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TMI Blog2018 (3) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... e, OMP 375/2013 itself stands dismissed. 3. A prefatory recitation of facts would be apposite, the outset. On 1st July, 2008, an agreement was entered into, between the Emirates Trading Agency, LLC, UAE and the respondent, for sale of 45,000 Metric Tons (MT) of steaming non-coking coal, for a total price of $ 4,922,738.15. Pursuant thereto, a High Seas Sale agreement, dated 7th July, 2008, was entered into, between the appellant and respondent, whereby and whereunder the appellant agreed to pay, to the respondent, $ 5,167,696.67, representing 100% of the value of the documents and 1% trading margin thereon, whereagainst the respondent agreed to transfer, to the appellant, the goods, by endorsing a set of negotiable instruments. Pursuant thereto, the respondent, vide letter dated 2nd July, 2008, forwarded, to the appellant, all documents relating to import and purchase of the goods. Bill of Lading was also issued to the respondent, and endorsed to the appellant. The agreement between the appellant and respondent required the appellant to file the Bills of Entry in its own name, and arrange for clearance of the cargo, including payment of Customs duty, port charges, demurrage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outstanding dues by 28th February, 2010, the respondent reserved the right to present, for encashment, the post-dated cheques for Rs. 23 crores, lying with them, which stood renewed from time to time. This prompted the appellant to file a petition, under Section 9 of the Arbitration and Conciliation Act, 1996 (OMP No.133/2010), in this court, wherein, vide order dated 8th March, 2010, the respondent was restrained from presenting the post-dated cheques. The insurance claim was ultimately allowed only to the extent of Rs. 87 Lacs. 7. It was in these circumstances, that the respondent initiated arbitration proceedings, against the appellant, which were referred, by an order dated 11th February, 2011, passed by a Division Bench of this Court, to Hon'ble Mr. Justice Mukul Mudgal, Retired Chief Justice of High Court of Punjab & Haryana and a former Judge of this Court, for arbitration. Inasmuch as the merits of the case are not relevant for the purposes of the present judgment, it is not necessary to enter into the specifics of the award passed by the learned Arbitrator. Suffice it to state that, on the basis of admission, by the appellant, of its liability, towards the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 37 of the Act, in a time-bound manner." Mr Mohit Sharma and Mr K. B. Sharma, it is asserted, were the only Directors of the appellant-Company, and the only persons responsible for its conduct and affairs. (ii) The appellant filed Review Petition No 19/2015 which, as already noted hereinabove, was dismissed as withdrawn on 30th October, 2015. It is significanct that nowhere, in the entire record of pleadings in the present petition, including CM 11185/2017, has any attempt been made, to explain the delay of over a year in filing Review Petition 19/2015. Apparently, the appellant is proceeding on the premise that the liberty granted, by the learned Single Judge, by his order dated 30th October, 2015 (extraced hereinabove), impliedly condoned the past delay in filing the Review Petition. This is surprising, given the fact that the appellant has rightly worked out the total delay, in filing the present appeal, as 3 years and 192 days, by deducting, from the total delay in filing the present appeal reckoned vis-a- vis the date of passing of the impugned order, i.e. 4th October, 2013, only the period during which the Review Petition remained pending before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, and were, in essence, cognate proceedings, to the one before us. Significantly, the counter-affidavit also asserts that the order, dated 22nd December, 2016 supra, sentencing Mr Mohit Sharma and Mr K. B. Sharma to 3 months' imprisonment, stands suspended by this Court - a fact which, clearly, has been concealed by the appellant. To a pointed query, by us, in this regard, Mr. Darpan Wadhwa, learned Senior Counsel appearing for the appellant, clarifies that Mr Mohit Sharma and Mr K. B. Sharma remained in custody from 28th March, 2016 to 19th September, 2016. 13. We heard, at length, Mr. Darpan Wadhwa, learned Senior Counsel, for the appellant and Mr. Sanjeev Narula, learned counsel for the respondent. Both counsel essentially reiterated the contents of their respective pleadings in CM 11185/2017. Mr. Wadhwa further submitted that it would be a travesty of justice, if the impugned order, dated 4th October, 2013, were to be upheld, as the said order resulted in dismissal of the appellant's petition on the ground of non-payment of court fee in accordance with the Court Fees (Delhi Amendment) Act, 2012, which was itself struck down, by this Court, on 9th October, 2013. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d delay, the Review Petition ought to have been allowed, in view of the striking down, by this Court, of the Court Fees (Delhi Amendment) Act, 2007. Needless to say, the argument does not even merit consideration, as the appellant, of its own will and volition, withdrew the Review Petition filed by it. At best, therefore, the allowance, to which the appellant may plead entitlement, could only be for the period during which the said Review Petition remained pending before this Court - which allowance stands granted, while computing the period of 3 years and 192 days. Even for the period after the withdrawal of the said Review Petition, the explanation, for the delay in approaching this court by means of the present appeal, is far from satisfying, given the fact, as rightly pointed out by Mr. Narula, that the appellant was, during the same period, defending the execution proceedings, both original as well as appellate, laid by the respondent, before this Court without any default. Mst Katiji (supra), on which Mr. Wadhwa places reliance, essentially iterated the principle that greater latitude was available, to the Government, where the issue of limitation was concerned - which princi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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