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2023 Supreme(Bom) 1681
IN THE HIGH COURT OF BOMBAY
Avinash G. Gharote, J.
Khabar Media Centre - Appellant
Versus
Purshottam - Respondent
Writ Petition No. 387/2020
Decided On : 19-04-2023
R.R. Shrivastava, Advocate, S.S. Sharma, Advocate
IMPORTANT POINT
The court established that a liberal approach should be adopted in condoning delays in arbitration proceedings to promote substantial justice, particularly when the parties are not required to be present in court for day-to-day proceedings.
Headnote:
ARBITRATION - CONDONATION OF DELAY - Arbitration and Conciliation Act, Sec. 34, Sec. 37(1)(c), Order 9 Rule 9 CPC - The court discussed the provisions of the Arbitration and Conciliation Act, particularly Sec. 34 regarding the challenge to arbitral awards and Sec. 37(1)(c) concerning appeals from orders. The court interpreted the phrase 'and from no other orders' in Sec. 37(1) to limit the scope of appeal, emphasizing that the refusal to condone delay in restoration applications does not fall under this provision. The court highlighted the need for a liberal approach in condoning delays to promote substantial justice, ultimately allowing the petition for condonation of delay.
Fact of the Case:
The petitioner challenged an arbitral award under Sec. 34 of the Arbitration and Conciliation Act, but the application was dismissed in default. After learning of this dismissal, the petitioner filed for restoration with a delay of over two years, which was rejected by the court.
Finding of the Court:
The court found that the dismissal of the application under Sec. 34 was not a bar to the petitioner's right to seek restoration. It emphasized that the principles of substantial justice should prevail, allowing for a liberal interpretation of 'sufficient cause' for delay.
Issues: Whether the refusal to condone the delay in filing for restoration of the application under Sec. 34 of the Arbitration and Conciliation Act is appealable under Sec. 37(1)(c) and whether the petitioner had sufficient cause for the delay.
Ratio Decidendi: The court held that the principles established in Esha Bhattacharjee's case regarding a liberal approach to condonation of delay apply, especially when the presence of parties is not required in arbitration proceedings. The court concluded that the petitioner had a plausible reason for the delay and that substantial justice should be prioritized.
Final Decision: The court quashed the impugned order rejecting the application for condonation of delay, allowed the application for restoration, and imposed costs of Rs. 30,000 to be paid to the High Court Bar Association.
JUDGMENT/ORDER
1. On 11/4/2023, the following position was recorded :
"2] On 31/3/2023, the following factual position was recorded:
"The award dtd. 7/11/2003 was challenged by way of an application under Sec. 34 of the A and C Act on 5/2/2004 in M.C.A. No. 459/2004 by the petitioner. M.C.A. No. 459/2004 came to be dismissed in default on 9/3/2017. The petitioner claims to be unaware of this and upon acquiring the knowledge, on 29/8/2019 an application for restoration with condonation of delay of 2 years 5 months came to be filed, which has been rejected by the impugned order dtd. 16/12/2019 (pg.22). List the matter on 5/4/2023 at the request of the learned counsel for the parties.
3] The preliminary objection raised by Mr.Sharma, learned counsel for the respondents, based upon the principle of merger is that the order dismissing the application under Sec. 34 of the A and C Act in default dtd. 9/3/2017 as well as the order dtd. 16/12/2019 refusing to condone the delay in filing the application for restoration, is an order which would stand merged in the order dismissing the application under Sec. 34 of the A and C Act and therefore, an appeal under Sec. 37(1)(c) of the A and C Act would lie.
4] Mr. Srivastava, learned counsel for the petitioner on the other hand submits that under Sec. 37(1) of the A and C Act, the expression used "and from no other orders" would indicate that what was appealable was only an order passed under Sec. 37(1)(c) of the A and C Act and not otherwise and therefore, considering the restrictions imposed by the above expression, the challenge to the impugned order would be amenable in writ jurisdiction."
2. It is the contention of Mr. Sharma, learned counsel for the respondent Nos.2, 3, 5 and 6 relying upon Chintels India Limited Vs. Bhayana Builders Private Limited 2021(4) SCC 602, para 21 that since the order refusing to condone the delay in filing an application for restoring the proceedings under Sec. 34 of the Arbitration and Conciliation Act results in confirming the dismissal in default of the application under Sec. 34 of the Arbitration and Conciliation Act, what would lie would be an appeal under Sec. 37(1) of the Arbitration and Conciliation Act.
3. In my considered opinion, the contention is misconceived for the reason that in Chintels India Limited Vs. Bhayana Builders (supra), the Hon'ble Apex Court was considering a proposition where the application for condonation of delay was in filing an application under Sec. 34 of the Arbitration and Conciliation Act, which in light of the provision of Sec. 34(3) of the Arbitration and Conciliation Act have to be filed within the statutory period as indicated therein. It is in this context, it has been held that the refusal to condone the delay would result in refusal to set aside the arbitral Award as in such a case, the application under Sec. 34 of the Arbitration and Conciliation Act itself could not be heard.
4. In the instant case, it is necessary to note that the proceeding under Sec. 34 of the Arbitration and Conciliation Act were filed within the time stipulated in Sec. 34(3) of the Arbitration and Conciliation Act, which is not a position in dispute. The said proceedings came to be dismissed in default on 09/3/2017 for restoration of which an application under Order 9 Rule 9 of the Code of Civil Procedure (CPC) along with an application for condonation of delay of 2 years and 5 months came to be filed which came to be rejected by the impugned order dtd. 16/12/2019. The position therefore, is quite distinct from what has been considered by the Hon'ble Apex Court in Chintels India Limited Vs. Bhayana Builders (supra). It would also be material to note that the interference under Sec. 37(1)(c) of the Arbitration and Conciliation Act, is even more limited than the parameters as contained in Sec. 34 of the Arbitration and Conciliation Act for interference in an Award and therefore, when Sec. 37(1) of the Arbitration and Conciliation Act uses the expres
