MIINICIPAL CORPOIfA'I'ION OIr DELI{I v. M/S ENGINIII]R DI-IVIILOPMEN'I COI{PORA'I'ION

Ihis is an application filcd by thc pctitioncr sccking condonation of 304 clays' dclay in rc-filing thc objcctions undcr Section 34 of Arbitration and Conciliation Act. Thc undisputcd facts, which have led to filing of prescnt application, arc l"hat an arvard r.vas made and publishcd on 10.3.2010. 'I'he ot'rjcctions u,cre to bc filed r.vithin a pcriod of 90'l'30 days (total 120 days). It is not in disputc that thc objcctions wcre filcd on l.7.2010 within thc period of limitation. I'he objections rverc rcturncd to the counsel for the petitioner in the second r,veck of Jr,rly, 2010, on account of certain defects. the defects were.rcmoved and thc o.M.P.373/2077 Signature Not Verified Digitally Signed By:AMULYA 1 objections were re-filed on 29.4.2011, thereafter on 7.5.2011 and lastly on 11.5.2011 resulting in 304 days delay in re-filing. Iteasons for condonation of delay in re-filing arc stated in paras 3 and 4 of the prescnt application, which read as under: "

It is submitted that the Counscl for thc Petitioner has filed the present petition before this FIon'ble Court on I.7.2010 which was not cleared by the I{egistry due to certain defccts. 'Ihe said file r.vas rcceivcd by the Court Clerk of the present Counscl from thc Registry to rcrnovc thc dcfccts. Howcvcr, thc Court Clcrk of the Counsel represcnting Petitioner in the 2''d r.r,eek of July 2010, informed the counsel that he has to go to his hometown village due to some family ernergency but nevcr returned back to the Counsel's office dcspite rnaking repeated attempts to contact him. It is submitted that the cntirc case file was in custody of thc said clerk and it went missing in spite of rnaking rcpcated atternpts by thc Office staff to tracc it. 'I'hcrcaftcq only no'uv thc said filc was found along with some other casc file, u'hich was the file of a regular matter and thus thc same is being filed norv after curing the dcfccts.

As stated hcrein abovc thc petition is being liled toda1, alongr, vith the prcsent application for condonation of delay in re-filing of the prcscnt petition. '['he delay caused is unintentional and same is sincerely rcgretted. Thc present application is bonafide and in the interest of justice.

3. Lcarned counsel for the petitioner submits that objcctions oould not bc rc-filed on account of sufficicnt grounds as the Clerk of thc counsel after filing the objections had gonc to his hornet own village due to his family emergency and he did not return despitc thc counsel o.M.P. 373/2otl t- t:- v having made repeatcd efforls. Counscl furthcr sr"rbmits that the file was in the custody of the clerk and thus the defccts could not be removed and objection re-filed within the time allowed.

4. Learncd counsel for the petitioner has rclied upon Delhi Jctl Bosrd v. Digvtjay Sanitations & Anr., reported at 160 (2009) DLT 92, a decision rcndered by a Single Judge of this courl r,vhereby delay of ten and a half months in re-filing the objections was condoned. Counsel for the petitioner submits that in the above case the Court was of the vier.v that litigant cannot be rnadc to suffer on account of the inaction or negligerlce on the part of the counscl. Ilvcn otherwise {3^ thc cdurt was convinccd that after the objcctions wcrc returned the samc werc misplaced as tr.vo cases were pending having a similar cause title and more so the uncle of the counsel was seriously sick and he could not attend to his work. Counscl for thc petitioner has also rclied upon thc obscrvations made by a Division Bench of this Court in the case of Delhi Development Authority v. R.S. Jindol, rcported at 2007 (10) DLT 42 whercin it has been observcd that the statutory authority has to rcly upon their counscl r,vho conduct cases and whcn the counsel adrnitted that thcre was default by rnistake in ( the office of the counscl the statutory authority shoulcl not be made to suffcr for thc rnistakc of the counsel.

