Delhi High Court
Food Corporation Of India vs M/S Pratap Rice & General Mills 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. 1278/2013
FOOD CORPORATION OF INDIA ..... Petitioner
Versus
M/S PRATAP RICE & GENERAL MILLS ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Mr S. Kumar Pattjoshi, Sr. Adv. with Mr Manohar Lal Sharma,
Advocate.
For the Respondent:
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
IA Nos. 20809/2013 (condonation of delay of 1 day in filing) & 20811/2013
(condonation of delay of 108 days in re-filing)
1. These are two applications which have been filed by the petitioner,
i.e., the Food Corporation of India (in short FCI) to seek condonation of
delay in filing the petition under Section 34 of the Arbitration &
Conciliation Act, 1996 (in short the Act) and thereafter, for re-filing the said
petition. According to the FCI there is one day's delay in filing the petition
and a delay of 108 days in re-filing the same.
2. The averments made in IA No. 20809/2013 reveal that the impugned
award dated 15.03.2013 was received by FCI on 01.04.2013. It is the case
OMP No. 1278/2013 Page 1 of 7
of the FCI that the petition was filed on 01.07.2013.
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
01.07.2013. The registry, on examination of the petition, recorded its
objections on 02.07.2013 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 eight (8) objections listed out by the registry.
2.2 The FCI's counsel re-filed the petition on 26.07.2013. On scrutiny
the registry found that none of the objections had been removed and the
registry had raised one new objection apart from the objections cited earlier.
The scrutiny was carried out on 26.07.2013 itself and the petition was
returned to the filing counter on 26.07.2013.
2.3 The counsel for the FCI, thereafter, re-filed the petition on 30.07.2013
and 03.08.2013. The petition was returned to the filing counter on
05.08.2013. It was re-filed on 16.12.2013. After examination, it was
cleared for listing on 19.12.2013.
3. The aforesaid would show that in so far as IA No. 20809/2013 is
concerned, the same would have to be allowed as the initial filing by FCI
appears to be in time, if limitation is counted from the date when it claims it
had received the signed copy of the award. The said IA is accordingly,
allowed.
3.1 However, 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 108 days,
however, the registry of this court has stated in its report that the FCI took
168 days in removing the objections and if it is given credit of 30 days,
which is the maximum cumulative period permissible for removing the
OMP No. 1278/2013 Page 2 of 7
objections, under Section 5 of Chaper I (Volume V) of the High Court
Rules, 1967 (in short the Rules) the net delay in re-filing is of 138 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.
3.2 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 & 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. & Anr. 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].
3.3 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
OMP No. 1278/2013 Page 3 of 7
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
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
OMP No. 1278/2013 Page 4 of 7
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. 20811/2013 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".
5.1 From the dates set out hereinabove, it is clear that after the registry
had returned the petition with objections for the second time on 26.07.2013,
(with all objections remaining unliquidated and one new objection being
added), the FCI did not remove the objections cited for a period of almost
five (5) months and re-filed the petition only on 16.12.2013. Though IA
No. 20811/2013 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
OMP No. 1278/2013 Page 5 of 7
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 July, 2013. IA No. 20811/2013
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 59 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
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
OMP No. 1278/2013 Page 6 of 7
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 IA No. 20811/2013 are true.
Therefore, in my view, the judgment in the case of Delhi Jal Board vs.
Digvijay Sanitations & Anr. is distinguishable.
7. For the foregoing reasons, I am of the view that the delay in re-filing
ought not to be condoned. It is ordered accordingly. IA No. 20811/2013 is
dismissed.
OMP No. 1278/2013
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 No. 1278/2013 Page 7 of 7