Jammu & Kashmir High Court - Srinagar Bench
Jk Economic Reconstruction Agency vs M/S Kamal Builders C-84 on 19 April, 2021
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved On: 09/04/2021
Pronounced On: 19/042021
CONC 1354/2015
JK Economic Reconstruction Agency
... Petitioner/Applicant
Through: Mr. Moomin Khan, Advocate
V/s
M/s Kamal Builders C-84
... Respondent
Through: Mr. Manzoor A. Dar, Advocate CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
1. This order shall dispose of the instant application seeking condonation of delay in filing review petition titled as J&K Economic Reconstruction Agency versus M/s Kamal Builders.
2. The background facts those emerge from the case in hand are that the non-applicant herein had been allotted work for improvement and upgradation of Jehangir Chowk - Karan Nagar - SKIMS Road, which work is stated to have been suspended by the non-applicant herein without any valid reason, resulting into termination of the contract vide notice dated 13.5.2011, which consequently gave rise to disputes between the parties. The said disputes are stated to have been referred to arbitration in terms of Arbitration Clause whereupon the arbitrators are stated to have passed an award dated 30.8.2014.
3. The award so made by the arbitrators is stated to have come to the notice of the petitioner/applicant herein in the month of December CONC 1354/2015 Page 2 of 10 2014, whereupon a photostat copy of the award is stated to have been obtained by the applicant herein on 22.12.2014.
4. It is being stated that after obtaining copy of the award, the petitioner/applicant herein intended to challenge the same under the statute and consequently under section 34 of the J&K Arbitration and Conciliation Act 1997 (for short 'Act of 1997'), same was thrown challenge inter alia on the ground that the same had a patent error on the face of the record inasmuch as it had directed the petitioner/applicant herein to immediately release the bank guarantee to the respondent/non-applicant herein within a period of four months from the date of the issuance of the award and in case of failure an interest of 6% thereof was allowed till the bank guarantee is actually released. It is being stated that the said bank guarantee had been subject of order passed on an application filed under section 9 of the Act wherein the court of District Judge, Srinagar had stayed the encashment of the same till the dispute was resolved through arbitration.
5. It is being stated that the award in question had sought to be set aside on the basis of section 31(5) inasmuch as the failure of the arbitrators to provide signed copy of the award to the applicant herein. The ground so urged is stated to bring the case under section 34(2)(ii) being against the public policy. The application under section 34 of the act is stated to have been decided on 4.2.2015 wherein the court is stated to have observed that the grievance set out in the application under section 34 would be redressed in the event period allowed by the arbitral tribunal is directed to be commenced after the applicant CONC 1354/2015 Page 3 of 10 got copy of the award as the short grievance set out in the application had been that copy of the award as required under the act of 1997 was not provided to the petitioner/applicant herein and, therefore, was not in a position to act upon the award within three months from the time allowed by the tribunal.
6. It is being stated that the court while disposing of the aforesaid application filed under section 34 vide order dated 4.2.2015, had not been properly assisted in so far the prayer seeking setting aside of the award related to the claim No. 5(b). The court is also stated to have not dealt with the situation of not providing signed copy of the award in terms of section 31(5) of the parties and its effect thereof. Thus a patent error is stated to have occurred on the face of the record which needed rectification.
7. It is being stated that after passing of the order dated 4.2.2015, the petitioner/applicant herein filed an arbitration application No. 8/2015 again for setting aside of the arbitral award which is stated to have been dismissed by this court on 13.5.2015 holding that the second application under section 34 will not lie. Against the said order dated 13.5.2015, an appeal is stated to have been filed being No. 92/2015 which too is stated to have been dismissed by Division Bench on 29.5.2015 as withdrawn on the submission of learned counsel for the petitioner/applicant herein with liberty to file a revision petition in arbitration application No. 1/2015. It is being stated that owing to limitation period of one month, the review petition is filed without obtaining sanction from the department of Law, Justice and Parliamentary Affairs and request for obtaining the CONC 1354/2015 Page 4 of 10 sanction from the said department is being made simultaneously. It is submitted that the review petition seeking review of order/judgment dated 4.2.2015 deserves to be allowed/granted.
8. With the aforesaid facts in the background, in terms of the instant application the delay is sought to be condoned upon following explanation enumerated in the application:
a. That the petitioner submits that the delay occasioned in filing of review petition is neither deliberate, intentional nor willful. b. That once of application u/s 34 bearing No. 1/2015 was decided by this Hon'ble Court and the same was brought into the notice of the petitioner, the petitioner under legal advice tendered by the standing counsel decided to file second application under section 34 bearing No. 8/2014, which came to be dismissed on the ground that second application is not maintainable.
Again this order an appeal was filed before the Hon'ble Division Bench of this Hon'ble Court under the advice of the standing counsel. However, during the arguments the Division Bench observed that the proper remedy would be to file review of judgment dated 4.2.2015. The counsel for the petitioner, therefore, made a statement before the Hon'ble Court seeking to withdraw the appeal with liberty to file review petition seeking review of judgment dated 4.2.2015, which statement was taken on record by the Hon'ble Division Bench while dismissing the appeal. Therefore, the time lost in prosecuting the above remedies on the advice of the standing counsel is liable to be excluded while calculating the period of limitation. That some more time was also lost in making the departmental communications and in obtaining certified copy of order under review. Overall there is no delay or lack of diligence on the part of the petitioner.
c) That the petitioner most respectfully submits that in the event this Hon'ble Court is pleased to grant indulgence of condoning the delay occasioned in filing the accompanied review petition, the maximum that will happen is that the review petition would get decided on its merits and in such a case no prejudice would be caused CONC 1354/2015 Page 5 of 10 to the other side on the contrary the cause of justice would be advanced.
