Jyoti Singh, J
I.A. No. 5982/2020
1. This is an Application filed by the Petitioner under Section 151 CPC for setting aside/recalling the judgement dated 26.11.2019 in O.M.P. (COMM)
489/2019 whereby petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘Act’) was dismissed on
ground of limitation.
2. Petition under Section 34 of the Act was filed by the Petitioner assailing an Award passed by the Arbitral Tribunal on 24.12.2018. Along with the
Petition, an Application being I.A. 16412/2019 was filed seeking condonation of delay of 129 days in filing the Petition. The ground stated in the
Application in support of ‘sufficient cause’ for condonation of delay was that the Petitioner is a State and it is common knowledge that
Departmental procedures involved in the State machinery make it difficult to prepare a petition within the stipulated period of limitation. There are
different departments involving senior officers and the decision making consumes a lot of time besides the already existing work pressure in the
Department.
3. Examining the provisions of Section 34(3) of the Act which provide a strict period of limitation as well as the judgement of the Supreme Court in
Simplex Infrastructure Limited vs. Union of India (2019) 2 SCC 45,5 this Court finding that the application for condonation of delay did not furnish any
cause for condonation of delay leave alone sufficient cause and more importantly that the petition was filed beyond 120 days, had dismissed the
application seeking condonation of delay and consequently Petition under Section 34 of the Act was also dismissed.
4. After about 8 months of the dismissal of the Petition, Petitioner filed the present application seeking recall of the judgement dated 26.11.2019. It is
averred in the application that on 25.02.2019, Petitioner engaged the erstwhile counsel to prepare the draft of the petition, which was prepared by the
counsel on 26.03.2019 and forwarded to the Petitioner. On 01.04.2019, after due appraisal, Petitioner approved the draft and sent the same back to
the counsel for filing. On 12.04.2019, the erstwhile counsel filed the petition in this Court under a diary number 350035/2019, with D82592018 as the
Login ID.
5. Applicant avers that on 15.04.2019, the original petition was checked by the Registry and was returned on the same day with certain objections.
The erstwhile counsel removed the objections and refiled the original petition on 02.08.2019. However, since the refiling was done by using a different
Login ID, being D13762002, a new diary number being 728623/2019, was given by the Registry. On account of the new diary number, given on
02.08.2019, at the time of refiling, the refiled petition was treated as a fresh petition, filed for the first time on 02.08.2019 and therefore, the delay was
calculated upto the said date.
6. Learned counsel for the Petitioner contends that inadvertently the original filing on 12.04.2019 escaped the attention of the office of the counsel,
which was a bonafide error. Eventually the petition filed on 02.08.2019 was cleared for listing on 25.11.2019. On 25.11.2019, counsel for the petitioner
sought time to address arguments on the question of delay in filing the petition. Subsequently, when the petition was listed on 26.11.2019, same was
dismissed on account of delay of 129 days, taking the delay from the date of receipt of the Award upto the filing on 02.08.2019. It is argued that after
the dismissal of the petition, while exploring the legal options against the impugned order, it was realised by the petitioner that on 02.08.2019 the
petition was only refiled while the filing had been done much earlier, on 12.04.2019. It was thus only on account of the difference in the Login ID of
the counsel while refiling the petition that confusion and inadvertent error occurred and could not be brought to the notice of the Court.
7. Learned counsel argues that the original petition as filed on 12.04.2019 was within the period of 30 days provided in the proviso to Section 34(3) of
the Act and can be condoned by the Court and thus the order dismissing the petition deserves to be recalled. It is also argued that it is a settled law
that strict parameters for condonation of delay in filing shall not apply to the refiling. Reliance is placed on the judgement of the Supreme Court in
Northern Railway vs. Pioneer Publicity Corporation Private Limited (2017) 11 SCC 234.
8. Reply has been filed to the application by the Respondent. Mr. Ajay Kohli learned counsel appearing for the Respondent submits that Application
for condonation of delay was rightly dismissed by the Court and consequently the petition under Section 34 of the Act. Emphasizing on the chronology
of dates and events, it is argued that the Award dated 24.12.2018 was received by the Petitioner on 26.12.2018. The period of 90 days expired on
26.03.2019 and the additional period of 30 days under the proviso to 34 (3) of the Act expired on 26.04.2019. The initial filing on 12.04.2019 was not
only beyond 90 days but was a non-est filing as it suffered from material defects of non-filing of Statement of Truth, Affidavit in support of the
Application seeking condonation of delay and other defects as marked by the Registry on 15.04.2019. The objections after removal of the defects,
were refiled only on 02.08.2019 i.e. after 101 days of the raising of the defects and by which time, the period of 120 days under Section 34(3) of the
Act expired on 26.04.2019. Mr. Kohli argues that the initial filing on 12.04.2019 being non-est in the eyes of law cannot be given the benefit of filing
and the date on which a proper petition complete in all respects is filed, can be reckoned as the date of fresh filing. Therefore, even if it is assumed
that a proper petition was filed on 02.08.2019, the same was beyond the period of 120 days and as per the law settled by Supreme Court not a day
beyond 120 days can be condoned by the Court. Therefore the ground of recall that the counsel for the Respondent had filed and refiled through
different Login IDs, cannot help the Petitioner.
