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.......:L- HIGH COURT OF DELHI
FAO(OS) 176/2013
UNION OF INDIA ..... Appellant
Through: Mr.Anuj Aggarwal and Mr. Gaurav Khanna, Advocates.
FAO(OS) 176/2013
UNION OF INDIA ..... Appellant
Through: Mr.Anuj Aggarwal and Mr. Gaurav Khanna, Advocates.
VERSUS
MIS VARINDERA CONSTRUCTIONS LTD ..... Respondent
Through: Mr.Akhil Sibal, Mr. Pradeep Chhidra and Ms.Aditi Sharma, Advocates.
Through: Mr.Akhil Sibal, Mr. Pradeep Chhidra and Ms.Aditi Sharma, Advocates.
FAO(OS) 178/2013
UNION OF INDIA ..... Appellant
Through: Mr.Anuj'Aggarwal and Mr. Gaurav Khanna, Advocates.
Through
UNION OF INDIA ..... Appellant
Through: Mr.Anuj'Aggarwal and Mr. Gaurav Khanna, Advocates.
Through
VERSUS
MIS VARINDERA CONSTRUCTIONS LTD ..... Respondent
CORAM:
Through: Mr.Akhil Sibal, Mr. Pradeep Chhidra and Ms.Aditi Sharma, Advocates.
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
ORDER o/o 10.04.2013 C.M. No.5238/2013 (for condonation of delay of 142 days in filing the appeal) & C.M. No.5240/2013 (for condonation of delay of 103 days m re-filing the appeal) in FAO(OS) 176/2013
FAO(OS) Nos.176/2013 & 178/2013 Page 1 of5 2013:DHC:7374-DB
C.M. No.5275/2013 (for condonation of delay of 142 days in filing the appeal) & C.M. No.5277/2013 (for condonation of delay of 103 days m re-filing the appeal} in FAO(OS)& FAO(OS) 178/2013
The appeal is directed against the impugned order dated 29.5.2012 dismissing the objections of the appellant/Union of India filed under Section
34 ofthe Arbitration and Conciliation Act, 1996 to the Award ofthe learned
Arbitrator dated 28.11.2011.
The delay in filing is 142 days. The certified copy of the order is stated to have been received by the department on 31.5.2012. Thereafter proceeded the normal saga of the file moving from one place to the other.
The BTF is stated to have been issued on 26.6.2012. Documents required for filing appeal were furnished on 27.7.2012. The counsel kept on awaiting the copy and details of an SLP against the Division Bench
Judgement of 28.5.2012 which was responded to by the department on
25.9.2012. Thereafter the file could not be located in the chamber of the counsel. A draft of the appeal is stated to have been sent finally on
06.11.2012. Then it was sent back duly signed.
There is also a delay. in refilling of 103 days which is stated to be on account of unavoidable reasons. The reason stated to be is that higher court fee was payable on account of Court Fee (Delhi Amendment) Act 2012.
Thereafter the panel of the counsels is stated to have been revised. The reasoning given of additional court fee payable is not correct as it was not applicable to matters which were already pending before this Court in view of the
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
ORDER o/o 10.04.2013 C.M. No.5238/2013 (for condonation of delay of 142 days in filing the appeal) & C.M. No.5240/2013 (for condonation of delay of 103 days m re-filing the appeal) in FAO(OS) 176/2013
FAO(OS) Nos.176/2013 & 178/2013 Page 1 of5 2013:DHC:7374-DB
C.M. No.5275/2013 (for condonation of delay of 142 days in filing the appeal) & C.M. No.5277/2013 (for condonation of delay of 103 days m re-filing the appeal} in FAO(OS)& FAO(OS) 178/2013
The appeal is directed against the impugned order dated 29.5.2012 dismissing the objections of the appellant/Union of India filed under Section
34 ofthe Arbitration and Conciliation Act, 1996 to the Award ofthe learned
Arbitrator dated 28.11.2011.
The delay in filing is 142 days. The certified copy of the order is stated to have been received by the department on 31.5.2012. Thereafter proceeded the normal saga of the file moving from one place to the other.
