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High Court Of Delhi
DSA ENGINIRS (BOMBAY) - Appellant
Versus
HOUSING AND URBAN DEVELOPMENT CORPORATION (HUDCO) - Respondent
Interim Application 11576 of 2001
Decided On : 11/29/2002
Held:
Orders would not come in the way of Objector as regards entertaining of Objections under the proviso to Sub-section (3) of Section 34 of the Act of 1996 as they pertained only to the non-maintainability of application under Section 14 of the Act of 1940.
Arbitration and Conciliation Act, 1996 - Section 34(3) — Setting aside award — Limitation — condensation of delay — Reasonable cause — Objection to award filed under Section 14 of 1940 Act praying for filing the award in court — Application received back on objection raised by Registry after great delay — Defects pointed out by Registry not substantial — Applicant not having any mala fide intention to delay proceedings — Pursuing the case up to the level of SLP on bona fide belief of counsel that the case was governed by 1940 Act but in fact it should be 1996 Act — Re-presentation on application rectifying the defects — Sufficient cause for entertaining application — Objections allowed to be entertained under proviso to Section 34(3) of 1996 Act — -Arbitration Act, 1940, Section 14 — Civil Procedure Code, 1908, Section 151.
Held:
The defects pointed out by the Registry, obviously, were defects not so substantial in character as would render the Objections to a no-objection nor any mala fide intention could be attributed to the Objector in filing the objections with defects to delay the proceedings. The re-presentation of Objections after removing defects would, thus, relate back to original presentation. Further, under Section 34(3) an application for setting aside award has to be made within 3 months and limitation would start running from the dale of receipt of award or date of disposal of application under Section 33, if made. Proviso thereto permits extension for sufficient cause by a further maximum period of 30 days. Filing of application under Section 14 of the Act of 1940 and preferring appeal and SLP against the said order of dismissal thereof, by the Objector would show that Objectors counsel was under a bona fide belief that award dated 30th June 2001 was to be governed by the Act of 1940 and not the Act of 1996. In this backdrop, there is sufficient cause for entertaining the Objections filed on 29th October 2001 and the applications, thus, deserve to be allowed.
Consequently, while allowing applications, the Objections is allowed to be entertained under the proviso to Sub-section (3) of Section 34 of the Act of 1996.
( 1 ). This order will govern the disposal of i. A. 10715/01 under sections 34 (3) and 43 of the Arbitration and Conciliation Act, 1996 (for short the act of 1996 ) and I. A. 11576/01 under section 151 CPC filed by the objector.
( 2 ) I. A. 10715/01 was filed on 291h 0ctober , 2001 alleging that Objector has filed objections under section 34 impugning the award dated 30th June 2001. On receipt, of copy of award, Objector filed application under section 14 of the Arbitration Act, 1940 (for short the "act of 1940 ) for getting the award filed in original alongwith depositions and documents in court which was contested by non-objector/claimant. By "the order dated 4th October 2001 this application was dismissed. Objector was prevented by sufficient cause from filing the objections within the period of 3 months. It was prayed that by invoking proviso appended to sub section (3) of section 34 of the Act of 1996 the objections may be allowed to be entertained.
( 3 ) I. A. 11576/01 was filed in continuation of i. A. 10715/01 on 12th December 2001 for entertaining the objections explaining the circumstances how the Objector was under the bonafide belief that award dated 30th June 2001 was governed by Act of 1940 and not by Act of 1996.
( 4 ) NON-OBJECTOR/claimant has chosen not to file reply to the applications.
( 5 ) ADMITTEDLY, said application under section 14 of the Act of 1940 for getting the award filed in original together with depositions and documents, was moved by the objector on 27th July 2001 and the same was dismissed by the order dated 4th October 2001. Appeal taken out against, this order by the Objector was dismissed by a Division bench of this court on 12th December 2001. SLP filed by the Objector was also dismissed on 23rd August 2002 by the supreme Court. It is also not in dispute that Objections against the award under section 34 being OMP 367/2001 was filed on 29th October, 2001 and the same was returned for removing objections on 9th November 2001, From 10th to 16th November 2001 this, court was closed on account of holidays and the Objections (OMP 367/01) was refiled after removing objections by the Objector on 17th November 2001.
( 6 ) A preliminary objection was raised by Sh. Chetan sharma for Non-Objector that Objections (OMP 367/01) itself is not legally maintainable in view of orders dated 4th october 2001, 12th December 2001 and 23rd August 2002. Copy of order dated 4th October 2001 dismissing application under section 14 registered as Suit No. 1582-A/01, is placed on the file and bare perusal thereof would show that said application was dismissed on the ground of being not maintainable as the parties In view of Clause 91. 4 of the agreement executed between them, were governed by the Act of 1996 and not the Act of 1940. This finding was upheld in appeal by the Division Bench by the order dated 12th december 2001 and in SLP by the Supreme Court by the order dated 23rd August 2002. In my opinion, these orders would not come in the way of Objector as regards entertaining of objections under the proviso to sub-section (3) of Section 34 of the Act of 1996 as they pertained only to the non-maintainability of application under section 14 of the act of 1940.
( 7 ) THIS brings me to the main question if the applications on hand disclose sufficient cause for entertaining the Objections (OMP 367/01) as also effect of re-filing the Objections after removing objections on 17th november 2001} admittedly, beyond 4 month s period of the receipt of copy of award dated 30th June 2001 by the objector. As may be seen from office report dated 30th october 2001 the objections pointed out by the Registry were that- (i) Vakalat nama shou1d have been filed and (ii) neither the caveat report was given nor obtained from the caveat branch. At this stage reference to the decisions in ashok Kumar Parmar vs. D. C. Sankhla and Ors. , 1995 RLR 85; d. C. Sankhla vs. Ashok Kumar Parmar and others, 1995 1 AD (Delhi) 753 and S. R
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