Full Text
JUDGMENT
DELHI DEVELOPMENT AUTHORITY .....Appellant
For the Respondent : Mr SamraJNigam"Mr Amit Punj and Mr J.
Mahajan,:' ".','"
HON'BLE MIl JUSTICE VIJU-IltBAKiIRU , , 7 ' ' " '
' ; 0 • •
VIBHU BAKIIRU, J
1. Tbe appellant has preferrQO.th~: present appeal impugning the order ":.:r " dated 06.04.2011 passed by a Jearlied Sillg!e Judge of this court in O.M.P. No.89/2009 (bereinafter referred as the 'impugned order'). By the impugned order, the learned Single Judge has dismissed the application bearing LA. No.1711/201 0 filed by the appellant under section 151 of epe for condonation of delay of 166 days in re-filing tbe Objections under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the' Ac1'). FAO (Os) 48586i2()11.., 2013:DHC:6913-DB v - - -- ----,-----~.. - - - - - -,
2. The controversy involved in the present case is whether the delay of 166 days in re-filing the Objection under section 34 of the Act can be condoned beyond the statutory period of limitation of three months and thirty days as prescribed under section 34(3) ofthe Act.
3. The facts relevant for examining the controversy m the present appeal are briefly stated as under.
4. Certain disputes arose between the appellant and the respondent and the same were referred to arbItration, An arbitral award dated 02.04.2009 was made pursuant to the said referenc~. Being aggrieved with the award,,, the appellant filed an application unders~~tion 34 ofthe Act (being O.M.P. No.89/2009) whereby the appellant chaUeIlged a part of the arbitral award. ";, <,, ' ~ Admittedly, the said ObjectionsW¢I\~<nl~gfbn 24.07.2009 with a delay of 17 days. The Registry of this Court raiseq certain objections;and the said application under section 34 of the,·j\ct was returned under objections on the same day. It has been statedbythc;appellant (in the application for condonation for delay in re-filing) that the award was:on A[4] size paper running into 147 pages and the same 'wasT~quired to be retyped and filed on legal size paper. The application\lrid~r"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 FA 0 (OS) 485-861.?O / / Pag!! 2 oj /9 I ) 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 rc-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-filed on 06.01.2010, after removing all the objections. Therefore, according to the appellant, there was a delay of 166 days in refiling the Objection. The appellant had filed an application bearing LA. No.171112010 in OMP No. 89/2009 for condonation of delay of 166 days in re-filing the said application under section 34 ofthe Act.
6. However, as per the respond~nt,'th~d'elay in re-filing exceeds 166 days as, according to the responderit,the;~egistry of this Court had again;i.~.;"\.,. pointed out certain defects on 06.01.2DJ0 'which were finally cured and the,, ' application under section 34 of th~Act, was re-filed for the last time on 05.02.2010 and not on 06.01.2010,asasselied by the appellant. It is contended by the respDndent that the <same is evident frorrr the fact that the affidavits annexed with the applicatiop under section 34 of the Act, the stay application and the application for cQndonatiort of delay indicates that the same were attested on 01.02.2010. Therefore, as per the respondent, there was a delay of 195 days in re-filing the said application.
