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HIGH COURT OF DELHI
FAO(OS) 123/2013 and FAO(OS) 125/2013
HINDUSTAN PREFA3 LTD Appellant
Through: Mr.P.K.Mendiratta, Advocate.
HIGH COURT OF DELHI
FAO(OS) 123/2013 and FAO(OS) 125/2013
HINDUSTAN PREFA3 LTD Appellant
Through: Mr.P.K.Mendiratta, Advocate.
VERSUS
MITTAL ESTATE PVT LTD Respondent Thrpugh: Mr.Aviral Tiwari, Advocate.
CORAM: I
HON'BLE MR. JUSpCE SANJAY KISHAN KAUL
HON'BLE MS. JUS ICE INDERMEET KAUR
13.03.2013 C.M. No.3490/2013 (for condonation of delay of 130 days in filing the appeal) in FAO (OS) No. 123/2013
CM Nos. 3554/2013 (for condonation of delay of 130 days in filing the appeal ) in FAO (OS) No. l'25/2013
I
The appellant awarded the contract to the respondent of construction of the office building and staff quarters for Employees Provident Fund
Organization, Nasik under an agreement dated 12.01.1994 which gave rise to inter se disputes. In view of the arbitration clause, the disputes were referred to the sole arbitration of Mr.V.D.Tiwari, who is a technical person.
The Award was made and published on 20.7.2004 awarding various claims to the respondent which gave rise to objections being filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the said Act") which was registered as OMP No.403/2004.
HON'BLE MS. JUS ICE INDERMEET KAUR
13.03.2013 C.M. No.3490/2013 (for condonation of delay of 130 days in filing the appeal) in FAO (OS) No. 123/2013
CM Nos. 3554/2013 (for condonation of delay of 130 days in filing the appeal ) in FAO (OS) No. l'25/2013
I
The appellant awarded the contract to the respondent of construction of the office building and staff quarters for Employees Provident Fund
Organization, Nasik under an agreement dated 12.01.1994 which gave rise to inter se disputes. In view of the arbitration clause, the disputes were referred to the sole arbitration of Mr.V.D.Tiwari, who is a technical person.
The Award was made and published on 20.7.2004 awarding various claims to the respondent which gave rise to objections being filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the said Act") which was registered as OMP No.403/2004.
FAO(OS) 123/2013 & 125/2013 page 1 of5
2013:DHC:7034-DB The second contract inter se the parties was qua construction of the external sewerage system at DIT, Dwarka, New Delhi vide an agreement dated 23.01.1996 which once again gave rise to disputes and the matter being referred to the sole arbitration of Mr. Gulzar Singh, sole arbitrator who made and published the award on 30.6.2004. The objections filed by the petitioner under Section 34 of the said Act were registered as OMP
No.343/3004.
The aforesaid two OMPs have been dealt with by a common order of the learned single Judge dated 06.8.2012 as there was certain common questions which arose in the objections filed by the petitioner.
In both the appeals, there is a delay of 130 days in filing the appeal and identical applications have been filed seeking condonation of delay.
The reasons given for the delay are as under: i. Most of the employees of the appellant company opted for
VRS/superannuation and thus a great deal of paper work was pending and the same could not be sent to the higher authorities. (No particulars given) ii. Arranging all the papers and taking legal advice took time, (again no dates or particulars given)
The appellant expects this court to condone the delay on the aforesaid excuses and that too of 130 days.
Learned counsel for the appellant submits that the appellant is a public sector enterprise. To our mind, it does not give a licence to file appeals beyond time as the Limitation Act 1963 does not carve out a separate category of a period of limitationeither for the Government or for
2013:DHC:7034-DB The second contract inter se the parties was qua construction of the external sewerage system at DIT, Dwarka, New Delhi vide an agreement dated 23.01.1996 which once again gave rise to disputes and the matter being referred to the sole arbitration of Mr. Gulzar Singh, sole arbitrator who made and published the award on 30.6.2004. The objections filed by the petitioner under Section 34 of the said Act were registered as OMP
No.343/3004.
The aforesaid two OMPs have been dealt with by a common order of the learned single Judge dated 06.8.2012 as there was certain common questions which arose in the objections filed by the petitioner.
In both the appeals, there is a delay of 130 days in filing the appeal and identical applications have been filed seeking condonation of delay.
The reasons given for the delay are as under: i. Most of the employees of the appellant company opted for
VRS/superannuation and thus a great deal of paper work was pending and the same could not be sent to the higher authorities. (No particulars given) ii. Arranging all the papers and taking legal advice took time, (again no dates or particulars given)
The appellant expects this court to condone the delay on the aforesaid excuses and that too of 130 days.
Learned counsel for the appellant submits that the appellant is a public sector enterprise. To our mind, it does not give a licence to file appeals beyond time as the Limitation Act 1963 does not carve out a separate category of a period of limitationeither for the Government or for
FAO(OS) 123/2013& 125/2013 page 2 of5 w u the pubHc sector enterprises qua such a matter.
In fact while examining this question of delay in re-filling qua the objections to an award, a Division Bench of this Court in Executive
Engineer (Irrigation and Flood Control) Vs. Shree Ram Construction Co.