9. Mr. Kohli further argues that even after material objections were raised by the Registry on 23.09.2019, Petitioner chose to remove the defects after
nearly two months and refiled on 20.11.2019. This only reflects the callous attitude of the Petitioner in prosecuting the petition.
10. Mr. Kohli further submits that even the ground sought to be made out in the present Application that the filing of the objections on 12.04.2019 was
realised after the petition was dismissed on 26.11.2019, is patently false as the Authorized Representative of the Petitioner who has filed an Affidavit
in support of the present Application is the same as the one who was the signatory to all the pleadings during the earlier filing/refiling. Even the
counsel who had refiled on 02.08.2019 was the same as the one who initially filed the petition on 12.04.2019. The synopsis and the list of dates in the
present Application at page 5 clearly reveal that the Petitioner and its counsel were well aware of the earlier filing. It is also argued that even the
claim of the Petitioner that the initial petition was filed within the limitation period is false on the face of it. The award was admittedly received by the
Petitioner on 26.12.2018 and taking the date of 12.04.2019 as the date of initial filing, the petition was clearly filed beyond the limitation period of 90
days.
11. Mr. Kohli vehemently argues that the present Application is actually in the nature of a Review Petition and is barred by time and there is no
Application even seeking condonation of delay. The application has been cleverly filed under Section 151 CPC to evade the objection of limitation and
delay. Petitioner has not preferred any appeal against the order dated 26.11.2019 under Section 37 of the Act and even the limitation for the same
stands expired on 25.11.2020. Even the present application has not been pursued diligently. The objections were raised by the Registry on 23.03.2020
but the same have been removed only on 21.07.2020, though the online facility for re-filing was started on 13.06.2020, for allowing of checking and
curing the defects. Last but not the least Mr. Kohli argues that the only ground for seeking condonation of delay, assuming everything in favour of the
Petitioner is administrative delay as the State machinery involves lengthy decision making process on account of the work pressure in the
Departments. He submits that the Court while dismissing the petition rightly held that this ground does not constitute any cause much less ‘sufficient
cause’ for condonation, especially in view of the Legislative intent behind Arbitration Act which is expeditious disposal of disputes.
12. Mr. Chaturvedi learned counsel for the Petitioner in rejoinder emphatically argues that the entire delay has arisen only on account of the fact that
the re-filing on 02.08.2019 was through a separate Log in ID. Had the Court been informed when the petition was listed that the petition was originally
filed on 12.04.2019, petition would not have been dismissed. He reiterates his argument that even in the case of Northern Railway (supra), Supreme
Court in the context of Section 34 (3) of the Act held that the rigors of the Section will have no application in re-filing the petition and would only apply
at the time of initial filing. Supreme Court, according to him, has also held that once the petition has been filed and the objections are raised, any
subsequent filing after removal of the objections can only be termed as re-filing and the Court must be liberal in condoning the delay at the time of re-
filing.
13. I may also note here that at the end of the arguments Mr. Kohli had drawn the attention of the Court to the operative part of the Award in
question. He submitted that under the Award two reliefs were granted to the Respondent being (a) direction to the Petitioner to give an opportunity to
the Respondent for execution of modified Supplementary Lease within 30 days of the Award and (b) grant of interest on the land cost deposited with
the Petitioner at the time of auction and later at the time of signing the lease deed. Mr. Kohli submits that Supplementary Lease Deed has already
been executed and only payment towards the interest component remains. Thus the Petitioner has implemented the Award partially and is
unnecessary prolonging the implementation of the remaining part. Mr. Chaturvedi, however, while acknowledging that the Deed has been executed
disputes that any interest has been awarded in favour of the Respondent. He submits that to this extent, the objections against the Award are required
to be adjudicated.
14. I have heard the learned counsels for the parties and examined their contentions.
15. At the outset it needs to be mentioned that vide order dated 07.08.2020, this Court had directed the concerned Registrar to verify if the petition
was actually filed on 12.04.2019 as alleged by the Petitioner and if so, to furnish the details of the Login IDs by which the petition was filed and
thereafter refiled on 02.08.2019. Filing data was also called for in a Pen Drive. Pursuant to the said directions, the concerned Registrar has sent his
report and the data in the Pen Drive, which has been perused by this Court.
16. It is undisputed between the parties that the present petition was listed before this Court for admission on 26.11.2019. Learned counsel for the
Petitioner had argued before the Court that though the Award was received by the Petitioner on 26.12.2018 but the present petition under Section 34
of the Act could be filed only on 02.08.2019, due to various administrative procedures involved in the decision making process and the workload on the
Department. At that stage, Petitioner’s arguments were on an assumption that the petition was filed for the first time on 02.08.2019. Calculating
the delay from the date of receipt of the Award to 02.08.2019, the Court found that there was a delay of 129 days in filing the petition. Placing
reliance on the judgement of the Supreme Court in Simplex Infrastructure Limited (supra) and the binding dicta that the Court has no power to
condone a delay of even 1 day beyond the period of 120 days prescribed under Section 34(3) of the Act, the petition was dismissed by the Court. No
other issue was raised or considered by the Court.
