TMI Blog2022 (4) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... here appears contradictions in the version of the respondent No. 1 inasmuch as, though the respondent No. 1 was served with the notice on 20.08.2015, it stated to have knowledge of dismissal only on 15.03.2016 when Distress Warrant came to be issued. Further, the respondent No. 1 not only filed the restoration applications before the learned trial Court concerned but also had filed the civil revision applications before this Court wherein, in delay condonation application, prayer was made to condone the delay of 1074 days. Accordingly, the Court finds substance in the submissions advanced by the learned advocate for the petitioner and in the considered opinion of the Court, the petitions merit favourable consideration and to remand back the matter for de novo consideration of the restoration applications. The Court is conscious of the fact that the petition is filed under Article 227 of the Constitution of India and the scope for interference is very scant - matters are remanded back to the trial Court concerned to decide the same afresh, after affording an opportunity of hearing to both the sides, in accordance with law and on merits - Petition allowed in part by way of remand. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted that as per settled principles of law, mala fides, negligence, inordinate delay, insufficient grounds and unsupported statements do play important role in exercising the discretion and it may be refused, irrespective of the fact that the party is a government authority, for want of sufficient cause and/or for any other cause mentioned above. The learned advocate for the petitioner submitted that after dismissal, the petitioner filed the execution proceedings and the respondent No. 1 was duly served and accordingly, it cannot be said that the respondent No. 1 was not aware and therefore, the learned trial Judge ought to have appreciated the said fact, but is not taken into account. 4.3 Making such submissions, it is urged that these petitions may be allowed by setting aside the impugned judgment and order. 4.4 In support, the learned advocate for the petitioner has relied upon following decisions: i) Estate Officer, Haryana Urban Development Authority and Another v. Gopi Chand Atreja, AIR 2019 SC 1423; ii) Khodiyar Rolling Mill v. Paschim Gujarat Vij Company Ltd., 2014 (0) AIJEL-HC 231645; iii) Subham Corporation Thro Proprietor Kreena Sureshbhai v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Shantilal Jain v. Navneetkumar Lilachand Patel, 2015 (0) AIJEL-HC 233426. 6. Regard being had to the submissions canvassed and considering the material available on record, so also, considering the impugned judgment and order passed by the learned City Civil Judge, it appears that the learned Court below restored the Misc. Civil Application Nos. 79 and 78 of 2004, which were filed by the respondent No. 1 herein challenging the award dated 21.11.2003 of the sole arbitrator, which were dismissed for default by orders dated 12.02.2013. Against which, applications for restoration came to be filed, which came to be allowed by the impugned judgment and order dated 18.04.2018 and hence, the dissatisfied petitioner is before this Court with these petitions. 6.1 Facts as emerge from the record and necessary for determination of these petitions, are as under: i) in an Arbitration Petition No. 36 of 1998 filed before this Court, Sole Arbitrator was appointed and on 21.11.2003 the respondent No. 2 herein, the sole Arbitrator passed the award; ii) the said award was challenged by the respondent No. 1 herein by filing Misc. Civil Application Nos. 79 and 78 of 2004 respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of Distress Warrant on 15.03.2016, also assured to settle the matter and to make payment. Thus, from the above, it is abundantly clear that there was delay in filing the restoration applications, however, record reveals neither any delay condonation application is filed nor is there any prayer to condone the delay appear to have been made in the said restoration applications. On the contrary, it is averred in the said applications that, present petitioner has come to know about the dismissal of the matter few days back i.e. on 15/3/16 when bailiff of the Gandhinagar court had come for the attachment of the properties of present petitioner , which is against facts and record of the case. As referred to herein above, the respondent No. 1 was in very well know of the dismissal on 20.08.2015, however, the learned trial Judge appears to have failed to take into consideration the said aspect of the matter. 6.4 The Court may hasten to add that the respondent No. 1, after filing of the aforesaid restoration applications on 13.04.2016, also filed the Civil Revision Application (Stamp Number) Nos. 315 and 314 of 2016, wherein, on 16.04.2016, Civil Application Nos. 4837 and 4835 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money, and therefore, considering the aspect that the procedure which is adopted by the Government for condonation of delay, takes time, in such special circumstances, in the opinion of this Court, if lenient view is taken and delay is ordered to be condoned, it can also be considered just and proper . 6.6 Thus, on one hand, it is the case of the respondent No. 1 that the respondent No. 1 approached the Court within the period of limitation and as said earlier, neither any application for condonation of delay nor any prayer qua that had been made in the restoration applications, and though, the learned trial Judge was not convinced on the aspect of the delay, as can be culled out from paragraph 18 referred to herein above, the said aspect is considered against the facts, averments and the settled law by the learned City Civil Judge. 6.7 Further, there appears contradictions in the version of the respondent No. 1 inasmuch as, though the respondent No. 1 was served with the notice on 20.08.2015, it stated to have knowledge of dismissal only on 15.03.2016 when Distress Warrant came to be issued. Further, the respondent No. 1 not only filed the restoration applications befor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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