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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Narula, J.
Haji Banda Hasan – Appellant
Versus
M/s. Gupta & Gupta Pvt. Ltd. – Respondent
Original Miscellaneous Petition (Comm) No. 237 of 2019, Interlocutory Application Nos. 8500, 8501, 8502 of 2019
Decided On : 12-09-2019
ARBITRATION - CONDONATION OF DELAY - SECTION 14 OF THE LIMITATION ACT, 1963 - SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT, 1996 - WHETHER THE PETITIONER IS ENTITLED TO A CONDONATION OF DELAY IN FILING/RE-FILING THE PRESENT PETITION? - HELD, NO.
Fact of the Case:
Petitioner filed a petition under Section 34 of the Arbitration and Conciliation Act 1996 (hereinafter referred to as "Arbitration Act") challenging the Award dated 21st May 2019 (hereinafter the "impugned award"). The petition was accompanied with the present application [I.A. No. 8503/2019] under Section 14 of the Limitation Act 1963 seeking condonation of delay in filing the petition. The Respondents objected to the maintainability of the petition on the grounds of delay contending that it is beyond the period prescribed under Section 34 (3) of the Arbitration Act and an application under Section 14 of the Limitation Act is not maintainable and the Court ought not to condone the delay in filing/refiling the petition.
Finding of the Court:
The Court held that the first filing does not qualify to be a petition in accordance with law and therefore the Petitioner cannot take benefit of the said filing to cover up the delay in filing the present petition after a delay of 284 days. Thus, the first question in the facts of the present case is answered against the Petitioner. The Court further held that the Petitioner has to be put to stringent test in such a case to satisfy the Court that he pursued the matter diligently and the delay was beyond control and was unavoidable. The inordinate delay of 234 days has been sought to be explained in the grounds urged in the application as reproduced hereinabove. The Court found that the explanation offered to justify the delay does not inspire any confidence. The approach of the Petitioner has been casual throughout. The first petition filed on 21st August 2018 was last returned under objections on 19th December 2018, and thereafter, there has been a huge delay in re-filing of nearly 162 days in filing the second petition/second filing. There is also delay in re-filings accumulated over a period of time from the date when the petition was first returned under objections and re-filed from time to time. It needs to be stressed that in all these re-filings, the Petitioner never cared to remove the objections pointed out by the Registry. The record maintained by the Registry shows that the re-filings continued to have the same defects. Mr. Lall argued that on re-filing the defects were removed and the Registry ought to have maintained the record of the re-filings. However, the record which has been made available does not show that any such defects were removed. On the contrary, the log-in information continues to specify the same defect codes, which were notified when the petition was first filed and marked defective and sent for re-filing. These defect codes consistently reoccur exhibiting that Petitioner did not act with due diligence and dispatch. Thus, even if it is assumed for the sake of arguments that the objection petition dated 30th May 2019 is only a re-filing of the earlier petition of 21st August 2018, it is still hopelessly barred by limitation.
Issues: Whether the first filing is a non-est filing? Whether the Petitioner can take benefit of the first filing dated 21st August 2018 and characterize the delay in filing the present petition as delay in re-filing? Whether the Petitioner is entitled to a condonation of delay in filing/re-filing the present petition?
Ratio Decidendi: The Court held that the first filing does not qualify to be a petition in accordance with law and therefore the Petitioner cannot take benefit of the said filing to cover up the delay in filing the present petition after a delay of 284 days. Thus, the first question in the facts of the present case is answered against the Petitioner. The Court further held that the Petitioner has to be put to stringent test in such a case to satisfy the Court that he pursued the matter diligently and the delay was beyond control and was unavoidable. The inordinate delay of 234 days has been sought to be explained in the grounds urged in the application as reproduced hereinabove. The Court found that the explanation offered to justify the delay does not inspire any confidence. The approach of the Petitioner has been casual throughout. The first petition filed on 21st August 2018 was last returned under objections on 19th December 2018, and thereafter, there has been a huge delay in re-filing of nearly 162 days in filing the second petition/second filing. There is also delay in re-filings accumulated over a period of time from the date when the petition was first returned under objections and re-filed from time to time. It needs to be stressed that in all these re-filings, the Petitioner never cared to remove the objections pointed out by the Registry. The record maintained by the Registry shows that the re-filings continued to have the same defects. Mr. Lall argued that on re-filing the defects were removed and the Registry ought to have maintained the record of the re-filings. However, the record which has been made available does not show that any such defects were removed. On the contrary, the log-in information continues to specify the same defect codes, which were notified when the petition was first filed and marked defective and sent for re-filing. These defect codes consistently reoccur exhibiting that Petitioner did not act with due diligence and dispatch. Thus, even if it is assumed for the sake of arguments that the objection petition dated 30th May 2019 is only a re-filing of the earlier petition of 21st August 2018, it is still hopelessly barred by limitation.
Final Decision: The application for condonation of delay is dismissed. The petition is dismissed as barred by time.
JUDGMENT :
Sanjeev Narula, J.
I.A. No. 8503/2019 (delay)
1. The present petition has been filed under Section 34 of the Arbitration and Conciliation Act 1996 (hereinafter referred to as "Arbitration Act") challenging the Award dated 21st May 2019 (hereinafter the "impugned award"). The petition is accompanied with the present application [I.A. No. 8503/2019] under Section 14 of the Limitation Act 1963 seeking condonation of delay in filing the petition.
2. At the outset, the Respondents have objected to the maintainability of the petition on the grounds of delay contending that it is beyond the period prescribed under Section 34 (3) of the Arbitration Act and an application under Section 14 of the Limitation Act is not maintainable and the Court ought not to condone the delay in filing/refiling the petition. In view of the aforesaid preliminary objection raised by the Respondents, the Court has heard the learned counsel for the parties at length on the question of delay.
3. The grounds urged seeking condonation of delay are extensively mentioned in the appeal. The application also sets out lacunas in the impugned arbitral award and it is contended that the findings are erroneous and the award is liable to be set aside. Before embarking upon deciding the grounds of challenge dealing with merits of the case, the petitioner has to first overcome the objection of delay.
4. The prayers made in the application read as follows:-
(b) Alternatively, allow the present application for condonation of delay by of 249 days in refiling the present Petition under Section 34 of the Arbitration and Conciliation Act, 1996."
5. Mr. Sudhanshu Batra, learned Senior Counsel for the Respondent vehemently argued that the application under Section 14 is frivolous, untenable and completely misconceived. He submitted that the Petitioner is trying to mislead this Court by alleging that there is only a delay in refiling the present petition. Petitioner has failed to disclose that the petition was originally filed on 21st August 2018 (hereinafter, the "first filing") which did not qualify to be a "filing" in law and was a non-est filing. Thereafter the present petition was filed on 31st May 2019 (hereinafter, the "second filing"). This according to him is a fresh filing and the Petitioner cannot take advantage of the first filing and proclaim that it is a case of "refiling" and emphasize for a liberal approach for condonation of delay. At the initial hearing when the objection was raised, the Court called upon the Registry to give a report regarding the discrepancy pointed out by Mr. Batra. It would be apposite to note the directions issued by the court in this regard vide order dated 19th July 2019 which reads as under:-
| S. No. | Case/Diary No. | Parties | Advocate | Status |
| 1. | D. No. O.M.P. (Comm.) 237/2019 | Haji Banda Hasan vs. M/s Gupta & Gupta Pvt. Ltd. | Karan Bajaj | Pending |
| 2. | D. No. O.M.P. (Comm.) 231177/2018 | Haji Banda Hasan vs. M/s Gupta & Gupta Pvt. Ltd. | Kabir Dixit | Defective |
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