Learned counsel for the respondent has vehemently the opposed prcscnt application for condonation of dclay in rc-filing thc objection$on two grounds firstly thc presen! application is vaguc and lacks material parliculars and secondly this application docs not o.M.P.373/2077 Poge 3 of 70 II disclose sufFrcicnt grounds for condonation of 304 days delay in re- filing the objcctions. Counsel next submits that in the case of Delhi Jol Bosrrl (supra) and Dellti Development Autltority Vs. Jindal (supra), which havc rclied upon by counsel for thc petitioner, both - thc l)ivision llench as well as thc Singlc Judgc of this Court - have also held that delay in re-filing cannot be condoncd once there is inaction and negligence and the application for condonation of delay should not be allowed in a routine manner and as a matter of right. Lcarned counsel for the respondent has relied upon (Jnion of Inclicr v. Ponulsr Construction Comoanv, rcportcd at 2001 8 SCC 470, r,vherein the Apex Courl has held that thc Court has no powcr to condone the delay in filing objections after 90+'30 days. It is contended that aim and objcct of tho present Arbitration Act is to cnsure that there is finality in Arbitration mattcrs rvithout inordinate dclay by thc parties and in case delay is concloned it r,vould run contrerry to the mandate of thc legislaturc as thc intent of the lcgislature was to lirnit the pcriod during r,vhich the objcctions can bc filcd. lleard counsel for thc parties and also perused the application filed by the petitioner secking condonation of delay in re-filing the objcctions. A barc reading of the application, which runs into four paragraphs, lvould show that the reasons mentionecl for delay in this application are that in the second r.veek of July thc clcrk of the counscl had to go to his home town and thercaftcr hc did not return. At this stage it would bc useful to refer to the objections rvhich have

o.M.P.373/2077 Y t: bcen raised by the Itcgistry on 01 .07.2010. 1'he objections raised by thc Registry are as undcr:

1. 2.

4. .\

9. Court fee of Rs.20l- should bc affixed (1) Court fee of Rs.2.75/- should bc a'ffixcd over urgent application, vakalatnama and IA(s) (3) Cavoat rcport be obtained/ at the tirnc of cach subsequent filing and proof of servicc bc filcd. (101) Ilresh notice of rnotion upon Counsel for concerned respondent be filed if 3 days have elapsed since the date of last selicc. (102) Petition / applications/ annexures / ordcr/ power of attorney should be starnpcd and the head figure of the court fee should be punched. (109) Petition / applications / power of atlorney bc signed and dated. (1 10) Pctition bc properly classified/ nomcnclature bc given. (r27) Vakalatnama be filed and signed/ dated. trach Advocate must mcntion their complete name/ addrcss/ enrolment numbcr and phone number in Vakalatnalna. Titlc on the Vakalatnama be checked. Signature of the clicnt be identified. (137) IA for condonation of delav in re-filins bc filed \,vith dclay day. "

A bare pcrusal oi: thc objections raised by the Registry rvould show that the same wcre elcmcntary in nature and did not require assistance of the client. As per the averment madc in thc application for condonation of dclay, after filing of the pctition, thc same was rcccived from the I{cgistry by the court clcrk of thc counscl for pctitioner and thercafter he proceeded on lcavc in thc second week of July and thereafter did not return. 'fhe record of this case sholr,s that o.M.P.373/2011 .+ t. L after 01.07.2010 the objections were filcd on 3L04.20I1 and thercafler on 07.05.2011 and 10.05.2011. Before dealing with the arguments of counsel for thc parties, I deern

it appropriate to re-visit the law laid down by the Apex Court on.the subject in question. In the case Union of India v. Populsr Construction (Suprol the Apex Court has hcld that the Act prcscribes a mandatory period of limitation of three months for filing objcctions against an award which could at most bc cxtcndcd by another 30 days. It has further been held that bcyond the period of 30 days the Court is powerless to condone the delay. The question of condoriation of delay in re-filing is to be considered under the Scheme of the Act, which has prescribed the period of limitation for filing objections i.e. 90'l' 30 days 'but not thereafter'. In the case of Gautam Associates Vs. Food Corporotion of lrtclio (2009) 1 1 I DRJ 744 it has been held that condonation of delay in a petition under Scction 34 has to be vicwpd diffcrently than the condonation of delay in othcr cases bccause if thcrc is unnecessary libcralness in condonation of delay, thcn the ratio of thc Sr-rpreme Court in the casc o'f Union of'Indio v. Populsr Construction (Supra) r,vill be sct at naught. I'he vcry object of arbitration is speedy justicc and quick dctermination of the disputcs.

In the case of Executive Engineer Vs. Shree Rom Construction Co. 20L0 (120) DRJ at page 615 (a decision of the l)ivision Bench of this court), thc Division Bench has observcd that therc is a pressing need to bring adjudicatory proceedings to a prompt and cxpeditious o.M.P.373/2077 Poge 6 of 70 t t- )2- conclusion, espccially where commercial and business contracts arise. In the case of Executive Engineer (Supro) the Division Bench had an occasion to deal with four petitions [IiAO(OS)'I rvhich had becn filed against diffcrent orders of a Singlc Judge of this Court. 'l'lrc relcvant paragraphs 29 and 41 of the Judgment are reproduced below: "29. Rcliance on the decision in Improvcmcnt'I'rust, Ludhiana -vs- Ujagar Singh, (2010) 6 SCC 786 to thc cffcct that'Justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it off on such tecluricalities and that too at the threshold" is of no avail in the backdrop of the A8.C Act which decidedly and calculatedly shuts off curial discretion after the expiry of thirty days beyond three months having elapsed from Xhc date on which a copy of the Award had bcen reccivcd by thc appcaling party.

