This Original Petition is filed challenging an award passed by the Arbitrator dated 28.11.2013. Application No.3513 of 2017 has been filed by the second respondent in the O.P. praying for a dismissal of O.P. No.350 of 2017.
2. For the sake of convenience, parties are referred to as per their status in the Original Petition.
3. At the outset Mr.P.S.Raman, learned counsel appearing for the respondents would vehemently object to the admission of the Original Petition on the ground that the same, though filed within the timeline set out under section 34(3) of the Arbitration and Concilliation Act 1996 (in short ‘Act’), was re- presented after rectification of defects pointed out by the Registry with an enormous delay of 1090 days.
4. The facts that are necessary to be adverted to in this regard are as follows:
Pursuant to an Order of this Court in O.S.A. Nos.282 and 285 of 2006 dated 23.01.2007, disputes inter se the parties in the Original Petition were referred to arbitration by consent. Proceedings culminated in an award passed by the Arbitral Tribunal on 28.11.2013.
5. An Original Petition challenging the Award in terms of Section 34(1) of the Act was filed by the petitioners before the Registry within the time prescribed and being defective, was returned on 03.03.2014 for rectification of defects. The defects set out by the registry were (i) deficit court fee of Rs.90/- (ii) non-filing of typed set (iii) an explanation as to how the petition was maintainable in terms of Section 34 of the Arbitration and Conciliation Act and (iv) signature of counsels in the petition. The Original Petition appears to have been re-presented on 05.06.2014, without the defects being rectified. It was thus once again returned with the remark that the deficiencies pointed out had not been rectified and calling for compliance thereof. The re-presentation of the defective petition was on 20.03.2017. It however came to be returned yet again with the remark that the deficiencies pointed out earlier still remained intact. This position continued, when the O.P. was re-presented again on 30.04.2017 with a similar return by the Registry. The petition was finally re-filed on 28.04.2017 after rectification of the defects.
6. An application seeking condonation of delay of 1090 days in re- presentation was filed in and listed for hearing before the Master on 21.04.2017, when curiously, without issuing notice upon the respondent, an exparte order was passed condoning the delay in re-presentation of 1090 days, conditional upon the petitioners depositing a sum of Rs.1,200/- in favour of the Chief Justice's Relief Fund on or before 26.04.2017. The condition was complied with and this is how the matter comes to be listed for hearing before this Court.
7. Heard Mr.T.V.Ramanujam, leaned senior counsel, appearing for Mr.K.J.Rebello, counsel for the petitioners and Mr.P.S.Raman, learned senior counsel, appearing for Mr.P.Giridharan, counsel for the respondents.
8. The specific argument of Mr.Raman was that though there was no time limit imposed for the condonation of delay in re-presentation, a cue should be taken from the provisions of section 34(3) of the Act read with the proviso thereto that prescribe a period of ninety days extended by an additional thirty days upon the petitioner showing ‘sufficient cause’ for such delay as the outer limit for filing petitions u/s 34 of the Act. According to him, no proper justification has been offered to explain the delay in re-presentation and as such the Original petition is not maintainable.
9. He would cite, in his support, several decisions to which I make brief reference:
(i) The First Division Bench of this Court in the case of M/s.Indus Ind Bank Ltd. vs. Joseph Rajan Fernandes and others, (OSA Nos.420-425/2011) while considering the plea of the appellant challenging an order of condonation of delay of 28 days in re-presentation, remitted the matter for re-consideration by the learned single judge, taking note of the position that a delay in re-presentation, particularly a matter arising from arbitration proceedings should not be treated routinely merely because there is no time limit imposed for the condonation of such delay.
(ii) A division Bench of the Delhi High Court in DDA vs. Durga Construction Company reported in ILR (2014) I Delhi 153 cautions that power to condone delay in re-presentation may not exercised liberally in view of the specific object of the Arbitration and Conciliation Act 1996 for expeditious disposal of litigation. It is relevant to note that the aforesaid observation of the Bench was made in the context of a delay of 166 days.
(iii) Again, a Division Bench of the Delhi High Court in the case of the Executive Engineer (Irrigation and Flood Control) vs. Shree Ram Construction Company considered a delay in re-presentation of 285 days that was declined to be condoned on the ground that no satisfactory explanation has been furnished justifying such delay.
(iv) In Union of India vs. M/s.Sunrise Enterprises, Panipet, a learned Single Judge of the Delhi High Court considers the condonation of delay in re- presentation of 75 days and concludes that in the absence of any attempt to explain the delay, it becomes fatal.
10. In his defence, Mr.T.V.Ramanujam would first point out that the order of the Master dated 21.04.2017 condoning the delay in re-presentation has become final, having not been challenged by the respondents.
11. Further, he would argue that that the ultimate endeavour of the Court should be to see that justice does not suffer and would cite, in this context, a decision of this Court in Y.Cusbar vs. K.Subbarayan (1993 TLNJ 375). He would point out that no right had accrued to the respondents pursuant to the award and as such there would be no prejudice caused to the respondents if the delay was admitted and the original petition considered on merits, relying on the decision of this Court in D.Muralidharan vs. Chinnappan (died) (2007 4 MLJ 635).
