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TMI Blog2010 (11) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... tions under Section 34 of the A C Act in the Court of the District Judge, Delhi was not carried out in good faith; and that the refiling in the Court possessing jurisdiction, that is, the High Court of Delhi was carried out after 45 days of its return disclosed lack of diligence. The learned Single Judge held that even assuming that the period of one year and seven months could be excluded for filing (refiling) while computing the period of limitation, by availing Section 14 of the Limitation Act, 1963, the Objections were nevertheless time barred. 2. The facts of the case are that the subject arbitral Award was published on 10.11.2004 and was received by the Appellant on 17.11.2004. The period of three months set-down in Section 34(3) of the A C Act commenced running from 17.11.2004 and in its ordinary course culminated on 15.2.2005. The Objections were filed in the Court of District Judge, Delhi on 25.1.2005, that is, leaving unutilized/unavailed twenty two days in the permissible period. The Respondent filed an application in the Court of the Additional District Judge, Delhi to whom the lis was assigned, predicated on Section 42 of the A C Act, praying that the Objections sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous to Section 14 of the Limitation Act, 1963, the period expended in a Court not possessing jurisdiction would have to be excluded. Exclusion of time is an exercise totally distinct from condoning the delay in filing an action. On the rejection or return of the Plaint/Objections, the period for refiling cannot be left open-ended. High Courts have taken the position that the Court rejecting the plaint/petition is not possessed with powers to fix a date within which the action must be filed in another Court. By the introduction of Section 10(a) in Order VII, by Act 104 of 1976, this position has been changed and the vacuum has been filled. It is now open to the Plaintiff/Petitioner to move an application in the First Court, thereby specifying the Court in which he proposes to present the plaint or refile the action after its return, and pray that the First Court may fix a date for the appearance of the parties. If the First Court passes such orders, Sub-rule(4) clarifies that in this event the transferee Court would not be required to once again issue notice to the Defendant/Respondent. 12. It is trite that the Plaintiff/Petitioner may consider it expedient or prudent to challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This being the situation, we think that there is no alternative but to treat the action of the Ambala Court as one standing and predicated on Order VII Rule 11 of the CPC, thereby rejecting the Objections and not dismissing them. 4. Ms. Aruna Tikku, learned counsel for the Appellant, has argued that since the filing of the Objections in the Court of District Judge was carried out within the statutory period of three months, the provisions of Section 34(3) of the A C Act, which vests power in the Court to condone a delay of thirty days beyond the initial three months period, do not come into play. It is her argument that since the Objections had been filed in Court within the period allowed in the statute, the refiling would have to be carried out within a reasonable period. She submits that the Additional District Judge, Delhi was duty-bound to prescribe the period within which the Objections could be filed in the competent Court and having failed to do so, this Court should only consider whether the filing/refiling was effected within reasonable time. It is her contention that since the Objections were returned by the Orders of the learned Additional District Judge, Delhi on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby making it subject to limitation, pecuniary jurisdiction and payment of Court Fee etc., as opined in Hanamanthappa -vs- Chandrashekharappa, AIR 1997 SC 1307. In Vishnu, the learned Single Judge of the Bombay High Court has applied Harshad. We think that the observations alluding to pecuniary jurisdiction and payment of Court Fee have not been relied upon contextually. In both these cases different High Courts or State Courts have prescribed varying stipulations. Let us take the instance of a matter being filed in the Delhi High Court. If it is found that Delhi has no territorial jurisdiction and Uttar Pradesh does, it cannot be contended that the Court Fee already paid would be proper in that State and/or that the case must be heard in the High Court of Uttar Pradesh. 