The reliance of statutory authorities on their counsels and the applicability of condonation of delay under Section 5 of the Limitation Act.

1 This application has been made by the petitioner for condondation of delay of 78 days in re-filing the petition.

2. This petition under Section 34 of the Arbitration and Conciliation Act challenging the award was preferred within the period of limitation. Along with this, another petition challenging an identical award dated 2nd June, 2008 between the same parties was also filed before the Court on 13th August, 2008.

3. The Registry raised certain objections against the petition at the initial stage. It is submitted that since the other petition between the same parties with same title, being OMP No.473/2008, was registered and put up before the Court, the clerk of the counsel for the petitioner got confused between the other petition and the present petition and because of bonafide impression that matter had already been listed for hearing did not notice that the objections have been raised by Registry in this petition and he did not bring this to the notice of the counsel. It is only when on 9th January, 2009 while checking the office record and status of pending cases, the petitioner asked the counsel about the status of this case, the counsel found that this petition had not been listed and was lying under objections. It is stated that the delay in refilling was due to this bona fide mistake.

4. Counsel for the respondent has opposed the application on the ground that the affidavit which has been filed along with the application affirming the facts was contrary to the affidavits filed in another similar application explaining the delay. Here it is stated that the clerk got confused and in another application it is stated that the clerk had gone to his native place and did not return.

5. During arguments, the counsel who was retainer of the solicitors and was looking after the work of the petitioner, explained that both the petitions were filed within the period of limitation before the Court. However, the other OMP No.473/08 with the same title was listed and since the title of the two petitions was same, confusion crept. When the officials and authority asked for the status of both the objections, it is only then that confusion was removed and it was found that the other petition was lying under objections. She stated that it was a co-incidence that the two petitions of the same title were filed on the same day and this fact was not noticed by the counsel and the objections could not be removed in time. Regarding plea taken about the clerk she had no explanation.

6. This Court in Delhi Jal Board vs. Digvijay Singh Sanitations & Anr. dated 26.5.2009 in a similar situation observed as under:- “6. Counsel for the petitioner, on the other hand, relied on 2007 (10) ADL 42 DDA v R.S. Jindal wherein a Division Bench of this Court observed that the statutory authority had to rely on their counsels who conduct cases and when the counsel admitted that there was default and mistake by his office, the statutory authority should not be made to suffer for the mistake of the counsel.

7. A perusal of record would show that the initial filing was done on 26th August 2006 i.e. within the period of three months and refilling was done on 18th July 2007. It is obvious from the affidavit filed by the petitioner’s counsel that after the file was taken back from Registry for removing the objections, it got misplaced in another file with same cause title and the counsel could not pay attention due to ailment of his uncle. The other OMP between the same parties though came up for hearing in May, 2007 but in that only an adjournment was sought by respondent. In view of this fact, there seems to be no chance of the counsel for petitioner stumbling upon the objections lying in the file. It only seems that after execution was filed by respondent, the petitioner’s counsel realized that objections filed by the petitioner were to be refilled after removing objections and then made efforts to trace the objections.

8. The petitioner in this case ha