The main legal point established in the judgment is the distinction between the original filing and re-filing of an appeal, and the application of relevant rules and legal provisions to condone the delay.

NAVIN CHAWLA, J.

I.A. No.15541/2017 (Delay)

1. This is an application seeking condonation of delay in re-filing of the present appeal.

2. Learned counsel for the respondent submits that the application is misconceived inasmuch as there is a delay in filing of the appeal itself. He submits that the appeal was filed on 20.12.2017, which is beyond the period of limitation. He further submits that in the application seeking stay of the Impugned Order, there is a reference to an order passed by the Arbitrator on 10.10.2017, therefore, it should be presumed that the appeal has been filed after that date. Relying upon Rule 5(3) Chapter –IA (a) Volume-5 of the Delhi High Court Rules, 1966, it is submitted that even otherwise, as the appeal was re-filed beyond the period of 30 days, it would amount to a fresh filing of the appeal.

3. Learned counsel for the respondent further relies upon the judgment of this Court in Jammu & Kashmir State Power Development Corporation v. K.J.M.C. Global Market (India) Limited, MANU/DE/0603/2017 to contend that if the Memorandum of Appeal was filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, Incharge of the Filing Counter, the same is to be considered as a fresh institution.

4. I have considered the submissions made by the learned counsel for the respondent, however, I am unable to agree with the same. The Log Information of the filing of the present appeal shows that the appeal was filed on 09.10.2017 i.e. within the period of limitation. Thereafter, on objection being raised by the Registry, the appeal was re-filed on a number of occasions and finally the defects were cured on 20.12.2017. Merely because there is a reference to the order dated 10.10.2017 in the application seeking stay of the Impugned Order passed by the Arbitrator, it cannot be said that a fresh appeal was filed after the original filing on 09.10.2017. In this regard, it is to be noted that in the appeal, admittedly, there is also no reference to the order dated 10.10.2017 passed by the Arbitrator. There is also no prayer made in that regard in the appeal.

5. As far as the reliance on Rule 5(3) of the Delhi High Court Rules is concerned, the present application has been necessitated only because of that Rule, which requires that the appeal should be re-filed within 30 days at a maximum. Once the delay is condoned, the appeal would relate back to the date of the original filing. This distinction between the filing and the re- filing has been explained by the Supreme Court in Mahant Bibram Dass Chelo v. Financial Commissioner (1977) 4 SCC 69 and recently in Northern Railway v. Pioneer Publicity Corporation Pvt Ltd. (2017) 11 SCC 234.

6. As far as the reliance on the judgment of this Court in Jammu & Kashmir State Power Development Corporation (supra) is concerned, the said judgment would not have any application to the facts of the present case. Paragraph 5 of the said judgment shows that the appeal that was originally filed by the appellant therein was not re-filed, but a fresh appeal was filed beyond the period of limitation. It was in that situation that the Court considered whether this would be a case of fresh filing of the appeal or a case of re-filing. In the present case, as noted above, the same appeal was re-filed by the appellant, though with delay.

7. As far as the merit of the application is concerned, the reason given in the appeal is that due to passing of the order dated 10.10.2017 by the Arbitrator, the appellant was seeking an opinion whether same has also to be challenged in the present appeal. This discussion along with the ill-health of the counsel for the appellant, resulted in a delay in re-filing of the appeal. The application also annexes therewith the Medical Certificate showing the ill-health of the counsel for the appellant.

8. I, therefore, find that sufficient reasons are given by the appellant for seeking condonation of delay in re-filing of the appeal. The delay is therefore cond