Heard learned counsel for the parties. Arbitrator gave an award against the petitioners on 1.8.1991 under the old Arbitration Act ( of 1940). Copy of the said award is Annexure-1 to the writ petition. Through the said award petitioners were directed to pay an amount of about Rs.1,94,000/- to, Nalkoop mandal, Construction division, Kanpur through its Executive Engineer. The arbitrator filed the award in court for making the same rule of the court. Petitioner filed objections against the award under Section 30/33 of the Act. The case was registered as case no.1445 of 1993. Additional Civil Judge/VI A.C.M.M., Kanpur Nagar where case was registered decided the matter ex- parte on 20.11.1998 making the award rule of the court. Against the said order petitioner filed an appeal on 2.12.2000 i.e. after two years and few days under Section 39 of the Arbitration Act 1940 alongwith delay condonation application. Appeal had been filed by the same counsel who was appearing for the petitioner before the trial court i.e. Shri R.K.Pandey. Shri Pandey, learned counsel died during pendency of appeal and thereafter petitioner engaged another counsel.
The case taken up in the delay condonation application was that the counsel i.e. Shri Pandey was not aware of the date hence he could not intimate the client. Additional District Judge, Court No.3, Kanpur Nagar through order dated 11.10.2006 rejected the delay condonation application. The said order has been challenged through this writ petition.
In the last paragraph before operative portion reasons have been given by the learned A.D.J. The main reason or atleast one of the main reasons given by the learned A.D.J. is that the appellant filed the appeal through the same learned counsel who was appearing on his behalf before the trial court i.e. Shri Pandey. The appellant had not pleaded that Shri Pandey was at fault or negligent. His case was that Shri Pandey himself was not aware of the date. The learned A.D.J. Wrongly criticised the conduct of the learned counsel who was no more. In normal course when due to slip of the counsel case is dismissed or decided in default, the court insists that restoration application should be filed through the same counsel as the new counsel would not be in a position to say anything about the absence of the counsel on the date on which case was decided in default.
Accordingly, in my opinion it showed bonafides of the petitioners that they got the appeal filed by the same counsel. This could not be treated to be a ground against the petitioner.
Accordingly, writ petition is allowed. Impugned order is set aside. Delay in filing appeal is condoned on payment of Rs.25,000/- as cost. Petitioner is directed to appear before the lower appellate court on 8.2.2010 alongwith a certified copy of this judgment. The aforesaid cost of Rs.25,000/- shall be deposited before the lower appellate court on or before 8.2.2010 for payment to the respondents in the appeal or their learned counsel there. In case cost is not deposited by 8.2.2010, this judgment and order shall be deemed to have been vacated and writ petition shall be deemed to have been dismissed. Office is directed to supply a copy of this order free of cost to Shri Vivek Shandilya learned standing counsel within a week.
Order Date :- 4.1.2010 RS