Calcutta High Court
Venus Engineering Concern Pvt. Ltd vs Union Of India on 2 December, 2014
ORDER SHEET
APO 454/2014
AP 274/2005
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
VENUS ENGINEERING CONCERN PVT. LTD.
Versus
UNION OF INDIA
BEFORE :
The Hon'ble JUSTICE BANERJEE
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 2nd December, 2014
Mr.Jayanta Mitra, Senior Advocate
Mr.Dipak Kumar Basu, Senior Advocate
Mr.Paramesh Bhattachary, Advocate
Mr.R. Dutta, Advocate
for the appellant.
Mr.L.K. Chatterjee, Advocate
Mrs.Aparna Banerjee, Advocate
for the respondent.
The Court : Yesterday, we heard Mr.Paramesh Bhattacharya. We kept it today for further hearing as Mr.Mitra was not available. Today, we heard Mr.Mitra, learned Senior Counsel appearing for the appellant as well as Mr.Chatterjee for the Union of India.
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Despite rapt attention, we could not understand the stand of the Union of India either before the learned Single Judge or before us.
The parties had a discord that was referred to arbitration under the old arbitration law being Arbitration Act, 1940. A former Judge of the Apex Court published an award for Rs.27,78,642/- on December 20, 2004 that would include a claim for Rs.16.56 lacs on account of interest.
Being aggrieved, Union of India filed an application for setting aside of the award under Sections 30 and 33 of the said Act, 1940. As usual, Union of India was lackadaisical in their approach and allowed their application to be dismissed for default. They also suffered ex parte decree followed by the award. After about two years, they approached the learned Single Judge with two applications, one for setting aside of the award and the other for recall the decree. We are told, application for recalling the decree is awaiting disposal. The appellant before us opposed the application for restoration. According to them, it was grossly barred by limitation as the period for making such application would be covered by article 122 that would require them to come within thirty days whereas they approached the learned Single Judge after two years that too, without any cause being shown for the delay. The learned Judge rejected the contention of the appellant. His Lordship relied on a decision of the Apex Court cited at the instance of the Union of India and held, the Union of India was not obliged to explain the delay as the application was within the period of limitation being covered under article 137 being the residuary Article where three years limitation is prescribed.
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Being aggrieved, the appellant has approached us by filing the instant appeal.
Mr.Mitra would contend, once the application for setting aside was dismissed for default, the restoration application would be covered by the Article 122/123 and Article 137 would have no application. Mr.Chatterjee appearing for the Union of India would strenuously oppose such contention. Mr.Chatterjee would, on the other hand, contend, the application for recalling of the decree is still awaiting disposal. Hence, Article 123 would have no application. Since Article 122 does not cover application for restoration of an application of the like nature being under Sections 30 and 33 of the said Act, 1940, it would come within the scope of Article 137 that would prescribe three years limitation.
He would strenuously rely on a decision of the Apex Court in the case Mohta Alloys Steel Works Vs. Mohta Finance and Leasing Company & Ors., reported in (2002) 10 SCC 196.
We have considered the rival contentions. We are unable to accept the contention of Mr.Chatterjee on the legal issue. He might be correct, stage has not come to take into account Article 123. Even if we accept his contention on that score, Article 122 and 123 if read together, would presuppose, an application for setting aside of the award being an original proceeding, the principles applicable in case of suit or appeal, would also govern the application of the like nature. Even if we reject Mr.Mitra's contention and accept Mr.Chatterjee's submission that it would come within the scope of Article 137, we would still not be able to 4 accept the view taken by His Lordship that the Union of India would be free to approach the Court within three years without any explanation being offered.
When an original proceeding is brought before the Court of Law, the litigant is duty bound to press it before the Court. Once it is dismissed for default, the duty would cast upon the litigant to explain why he did not pursue his case and such explanation would definitely cover the period taken by the litigant to approach the Court. With deepest regard, we have for His Lordship, and with all humility, may we say, the decision of the Apex Court in the case of Mohta Alloys (supra) was not properly applied. If we look into the said decision, we would find, the Apex Court considered a situation where the petitioner was challenging the authority of the Arbitrator. The Apex Court observed, it would be three years as per Article 137. We fail to understand, how this could be applied in an application for restoration.
Coming back to the factual score, we find, Union of India suffered an award. Because of their lackadaisical approach, they suffered the consequential decree. Once they applied for setting aside, for ends of justice, we wish to give them one more opportunity. Hence, we do not upset the ultimate relief that the learned Judge gave, with the following modification.
To expedite the process of hearing of the application on merit, we treat the application for recall of the decree which is merely a consequence of dismissal of the setting aside application and allow the same. The decree is, thus, recalled. The application for setting aside of the award has already been restored. Let it be heard on merits by the learned Single Judge.
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To strike a balance we wish to put the Union of India on terms. Let them deposit a sum of Rs.25 lacs with the Registrar, Original Side of this Court, positively within one week after the Christmas Vacation. In case the same is deposited, the Registrar would forthwith invest the sum in a suitable interest bearing fixed deposit in any nationalised bank of his choice. We, however, permit the appellant to withdraw the said sum upon furnishing a bank guarantee to the satisfaction of the Registrar, subject to the result of the setting aside application.
In default of deposit of the said sum, this order would stand recalled and the appeal would stand allowed.
We make it clear, so long the amount is not deposited, Union of India would not be entitled to get their applications heard.
The appeal is disposed of without any order as to costs.
(BANERJEE, J.) (ASHIS KUMAR CHAKRABORTY, J.) sd/ AR[CR]