2000 (5) TMI 1062 - SC - Indian Laws

Whether the order passed by the Senior Civil Judge, Kakinada was an order refusing to set aside the award? Held that - The High Court had the jurisdiction to reappraise the evidence and condone the delay. It has given its reasons for doing so. It cannot, in the circumstances, take a different view on the merits of the respondents case on the question of delay if the matter were to be remanded. In our opinion, this would be an appropriate case for us to exercise our powers under Article 142 of the Constitution and decide on the merits of the sufficiency cause shown. The High Court gave three reasons for setting aside the order of the Trial Court after considering several decisions cited before it. The first, to use its own words, that there was a total negligence and it is on the part of the counsel who appeared for the State in the Trial Court. The second reason was that high-stakes were involved in the matter. The third reason was that no prejudice would be caused to the Contractor because the issue of the validity of the award was yet to be decided in its suit. It is a moot point whether the second and third reasons are relevant. Nevertheless, the first ground should have been and, in our opinion, was sufficient to excuse the delay and to remand the matter back to the Trial Court for a decision on the merits of the application under Section 30. It would be an euphemism to describe the ineptitude of the advocates advice to the respondent in connection with the proceedings before the Trial Court as negligence. As he holds the post of Govt. Pleader it could reasonably be assumed by the respondent that he possessed the required legal expertise to advise them correctly. His lack of this is borne out by the several wholly misconceived proceedings filed by the respondent before the Senior Civil Judge on his advice. That the respondents objection to the award is not the laggardly response of a frivolous litigant appears from the fact that an objection to the award was made even before the award was filed. Appeal dismissed.

Issues Involved:

1. Condonation of delay in filing an application under Section 30 of the Arbitration Act, 1940.
2. Applicability of Section 115 of the Code of Civil Procedure.
3. Appealability of orders under Section 39 of the Arbitration Act, 1940.
4. Jurisdiction of the High Court to reappraise evidence and condone delay.
5. Exercise of powers under Article 142 of the Constitution.

Detailed Analysis:

1. Condonation of Delay:
The High Court of Andhra Pradesh condoned the delay in filing an application under Section 30 of the Arbitration Act, 1940, and remanded the matter to the Trial Court for a decision on merits. The Principal Senior Civil Judge, Kakinada, had dismissed the respondent's application under Section 5 of the Limitation Act, 1963, on the grounds of insufficient explanation for the delay. The Supreme Court noted that the High Court re-appraised the cause shown by the respondent and condoned the delay under Section 5 of the Limitation Act, which is generally not permissible under Section 115 of the Code of Civil Procedure.

2. Applicability of Section 115 of the Code of Civil Procedure:
The Supreme Court examined whether the Civil Judge's order dismissing the respondent's application under Section 5 was revisable under Section 115 of the Code or if an appeal lay under Section 39 of the Arbitration Act, 1940. The Court concluded that the powers of an appellate court are wider than those available under Section 115. The order of the Senior Civil Judge was considered an order refusing to set aside the award, thus making it appealable under Section 39 (1)(vi) of the Arbitration Act.

3. Appealability of Orders:
The Supreme Court highlighted that several High Courts have treated orders refusing to condone delay as final orders disposing of the original petition, making them appealable. The Court agreed with this view, stating that an application dismissed on the ground of limitation is effectively a refusal to set aside the award, making it an appealable order under Section 39 (1)(vi) of the Arbitration Act.

4. Jurisdiction of the High Court:
The Supreme Court noted that the High Court had the jurisdiction to reappraise the evidence and condone the delay. The High Court's reasons for setting aside the Trial Court's order included negligence on the part of the counsel, high stakes involved, and no prejudice to the contractor. The Supreme Court found the first reason sufficient to excuse the delay and remand the matter to the Trial Court for a decision on the merits of the application under Section 30.

5. Exercise of Powers under Article 142:
The Supreme Court decided to exercise its powers under Article 142 of the Constitution to decide on the merits of the sufficiency of the cause shown. The Court emphasized that the ineptitude of the advocate's advice to the respondent constituted sufficient cause for the delay. The appeal was dismissed, and the matter was remanded to the Trial Court for a decision on the merits of the application under Section 30.

Conclusion:
The Supreme Court concluded that the order of the Senior Civil Judge rejecting the application under Section 5 was appealable under the Arbitration Act, 1940. The application under Section 115 of the Code did not lie. The High Court had the jurisdiction to reappraise the evidence and condone the delay. The Supreme Court exercised its powers under Article 142 to decide on the merits of the sufficiency of the cause shown and dismissed the appeal, remanding the matter to the Trial Court for a decision on the merits.

← Previous Next →