The main legal point established in the judgment is that if a party pursues legal remedies before the wrong forum without mala fide intention, the time consumed in such litigation can be considered for condonation of delay.

JUDGMENT :

1. This is an application preferred by original plaintiff for condonation of delay of 508 days in preferring Second Appeal. The applicant is the original plaintiff and respondent is original defendant. For the purpose of brevity and convenience the parties are referred to as “the plaintiff” and “the defendant”.

2. Being aggrieved and dissatisfied with the judgment and decree passed by first appellate Court in Regular Civil Appeal No.8 of 2018 dated 16.4.2018, whereby the first appellate Court has rejected the appeal filed by the plaintiff against dismissal of his suit by learned Senior Civil Judge, Rajula, being Special Civil Suit No.67 of 2017. By the impugned order, the trial Court has allowed application of the defendant filed under Order 7, Rule 11 of the Civil Procedure Code and has rejected the plaint with a finding that in view of Section 5 of Arbitration and Conciliation Act, 1996 the suit filed by the plaintiff is barred by law. This finding of the trail Court came to be challenged by the plaintiff before District Court, Amreli, by filing Regular Civil Appeal No.8 of 2018, whereupon it was heard by 2nd Additional District Judge, Rajula, Amreli, and rejected the appeal filed by the plaintiff. The trial Court has observed that it has no jurisdiction to entertain the appeal and directed the appellant to avail the remedy as may be available under law.

2.1 It is contended by the plaintiff that suit was filed on the basis of a contract dated 25.11.2013 entered into between the parties for sea transportation of grains from Pipavav Port to Turkey. That since bank of the plaintiff insisted for bank guarantee for releasing 20% advance amount, the respondent-defendant suggested to enter into a Charter Party Agreement so that on the basis of Charter Party Agreement, 20% advance amount can be released to the respondent. It is contended that said Charter Party Agreement was never acted upon and the contract was concluded and the entire payment of the contracted amount was made to the respondent. The respondent raised further claim for additional services allegedly provided by it and also demurrage charges incurred by it. The plaintiff has also made counter-claim against respondent for damages suffered by it. That there was an arbitration clause in the contract, as per which the arbitration proceedings were to be held in India. Charter Party Agreement was also having similar arbitration clause. According to the plaintiff, thus there were two arbitration clauses contained in two separate agreements between the parties. It is contended that since the defendant is from Singapore, it invoked arbitration clause contained in Charter Party Agreement and it invoked arbitration in its own home country at Singapore. According to the plaintiff, the main contract between the parties was containing arbitration clause, which provided for arbitration in India, hence, the arbitration is to take place in India. It is contended by the plaintiff that since the defendant has already invoked arbitration before the Arbitral Tribunal, Singapore, the plaintiff filed declaratory suit before the trial Court at Amreli, which had territorial jurisdiction over the subject matters. It is contended that, in the said suit, the defendant filed an application under Order 7, Rule 11 of CPC vide application Exh.35 for rejection of plaint on the ground that suit is barred by law as there is an arbitration clause in the agreement. This application came to be allowed by the trial Court and plaint came to be rejected. Against which the plaintiff preferred Regular Civil Appeal, which also came to be disposed of holding that Court has no jurisdiction to entertain the same.

2.2 It is contended by the plaintiff that against the order of first appellate Court, it has preferred Special Civil Application No.10359 of 2018, which was registered on 6.7.2018. Said Special Civil Application was heard couple of times and draft amendment was also allowed on 20.9.2019. It is also