Delhi High Court
Delhi Jal Board vs M/S Digvijay Sanitations & Anr. on 26 May, 2009
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: April 01, 2009
Date of Order: May 26, 2009
+ OMP 396/2007
% 26.05.2009
Delhi Jal Board ...Petitioner
Through : Mr. Parminder Singh, Advocate
Versus
M/s Digvijay Sanitations & Anr. ...Respondents
Through:
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
ORDER
1. This petition was dismissed in default on 21st September 2007. Thereafter, two applications being IA No.3810 of 2008 under Section 9 Rule 4 of CPC and another application being IA No.3811 of 2008 for condonation of delay were filed, which were listed on 31st March 2008. On 31st March 2008, none appeared for the applicant, the aforesaid two applications were dismissed in default on 31st March 2008. Then another application being IA No.6660 of 2008 was filed under Section 151 CPC for restoration of application under Section 9 Rule 4 CPC.
2. For the reasons stated in IA No.6660 of 2008 under Section 151 CPC, the same is allowed and IA No.3810 of 2008 is hereby restored to its original number.
OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 1 Of 6
3. IA No.3810 of 2008 is for restoration of the petition under Section 34 of the Arbitration & Conciliation Act, 1996, which was dismissed in default on 21st September. The application is allowed for the reasons stated therein. The petition is restored to its original number.
IA No.7975/2007
1. By this order, I shall dispose of this application under Section 34(5) of the Arbitration & Conciliation Act, 1996 (for short, "the Act") and Section 5 of Limitation Act for condonation of delay in refilling the instant petition.
2. The award in this case was passed by the learned Arbitrator on 27 th May 2006. It is not known as to when the Arbitrator sent this award to the parties. However, the objections against the award were filed by the petitioner in this Court on 26th August 2006. Even if three months' period is counted from 27th May, 2006, the objections were filed within the period of three months as set out under Section 34(3) of the Act. However, certain objections were raised by the Registry on the petition and the petition was returned back for removing those objections. Thereafter, this petition was filed after about 11 months on 18th July 2007. It is this delay in refilling the instant petition for condonation of which this application has been made by the applicant/petitioner.
3. This application made by the petitioner's advocate is accompanied by an affidavit. It is submitted by the petitioner's counsel that the petition was taken back for curing the defects as pointed out by the Registry. Thereafter, uncle of the counsel for petitioner suffered a heart attack and the counsel for petitioner remained out of his office for more than 20 days. Since the matter OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 2 Of 6 was not listed before the Court, it was not reflected in the diary maintained by the counsel and it slipped from his memory when he resumed working in the office. The clerk of the counsel for the petitioner, who collected papers of the case from the Registry, placed the same in wrong file of the same cause title. It is only when the petitioner made inquiries from the counsel after receipt of a notice of execution proceedings that the counsel realized that the present petition has not been rectified and then counsel for the petitioner took steps for rectifying the petition.
4. This Court vide order dated 20th July 2007 observed its dissatisfaction regarding the reasons stated by the counsel and wanted the counsel to file additional affidavit with supporting documents giving further details and particulars with regard to listing of OMP 90 of 2005 from the time when the papers of present petition were stated to have been taken back. In the additional affidavit, counsel for the petitioner/applicant stated that OMP No. 90 of 2005 came up for hearing on 24th May 2007 and on that date no effective hearing took place on account of an adjournment requested by the counsel for the respondent and, therefore, it did not come to the notice of the counsel that the papers were lying in that file. Notice of execution of award was received by the petitioner's central office wherefrom the same was forwarded to Legal Section and it was registered with legal section on 4th June 2007. This execution was assigned to the same counsel Shri H.S. Kohli by the Department and the Department forwarded the assignment to counsel on 16th July 2007 and thereafter search was made for objections and the original petition was refilled after rectifying the defects with the Registry on 20 th July 2007.
OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 3 Of 6
5. Counsel for the respondent has vehemently opposed the application stating that the condonation of delay of ten and a half months in refilling the petition cannot be allowed in view of strict provisions under Section 34(3) and non-applicability of Section 5 of the Limitation Act. It is further submitted that as per the High Court Rules, if the petition after removing objections of registry is refilled within a reasonable time, then only the original date of filing is considered as the date of filing. If the delay is more than the reasonable period, the refilling has to be considered as fresh filing and the Court cannot condone the delay in view of the fact that Section 5 of the Limitation Act is not applicable.
6. Counsel for the petitioner, on the other hand, relied on 2007 (10) ADL 42 DDA v R.S. Jindal wherein a Division Bench of this Court observed that the statutory authority had to rely on their counsels who conduct cases and when the counsel admitted that there was default and mistake by his office, the statutory authority should not be made to suffer for the mistake of the counsel.
7. A perusal of record would show that the initial filing was done on 26 th August 2006 i.e. within the period of three months and refilling was done on 18th July 2007. It is obvious from the affidavit filed by the petitioner's counsel that after the file was taken back from Registry for removing the objections, it got misplaced in another file with same cause title and the counsel could not pay attention due to ailment of his uncle. The other OMP between the same parties though came up for hearing in May, 2007 but in that only an adjournment was sought by respondent. In view of this fact, there seems to be no chance of the counsel for petitioner stumbling upon the objections lying OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 4 Of 6 in the file. It only seems that after execution was filed by respondent, the petitioner's counsel realized that objections filed by the petitioner were to be refilled after removing objections and then made efforts to trace the objections.
8. The petitioner in this case had filed objections against the award within the stipulated period. It is only the counsel who did not rectify the petition after removing objections. The petitioner (Delhi Jal Board) in this case being a statutory body has to depend upon on its advocate. The counsel who had taken back the petition for removing office objections, could not refile the petition due to intervening circumstances. I consider that the petitioner who had filed objections within the prescribed period under the law, cannot be made to suffer for the negligence on the part of its counsel. The delay in refilling is though is of about ten and half months but due to circumstances explained by counsel and in view of the fact that nothing has come on record to show that what has been stated by counsel for the petitioner was not correct, the application deserves to be allowed. It is not a case of the respondent that the uncle of the petitioner's counsel had not suffered from heart attack or he had not left Delhi. In DDA v. R.S. Jindal's case (supra), this Court had considered condonation of delay of 216 days in filing Intra Court Appeal and observed that since DDA had to rely on the counsel, for the mistake of counsel, the petitioner should not be made to suffer.
9. Section 5 of the Limitation Act is not applicable as far as filing of petition under Section 34 is concerned, however, I consider that once the petition is filed within time, if there is delay in refilling, the Court can consider condonation of delay under Section 5 of the Limitation Act and if it is found OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 5 Of 6 that the reasons are justified, such delay can be condoned.
10. In view of foregoing discussion, I allow this application for condonation of delay in refilling the petition.
OMP 396/2007
1. List this petition on 7th September 2009 for further directions.
2. Response to objections be filed within six weeks. Rejoinder thereto, if any, be filed three weeks thereafter.
May 26, 2009 SHIV NARAYAN DHINGRA J. rd OMP 396/2007 Delhi Jal Board v. M/s Digvijay Sanitations & Anr. Page 6 Of 6