The BTF is stated to have been issued on 26.6.2012. Documents required for filing appeal were furnished on 27.7.2012. The counsel kept on awaiting the copy and details of an SLP against the Division Bench
Judgement of 28.5.2012 which was responded to by the department on
25.9.2012. Thereafter the file could not be located in the chamber of the counsel. A draft of the appeal is stated to have been sent finally on
06.11.2012. Then it was sent back duly signed.
There is also a delay. in refilling of 103 days which is stated to be on account of unavoidable reasons. The reason stated to be is that higher court fee was payable on account of Court Fee (Delhi Amendment) Act 2012.
Thereafter the panel of the counsels is stated to have been revised. The reasoning given of additional court fee payable is not correct as it was not applicable to matters which were already pending before this Court in view of the
JUDGMENT
ofthe Division Bench ofthis Court in Daya Kishan Gael
FAO(OS)Nos.l76/2013 & 178/2013.
'I
,I I I
Vs. Ramesh Chander Gael & Ors. RFA (OS) 108/2012 decided on
16.1 1.2012. No doubt, thus, at least to the extent that if additional court fee has been paid it would be liable to be refunded on the appellant taking necessary steps.
The aforesaid averments show that it is a normal Government department lethargy on which a claim is sought to be placed for delay in filing. Such a plea is no more available to the appellant as per the pronouncement of the Supreme Court in Post Master General & Ors. Vs.
Living Media India Ltd & Anr. 2012 (3) SCC 563 wherein it has been held that there no is separate law of limitation for public sector enterprises
(Union of India) and public interest is also in preventing and pursing stale claims. The appellant is an entity which has a large legal department. In the absence of a plausible and acceptable explanation, it has been observed that condonation of delay mechanically merely because the Government or a wing of the Government is a party is not permissible. Thus, it has been observed that claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modem technologies being used and available as the law of limitation undoubtedly binds all including the Government. In fact, the
Supreme Court has put everyone to notice by stating that it is the right time to inform all Government bodies, their agencies and instrumentalities that unless they have a reasonable and acceptable explanation for the delay and there is bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable
FAO(OS) Nos.l76/2013 & 178/2013 degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit by the government departments.
The law shelters everyone under the same light and should not be swirled for the benefit of a few.
There is also another aspect to the matter arising from the fact that the present proceedings are appeal proceedings arising from the objections to an
• Award. We have the benefit of the view expressed by the Division Bench
V. of this Court in The Executive Engineer flrrisation and Flood Control)
Vs.Shree Ram Construction Co. 2010 (120) DRJ 615 which had dealt with the issue of delay even in re-filing which was not liable to be condoned routinely vis-a-vis objections to an Award. This view taken by the Division
Bench of this Court in this judgment was affirmed by the Supreme Court and Special Leave Petition filed against the said judgment being SLP No.
34349/2010 titled Power Grid Cory. Of India Vs. BWL Limited ,was dismissed vide order dated 14.01.2011. The Review Petition (C) No.1165-
^ 1166 of 2011 filed thereafter was also dismissed by the Supreme Court vide order dated 28.4.2011 after having found no merit therein.
The Division Bench, in fact, took into account the pronouncement in
Union ofIndia Vs. Popular Construction Company (2001) 8 SCC 470 to observe that in matters of condonation of delay in re-filling a petition, a stricter scrutiny is required while considering an application for condonation of delay under Section 5 ofLimitation Act, 1963, keeping in mind that the
FAO(OS) Nos. 176/2013 & 178/2013 ____j _ _l total permissible period within which the application is permitted to be filed under Section 34 of the Said Act is three months plus an additional 30 days under Section 34(3) of the said Act. Thus, if the delay in refilling exceeds
~ this period, then the scrutiny becomes more rigorous and there has to be a satisfactory and credible explanation for the delay otherwise, the legislative object of not permitting delayed objections from being filed gets defeated.
We are conscious of the fact that in the present case we are dealing with the appeal as per provisions of Section 43 of the Arbitration and
Conciliation Act, 1996 and the provisions of Section 5 of Limitation Act, 1963 would apply. However this does not mean that what is not permissible at the first stage and seeks to bring an earlier conclusion of the dispute would imply that a liberal approach can be adopted at the second stage while considering an application for condonation of delay. In view of aforesaid, we find there is no sufficient cause to condone the delay either in filing or re-filing.