7. The learned Single Judge allowed the application (LA. No.171 0/2010 in O.M.P. No.89/2009) filed by the appellant for condonation of delay of 17 days in filing the application under section 34 of the Act. However, the application (LA. No.1711l20 10 in O.M.P. No.89/2009) for condonation of delay of 166 days in re-filing the application was dismissed. Consequently, FAO (OS)./85-86/20! ! Page 3 0/19 \.( the application preferred under section 34 of the Act being O.M.P. No.89/2009 also stood rejected. The relevant portion of the impugned order is quoted as under:- "The submission of the learned counsel for the petitioner is that the respondent-contractor has been awarded interest under the award and delay in re··filing would be duly compensated, if the objections are eventually dismissed on merits. Petitioner placed reliance on the decision of the Supreme Court in Improvement Trust Vs. Ujagar Singh, (20l0) 6 sec 786, to submit that unless it is a case of Ihalafid.es which are writ large from the conduct ofthe party, generally asci nonnal rule, delay should be condoned. An attempt shou"ltb'be Jl1ade to allow the matter to be contested on IU;eritsr~ther thai}' t[9]; th~ow it out on such technic.alities.,':'.: -;-s.>",.:1\.5...·~,\:,:~'> '"'i, Having beard learned:.c'9Un~¢1;fgr the petitioner a's well as learned counsel for the resp6nden.( ~'~m not inclined to allow the present application which seeks condonation of delay of 166 days in re-filing the petition. The original period of limitation within which objections can be preferfedtQ:tfi~ award is three months. The power of the court to condone' delay(is, only limited to 30 days and not tbeJ;cafter. theSupreme;Coutthas,held in Union of India Vs. Poplila,;.Lonstruc!ion Co., AIR2001:SC40l0, that the power of the court to cortdopc delay dQe's:.l1ot;~xtend beyond the period of 30 days. The d~lay' in re.,.filin~f9fthe petition has to be viewed in the light of the aforesaicfperiod of limitation which is not stretchable beyond the period ofthree 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 FAO (OS) 485-86/2011 I -----~~---------------------v case falling under Section 5 of the Limitation Act. Even though Limitation Act is applicable to a petition under the Arbitration and Conciliation Act, the limitation provided under Section 34(3) is elastic only to a limited extent, and not beyond that. For the aforesaid reasons, I find no merit III this application and the same is dismissed."
8. Aggrieved by the impugned order, the appellant has prefeITed the present appeal. This Court had, by an order dated 03.10.2011, permitted the appellant to deposit the decretal amount in court within a period of three weeks from the date of the said order.. The 'appellant has deposited the entire decretal amount along with inter~~,t and the.~ame''is placed in a Fixed Deposit. In view of the-deposit m~de by't[4],e,appellant,;this court had by an ~,-', '.,. '. ". order dated 19.12.2011 stayed th~,~¥-ecu;t~(n~,pfthe arbitral qw~rd.,..'.i:,: ~. <; ~,
9. It is contented on behalfoffth~;appellant that the learned Single Judge has eITed in holding that the de~ayjl1re-filing of the petition has to be viewed in light of the period oflilllitatiorr a~,specified under section 34(3) of the Act and the sarheis nors[1]:retchab;~ ~eyondthE( period of three months and thirty days. It is contentiedjhatthe court is not powerless to,.,.. '" '" condone the delay in re-filing oran applic:~tion UJider section 34 of the Act. A court may decline to condone the delay in re-filing where it is found that the approach of the applicant is negligent or malafide and intended to delay the proceedings. However, in cases where the appli.cant is able to show sufficient cause for the delay, the courts would exercise their jurisdiction to condone the delay. The counsel for the appellant has placed reliance on a judgment passed by a Division Bench of this cOUli in the case of S.R. Kulkarni v. Birla VXL Limited: 1998 (5) AD (Delhi) 634. It is also FAa (OS) 485-86/2011 Page 5 ofl[9],../ contended that if the defects are of such character as would render a plaint as non est in the eyes oflaw, then the date of presentation would be the date of re-filing after removal of the defects. However, if the defects are formal or ancillary in nature not affecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the period of limitation. It is contended that the same principle would be equally applicable for an application under section 34 of the Act. Sinc~ in the present case, the defects are only formal and ancillary in nature, the application should be taken?s filed within the specified period and the delay in re-filing ought to be q()I1do~ed: T~e learned counsel for the appellant placed reliance on a decision of this court in n,SA Engineers (Bombay) v. Housing & Urban Dit'iJelovihtint Corporation Ltd.: 2003 (1) AD (Delhi) 411...'.',