8. The decision in Union of India -vs- Popular Construction Cornpany, (2001) 8 SCC 470 did not deal with spccific issues in this case. In that dccision it was hcld that in respect of "sufficient cause cascs" the provisions of Section 34(3) of the Act which arc spccial provisions relating to condonation of dclay override the general provisions of Section 5 of the Lirnitation Act, 1963 (in short "the Lirnitation Act"). The position was rciterated in State of Goa -vs- Western Builders, (2006) 6 SCC 239 and also in liairgrowth Invcstments Ltd. -vs- Custodian, (2004) 11 SCC 472. There can bc no quar:rel with the proposition that Scction 5 of thc l-irritation Act providing for condonation of delay is excluded by Scction 34(3) of the Act.

41. 'fhe question, which still requires to be answered, is whether a reasonable explanation has been given with regard to delal' of 258 days in the rcfiling of the Objections. Since this delay crosscs thc fronticr of the statutory limit, that is, three months and thirty days, we necd to consider rvhether sufficient causc had been sholvn for condoning thc dclay. The conduct of the party rrust pass the rigorous test of diligencs. else the purpose of prcscribing a definite and unelastic period of limitation is rendered futile. The reason attributed bv the Appellant for the delay is the ill health of thc Scnior Standing Counsel. Ilor.vever, as has been pithily pointed out, the Vakalatnama contains thc signatures of Ms Sonia Mathur, Standing Counscl for thc Department; in fact, it docs not bear the signature of Late Shri R.D.Jolly. IJecause of the explanation given in the course of hearing, 'r.vc shall ignore the factum of the Vakalatnarna also bearing thc signature of another Standing Counscl, namely, Ms Prem T,ata lJansal. Wc havc called for the records of OMP No.291l2008 and we find that the Objections have not been signed by Latc Slui o.M.P.373/2077 -1- 1{ Y. 1L It.D.Jolly but by Ms Sonia Mathur on 9.8.2007, on r,vhich 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 srnokescrcen. No other cxplanation has been tendcred for the delay. The avowcd 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 amendmcnts to the position prevailing undcr thc Arbitration Act 1940 havc bccn carried out and an altogcthcr new statute has been passed. 'fhis purpose cannot be emasculated by delays, intentional or gross, in the course of rcfiling of the Petition/Objections. The conduct of the Appellant is not venial. We find no enor in the conclusion arrived at by the learncd Single Judge and accordingly dismiss the Appcal. CM No.521212009 is also disrnisscd. "

'I'he facts of the present case arc to be considcrcd kecping in vierv the judgrnents rclied upon by counsel for thc partics and thc law laid down by thc Supreme Court.

While dealing with an application for condonation of delay, the coutl rnust satisSr itself that thc delay was duc to bona fidc rcasons and not on account of inaction, carclcssness or ncgligcncc on the part of the pctitioner. A perusal of the objections raiscd by thc I{egistry would shorv that thc objections r,vere of such a nature could havc becn easily removcd at the earliest opportunity available, howevcr, thc petitioner has shown complete negligence in not re-filing the objections after rcmoving the defccts within a reasonable pcriod. 1'he grounds in the application are devoid of particulars nor the petition is supported by the affidavit of the clerk, lawyer who had crnployed the clerk nor sufficient rnatcrial to shorv that as to hor.v long the clerk was working in the officc of the lawycr. o.M.P.373/2077 I5

I-Iaving regard to thc settled position of law and applying the samc to the f'acts of the present case delay of 304 days in rc-filing the objcctions cannot be condoncd on account of complete inaction and negligencc on the part of thc petitioner. It may also bc added that petitioncr before this Court is not an ordinary litigant. Petitioncr is a Department, which has its own Law Office and a Legal l)epartrnent and they are well aware about the period of limitation and the law on the subject. It was for the petitioner to really to have taken appropriate steps to have the Objections re-filed within thc prescribed period r,vith an affidavit duly attested and thereaftcr in case of any '* objcctions clear thc same to ensurc that l)epartment does not suffer on account of inaction and ncgligence. In thc facts of the present case, the enormous delay in re-filing and for which there are no bona fide reasons or explanation, cannot be condoned as the same would run contrary to the mandate of the legislaturc T4, In view of above, present application cannot be allowcd and thc same is accordingly disrnisscd. o.M.l,.373120L1 15. In vicw of the ordcr passed in I.A.NO.779ll20ll, prcscnt petition is beyond the period of limitation and the samc is accordingly 'r dismissed. ocToBER 24,2011 msr rPF F<;.-rtsffi /- o.M.P.373/2071 Poge 7O of 70