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TMI Blog2013 (11) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. 3. The facts relevant for examining the controversy in the present appeal are briefly stated as under. 4. Certain disputes arose between the appellant and the respondent and the same were referred to arbitration. An arbitral award dated 02.04.2009 was made pursuant to the said reference. Being aggrieved with the award, the appellant filed an application under section 34 of the Act (being O.M.P. No.89/2009) whereby the appellant challenged a part of the arbitral award. Admittedly, the said Objections were filed on 24.07.2009 with a delay of 17 days. The Registry of this Court raised certain objections and the said application under section 34 of the Act was returned under objections on the same day. It has been stated by the appellant (in the application for condonation for delay in re-filing) that the award was on A4 size paper running into 147 pages and the same was required to be retyped and filed on legal size paper. The application under section 34 of the Act was re-filed on 24.08.2009 with a typed copy of the award on legal size paper. The Registry of this Court again raised certain objections and the said application was once again returned on the same day i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest under the award and delay in re-filing would be duly compensated, if the objections are eventually dismissed on merits. Petitioner placed reliance on the decision of the Supreme Court in Improvement Trust Vs. Ujagar Singh, (2010) 6 SCC 786, to submit that unless it is a case of mala fides which are writ large from the conduct of the party, generally as a normal rule, delay should be condoned. An attempt should be made to allow the matter to be contested on merits rather than to throw it out on such technicalities. Having heard learned counsel for the petitioner as well as learned counsel for the respondent, I am not inclined to allow the present application which seeks condonation of delay of 166 days in re-filing the petition. The original period of limitation within which objections can be preferred to the award is three months. The power of the court to condone delay is only limited to 30 days and not thereafter. The Supreme Court has held in Union of India Vs. Popular Construction Co., AIR 2001 SC 4010, that the power of the court to condone delay does not extend beyond the period of 30 days. The delay in re-filing of the petition has to be viewed in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the defects are of such character as would render a plaint as non est in the eyes of law, then the date of presentation would be the date of re-filing after removal of the defects. However, if the defects are formal or ancillary in nature not affecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the period of limitation. It is contended that the same principle would be equally applicable for an application under section 34 of the Act. Since in the present case, the defects are only formal and ancillary in nature, the application should be taken as filed within the specified period and the delay in re-filing ought to be condoned. The learned counsel for the appellant placed reliance on a decision of this court in DSA Engineers (Bombay) v. Housing & Urban Development Corporation Ltd.: 2003 (1) AD (Delhi) 411. 10. It is contented on behalf of the respondent that the Courts have no jurisdiction to condone the delay in re-filing if the delay in re-filing is beyond the period of three months and thirty days as specified under section 34(3) of the Act. It is argued on behalf of the respondent that what i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gregate to be fixed by the Deputy Registrar/ Assistant Registrar, Incharge of the Filing Counter. Rule 5(3) of the said Rules also makes it abundantly clear that in case the petition is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, Incharge of the Filing Counter under Sub-Rule 1, it shall be considered as a fresh institution. The moment it becomes a fresh filing, then under the settled law, the delay beyond the expiry of prescribed period cannot be condoned on any ground. The maximum period of 30 days is provided under Rule 5, Chapter 1, Part A of Vol. 5 of the High Court Rules and Orders for removing the objections by re-filing of the petition. In the present case, the same was not done and the application was filed after the expiry of 166 days. 13. We have heard the learned counsel for the parties at length. The questions that arise for consideration in the present appeal are, whether a court has the jurisdiction to condone delay in re-filing of an application under section 34 of the Act, where the aggregate period of delay exceeds the period of limitation as specified under section 34(3) of the Act. And if so, whether the delay in re-filing ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "7. ..... The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims. ...." 17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs and 30 days) as specified in section 34(3) of the Act, however, the re-filing may be beyond this period. We do not think that in such a situation the court lacks the jurisdiction to condone the delay in re-filing. As stated earlier, section 34(3) of the Act only prescribes limitation with regard to filing of an application to challenge an award. In the event that application is filed within the prescribed period, section 34(3) of the Act would have no further application. The question whether the Court should, in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whether sufficient cause has been shown which prevent re-filing the petition/application within time. 19. The Supreme Court in the case of Union of India v. Popular Construction Company: (2001) 8 SCC 470 has held that the time limit prescribed under section 34 of the Act to challenge an award is not extendable by the Court under section 5 of the Limitation Act, 1963 in view of the express language of section 34(3) of the Act. However, this decision would not be applicable in cases where the application under section 34 of the Act has been filed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod prescribed by the Limitation Act though defectively. The delay, if any, was in representation of the objection petition after rectifying the defects. Section 5 of the Limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower court for condonation of the delay in preferring the objections and the order of the court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be represented." 20. It follows from the above that once an application or an appeal has been filed within the time prescribed, the question of condoning any delay in re-filing woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , liberality in condoning the delay in refiling would be contrary to the intention of the Parliament. However, this does not imply that the Court would have no jurisdiction to condone the delay in re-filing beyond the period as specified in section 34(3) of the Act. This is also apparent from Para 41 of the said judgment which reads as under:- "41. The question, which still requires to be answered, is whether a reasonable explanation has been given with regard to delay of 258 days in the refiling of the Objections. Since this delay crosses the frontier of the statutory limit, that is, three months and thirty days, we need to consider whether sufficient cause had been shown for condoning the delay. The conduct of the party must pass the rigorous test of diligence, else the purpose of prescribing a definite and unelastic period of limitation is rendered futile. The reason attributed by the Appellant for the delay is the ill health of the Senior Standing Counsel. However, as has been pithily pointed out, the Vakalatnama contains the signatures of Ms Sonia Mathur, Standing Counsel for the Department; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have to examine each case on its own facts & merits and to take a call whether, or not, to condone the delay in refiling the objection petition, when the initial filing of the petition is within the period of limitation. However, what is to be borne in mind by the Court is that the limitation period is limited by the Act to three months, which is extendable, at the most, by another thirty days, subject to sufficient cause being disclosed by the petitioner to explain the delay beyond the period of three months. Therefore, it cannot be that a petitioner by causing delay in re-filing of the objection petition, delays the re-filing to an extent which goes well beyond even the period of three months & thirty days from the date when the limitation for filing the objections begins to run. If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in refiling, and the Court would conduct a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise, by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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