10. It is contented on behalf ofthere$pondent that the Courts have no jurisdiction to condone the deLay in re-filing ifthe delay in re-filing is beyond the period of three month's' ~nd' 'thirty days as, ~peeified under section 34(3) of the Act.Itis;a.rgu~dortbehal( of the respondent that what o ~,. • ", is not permitted in the first instan,~e, i.e. to file objections beyond three;c ~ ', ' '". ',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 FA 0 (OS) 485-86/2011 \ V - - - - - - - - - - - - - - - - ( India Tourism Dev. Corporation Ltd. v. R.S. Avtar Singh & Co.: FAO(OS) No.58/2011, Decided on 10.02.2011, Delhi Transco Ltd. & Anr. v. Hythro Engineers Pvt. Ltd.: 2012 (6) R.A.J. 299 (Del.) and The. Executive Engineer v. Shree Ram Construction Co.: 2011 (2) R.A.J. 152 (Del.) in support of his contention that the court does not have the jurisdiction to condone any delay beyond the period of 120 days (i.e. three months and 30 days) from the date on which the award was received or from the date on which request under section 33 ofthe Act was disposed of. It is also contended that a failure tq:f:ilethe certified copy of the award must be read as a failure to 'file a signed copx ofihe' awatdand the same would.' eo' be a fatal defect and would rendEll' tlfefilf[1];lg of the application under section ",; 0 <' ~(;:' < ',.,,~. f.'", 34(3) ofthe ActinconsequentiaL': ' "
11. The counsel for the respond~ni has:also placed before us the orders passed by the Supreme Court disl[1];1i~sjng the Special Leave Petitions preferred against the judgment edfited' 12. n.201Q passed by the Division, •< 0 • ~ • Bench of this Court' i[1]):The;'Electlti~eEhgiizeer ~. Shree Ram, Construction Co. (supra). 'lfis,fun:her poi~ted,out'ih'at the said decision was also followed by another I)iyision Bench "of this Court in the India Tourism Dev. Corporation Ltd. (supra) and the Special Leave Petitions preferred against the decision in India Tourism Dev. Corporation Ltd. (supra) have also been dismissed by the Supreme Court. A copy of the said decision of the Supreme Court in SLP Nos.9175-9176/2011 decided on 22.07.2013 has also been placed before us.
12. It is also contented by the counsel for respondent that as per Rule 5 in Chapter I-A (a) of Volume 5 of the Delhi High Court Rules, the FAO (OS) 485-8612011 \,) \ --J objections should have been re-filed within a time not exceeding 7 days at a time, and 30 days in aggrcgate to be fixed by the Deputy Registrar! Assistant Registrarl Incharge of the Filing Counter. Rule 5(3) of the said Rules also makes it abundantly clear that in case the petition is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, Incharge of the Filing Counter under Sub-Rule 1, it shall be considered as a fresh institution. The moment it becomes a fresh filing, then under the settled law, the delay beyond the expiry of prescribed period cannot be condoned on any ground. The maximum period',of,30 days is provided under Rule 5, Chapter 1, Part A of Vol. 5 of th~ High Court. Rules and Orders for removing the objections by re-filing ofthe petition. In the present case, the " ~. same was not d6neand the appliC:&t~~ri!W~s filed after the expiry of 166 " ',~;. ~ '. ",', "J:, days.,'.
13. We have heard the learned',counsel for the parties at length. The questions that arise for consideration intlie, present appeal are, whether a court has the jurisdiction to condonedet~y iriLte-filing of an application under section 34 of the Act, whcre,the gggrega!e period of delay exceeds ~". "-. '" the period of limitation as specified'l1ride(s,e~tidn 34(3) of the Act. And if so, whether the delay in re-filing ought to be condoned in the present casco
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, but not thereafter."