That the petitioner submits that granting of indulgence as prayed for through the medium of this review petition, therefore, is in consonance with law and justice. The delay occasioned in filing the accompanying review petition deserves to be condoned in the interest of justice and the accompanying review petition taken on record and decided on merits in accordance with law."
9. While opposing the application, the non-applicant herein in the objections filed states that the applicant herein has not disclosed sufficient cause for not filing the review petition within the stipulated period of 30 days. It is stated that the assertion made in the application by the applicant herein about liberty having been granted to file review is not borne out of the record, as such, the same is liable to be rejected.
10. The non-applicant herein has stated in the objections that post withdrawal of CIA 92/2015 dated 29.7.2015, no steps were taken by the applicant herein for filing the review petition in time, and no explanation was furnished by the applicant for the intervening period of 29.7.2015 to 14.10.2015 which was not availed for filing the review petition. It is further submitted that the applicant herein has no cause on merits. It is submitted that during the course of hearing of the petition under section 34, the applicant herein restricted his prayer for seeking a direction for construing the award to have been served on 23.12.2014 and three months' period to commence from 1st January 2015 for the purposes of satisfying the award. It is stated that in order to CONC 1354/2015 Page 6 of 10 escape the interest liability an order based on consensus came to be passed for computing the time of three months for the purposes of computing the payment of interest from the date of 1st January 2015 instead of three months after passing of the award. It is stated that during the course of processing of the case for payment/implementation of the award it came to be noticed that the applicant had filed an appeal against the order passed under section 9 of the Act of 1997 prohibiting the appellant from encashing the bank guarantee/performance guarantee and with a view to facilitate payment, the appeal was taken up for consideration and in the face of the dismissal of the petition under section 34, the appeal was disposed of as having been rendered infructuous. It is stated that the applicant is making a turnaround which is impermissible in law.
11. Heard learned counsel for the parties and perused the record.
12. A perusal of the record in general and the instant application in particular would reveal that the applicant herein has offered no plausible explanation warranting condonation of delay. Nothing is stated in the application as to how much time was lost in making the departmental communications and in obtaining certified copy of the order under review so much so that no material worth the name is placed on record in support of the said contentions. No explanation is also given in the application as to what prevented the applicant herein in filing the review petition immediately after withdrawal of the appeal before the CONC 1354/2015 Page 7 of 10 Division Bench in terms of order dated 29.7.2015. The applicant herein seemingly has been consciously pursuing the proceedings instituted against the award prior to filing of the review petition and has tried to put the blame on the counsel and legal advice sought in the matter for pursuing the said proceedings in order to carve out a case for condonation of delay. Be that as it is, fact remains that after withdrawal of the appeal in terms of order dated 29.7.2015 nothing could have prevented the applicant from filing the review petition well within time, which, however, has not admittedly been filed. Risking repetition, no explanation worth the name is offered in the application in this regard.
13. The law on the subject of section 5 of the Limitation Act is no more res integra and there is a long line of decisions rendered and delivered by the Hon'ble Apex Court on the said subject.
14. It is established that the law being limitation has to be applied with all its rigor prescribed by a statute. Although Section 5 of J&K Limitation Act Samvat, 1995 provides for extension of the period of limitation in certain cases, and appellant/applicant seeking such extension is required to satisfy the court that there has been a sufficient cause for not preferring the appeal or making the application within the prescribed period.
15. The Hon'ble Apex Court in State of Madhya Pradesh and others and Bherulal, 2020 (10) SSC 654, at paras 3 and 5 has observed as under: -
CONC 1354/2015 Page 8 of 10
"3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government [LAOv.Katiji]. This position is more than elucidated by the judgment of this Court in Post Master General v. Living Media India Ltd. (2012) 3 SCC 563 where the Court observed as under:-
"27) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28) Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment.
Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
CONC 1354/2015 Page 9 of 10
30) Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded.
1. 5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."
16. The Hon'ble Apex Court in Perumon Bhagvathy Devaswam vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated besides others the following principle qua an application under Section 5 of the Limitation Act:
2. "(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation."
17. A reference to the judgment of the Hon'ble Apex Court reported in AIR 1998 SC 2276, titled as P. K. Ramachadran v. State of Kerala would also be appropriate and advantageous, wherein at para 6 following is noticed.
3. "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."
CONC 1354/2015 Page 10 of 10
18. The judgment referred to and relied upon by learned counsel for the applicant herein, being case titled Dhiraj Singh (D) Tr. Versus Haryana State decided by the Apex Court on 21.7.2014, in view of the aforesaid analysis and the judgments referred to hereinabove, pales into insignificance and does not lend any support to the case of the applicant herein.
19. The application in hand seemingly is filed with the impression that in seeking condonation of delay, the expression 'sufficient cause' would receive as liberal construction in favor of the applicant being an agency of the Government. It is however, manifest and without any doubt that the explanation offered by the applicant in the application in hand cannot by any sense of imagination said to be sufficient, plausible, and cogent. The explanation per se is cryptic and casual. Even the affidavit accompanying the application in support thereof is a stereotyped one.
20. Viewed in the context what has been observed, considered and analyzed hereinabove, the application in hand is found to be without any merit and is, accordingly, dismissed, as a consequence whereof the accompanying review petition shall also stand dismissed.
(JAVED IQBAL WANI) JUDGE Srinagar 19-04-2021 N Ahmad Whether the order is speaking: Yes Whether the order is reportable: Yes NISSAR A BHAT 2021.04.19 16:29 I attest to the accuracy and integrity of this document