2010 (120) DRJ 615 was of the view that even such re-filing delay is not to be condoned routinely as where the legislature has prescribed a specific period of limitation for speedy disposal, that intention cannot be defeated by keeping the matter pending by not filing the same in time. This view has been affirmed by the Supreme Court as the special leave petition filed
^ against the said
In fact while examining this question of delay in re-filling qua the objections to an award, a Division Bench of this Court in Executive
Engineer (Irrigation and Flood Control) Vs. Shree Ram Construction Co.
2010 (120) DRJ 615 was of the view that even such re-filing delay is not to be condoned routinely as where the legislature has prescribed a specific period of limitation for speedy disposal, that intention cannot be defeated by keeping the matter pending by not filing the same in time. This view has been affirmed by the Supreme Court as the special leave petition filed
^ against the said
ORDER
being SLP No. 34349/2010 titled as Power Grid
Corpn. Of India v^. BWL Limited was dismissed vide order dated
14.01.2011. The Review Petition (C) No. 1165-1166/2011 filed thereafter was also dismissed by the Supreme Court vide order dated 28.04.2011 after condoning the delay and having found no merit therein.
We are conscious of the fact that while laying down the aforesaid principle, the limitation period has to be examined keeping in mind the provisions of Section 34(3) of the said Act, while in the present case we are concerned with an appeal filed under Section 37 ofthe said Act and thus the provision of limitation is limited by the Limitation Act, 1963 in view of
^ Section 43 of the said Act. However, we referred to the aforesaid to emphasis that in matters of arbitration an expeditious decision has been deemed necessary even by the legislature and the objective cannot be that the first round of scrutiny of objections has to be done expeditiously while a considerable licence is afforded to a party at the second level.
There is also another aspect ofthe matter which arose in the present
Corpn. Of India v^. BWL Limited was dismissed vide order dated
14.01.2011. The Review Petition (C) No. 1165-1166/2011 filed thereafter was also dismissed by the Supreme Court vide order dated 28.04.2011 after condoning the delay and having found no merit therein.
We are conscious of the fact that while laying down the aforesaid principle, the limitation period has to be examined keeping in mind the provisions of Section 34(3) of the said Act, while in the present case we are concerned with an appeal filed under Section 37 ofthe said Act and thus the provision of limitation is limited by the Limitation Act, 1963 in view of
^ Section 43 of the said Act. However, we referred to the aforesaid to emphasis that in matters of arbitration an expeditious decision has been deemed necessary even by the legislature and the objective cannot be that the first round of scrutiny of objections has to be done expeditiously while a considerable licence is afforded to a party at the second level.
There is also another aspect ofthe matter which arose in the present
FAO(OS) 123/2013 & 125/2013 page 3 of5 f case by not supplying any material fact as pleaded qua the period of delay.
It is not a case where each day of delay has not been explained but there are no dates mentioned whatsoever other than the general allegations which are nothing but a plea of nomial lethargy of a government department. The
Supreme Court in Postmaster General & Ors. Vs. Living Media India Ltd., 2012 (3) see 563 has held that there is no separate law of limitation for public sector enterprises and public interest is also in preventing and pursuing stale claims. The appellant is an entity which has a large legal
^ department. In the absence of 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 modern technologies being used and available. The law of limitation undoubtedly binds everybody including the
Government. Thereafter the Supreme Court has observed that it is the right time to inform all the government bodies, their agencies and
^ instrumentalities that unless they have reasonable and acceptable
^ explanation for the delay and there was 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 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 for government departments. The law shelters everyone
It is not a case where each day of delay has not been explained but there are no dates mentioned whatsoever other than the general allegations which are nothing but a plea of nomial lethargy of a government department. The
Supreme Court in Postmaster General & Ors. Vs. Living Media India Ltd., 2012 (3) see 563 has held that there is no separate law of limitation for public sector enterprises and public interest is also in preventing and pursuing stale claims. The appellant is an entity which has a large legal
^ department. In the absence of 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 modern technologies being used and available. The law of limitation undoubtedly binds everybody including the
Government. Thereafter the Supreme Court has observed that it is the right time to inform all the government bodies, their agencies and
^ instrumentalities that unless they have reasonable and acceptable
^ explanation for the delay and there was 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 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 for government departments. The law shelters everyone
FAO(OS) 123/2013 &125/2013 page 4of5
N
L under the same Hght and should not be swirled for the benefit of a few. In view of the aforesaid judgment, such a plea is no more available to the petitioner.
We are thus of the view that there is no ground whatsoever to condone the inordinate delay of 130 days in preferring the appeals by the appellant.
Applications are dismissed.
N
L under the same Hght and should not be swirled for the benefit of a few. In view of the aforesaid judgment, such a plea is no more available to the petitioner.
We are thus of the view that there is no ground whatsoever to condone the inordinate delay of 130 days in preferring the appeals by the appellant.
Applications are dismissed.
FAO(OS) 123/2013 and CM No. 3488/2013 (stay)
FAO(OS) 125/2013 and CM No. 3552/2013 (stay)
In view of the applications for condonation of delay having been dismissed, the appeals and the stay applications are consequently dismissed as the appeals are barred by time.
MARCH 13,2013 rb
In view of the applications for condonation of delay having been dismissed, the appeals and the stay applications are consequently dismissed as the appeals are barred by time.
MARCH 13,2013 rb
FAO(OS) 123/2013 & 125/2013
SANJAY KISHAN KAUL, J INDERMEET KAUR, J page 5 of5
SANJAY KISHAN KAUL, J INDERMEET KAUR, J page 5 of5