15. A plain reading of section 34(3) of the Act indicates that the period of limitation prescribed is with respect to making an application for setting aside an award and not in respect of further steps once such an application is made. Thus, there is no time specified in the Act, in respect ofre-filing of an application under section: 34 'ot~iheA2t, which has been returned to remove to certain defects. Thus, in our view, while section 34(3) of the Act does indicate the intention of the legislature to ensure that there is no undue,~, ".", delay in filing of an application umier;sediotr 34 of the Act,the same does; ~, '.''''!. ',,";,. not provide any time limit for re::'prt?~¢ritihi;the application. Any restriction '; <., ',v with regard to the jurisdiction of the 90urt in condoning the delay in refiling cannot be read into the provisiobt}f<s~ction 34(3) of the Act.
16. In our view, filing of an~pplication ari:d!~e.-:fi'ling;the same after removing defects, stand on completely diffe~ent fo6tings in so far as the provision of limitation is concetned.Jtis';rlQ W.(we11-settled that limitation does not extinguish an obligation but merely bars a party to take recourse to courts for availing the remedies as available to the party. Thus, in the event a party fails to take expeditious steps to initiate an action within the time as specified, then the courts are proscribed from entertaining such action at the instance of such a party. The rationale of prescribing time limits within which recourse to legal remedies can be taken has been explained by the FAO (OS) 485-86/2011 Page 9 0/19 ''If Supreme Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.: (1971) 2 see 860 as under:- "7...... The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without ~sserting them in a court of law. The principle whichXormstge basi~ ofthisxule is expressed in the maximum vigila~tibus, non dernij~.qtibus, jura subveniunt (the laws give help to those ~h.o:are watchfuL and not to those who sleep).,Therefore thebbjcid;bf the statutes of limitations is to compel wperson to ~x~rcise;.hisright of action within a reasonable time as also to disqour.ag~;and suppress stale, fake or fraudulent claims.....".:"" <'
17. The cases of delay in re-filil1g are different from cases of delay in, t ~',., filing inasmuch as, in such cases the'party has already evinced its intention to take recourse to the remedies ava:iJ~ble in courts and has also taken steps in this regard. It catmo( be, thus, assumed,that tneparty has given up his:;: ~,, ", rights to avail legal remedies. However, ili:¢~rtain:cases where the petitions, ", ~ i. ":-,' <, ' " ~; y, c, '. or applications filed by a party are st),hopel~~sly 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 (f Vo DoC. Sankhla: 1995 RLR 85, whereby a Single Judge of this Court held as under:- "Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date, 9fqriginal presentation for the purpose of calculating,the'limltationlor'filing the suit." A Division Bench of this Court uphelg tpe aJoresaidview in DoC. Sankhla Vo Ashok Kumar P~rm~r: 1995,{~),>~~';'(gel~i) 753" ~dwhile dismissing, \ "./ -..:.~. "~~::;:.',~:f:,.'A::..\·\t'j::.~. <•• \<..,~ "> the appeal preferred against decision }ofJhe Single Judge observed as under:-
18. "5....... In fact, that is so ek~lTIe~!~rY,to admit of any doubt. Rules 1 and 2 of (O.S.)Rules,1967,'extracted above, do not even remotely suggest that the re-filing of th,e plaint after removal of the defedsas tli~:effective date ofthefiHng of the plaint for purposes of liniitatiqIJ,. The date on'which the plaint is presented, even with defects, would, therefore, have to be the date for the purpose ofthe liIfiitatio~acf.," In several cases, the defects may only be perfunctory and not affecting the substance of the application. For example, an application may be complete in all respects, however, certain documents may not be clear and may require to be retyped. It is possible that in such cases where the initial filing is within the specified period of 120 days (3 months and 30 days) as specified in section 34(3) of the Act, however, the re-filing may be beyond this period. We do not think that in such a situation the court lacks FAa (OS) 485-86/2011 Page II of19 the jurisdiction to condone the delay in re-filing. As stated earlier, section 34(3) of the Act only prescribes limitation with regard to filing of an application to challenge an award. In the event that application is filed within the prescribed period, section 34(3) ofthe Act would have no further application. The question whether the Court should, in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whether sufficient cause has been shown which prevent re-filing the petition/application within time.
