Dismissed

Krishan Dutt Sharma S/O Rameshwar Prasad v. L and T Finance Ltd. and Anr.

Bombay HC12 Dec 2011NMS/3493/2011

Case brief

AI extract

What is this about?

This order dismisses the petitioner's Notice of Motion seeking condonation of delay in impugning an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996.

What did the court decide?

Notice of Motion seeking condonation of delay is dismissed.

What the court decided

Krishan Dutt Sharma S/O Rameshwar Prasad Vs L and T Finance Ltd… — Arbitration | Bombay HC (2011)

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I N THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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jmi

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NOTICE OF MOTION NO. 3493 OF 2011 IN ARBITRATION PETITION NO. 532 OF 2011.

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Krishan Dutt Sharma, s/o. Rameshwar Prasad.

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..Petitioner.

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vs.

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L & T Finance Limited & Anr. ..Respondents.

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Mr. Chotani, i/b. Ms. P.M. Bhansali, for Petitioner. Ms. S.I. Joshi, for Respondents.

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CORAM : S.J. KATHAWALLA, J. DATE : 12TH DECEMBER 2011.

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P.C. :

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L & T Finance Limited i.e. Respondent No.1 herein had initiated Arbitration proceedings inter alia against the Petitioner for the recovery of a sum of Rs. 59,116/- as on 14^th June 2010 and for further interest from 15^th June 2010 till payment and/or realization. According to L & T Finance Limited, they had advanced amounts to the principal borrower under a loan-cum-hypothecation Agreement to which the Petitioner was a guarantor.

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An Award dated 26^th October 2010 was passed by the Sole Arbitrator directing the Respondents to jointly and severally pay to the Respondent No.1 a sum of Rs. 59,116/- with interest thereon as more particularly set out in the Award.

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The Petitioner filed Arbitration Petition under section 34 of the Arbitration and Conciliation Act, 1996 (the said Act), challenging the said Award. In paragraph 20 of the Petition, the Petitioner has stated that he was served with a copy of the Award on 2^nd November 2010 and that the present Petition is filed within the period of limitation. Section 34 of the Arbitration and Conciliation Act, 1996 requires a party to impugn the Arbitration Award within a period of three months from the date of service of the Award. Further grace period of 30 days is given to a party to impugn the award provided the party shows sufficient cause to the Court for not filing the Petition within the three months period.

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In the present case the Petitioner was required to file the Petition under section 34 of the said Act on or before 1^st February 2011. However, the present Petition is filed on 21^st February 2011. The statement made in the Petition that the Petition is filed within limitation is incorrect and there is a delay of 20 days in filing the Petition. However, this delay can be condoned if sufficient cause is shown by the Petitioner for not filing the above Arbitration Petition within the period of three months from the date of service of the Award.

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This Court by its order dated 29^th April 2011 granted time to the Petitioner to take out Notice of Motion seeking condonation of delay in filing the above Arbitration Petition. The Petitioner has now taken out the above Notice of Motion seeking condonation of delay of 20 days in filing the Arbitration Petition. The issue required to be considered is whether the Petitioner has made out sufficient cause for condoning the delay of 20 days in filing the present Arbitration Petition and whether the delay needs to be condoned.

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In paragraph 2 of the Affidavit in support of the Notice of Motion, the Petitioner has contended that since he is residing out of Mumbai, in view of his ill-health he could not contact the earlier Advocate and has been only communicating with e-mails and therefore the opinion that the impugned Award would be required to be challenged within three months of the receipt of the same, could not be sought on time. The reason given by the Petitioner is incorrect to his own knowledge. Not only he has not produced any medical certificate pertaining to his ill-health or any communication through e-mails, but admittedly, the Petitioner atleast since 2^nd December 2011 through his very same Advocate Ms. Bhansali was defending another Arbitration Petition filed by M/s. L & T Finance Limited at Mumbai before the very same Arbitrator, the Roznama of which is produced before this Court. The Roznama shows that on 6^th December 2010, Advocate Ms. Bhansali had appeared before the very same Arbitrator and taken time on behalf of the Petitioner to file his written statement in the said matter and has in fact filed the written statement on behalf of the Petitioner on 14^th December 2010. Ms. Bhansali has even thereafter appeared from time to time before the said Arbitrator on behalf of the Petitioner.

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In fact in paragraph 3 of the Affidavit in support of the Notice of Motion, the Petitioner has alleged that during the course of defending the second Arbitration proceedings commenced by L & T Finance Limited viz.-a-viz. Default by Respondent No.2 for another vehicle in the similar circumstances and upon consultation with the present Advocate he was informed and advised that though the amount was small in the present Arbitration proceedings it was necessary for him to challenge the Award, otherwise, the same would

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come in his way of defending other proceedings. As stated earlier, the present Advocate of the Petitioner is appearing for him in the second Arbitration proceedings since 6^th December 2010 and also filed the written statement of the Petitioner before the Learned Arbitrator on 14^th December 2010. The 30 days period for filing the Arbitration Petition expired only on 2^nd February 2011. The Petitioner is completely silent in his Affidavit as to when he consulted the present Advocate and as to when he was advised to impugn the said Award.

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I am therefore of the view that the Petitioner has not shown any cause much less sufficient cause for condonation of delay of 20 days in filing the above Arbitration Petition. In fact, I am convinced that the Petitioner has made submissions in his Affidavit in support of the Notice of Motion which are incorrect to his knowledge. The Notice of Motion is therefore dismissed.

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[ S.J. KATHAWALLA, J. ]

Krishan Dutt Sharma S/O Rameshwar Prasad v. L and T Finance Ltd. and Anr.

Case brief

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Krishan Dutt Sharma S/O Rameshwar Prasad v. L and T Finance Ltd. and Anr.

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