O.M.P.No.1142/2013 Page 1 of 16

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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O.M.P. 1142/2013

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Date of decision: 10.09.2014

THE NEW INDIA ASSURANCE CO LTD

..... Petitioner

Through:

Mr.P.K.Seth, Advocate

versus

KRISHNA INDUSTRIES & ANR.

..... Respondents

Through:

Mr.Virender Kumar Sharma, Adv.

CORAM:

HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT (ORAL)

I.A.No.18833/2013 (delay in re-filing)

1. The petitioner has challenged the award dated 15.01.2013 by way of

this petition under Section 34 of the Arbitration and Conciliation Act. It is

submitted that the petition was initially filed within time but was returned

with objection and the objections could be removed by the petitioner only

after 130 days.

2. It is submitted that the delay in re-filing had occurred on account of

the fact that the clerk of the advocate had gone to his home town on

receiving the urgent message about serious illness in his family. At the time

of leaving, he had instructed the associate of the counsel to place the file

2014:DHC:4574

O.M.P.No.1142/2013 Page 2 of 16

before the advocate for removal of the objections and for re-filing.

However, the said associate forgot to place the file before the counsel for

removing the objection. It was only on return of the clerk of the advocate

from his home town that the advocate came to know the status of the case

and thereafter immediately the objections were removed and the petition

was re-filed. It is submitted that the delay was neither intentional nor

deliberate but due to this bonafide reason. In view of all these facts, it is

prayed that the delay of 130 days in re-filing may be condoned. The

affidavit of Mr.Showmik Mazumdar s/o Sh.S.Mazumdar, associate of the

advocate has been filed. Later additional affidavit of Mr.Dalip Singh, clerk

of the advocate was also filed.

3. The application is contested by the respondent. It is submitted that

the application is vague and no sufficient reason for delay has been made out

in the application. It is submitted that name of the family member of the

clerk who had suffered with serious illness had not been mentioned in the

application. The date on which the clerk had returned from home town and

joined the office is also not mentioned. It is submitted that the application is

vague and there are no reasonable grounds shown for condoning the delay of

130 days in re-filing the petition and the same is therefore liable to be

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O.M.P.No.1142/2013 Page 3 of 16

dismissed. It is further submitted that the reasons given in the affidavit

which was subsequently filed by the petitioner somewhere around

18.2.2014, also does not inspire any confidence. It is submitted that in the

affidavit the clerk has stated that the petition was filed on 11.4.2013 but does

not disclose the date on which it was returned and re-filed. Although it is

stated that the petition was re-filed on 13.05.2013 but it is not disclosed

when was it returned again. The period between 11.04.2013 to 13.5.2013 is

more than 30 days which had elapsed making re-filing defective even on

13.05.2013. It is further submitted that the clerk has stated by his affidavit

that on 18.5.2013 he received a message of illness of his mother in

Uttrakhand without specifying which is the town or city in Uttrakhand and it

is surprising that after reaching his home town he did not try to contact his

counsel during this period despite the fact that in today’s time everybody

carries mobile. It is further submitted that the clerk has stated that he

returned for duty on 02.08.2013 is also not believable because court re-

opens on 1^st July every year. It is submitted that affidavit is not supported

by any