12. Having considered the arguments of both learned senior counsel and perused the documents and case law cited, I am of the view that the original petition calls for dismissal at the threshold and in limine.
13. The first argument raised in support of the OP is that the order of the Master in Application No.2396 of 2017 condoning the delay has become final and cannot be questioned at this stage. As pointed out by the respondents, the order of the Master dated 21.4.2017 is not an appealable order. The opportunity to question the same thus arose only upon the listing of this Original Petition for admission before court. The right of the respondent to question the delay is thus preserved to be raised as a challenge to the admission of the O.P. This Court, vide decision in Civil Suit No.882 of 1984 and Application No.3193 of 1986 in the case of Union of India vs. M/s.Cavalier Shipping Company, Madras and another, (copy circulated) had occasion to consider a similar situation where a delay in re- presentation in excess of 17 years was condoned by the Master exparte. Notwithstanding the general rule that the condonation of delay in re-presentation would be a matter between the Court and the party causing such delay, Justice M.Srinivasan carved out an exception to the general rule in cases where the delay is significant and the condonation itself is seen to be mechanical and without reference to the quantum of delay. In conclusion, the learned Judge accepts the application of the defendant to dismiss the suit, setting aside the order of the Master condoning the delay. This principle would be applicable all the more in a case such as the present one where there is no justification offered, let alone established, for the delay of 1070 days.
14. At this juncture, a perusal of Application No:2396/17 in O.P.SR.No.7670/2014 seeking the condonation of delay before the Master is called for and is extracted below:
“1.I am the first petitioner in the above case and as such I am well acquainted with the facts and circumstances of the case. I am filing this affidavit on behalf of the second petitioner also.
2.I submit that we have filed the Original Petition to set aside the Arbitral Award dated 28.11.2013 in so far as the dismissal of the claim filed by the petitioners herein.
3.I submit that the above petition was filed within time and the same has been returned with some defects on 03.03.2014. Again it was represented on 05.06.2014. The registry returned the petition on 09.06.2014 to comply the earlier defects. However, in the Arbitral Tribunal Proceeding it has come to notice that our petition challenging the interim award dated 28.11.2013 has not been numbered and when our counsel traced the papers it was found that the petition to set aside the award was returned on 09.06.2014 was not represented as it was mixed with some other bundle when the office of the counsel for the petitioner was shifted from the second floor to ground floor. The bundle was traced and now I am representing the same. I submit that non representing the O.P.D.No.7670 of 2014 is neither willful nor wanton. But due to the aforesaid reasons.
4. I submit that there is 1090 days delay in representing O.P. S.R. No.7670 of 2014. If the same is not condoned, we will be put to irreparable loss and untold hardship. On the other hand no prejudice will caused to the respondents if the petition is allowed as similar petition challenging the above award is pending before this Hon'ble Court in O.P. No.122 of 2014 filed by the third respondent herein.
5. In the above circumstances, I therefore humbly pray that this Hon'ble Court may be pleased to condone the delay of 1090 days in representing the O.P. S.R. No.7670 of 2014 and justice be rendered”.
15. Absolutely no acceptable reason has been set forth in the petition to explain, let alone justify, the delay of 1090 days. The delay has been condoned by the Master merely for the asking and based on a sequence of facts that inspires no confidence whatsoever.
16. I now advert to an important legal issue raised. The facts presented and the condonation sought have to be seen in the context of a challenge under Section 34 of the Act which is part of the scheme of a special enactment providing for the speedy resolution of disputes inter se parties.
17. There is no quarrel with the proposition that the provisions of Section 34 (3) of the Act r.w. proviso thereto impose a statutory time limit only upon the filing of a challenge to an award. However, the scheme of the Act cannot be lost sight of while considering an application for condonation of delay in re-presentation. The very object of the Act is speedy disposal and this cannot be frustrated by the petitioners and their casual approach to procedural requirements.
18. Mr.Ramanujam relies on the judgment of the Supreme Court in Northern Railway vs. M/s.Pioneer Publicity Corporation Pvt. Ltd. (Civil Appeal No.10340 of 2016) dated 24.10.2016 to the effect that the time limit imposed under Section 34(3) would apply only to the initial filing under Section 34(1) of the Act. I am conscious of this position. However, the condonation of delay in re-filing that was confirmed by the Supreme Court notes the position that the petitioner in that case had offered an explanation for the delay in re-presentation that the Court found acceptable. This is not the position that I am faced with in the present case. As rightly pointed out by the respondents, the only explanation offered for the delay of 1090 days is a mix up of papers when the office shifted from one floor of the building to another.
19. The explanation has also to be seen in the light of the fact that during the time when the delay was being occasioned the very same parties were engaged in pursuing two other original petitions before this court.
20. For the above reasons, Application No.3513 of 2017 is allowed and Original Petition No.350 of 2017 stands dismissed. Parties are directed to bear, their own costs.
04.08.2017 vga Note: Issue order copy on 07.08.2017 Dr.ANITA SUMANTH,J.
vga Pre-delivery judgment in O.P. No.350 of 2017 and Application No.3513 of 2017 04.08.2017