6. Order VII Rule 10A of the CPC now ordains that if the initial Court is of the opinion that the plaint/objections/petition should be returned, the Court shall, before doing so, intimate its decision to the plaintiff. This is for the reason that the second sub-section obliges the Court, no doubt on the application of the plaintiff, to specify and indicate the Court in which the plaintiff proposes to present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exclusion and not extension of time. If the provisions are advantageously available to the Plaintiff/Petitioner/ Objectioner, the time expended bonafide in the Court which was not possessed of jurisdiction would have to be excluded, which, in the present case, is one year and seven months. The manner of calculation is akin to that of computing the period of limitation so far as applying for and obtaining a certified copy of the Order sought to be impugned. If, for example, if a period of three months is prescribed for filing an appeal and the certified copy is applied for fifteen days later, and is made available after fifteen days thereof, the period of limitation would expire after 90+15 days. The rationale may be different but the result is the same. So far as the certified copy is concerned, the Appellant would be deemed to be capable of taking requisite action only on the perusal of the certified copy. 9. We are unable to accept the submission of learned counsel for the Appellant that the very factum of having filed Objections within three months would render other provisions of the A C Act superfluous and irrelevant. This argument would defeat the purpose of the A C Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjections, in the case in hand, however, were filed in this Court only on 10.10.2006, that is, beyond the period of three months after allowing exclusion of one year and seven months as prescribed by Section 34 of the A C Act. 11. Learned counsel for the Respondent has vociferously and repeatedly reminded us that no application has been filed by the Appellant under Section 34(3) of the A C Act. This provision, we think, ought to be reproduced for a comprehensive analysis of the law:- Section 34 : Application for setting aside arbitral award .... (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application with the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. In contradistinction to the opening words of sub-section(3), the proviso doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation Act. In the present case under the Act of 1996 for setting aside the award on any of the grounds mentioned in sub-section(2) of Section 34 the period of limitation has been prescribed and that will govern. Likewise, the period of condonation of delay i.e. 30 days in the proviso . Their Lordships referred to Union of India -vs- Popular Construction Company, 2001(8) SCC 470 which case relentlessly emphasizes the words but not thereafter contained in Section 34(3) of the A C Act, thereby clarifying that the provisions of Section 5 of the Limitation Act do not apply to the A C Act. 13. This also demolishes the argument of learned counsel for the Appellant that the Court is required to inquire only as to the reasonableness of the period which has been taken by the Plaintiff in presenting the returned Plaint/Petition/Objection to the Court possessing jurisdiction. 14. The decision in Amar Chand -vs- Union of India, AIR 1973 SC 313 immediately comes to mind. This is for the reason that their Lordships had enunciated that the filing of an action in a wrong Court would, for all intents and purposes, including the Limitation Act, be non est and secondly that the presentation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be within time as the filing of the suit in the Karnal Court was beyond the period of Limitation. It was, however, argued by Counsel for the appellant that the suit instituted in the trial court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial court; We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the trial court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Harachand Succaram Gandhy v. G.I.P. Rly. Co., AIR 1928 Bom 421, Bimla Prasad Mukerji v. Lal Moni Dev, AIR 1926 Cal. 355, and Ram Kishun v. Ashirbad, AIR 1950 Pat 478. Therefore, the presentation of the plaint in the Karnal Court on March 2, 1959, cannot be deemed to be a presentation of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the provisions of Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the Act of 1996, more particularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2005; discretion to condone further delay would have been obliterated. After a further period of one year and seven months, that is, 17.10.2006, limitation would have irretrievably and irremediably run out. Fortunately, for the Plaintiff the filing of Objections in this Court was carried out on 10.10.2006, ergo, within the condonable period. We have found it fortunate since we are mindful of the fact that this position has not been argued by learned counsel for the Appellant. 