TMI Blog2013 (11) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Once an application or an appeal has been filed within the time prescribed, the question of condoning any delay in re-filing would have to be considered by the Court in the context of the explanation given for such delay. In absence of any specific statute that bars the jurisdiction of the Court in considering the question of delay in refiling, it cannot be accepted that the courts are powerless to entertain an application where the delay in its re-filing crosses the time limit specified for filing the application. Although, the courts would have the jurisdiction to condone the delay, the approach in exercising such jurisdiction cannot be liberal and the conduct of the applicant will have to be tested on the anvil of whether the applicant acted with due diligence and dispatch. The applicant would have to show that the delay was on account of reasons beyond the control of the applicant and could not be avoided despite all possible efforts by the applicant. The purpose of specifying an inelastic period of limitation under section 34(3) of the Act would also have to be borne in mind and the Courts would consider the question whether to condone the delay in re-filing in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 34 of the Act was returned under objections on the same day. It has been stated by the appellant (in the application for condonation for delay in re-filing) that the award was on A4 size paper running into 147 pages and the same was required to be retyped and filed on legal size paper. The application under section 34 of the Act was re-filed on 24.08.2009 with a typed copy of the award on legal size paper. The Registry of this Court again raised certain objections and the said application was once again returned on the same day i.e. on 24.08.2009. 5. It is stated that the application was re-filed on 23.12.2009 after receiving the complete arbitral record. It has been stated by the appellant (in application for condonation for delay in re-filing) that a part of the record was not provided and in the absence of complete documents, counsel for the appellant could not re-file the Objection till 23.12.2009. It was also stated that the concerned Executive Engineer retired on 30.11.2009 which also delayed the re-filing. The Registry of this Court again raised certain objections and, as per the appellant, the application under section 34 of the Act was finally re-file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks condonation of delay of 166 days in re-filing the petition. The original period of limitation within which objections can be preferred to the award is three months. The power of the court to condone delay is only limited to 30 days and not thereafter. The Supreme Court has held in Union of India Vs. Popular Construction Co., AIR 2001 SC 4010, that the power of the court to condone delay does not extend beyond the period of 30 days. The delay in re-filing of the petition has to be viewed in the light of the aforesaid period of limitation which is not stretchable beyond the period of three months and thirty days. xxxx xxxx xxxx xxxx xxxx The judgment of the Supreme Court in Improvement Trust (supra), in my view, has no application to present case as it cannot be said that the delay in re-filing is not huge , particularly when the statutory period of limitation cannot be stretched beyond 30 days beyond the limitation period of three months, and the delay in re-filing alone is 166 days. The said decision was rendered by the Supreme Court while considering a case falling under Section 5 of the Limitation Act. Even though Limitation Act is applicable to a petition under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od and the delay in re-filing ought to be condoned. The learned counsel for the appellant placed reliance on a decision of this court in DSA Engineers (Bombay) v. Housing Urban Development Corporation Ltd.: 2003 (1) AD (Delhi) 411. 10. It is contented on behalf of the respondent that the Courts have no jurisdiction to condone the delay in re-filing if the delay in re-filing is beyond the period of three months and thirty days as specified under section 34(3) of the Act. It is argued on behalf of the respondent that what is not permitted in the first instance, i.e. to file objections beyond three months per section 34(3) of the Act, cannot be permitted to be done at the second stage. Consequently, if the re-filing is done after the prescribed statutory period, the court will have no jurisdiction to condone the delay even in cases where the initial filing was within time. The courts lack the jurisdiction to condone delay beyond the period of 30 days as specified under section 34(3) of the Act. The counsel for the respondent has placed reliance on the judgments passed by Division Benches of this Court in India Tourism Dev. Corporation Ltd. v. R.S. Avtar Singh Co.: FAO(OS) No.58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the petition. In the present case, the same was not done and the application was filed after the expiry of 166 days. 13. We have heard the learned counsel for the parties at length. The questions that arise for consideration in the present appeal are, whether a court has the jurisdiction to condone delay in re-filing of an application under section 34 of the Act, where the aggregate period of delay exceeds the period of limitation as specified under section 34(3) of the Act. And if so, whether the delay in re-filing ought to be condoned in the present case. 14. Section 34(3) of the Act is relevant and is reproduced below:- (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims. .... 