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2017 Supreme(Del) 141
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, J.
INDIA CARRIERS PVT. LTD. - Petitioner
Versus
INDIAN OIL CORPORATION LTD. & ANR. - Respondents
O.M.P. (COMM) 49/2016
Decided On : 17-01-2017
For the Petitioner:Mr. Anup Banerjee, Advocate.
For the Respondent:Mr. Anirudh Wadhwa and Mr. Vipul Kumar, Advocates.
Diligence and control over delays in re-filing petitions under Section 34(3) of the Arbitration and Conciliation Act are crucial, and satisfactory explanations for delays are required to satisfy the court.
Headnote:
Delay Condonation - Arbitration and Conciliation Act - Section 34(3) - Delhi High Court Rules, Rule V in Chapter 1A(a) of Volume V - Delhi Development Authority v. M/s. Durga Construction Co. (2013) 139 DRJ 133 - Yash Promoters & Builders Pvt. Ltd. v. Satyawati Sharma 2016 SCC OnLine Del 4320
Fact of the Case:
The petitioner sought condonation of a 125-day delay in re-filing the petition challenging an award under the Arbitration and Conciliation Act. The court examined the reasons for the delay and the multiple instances of re-filing with unresolved defects.
Finding of the Court:
The court found the petitioner's explanations for the delay unsatisfactory and emphasized the need for diligence in pursuing the petition. It dismissed the application for delay condonation and the related petitions.
Issues: Delay condonation in re-filing the petition under Section 34(3) of the Arbitration and Conciliation Act, 1996.
Ratio Decidendi: The court emphasized the need for diligence and control over delays in re-filing petitions, citing the Delhi High Court Rules and previous case law. It highlighted the time-bound nature of the provision and the need to satisfy the court with a satisfactory explanation for the delay.
Final Decision: The application for delay condonation and related petitions were dismissed.
IA No. 2479 of 2016 (for condonation of delay in re-filing the petition)
1. This is an application seeking condonation of delay of 125 days in re-filing the petition.
2. The Award under challenge is dated 24th July, 2015. According to the Petitioner, the signed copy of the Award was received in the Chamber of learned counsel for the Petitioner on 28th July, 2015.
3. In the present application, it is stated that the petition was filed on 22nd September, 2015 within the prescribed time under Section 34(3) of the Arbitration and Conciliation Act, 1996 (‘Act’).
4. In order to ascertain the dates on which the case papers were returned to the counsel for the Petitioner for re-filing after removal of the defects pointed out, this Court by an order dated 27th October, 2016 called for a report from the Registry. The report furnished by the Registry indicates that on 23rd September, 2015 i.e., the very same day when the petition was first filed, the petition was checked and the following defects were pointed out:
“6. List of Dates be filed.
13. Plaint be filed accordance to new format in four.
14. Master Index be filed. Index and list of documents be paginated.
16. Authorization letter/Board of Resolution/Power of Attorney be filed.
17. Please insert the para of pecuniary and territorial jurisdiction.
20. Separate pagination for each part be done.
28. Service be made to the all respondent and proof of service be filed.
101. Caveat report be obtained and at the time of each subsequent filing and proof of service be filed.
111. Left side margin 4 cm. be maintained.
112. Affidavit be filed in support of petition/ appeal/ application and attested/ identified. Parental details/age/complete address be given. Necessary averments be given since the affidavit has been signed in vernacular. No modification is allowed. It should be retyped and attested.
124. Tribunal should not be made a party.
127. Petition/Application be properly classified/correct nomenclature be given.
137. Vakalatnama be filed/date and signed by the counsel and all petitioner. Each advocate must mention their name/address/.enrolment number & phone number in Vakalatnama. Title on the Vakalatnama be checked. Welfare stamp be affixed Signature of the client be identified. 107. Bookmarking not done. Total only 156 pages filed. Category be given as OMP. Value of pecuniary jurisdiction be given. Affidavit not attested.”
5. The next date of re-filing was 22nd December 2015, which is three months after the defects were first pointed out. It is seen that under Rule V in Chapter 1A(a) of Volume V of the Delhi High Court Rules, the objections should have been removed and the petition be re-filed within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by the Deputy Registrar/Assistant Registrar, In-charge of the filing counter. Rule 5(3) makes it clear that if the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar in charge of the Filing Counter under sub-rule (1), it shall be considered as fresh institution. In other words, a maximum period of 30 days is provided for removing objections by filing the petition.
6.1 The above provision was examined in light of Section 34(3) of the Act and explained in para 17 of the decision of the Division Bench (DB) of this Court in Delhi Development Authority v. M/s. Durga Construction Co. (2013) 139 DRJ 133 as under:
"17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by t
