IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.01.2022

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI

C.M.P.No.18726 of 2021

in

C.M.A.No.99 of 2010

Union of India,

Rep. by Chief Engineer,

Chennai Zone,

Island Grounds, Chennai.

Further rep. by

Garrison Engineer,

Wellington,

The Nilgiris.

.. Petitioner/Appellant

Vs.

1. M/s. Dhirubhai D.Thumba & Co.,

“Patel Chambers” 1^st floor,

No.10-3-152/8, East Maredpally,

Secundrabad – 500 026.

2. Shri Krishnakumar,

Chief Engineer & Sole Arbitrator,

Penal of Arbitrators Pune,

CWE KIRKEE Complex,

Range Hills Road, Krkeeport,

Pune – 411 003.

.. Respondents/Respondents

Prayer: This Civil Miscellaneous Petition is filed under Section

5 of the Limitation Act, to condone the delay of 565 days in

filing the petition to set aside the order of dismissal dated

26.11.2019 passed in C.M.A.No.99 of 2010.

Prayer in CMA.No.99 of 2010:-

Civil Miscellaneous Appeal filed under Section 37 of the

Arbitration Act 1940 r/w the Arbitration & Conciliation Act,

1996, to set aside the Award passed by the 2^nd respondent dated

27.12.2002 in PAP/7069/3/E8 to pay a sum of Rs.15,29,200/- with

interest in favour of the 1^st respondent and confirmed by the

Learned District Judge, Nilgiris at Udhagamandalam in

A.R.O.P.No.21 of 2005 dated 24.03.2007 and to direct the the 1^st

respondent to pay a sum of Rs.6,84,015/- to the appellant with

interest at 18% p.a from the certified date of completion i.e

https://hcservices.ecourts.gov.in/hcservices/

23.10.1997 till the date of payment to the appellant herein as

the claim in the Arbitration Proceedings.

For Petitioner :

Mr.A.R.Sakthivel

Senior Panel Counsel,

Central Government Standing Cousnel

For R1

:

Mr.N.S.Amogh Simha

for Mr.K.Gowtham Kumar

O R D E R

(The matter is heard through “Video Conferencing”.)

The present petition is filed to condone the delay of 565

days in filing the petition to set aside the order of dismissal

dated 26.11.2019 made in C.M.A.No.99 of 2010.

2.The petitioner herein filed C.M.A.No.99 of 2010

challenging the order dated 24.03.2007 made in A.R.O.P.No.21 of

2005 confirming the award passed by the 2^nd respondent dated

27.12.2002 in PAP/7069/3/E8 directing the petitioner to pay a

sum of Rs.15,29,200/- (Rupees Fifteen Lakhs Twenty Nine Thousand

Two Hundred Only). The said C.M.A.No.99 of 2010 was dismissed

for default on 26.11.2019. Thereafter, the petitioner has come

out with the present Civil Miscellaneous Petition to condone the

delay of 565 days in filing the petition to set aside the order

of dismissal dated 26.11.2019.

3.The learned Central Government Standing Counsel appearing

for the petitioner contended that when the C.M.A.No.99 of 2010

was posted for final hearing on 25.11.2019, the counsel for the

petitioner failed to see the cause list and did not appear. Then

the said C.M.A.No.99 of 2010 was posted for dismissal on

26.11.2019. On that day also, the counsel for the petitioner

failed to note the listing of C.M.A.No.99 of 2010 and hence,

C.M.A.No.99 of 2010 was dismissed for default. Subsequently, due

to COVID lockdown and no regular Courts are functioning, the

petitioner did not contact the counsel on record. The petitioner

came to know about dismissal of C.M.A.No.99 of 2010 only on

receipt of summons issued by the District Court in E.A.No.2 of

2021 in E.P.No.9 of 2009 for payment out of the amount deposited

by the petitioner. Non-appearance of the Advocate is neither

wilful nor wanton. The petitioner contacted their Advocate

immediately and filed the present petition. If the delay is not

condoned, serious prejudice will be caused to the petitioner and

prayed for allowing the Civil Miscellaneous Petition. In support

https://hcservices.ecourts.gov.in/hcservices/

of his contention, he relied on the following judgments:

(i) Judgment of the Hon'ble Apex Court reported in 2002 (5)

SCC 510, [M/s. I.T.I. Ltd. Vs. M/s. Siemens Public

Commun