17. What now remains to be considered is whether the Appellant has been prevented by sufficient cause from filing Objection/Application within the period of aforementioned three months and the discretionary thirty days. The explanation given by learned counsel for the Appellant is that since the arbitral Award was for a sum of Rs.5,37,160/-, it was filed in the Court of the District Judge, Delhi which normally possesses pecuniary jurisdiction even disputes above Rs.5,00,000/-. It was only when the Respondent highlighted that the operation of Section 42 of the A C Act that it was allegedly realized by the Appellant that the filing should have been done in the High Court of Delhi, regardless and irrespectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the Certified Copy of the Order on the record. On the first date of hearing, the Plaintiff s application from filing the Certified Copy of the impugned Order had been allowed, subject to all just exceptions. This was in view of the assertion of the Appellant in the Application that it had applied for a Certified Copy of the impugned Order. Till date, the impugned Order is not on record. It has been held in a catena of cases that in the absence of the filing of the Certified Copy the Appeal is not maintainable. The position may be appreciably different if the Certified Copy had not been made available to the Appellant till today. Our inquiry with the Registry discloses that the Certified Copy was delivered to the Appellant on 20.10.2009. It is repeatedly argued that in respect of the government as well as public sector undertakings (PSUs), that the normal law of limitation should not be applied. However, the indulgence and latitude extended by Courts to such entities has resulted in their disdainfully ignoring the obligations cast upon them vis- -vis the period set down in the Limitation Act, 1963. Obviously, this has led to the altering the view of their Lordships, as is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the Application under Section 5 of the Limitation Act filed before the learned Single Judge, it appears that the learned Additional District Judge, Delhi had, vide Order dated 21.1.2008, dismissed/returned the Objections on the ground of lack of pecuniary jurisdiction as the Award was in excess of Rs.20,00,000/-. Anyone dealing in legal matters, whether a practicing lawyer or an officer of the Legal Department of a company as large as the Appellant, would be deemed to know that such an Award is ordinarily challengeable in the High Court of Delhi. We are constrained to make these observations for the reason that whenever and whatever latitude and indulgence has been extended, it has only been misused with sheer negligence. The Additional District Judge, Delhi, in his Order dated 21.1.2008, granted an opportunity to the Appellant to collect original documents, if any, after furnishing certified copies thereof. This was to enable the Objections/Petition to be presented before the Court of competent jurisdiction, which in this case is the High Court of Delhi. However, even though the certified copies were available on 7.2.2008, the refilling/filing was carried out as late as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court regarding the original records. Since the courts have transferred many times, therefore, the petitioner could not get the requisite Goshwara number and the necessary application for obtaining the certified copies also could not be made. 10. That in the circumstances the present petition is being preferred on the basis of the photocopies of the documents which are available. 11. That in the course such delay was caused in re- filing the case before this Hon ble Court. 12. That the said delay is neither intentional nor deliberate, but has happened on account of the circumstances beyond the control of the petitioner. 13. That the petitioner has a prima facie good case and shall suffer irreparable loss and injuries if the delay so caused in re-filing the present case is not condoned. PRAYER In the facts and circumstances of the case and in the interest of justice this Hon ble Court may graciously be pleased to: (i) condone the 681/1159 days from filing the present case; and (ii) may pass such other and further order(s) as this Hon ble Court may deem fit and proper in the facts and circumstances of the case. It is significant that the Applicant is unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , In-charge of the Filing counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Assistant Registrar, In-charge of the filing Counter under sub-rule (1), it shall be registered and listed before the court for its dismissal for non- prosecution. (3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Assistant Registrar, In-charge of the filing counter, under sub- rule(1) it shall be considered as fresh institution. 28. Even in the backdrop of these Rules, our learned Brothers had opined that delay in refiling 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 . Reference was also made to Single Bench decisions in Smt. Parvati -vs- Anand Parkash, AIR 1987 Delhi 90 ; State Bank of India -vs- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that in respect of sufficient cause cases the provisions of Section 34(3) of the Act which are special provisions relating to condonation of delay override the general provisions of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ). The position was reiterated in State of Goa -vs- Western Builders, (2006) 6 SCC 239 and also in Fairgrowth Investments Ltd. -vs- Custodian, (2004) 11 SCC 472. There can be no quarrel with the proposition that Section 5 of the Limitation Act providing for condonation of delay is excluded by Section 34(3) of the Act. 30. As has already been mentioned above, reference to decisions condoning delay in the filing of Objections under the Arbitration Act, 1940 are of very little relevance. State of A.P. - vs- I. Chandrasekhara Reddy, (1998) 7 SCC 141 and G. Ramegowda, Major -vs- Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142 are of no avail to the protagonists for condonation of delay. For the very same reasons, the opinion of the Division Bench in Radhey Shyam Gupta -vs- Kamal Oil Allied Industries Ltd., 2006(88) DRJ 676, where the Court was concerned with the provisions of Order XXII Rule 3 of the CPC, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Standing Counsel. 