19. The Supreme Court in the ~ase 0fU"ion"o{ India v. Popular Construction Company.: (2001),88C(1' 470 has h~ld that the time limit,", prescribed under' section 34 of the Act. to challenge an award is not extendable by the Court under section5Clfthe Limitation Act, 1963 in view '" '..,.,.\;,( of the express language of sectiori 34(3'),'of'the Act. However,,this decision <,;;',... would not be applicable in cases w1i~;re,tp.e[8].pplication under section 34 of. " ~ the Act has been filed within the extended timy: prescribed, and there is a delay in re-presentation ofthe application aJterlcuring the defects that may have been pointed out. This is so be?i:iuse sectio~ 5'ofthe Limitation Act, 1963 would not be applicable in, suchcasGs. 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 see 483 considered the applicability of section 5 of the Limitation Act, 1963 where the objection to an award under the provisions of the Arbitration Act, 1940 was filed in time but there was substantial delay in re-filing the same. The High Court in that case held that there was a delay in filing the objections for setting aside the award and consequently, rejected the application for condonation of delay. An appeal against the decision of the High Court was allowed and the Supreme Court rejected the contention that there was any delay in filing objections for setting aside the award. The relevant extract from the decision of the Supreme Court is reproduced below:- " "9...... In, the circu!llstances,it.yannat be said that objections were not filed within'.time or that because they were not properly stamped the o~jf.~rions could notbe taken as having,been filed at all:Thetefc)re~' in our view, th~re had not been any delay in prefer:ii~g;;th~>~objections. The delay, if any, wasin complying with the, direCtions of the Registrar to rectify the defects and refili±}g the'objections. The delay, as we have:pointed out earlier, is,':n9tdue to any want of care on the part of the appellant but due to circumstances beyond its control. 1o. Th~ fJigh. Court was in error in holding.that there was any delay irf'fjting th'eobjectiO:n,sJor, setting aside the award. The time prescribed~by[7] iheLiniit[3]:!ionAct for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in representation of the objection petition after rectifying the defects. Section 5 of the Limitation Act provides for extension ofthe prescribed period of limitation if the petitioner satisfies the court that he had sufficient cause for not preferring the objections within that period. When there is. no delay in presenting the objection petition Section 5 ofthe Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition 2J under Section 5 of the Limitation Act. The application filed before the lower court for condonation of the delay in preferring the objections and the order of the court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out 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 /.":, r·. explanation given for svch delay. In absenc~()f any specific statute that:",:,.. ' bars the jurisdiction.ot'the Court in.considering the question of delay in re-... -., filing, it cannot be accepted tha,titfie::~l:Nftsare powerless to entertain an • • ~ j application where ~he delay in its.t~~fHing crosses the time limit specified;.: '. ", for filing the application.
