Condonation of delay in re-filing under Section 34 of the Arbitration and Conciliation Act is permitted when the initial filing is within the time limit, emphasizing merits over technicalities.

JUDGMENT

Neena Bansal Krishna, J.

I.A.3293/2020 (Condonation of Delay)

1. An application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the petitioner for condonation of delay of 85 days in re-filing of petition under Section 34 of the Arbitration & Conciliation Act, 1996.

2. It is submitted in the application that the petition was filed on 06th November, 2019 which was within the limitation period. However, there was a delay of 85 days in removing the defects and refilling of the present petition. It is stated that the applicant is a resident of Varanasi, Uttar Pradesh and after Winter Vacations started on 25th December, 2019 to 05th January, 2020, there was unavoidable delay of 85 days in removing the defects and refilling the petition. A prayer is, therefore, made that the delay may be condoned.

3. The respondent by way of his reply has opposed the condonation of delay of 85 days in refilling. It is that that defects noticed on filing of the petition on 06th November, 2019 should have been cured till 05th December, 2019, but there is no explanation as to why no steps were taken by the petitioner to cure the defects within this period or even thereafter till 25th December, 2019 or after the reopening of the Courts on 05th January, 2020 till 27th February, 2020. Merely stating that one of the partners was a resident of Varanasi cannot be any reason or impediment on the part of the applicant to have removed the defects. Moreover, no explanation has been given as to why none of the partners could travel to Delhi during this period from 06th November, 2019 to 27th February, 2020. There is no reason given for delay in rectification of the defects at the time of refilling and the application is liable to be dismissed.

4. The respondent has placed reliance on the following judgments:

(i) Telecommunication Consultants India Ltd. Vs. Next Generation Business Power Systems Ltd., 2019 SCC Online Del 6791

(ii) DYNA Technologies Private Limited vs. Crompton Greaves Limited, (2019) 20 SCC 1

(iii) Dr. R.N. Gupta Technical Educational Society & Anr. Vs. Intec Capital Limited, OMP (COMM) 290/2021, dated 30.09.2021

(iv) UOI vs. TRG Industries Pvt. Ltd. (DB), 2009 (4) Arb Lr., 470

(v) D.D.A. & Ors. v. P.C. Sharma & Co. & Anr., 2009 SCC OnLine Del 154

(vi) Puri Construction Pvt. Ltd. v. Larsen & Toubro Ltd., 2015 SCC OnLine Del 9126

(vii) Essar Procurement Services Ltd. vs. Paramount Constructions, 2016 SCC OnLine Bom 9697

(viii) South East Asia Marine Engineering and Constructions Ltd. vs. Oil India Ltd., (2020) 5 SCC 164

(ix) Union of India vs. Om Construction Co., 2019 SCC Online Del 9037

5. The petitioner in its written submissions has explained that petitioner is a Partnership concern based at Varanasi, U.P. On receipt of the Award, the copy was forwarded to the office of the petitioner via courier in the end of August, 2019, as the entire record of the arbitration was retained and maintained by the petitioner at their office at Varanasi, Uttar Pradesh. Post Diwali which was 27th October, 2019, the petitioner contacted his advocate and requesting him to prepare and file the present petition. The record was extremely voluminous and in order to ensure that there was no delay in filing of the petition under Section 34 of the Arbitration & Conciliation Act, the present petition was prepared in November, 2019 and was filed within time before this Court on 06th November, 2019. The petition though complete in all respects was returned by the Registry on 08th November, 2019 noting certai