36. The application seeking condonation of delay has been opposed by learned counsel for the Respondent predicated on the argument that Section 5 of the Limitation Act, 1963 is inoperative after the expiry of thirty days after the prescribed period of three months; that Section 5 of the Limitation Act, in fact, does not apply at all so far as Section 34 of the A C Act is concerned. It is further contended that the question of intentional or unintentional delay is rendered irrelevant in the context of Section 34 of the A C Act because even one day s delay is irretrievably fatal. Therefore, the observations of the Hon ble Supreme Court recommending a liberal approach for condoning the delay are not contextual. 37. The learned Single Judge applied Popular Construction Company as well as Consolidated Engineering in the impugned Order. The learned Single Judge also applied Damodaran Pillai -vs- South Indian Bank Ltd., (2005) 7 SCC 300 in which their Lordships had to interpret Rule 106(3) of Order XXI of the CPC. This provision prescribes that an application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 14 of the Arbitration Act, 1940 to Section 34 of the A C Act. We must immediately mention the decision of the very same learned Single Judge in State Bank of India -vs- Indian Utility Products, AIR 2001 Del 30. We are unable to agree with the conclusion in that decision, viz. that deficiency in filing Court Fee would place it in the category of non-filing. There is a distinction between deficiency of Court Fee and complete lack of Court Fee. In Asha Sharma -vs- Sanimiya Vanijiya P. Ltd., 162 (2009) DLT 542(DB), the Division Bench, (of which one of us, Vikramajit Sen, J. was a member), had arrived at this very conclusion after applying Mannan Lal -vs- Chhotaka Bibi, 1970(1) SCC 769 as well as State of UP -vs- Rehmatullah, AIR 1971 SC 1374 and P.K. Palanisamy -vs- N. Aruanugham, (2009) 9 SCC 173. It is crucially important that several other defects, such as Memo of Parties not having been signed, cuttings not having been initialed, certain paragraphs having been left blank and Power of Attorney not having been stamped, as recorded by the Registry, were ignored by the learned Single Judge in that case. With all deference to the learned Single Judge, the ratio in Mannan, Maltex M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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; in fact, it does not bear the signature of Late Shri R.D.Jolly. Because of the explanation given in the course of hearing, we shall ignore the factum of the Vakalatnama also bearing the signature of another Standing Counsel, namely, Ms Prem Lata Bansal. We have called for the records of OMP No.291/2008 and we find that the Objections have not been signed by Late Shri R.D.Jolly but by Ms Sonia Mathur on 9.8.2007, on which date the supporting Affidavit has also been sworn by the Director of Income Tax. In these circumstances, the illness of Late R.D.Jolly is obviously a smokescreen. No other explanation has been tendered for the delay. The avowed purpose of the A C Act is to expedite the conclusion of arbitral proceedings. It is with this end in view that substantial and far reaching amendments to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged, namely, that since two hundred pages were required to be retyped a lot of time was taken up. Secondly, it has been argued that certain documents were so dim that they have to be retyped by the concerned Department. In the Rejoinder, the Appellant had raised a third excuse before the Learned Single Judge, namely, that the papers had got mixed up with another matter between the same parties. The Learned Single Judge concluded that with a modicum of diligence the Objections could have been removed within thirty days. So far as the third excuse, that is, the papers having got wrongly tagged with another matter is concerned, the Learned Single Judge has opined that necessary details had not been pleaded and relied on the decision of another Learned Single Judge in Gautam Associates -vs- Food Corporation of India, 2009 111 DRJ 274, the ratio of which he rightly felt was binding on him. We have perused the decision in Gautam Associates, which we respectfully affirm. 45. So far as the nature of the defects recorded by the Registry is concerned, we find that the Objection Petition (OMP No.30/2010) dated 29.05.2009 bears the signatures of Shri Jitender Kumar Singh, who is the Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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