Appellant
Through: Mr. Deepak Dewan, Advocate.
Versus
M/S SHREE GANESH FLOUR MILLS ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
CM No.11995/2013 (Restoration) CM Nos.11996-11997/2013 (Condonation of Delay)
1. This is an application for restoration of the appeal along with applications for condonation of delay of 416 days and 15 days respectively in filing and refiling the restoration application. The learned counsel has sought for restoration of the present appeal which was dismissed for non prosecution by my learned predecessor on 26.03.2012. The ground which has been stated in the application for restoration is that FAO 131/1985 Page 1 of 7 the matter was appearing in the category of 'Regular Matters'. However, as and when the matter appeared in the Regular List on 26.03.2012, it went unnoticed and, therefore, the matter got dismissed. It has been stated that it was only when the appellant asked the counsel Mr.Deepak Dewan about the status of the matter that they checked up from the website of the High Court and that it was learnt by then that the appeal had been dismissed for non prosecution on 26.03.2012. It has been further stated that between the Month of February, 2012 till 15.05.2013, the counsel Mr.Deepak Dewan did not attend the court as his father was suffering from liver cancer, because of which he had to be hospitalized on four occasions in different hospitals and this resulted in disturbed state of mind of the counsel and consequent disruption of his work. It has been further stated that the absence of the counsel Mr. Deepak Dewan at the time when the matter was dismissed in default was neither intentional nor deliberate, therefore, the appeal be restored to its original number and same be heard on merits. The application is supported by an affidavit of Mr.Deepak Dewan, Advocate.
FAO 131/1985 Page 2 of 7
2. I have gone through the contents of the application as well as the record.
3. Before dealing with the appeal, it will be pertinent to give a brief background of the appeal itself. This is an appeal filed by the appellant under Section 39 of the Arbitration Act, 1940 against the order of Sh.K.S.Khurana, Sub Judge, 1st Class, Delhi in Suit No.12/80 and 13/80 by virtue of which the award in question was sought to be made rule of the court.
4. Briefly stated the facts of the case are that the appellant herein, Food Corporation of India, had given a tender to M/s Shree Ganesh Flour Mills/respondent for the purpose of conversion of 163.116 tonnes of Gram Whole into Gram Dal as per the terms and conditions contained in the tender documents. On 31.05.1977, the tender was accepted by the appellant and the respondent herein was, in terms of the contract, required to furnish a security deposit and 15% of the value of the allotted Gram Whole within 10 working days.
FAO 131/1985 Page 3 of 7
5. It was the case of the appellant that although the security deposit was made, but 15% of the value of the Gram Whole was not deposited. As a result of this, it was treated as a breach of the contract and the contract was cancelled and a fresh tender was floated for the purpose of awarding the conversion of Gram Whole into Gram Dal. It has been stated that because of this the appellant had suffered damages and accordingly the matter was referred to the arbitration for adjudication of claim of damages. The learned arbitrator, after adjudicating not only the claim of the appellant but also the counter claim of the respondent, passed an award regarding forfeiture of the security amount and granted damages to the tune of `13,000/- to the appellant. He also awarded forfeiture of `3,000/- out of the earnest money of `5,000 deposited by the respondent which was permitted to be adjusted and the balance amount of `8,000/- was to be recovered from the respondent.
6. It is this award which was sought to be challenged before the court of Sh.K.S.Khurana, Sub Judge, 1st Class, Delhi by filing objections. Cross objections were also filed by the respondent. These objections were dismissed and the court of learned Sub Judge held that the learned FAO 131/1985 Page 4 of 7 arbitrator has rightly directed the contractor/respondent herein to pay a sum of `8,000/- to the appellant/Food Corporation of India.
7. Feeling dissatisfied, the present appeal had been preferred way back in 1985. The appeal originally had been filed belatedly along with an application seeking condonation of delay under Section 14 of the Limitation Act, 1963 contending that a wrong remedy was being pursued in a forum which was not competent enough to give the relief.
8. The matter has been pending in this court for the last more than 28 years and no sincere efforts have been made by the appellant so that the arguments are addressed and the matter is disposed of. Once the matter was heard by the learned Judge of this court, however, the matter was thereafter released as the said Judge was transferred out of this court.
9. Be that as it may, despite the fact that the matter stood admitted, it was the responsibility of the appellant to ensure that there is proper representation as and when the matter is taken up for the purpose of regular hearing especially when the amount involved in the matter is a very small amount.
FAO 131/1985 Page 5 of 7
10. The appellant does not seem to be realizing the fact that a colossal time of the court is wasted in handling a matter every time it gets listed in the court and the fact that it increases the workload of the court and the dockets with regard to the pending matters. The explanation which has been given by the appellant with regard to the illness of the father of the appellant cannot be disputed but it is not as if the legal department of the company had stopped the functioning. It was the responsibility of its legal department to have followed up the matter. Nevertheless, keeping in view the fact that the amount involved in the matter is quite small, I feel that the delay of 416 days in filing and of 15 days in refiling the restoration application is not sufficiently explained by giving a general statement that the father of the counsel Mr.Deepak Dewan was down with cancer. Even otherwise, if one counsel was unable to appear for the appellant for some reason for such a long period, some other counsel could have been engaged to appear in the matter.
11. Keeping in view the totality of the circumstances and the fact that there is an inordinate delay in approaching the court for restoration of the appeal and the amount involved is meager, I disallow the applications FAO 131/1985 Page 6 of 7 seeking condonation of delay in filing and refiling the restoration application and the same are accordingly dismissed. Consequently, the restoration application becomes barred by time and the same is also accordingly dismissed.
V.K. SHALI, J.
SEPTEMBER 12, 2013 dm FAO 131/1985 Page 7 of 7