17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla: 1995 RLR 85, whereby a Single Judge of this Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Popular Construction Company: (2001) 8 SCC 470 has held that the time limit prescribed under section 34 of the Act to challenge an award is not extendable by the Court under section 5 of the Limitation Act, 1963 in view of the express language of section 34(3) of the Act. However, this decision would not be applicable in cases where the application under section 34 of the Act has been filed within the extended time prescribed, and there is a delay in re-presentation of the application after curing the defects that may have been pointed out. This is so because section 5 of the Limitation Act, 1963 would not be applicable in such cases. Section 5 of the Limitation Act, 1963 provides for extension of the period of limitation in certain cases where the Court is satisfied that the appellant/applicant had sufficient cause for not preferring an appeal or making an application within the specified period. In cases, where the application/appeal is filed in time, section 5 would have no application. The Supreme Court in the case of Indian Statistical Institute v. Associated Builders: (1978) 1 SCC 483 considered the applicability of section 5 of the Limitation Act, 1963 where the objection to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the return the Registrar did not even specify the time within which the petition will have to be represented. 20. It follows from the above that once an application or an appeal has been filed within the time prescribed, the question of condoning any delay in re-filing would have to be considered by the Court in the context of the explanation given for such delay. In absence of any specific statute that bars the jurisdiction of the Court in considering the question of delay in refiling, it cannot be accepted that the courts are powerless to entertain an application where the delay in its re-filing crosses the time limit specified for filing the application. 21. Although, the courts would have the jurisdiction to condone the delay, the approach in exercising such jurisdiction cannot be liberal and the conduct of the applicant will have to be tested on the anvil of whether the applicant acted with due diligence and dispatch. The applicant would have to show that the delay was on account of reasons beyond the control of the applicant and could not be avoided despite all possible efforts by the applicant. The purpose of specifying an inelastic period of limitation under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Senior Standing Counsel. However, as has been pithily pointed out, the Vakalatnama contains the signatures of Ms Sonia Mathur, Standing Counsel for the Department; in fact, it does not bear the signature of Late Shri R.D.Jolly. Because of the explanation given in the course of hearing, we shall ignore the factum of the Vakalatnama also bearing the signature of another Standing Counsel, namely, Ms Prem Lata Bansal. We have called for the records of OMP No.291/2008 and we find that the Objections have not been signed by Late Shri R.D.Jolly but by Ms Sonia Mathur on 9.8.2007, on which date the supporting Affidavit has also been sworn by the Director of Income Tax. In these circumstances, the illness of Late R.D.Jolly is obviously a smokescreen. No other explanation has been tendered for the delay. The avowed purpose of the A C Act is to expedite the conclusion of arbitral proceedings. It is with this end in view that substantial and far reaching amendments to the position prevailing under the Arbitration Act 1940 have been carried out and an altogether new statute has been passed. This purpose cannot be emasculated by delays, intentional or gross, in the course of refiling of the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise, by the Courts in matter of condonation of delay in other cases would, in such cases, not be adopted, as the adoption of such an approach by the Court would defeat the statutory scheme contained in the Act which prescribes an outer limit of time within which the objections could be preferred. It cannot be that what a petitioner is not entitled to do in the first instance, i.e. to file objection to an award beyond the period of three months thirty days under any circumstance, he can be permitted to do merely because he may have filed the objections initially within the period of three months, or within a period of three months plus thirty days, and where the refiling takes place much after the expiry of the period of three months thirty days and, that too, without any real justifiable cause or reason. (underlining added) 24. The respondent has also relied upon the order of the Supreme Court dated 22.07.2013 dismissing Special Leave Petition No. 9175-9176/2011 in India Tourism Development Corp. Ltd. v. R.S. Avtar Singh Co. The above Special Leave Petitions arose from the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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