The inflexible limitation period under Section 34(3) of the Arbitration Act does not permit condonation of delay beyond 120 days, but the court may recall judgments if the merits justify despite negligence.

JUDGMENT

Jyoti Singh, J.

I.A. No. 5982/2020

1. This is an Application filed by the Petitioner under Section 151 CPC for setting aside/recalling the judgement dated 26.11.2019 in O.M.P. (COMM) 489/2019 whereby petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as `Act') was dismissed on ground of limitation.

2. Petition under Section 34 of the Act was filed by the Petitioner assailing an Award passed by the Arbitral Tribunal on 24.12.2018. Along with the Petition, an Application being I.A. 16412/2019 was filed seeking condonation of delay of 129 days in filing the Petition. The ground stated in the Application in support of `sufficient cause' for condonation of delay was that the Petitioner is a State and it is common knowledge that Departmental procedures involved in the State machinery make it difficult to prepare a petition within the stipulated period of limitation. There are different departments involving senior officers and the decision making consumes a lot of time besides the already existing work pressure in the Department.

3. Examining the provisions of Section 34 (3) of the Act which provide a strict period of limitation as well as the judgement of the Supreme Court in Simplex Infrastructure Limited vs. Union of India, (2019) 2 SCC 455, this Court finding that the application for condonation of delay did not furnish any cause for condonation of delay leave alone sufficient cause and more importantly that the petition was filed beyond 120 days, had dismissed the application seeking condonation of delay and consequently Petition under Section 34 of the Act was also dismissed.

4. After about 8 months of the dismissal of the Petition, Petitioner filed the present application seeking recall of the judgement dated 26.11.2019. It is averred in the application that on 25.02.2019, Petitioner engaged the erstwhile counsel to prepare the draft of the petition, which was prepared by the counsel on 26.03.2019 and forwarded to the Petitioner. On 01.04.2019, after due appraisal, Petitioner approved the draft and sent the same back to the counsel for filing. On 12.04.2019, the erstwhile counsel filed the petition in this Court under a diary number 350035/2019, with D82592018 as the Login ID.

5. Applicant avers that on 15.04.2019, the original petition was checked by the Registry and was returned on the same day with certain objections. The erstwhile counsel removed the objections and refiled the original petition on 02.08.2019. However, since the refiling was done by using a different Login ID, being D13762002, a new diary number being 728623/2019, was given by the Registry. On account of the new diary number, given on 02.08.2019, at the time of refiling, the refiled petition was treated as a fresh petition, filed for the first time on 02.08.2019 and therefore, the delay was calculated upto the said date.

6. Learned counsel for the Petitioner contends that inadvertently the original filing on 12.04.2019 escaped the attention of the office of the counsel, which was a bona fide error. Eventually the petition filed on 02.08.2019 was cleared for listing on 25.11.2019. On 25.11.2019, counsel for the petitioner sought time to address arguments on the question of delay in filing the petition. Subsequently, when the petition was listed on 26.11.2019, same was dismissed on account of delay of 12