17. The present Application has been filed with following prayers:
“A. Summon the records of Petition bearing diary no. 350035/2019 titled Delhi State Industrial & Infrastructure Development
Corporation Ltd. v. M/S Mapsa Tapes Pvt. Ltd. filed by the erstwhile counsel of Petitioner/Applicant before this Hon’ble Court on
12.04.2019;
B. Summon the records of Petition bearing diary no. 728623/2019 titled OMP (COMM) 489/2019 Delhi State Industrial & Infrastructure
Development Corporation Ltd. v. M/S Mapsa Tapes Pvt. Ltd. filed by the erstwhile counsel of Petitioner/Applicant before this Hon’ble
Court on 02.08.2019;
C. Recall/Set aside Order dated 26.11.2019 passed by this Hon’ble Court in O.M.P (COMM) 489/2019 titled Delhi State Industrial &
Infrastructure Development Corporation Ltd. v. M/S Mapsa Tapes Pvt. Ltd.;
D. Restore OMP(COMM) 489/2019 titled Delhi State Industrial & Infrastructure Development Corporation Ltd. v. M/S Mapsa Tapes Pvt.
Ltd. with its accompanying applications namely I.A. 16412/2019, I.A. 16413/2019 & I.A. 16414/2019.â€
18. It needs to be noted that the judgement was delivered by this Court on 26.11.2019 while the present application is dated 21.07.2020 and was listed
before the Court on 23.07.2020 and is thus clearly filed after nearly 8 months from the date of the judgement dated 26.11.2019. Sole ground for recall
is the error of overlooking the initial filing due to change in login ID and if the initial filing is taken as on 12.04.2019, it is within 120 days.
19. Perusal of the data sent by the Registry, reflects that the petition was initially filed on 12.04.2019 and was returned under defects to the Petitioner
only to be refiled on 02.08.2019. If the date of filing is taken as 12.04.2019 from 26.12.2018, the date of receipt of the Award by the Petitioner, the
filing is beyond the period of 90 days which expired on 26.03.2019, but is within 30 days permissible under the proviso to Section 34(3) of the Act.
Thus, taking 12.04.2019 as the date of filing, it cannot be said that the petition was filed after a period of 120 days permitted under Section 34(3) of the
Act and in this view, the order passed by the Court on 26.11.2019, dismissing the petition for filing after 120 days, deserves to be recalled.
20. Admittedly, the said oversight and fault is of the Petitioner who should have been more vigilant in apprising the Court at that stage that the petition
was initially filed on 12.04.2019. However the Court cannot shut its eyes to the fact that the filing record indicates that on account of the difference in
Log in ID, the diary number had changed when the petition was refiled on 02.08.2019 and the Registry treated the petition to have been filed on the
said date. Though the learned counsel for the Respondent is right in his submission that the filing and the refiling were both by the same counsel and
even the Authorized Representative of the Petitioner signing the petition was the same and therefore it can hardly be taken as a defence that the filing
of 12.04.2019 was overlooked, but the fact of the matter is that once the Petitioner has brought to the notice of the Court that the petition was filed
within 120 days, the petition cannot be dismissed on the ground that it was filed beyond 120 days.
21. The Court, however, cannot also ignore that the Petitioner has indeed been very callous and negligent in prosecuting its case from the very
beginning. After filing the petition on 12.04.2019, the same is refiled after about 4 months. While refiling the petition, it is overlooked that the petition
had been filed earlier and no effort is made to even bring this to the notice of the Court when the petition is listed before the Court. There is
considerable delay and negligence even in filing the present application for recall as the same has been filed after nearly 8 months, despite knowing the
fact that the petition was dismissed on 26.11.2019.
22. The purpose and objective behind parties resorting to the mode of Arbitration for resolution of disputes is speedy and expeditious disposal.
Supreme Court has repeatedly affirmed that the period of limitation for filing the objections against an Award under Section 34 of the Act is inelastic
and inflexible and therefore delay should not be condoned lightly. Viewed in this background, the Petitioner has shown no diligence in prosecuting the
petition and has been extremely negligent. Respondent is no doubt suffering despite an Award in its favour and is unable to execute it.
23. In view of the fact that the petition was filed initially within 120 days, the present application for recall of the order dated 26.11.2019 is allowed.
The order dated 26.11.2019 is recalled, subject to payment of cost of Rs. 1,00,000/- by the Petitioner to the Respondent, within a period of two weeks
from today.
IA 5983/2020 (for Stay of Order dated 26.11.2019)
24. In view of the order passed in I.A. 5982/2020, this application has become infructuous and is accordingly disposed of.
O.M.P. (COMM) 489/2019 & IAs 16412, 16414/2019 & 5984/2020
25. List before the Roster Bench on 13.10.2020, subject to orders of Hon’ble the Chief Justice.
26. The arguments and contentions of the parties with respect to the delay in filing the objections beyond the period of 3 months under Section 34(3) of
the Act as well as the delay in refiling including the argument of the Respondent that the petition filed on 12.04.2019 is a non-est filing are left open to
be decided by the Roster Bench.
