Point of Law: Department concerned in earlier proceedings which had attained finality, therefore, subsequent claim petition was not maintainable.

JUDGMENT :

Ajay Mohan Goel, J.

OMP(M) No.27 of 2022

By way of this application, a prayer has been made for condonation of ten years, eight months and seventy eight days in filing the appeal against order dated 03.09.2011, passed by Arbitrator­cum­Superintending Engineer, Arbitration Circle, HPPWD, Solan, H.P., in a claim preferred before the learned Arbitrator by the State, in terms whereof, the learned Arbitral Tribunal has held that it had no valid jurisdiction to adjudicate upon the case as the appointment of learned Arbitrator was bad in in law because before appointment of Arbitrator no request was made by the claimant to the respondent for the appointment of the Arbitrator.

2. The reason, which has been given in the application, justifying the delay of more than ten years in assailing the order, is that a subsequent claim petition, i.e. Claim No.21 of 2015, in the 13th hearing held on 15.01.2021 has been rejected by learned Arbitrator­cum­Superintending Engineer, Arbitration Circle, HPPWD, Solan, H.P. by holding that the same was not maintainable in light of appeal not having been preferred by the State against the earlier order passed by the learned Arbitral Tribunal, dated 03.09.2011.

3. I have heard learned Deputy Advocate General as well as learned counsel for the non­applicant and I have also carefully gone through the averments made in the application.

4. Record demonstrates that a claim petition preferred by the applicant against the respondent was dismissed by the learned Arbitral Tribunal in terms of order dated 03.09.2011, on the ground that before the appointment of the learned Atbitrator, no request was made by the claimant to the respondent for appointment of an Arbitrator, which was a mandatory condition. This order had attained finality and thereafter, on the same facts, the Department preferred another claim petition before the learned Arbitrator and this time the claim was dismissed by the learned Arbitral Tribunal in terms of order dated 15.01.2021, which is also subject matter of appeal under Section 37 of the Arbitration & Conciliation Act before this Court in Arbitration Appeal No.02 of 2021, on the ground that as the factual matrix remained the same, therefore, as the question of jurisdiction stood decided against the Department concerned in the earlier proceedings which had attained finality, therefore, the subsequent claim petition was not maintainable.

5. It is a matter of record that the order passed by learned Arbitral Tribunal, dated 03.09.2011 was not challenged by the Department within the statutory period and these proceedings have been filed after almost a decade that too, when a subsequent claim petition filed on the same facts was dismissed by the learned Arbitral Tribunal on the ground that the same was hit by the finality attained by order dated 03.09.2011.

6. The justification, which has been given for condonation of delay in the application, in the considered view of this Court has no merit, because the act of the earlier order not being challenged for almost a decade demonstrates that the Department in fact was not aggrieved by the order. The delay in fact is inordinate. Observation in the subsequent proceedings cannot be a cogent ground for condoning the inordinate delay as not preferring an appeal against order dated 03.09.2011 within the period of limitation or some reasonable time thereafter was a conscious decision of the Department.

7. Therefore, as the Court is not satisfied with the explanation given in the application for condonation of delay in filing the appeal, the same is dismissed.

8. Pending miscellaneous applications, if any, stand disposed of.