21. Although, the cOUlis would have, the jurisdiction to condone the.A.. delay, the approach in exercising suc}1jurisdict\ori cannot beliberal, and the:. /'. ~: ~,. '..." <; ":.',..',; conduct of the applicant will pave to be testedonthe anvil of whether the applicant acted with due, di1igencearidd~s,patch. Th.~ applicant would have to show that the delay was on accounL()t~~aS()fls 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) ofthe 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 context of the statute. A Division Bench of this High Court in M/s. Competent Placement Services through its Director/Partner v. Delhi FAD (OS) 485-86/2011 \ ~ \;3 Transport Corporation through its Chairman: 2011 (2) R.A.J. 347 (Del) has held as under:-
22. "9. In the light of these provisions and decisions rendered by the Honlble Supreme Court, it is thus clear that no petition under Section 34 of the A&C Act can be entertained after a period of three months plus a further period of 30 days, subject to showing sufficient cause, beyond which no institution is permissible. However, the rigors of condonation of delay in refiling are not as strict as condonation of delay of filing under Section 34(3). But that doe~, np~",mean that a pmiy can be permitted an indefinite ailef unexplainable period for refilling the petition.".' The decision' ofa Division",B~ncp of this Court in The Executive Engineers v. Shree Ram Consfl,J~li{jIl&.C().' ('iupra);which is relied upon,},';, ". by the respoll(,lent also does noti;;~?pp~rt: Jhe contention th~t this COUlt " ~,, '. " ",: " <: < would not have' the jurisdiction to,col}a6rte the delay in re-filing beyond the period of three months and 30 q,ays~ as',spec'ified under section 34(3) of the Act. The Court in that de?isi(m"~4d:,polrtted out. that, in the context of ~"Y'<.. "·f " ) Arbitration and Conciliation Act, liberality in 2opq@l1i~g' the delay in re-, filing would be contrary to the jnt~nHon of ~hePafliament. However, this does not imply that the Courtwould have <flO 'jurisdiction to condone the delay in re-filing beyond the period as specified in section 34(3) of the Act. This is also apparent 11"om Para 41 of the said judgment which reads as under:- "41. The question, which still requires to be answered, is whether a reasonable explanation has been given with regard to delay of 258 days in the refiling of the Objections. Since this delay crosses the frontier of the statutory limit, that is, three months and thirty days, we need to consider whether sufficient FAG (Os) 485-86/2011 Page 15 of19 \ ---7 cause had been shown for condoning the delay. The conduct of the party must pass the rigorous test of diligence, else the purpose of prescribing a definite and unelastic period of limitation is rendered futile. The reason attributed by the Appellant for the delay is the ill health of the 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,1\1s Prem Lata Bansal. We have called for the records of OMP No.291/2008 and we find that the Objections have hot been signed by Late Shri R.DJoUy but by Ms Sonia Mathur on 9.8.2007, on which date the supporting Affidavit has alsol~e~b1!3~orn by the I?irector of Income Tax. In these' c\rcu~s~nc~s, the illness..'of Late R.D.Jolly is obviously asl1wk~sot~~n. No other explanation has been tendered for the:d~lClY..:T:he avowed purpose of the A&C Act is to expedite thecori~lusl0n of arbitral proceedings. It is with this end in vie)":thats,upstantial and far reaching amendments to the position prevailing under the Arbitration Act 1940 have been carried out and analiogether new statute has been passed. This pl.itvo~e. cannot be emasculated by delays, intentionator gross, in thedcourse:()f refiling.of the Petition/Objections. T~e con4uct'ofthe:,Appellaht is not venial. We find no error intheconclusio'IY.C:l!Tived at by the learned Single Judge and accordingl)?'dismiss the Appeal." (underlining added)
23. The abovementioned decision of The Executive Engineers v. Shree Ram Construction (supra) has also been considered by this Court in Delhi Transco Ltd. v. Hythro Engineers Pvt. Ltd. (supra), wherein it has been explained as under:- FA 0 (OS) 485-86/2() II "9. The decision in Competent Placement Services (supra), in our view, does not say anything to the contrary from what has been observed by the Division Bench in Shree Ram Construction Co. (supra). All that has been observed by the same Division Bench on the same day, is that the rigors of condonation of delay in re-filing are not as strict as condonation of delay in filing under Section 34(3). At the same time, the Division Bench also observed "but that does not mean that a party can be permitted an indefinite and unexplainable period for re-filing the petition n.
