ASHUTOSH KUMAR, J.

FAO(OS) 263/2016 & CM 3942/2017

1. The appeal namely FAO(OS) No.263/2016 has been filed under Section 37 of the Arbitration and Conciliation Act, 1996, challenging the judgment dated 09.05.2016 passed by a learned single Judge of this court in OMP No. 1159/2012 whereby the arbitral award dated 03.07.2012 passed by the learned sole arbitrator was upheld. Along with the said appeal, an application for condonation of delay of 35 days (CM No.33535/2016) for re-filing the appeal was filed. When the matter came up for consideration on 16.09.2016, it was pointed out by the counsel appearing for the respondent that the date of filing of the appeal itself under Section 34 of the Act was wrongly stated and in fact even the filing of the appeal was delayed by several days. Thus on 16.09.2016, the appellant was directed to file an additional affidavit explaining the circumstances for delay in filing/re-filing of the appeal.

2. The CM No.33535/2016 was consequently withdrawn in order to enable the appellant/petitioner to file a fresh and proper application giving plausible reasons for delay in filing the appeal.

3. The appellant, thereafter filed an affidavit on 23.09.2016, reiterating the same cause of delay in re-filing i.e. continuing unrest in the state of Jammu & Kashmir which prevented the appellant/petitioner from getting the defects rectified within the prescribed period. In the aforesaid affidavit the date of filing the appeal was stated to be 08.07.2016 and the delay in re-filing the appeal was calculated at 30 days. Because of the dispute raised by the counsel for the respondent with regard to the date of filing of the appeal, a report was called for from the Registry, detailing the complete case history of the appeal from the date of the first filing, which report was filed in the Court on 19.01.2017.

4. The report of the Registry reveals that the appeal had been filed on 08.07.2016 vide diary No. 169376/2016 but because the appeal was incorrectly classified as FAO [in place of FAO(OS)], the paper book was returned on 15.07.2017 with the aforesaid objections:-

"1. Rest of the objections will be raised later on (after modification)/according to correct classification/nomenclature of the case.

2. Petition/application/Appeal be properly filed for scrutiny"

5. The report further states that the appeal was never re-filed and another appeal was filed on 02.09.2016 with the correct nomenclature vide fresh diary No.195318/2016. On this occasion also, the paper book was returned under certain objections on 07.09.2016. The appeal was filed after remedying all objections on 09.09.2016. In the opinion of the Registry, the appeal filed on 02.09.2016 i.e. the later filing was a separate and distinct appeal and was not in continuation of the earlier filing dated 08.07.2016. Because of this reason, the date of filing of the appeal, for the purposes of limitation, was taken as 02.09.2016 and not 08.07.2016. If the date had to be taken as 02.09.2016, there would be a delay of 86 days in filing the appeal.

6. After the aforesaid report, the appellant/petitioner sought and was granted another opportunity to file an application seeking condonation of delay when the present application namely CM No.3942/2017 was filed. The submission of the counsel for the appellant/petitioner is that the appellant proceeded on a bonafide presumption that the appeal had been filed on 08.07.2016 with a specific diary number and on re-filing of the appeal, a separate diary number was given. What the appellant/petitioner meant was that there was a bonafide belief that the defect regarding classification of the appeal which was raised on 15.07.2016 stood cured when a fresh diary number was given on re-filing. The application also ascribes misconception as regards the date of filing.

7. The learned counsel for the respondent, on the other hand, has seriously opposed the condonation of delay and has submitted that three different affidavits have been fi