Dismissed.
FAO(OS)Nos.l76/2013 & 178/2013.
'I
,I I I
Vs. Ramesh Chander Gael & Ors. RFA (OS) 108/2012 decided on
16.1 1.2012. No doubt, thus, at least to the extent that if additional court fee has been paid it would be liable to be refunded on the appellant taking necessary steps.
The aforesaid averments show that it is a normal Government department lethargy on which a claim is sought to be placed for delay in filing. Such a plea is no more available to the appellant as per the pronouncement of the Supreme Court in Post Master General & Ors. Vs.
Living Media India Ltd & Anr. 2012 (3) SCC 563 wherein it has been held that there no is separate law of limitation for public sector enterprises
(Union of India) and public interest is also in preventing and pursing stale claims. The appellant is an entity which has a large legal department. In the absence of a plausible and acceptable explanation, it has been observed that condonation of delay mechanically merely because the Government or a wing of the Government is a party is not permissible. Thus, it has been observed that claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modem technologies being used and available as the law of limitation undoubtedly binds all including the Government. In fact, the
Supreme Court has put everyone to notice by stating that it is the right time to inform all Government bodies, their agencies and instrumentalities that unless they have a reasonable and acceptable explanation for the delay and there is bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable
FAO(OS) Nos.l76/2013 & 178/2013 degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit by the government departments.
The law shelters everyone under the same light and should not be swirled for the benefit of a few.
There is also another aspect to the matter arising from the fact that the present proceedings are appeal proceedings arising from the objections to an
• Award. We have the benefit of the view expressed by the Division Bench
V. of this Court in The Executive Engineer flrrisation and Flood Control)
Vs.Shree Ram Construction Co. 2010 (120) DRJ 615 which had dealt with the issue of delay even in re-filing which was not liable to be condoned routinely vis-a-vis objections to an Award. This view taken by the Division
Bench of this Court in this judgment was affirmed by the Supreme Court and Special Leave Petition filed against the said judgment being SLP No.
34349/2010 titled Power Grid Cory. Of India Vs. BWL Limited ,was dismissed vide order dated 14.01.2011. The Review Petition (C) No.1165-
^ 1166 of 2011 filed thereafter was also dismissed by the Supreme Court vide order dated 28.4.2011 after having found no merit therein.
The Division Bench, in fact, took into account the pronouncement in
Union ofIndia Vs. Popular Construction Company (2001) 8 SCC 470 to observe that in matters of condonation of delay in re-filling a petition, a stricter scrutiny is required while considering an application for condonation of delay under Section 5 ofLimitation Act, 1963, keeping in mind that the
FAO(OS) Nos. 176/2013 & 178/2013 ____j _ _l total permissible period within which the application is permitted to be filed under Section 34 of the Said Act is three months plus an additional 30 days under Section 34(3) of the said Act. Thus, if the delay in refilling exceeds
~ this period, then the scrutiny becomes more rigorous and there has to be a satisfactory and credible explanation for the delay otherwise, the legislative object of not permitting delayed objections from being filed gets defeated.
We are conscious of the fact that in the present case we are dealing with the appeal as per provisions of Section 43 of the Arbitration and
Conciliation Act, 1996 and the provisions of Section 5 of Limitation Act, 1963 would apply. However this does not mean that what is not permissible at the first stage and seeks to bring an earlier conclusion of the dispute would imply that a liberal approach can be adopted at the second stage while considering an application for condonation of delay. In view of aforesaid, we find there is no sufficient cause to condone the delay either in filing or re-filing.
Dismissed.
FAO(OS) 176/2013 & FAO(OS) 178/2013
In view ofthe appeal being barred by time, the same is dismissed.
APRIL 10, 2013 nandan FAO(OS) Nos.176/2013 & 178/2013
~ SANJAY KrHAN KAUL, J INDERMEET KAUR, J
In view ofthe appeal being barred by time, the same is dismissed.
APRIL 10, 2013 nandan FAO(OS) Nos.176/2013 & 178/2013
~ SANJAY KrHAN KAUL, J INDERMEET KAUR, J