10. It is in Shree Ram Cqnstruction Co. (supra) that the Court actually examined as to what is the magnitude of delay in re-filing, which the Court may tolerate ahd permit to be condoned in a given case. Obvioll;sly, there Cannot be any hard & fast rule in that respect, an<lihe'Coltrt would haveto examine each case on its,bwn facts &.,m.erits~l·~i-v to take a call.whether, 'c;, ': ","...~ 'I'",::'.,", <.\-\ ";;.:"\ ',.:' or not, to concione the delay',i:n'i,t~fl1~ng the objection petition, when the initial filing ofthep'etft,tg1fl is within the p~riod of limitation. However, what is to be b~!ne in mind by the tourt is that the limitation period is ~ih1ited by the Act to three months, which is~xtendable, at the most, bY'a:nother thirty days, subject to sufficieJilt cause being disc1osed';QY th~ petjtioner to explain the delay beyond the perio[4]:oftnree'Ifi6~ths.. Therefore, it cannot be that a:petitioner by causing delay'in re:,filing of the objection petition, delays there-filing to an 'e)(tent which goes well beyond even the period of threemontbs '& thirty days from the date when the limitation forfHihgthe objections begins to run. If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in refiling, and the Court would conduct 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 FAa (OS) 485-86/2011 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 ofthree months, or within a period of three months plus thiliy 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 ~reliedup6h the order of the Supreme COUJi dated 22.07.2013 dismissing Special Leave:J?e1itioqNo. 9175-9176/2011 in India Tourism Devldophzent Corp~rid., v. R.S. Avtar Singh & Co. The.. ", above Special Leave PetitiOIlsarose' jrbm; the judgment order dated. \../','''' 10.02.2011 in FAO No. 58/2011a~~::9¥tNo'. 2252/2011 which in turn had, < ".'. -; \Jt,~·:~ ~ <.' '."' ' ' relied upon the judgment in Tlte E~ecutive Engineers v.:'Shree Ram ~.., ':. ~ f Construction & Co. (supra). As the SPeNal Leave Petitions against the decision in The hxecutive E.ngineers v. ShreeRqm Consttuction & Co.:; ~.,..y{;;;'/:,..:?:0.)~":.~.~ • (:')upra) had been di~missed, an application was[1] inoyed for dismissal of the said Special Leave Petitio~.s. Th~ $upreme., Court,iilo;"ed the application •. t: <.' and dismissed the Special Leave Petiti9ns~ The said order also cannot be read to hold that a court does not have the jurisdiction to condone delay in re-filing of an application under section 34 of the Act, beyond the period of three months and thirty days, where the initial filing was within the time as specified under section 34(3) ofthe Act.
25. Thus, in our view a Court would have the jurisdiction to condone delay in re-filing even if the period extends beyond the time specified in section 34(3) of the Act. However, this jurisdiction is not to be exercised FAO (OS) 485-86/2011 Page 180/19 liberally, in view of the object of the Arbitration and Conciliation Act to ensure that arbitration proceedings are concluded expeditiously. The delay in re-filing cannot be permitted to frustrate this object of the Act. The applicant would have to satisfy the Court that it had pursued the matter diligently and the delays were beyond his control and were unavoidable. In the present case, there has been an inordinate delay of 166 days and in our view the appellant has not been able to offer any satisfactory explanation with regard to the same. A liberal approach in condoning the delay in refiling an application undersection3~9Lthe Act is not called for as it would defeat the purpose of speci(yihgan indastic periodbftime within which an application, for setting,aside anawarfl; wider section 34 ofthe Act must be preferred.
26. In our view, although this Court' has the jurisdiction to condone the delay in fe-filing the subject applicat,ion, nonetheless, exercise of this jurisdiction in favour of the: appellant is notwan::ilnted in the facts of this, '-"", i " <' case. Accordingly, the pf.esetif,~ppeal stahd~ disposedof:,ri'th no order as to costs. The decretal amo,unt whichhas'Qeep. placed in a fixed deposit, IS directed to be released to the tespOl1dept.' NOVEMBER 07, 2013 RK FAa (as) 485-86/7011 VIBHU BAKHRU, J ~. BADAR'DURREZ AHMED, J Page /9 of /9