Allowed

Gopalbhai T.Rathod v. Mahindra and Mahindra Financial Services Ltd.and 3 Ors.

Bombay HC24 Sept 2012APP/525/2012

Case brief

AI extract

What is this about?

Appeals against orders dismissing notices of motion for condonation of delay in filing arbitration petitions under Section 34 of the Arbitration and Conciliation Act were allowed, setting aside the impugned orders and condoning the delay. The court held that since dismissing the application effectively dismissed the petition, the order falls under Section 34, making the appeal maintainable and mer

What did the court decide?

The impugned order dated 4 July 2012 is set aside; delay of 197 days is condoned; Arbitration Petition Nos. 209 and 212 of 2012 placed for admission hearing.

Gopalbhai T.Rathod Vs Mahindra and Mahindra Financial Services… — Arbitration | Bombay HC (2012)

APP525-12

Mlns

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 525 OF 2012 IN

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NOTICE OF MOTION NO. 923 OF 2012 IN

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ARBITRATION PETITION NO.212 OF 2012

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Goplabhai Tinabhai Rathod. … Appellant Vs. Mahindra and Mahindra Financial Services Ltd. … Respondent

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Dr.Kishan K.Khanna, for appellant. Mr.Avinash Ahvad i/b Mrs.Priya Crasto, for respondent No.1.

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AND APPEAL NO. 526 OF 2012 IN

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NOTICE OF MOTION NO. 925 OF 2012 IN

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ARBITRATION PETITION NO.209 OF 2012

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Maheshbhai Tinabhai Rathod & ors. … Appellants Vs.

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Mahindra and Mahindra Financial Services Ltd. … Respondent

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CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR J. Monday, September 24, 2012.

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P.C.:

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This appeal is directed against the order dated 4 July 2012 of a learned Single Judge of this Court dismissing Notices of Motion for condonation of delay of 197 days in filing Arbitration Petitions of the appellants under section 34 of the Arbitration and Conciliation Act 1996 ( the 'Act' for the sake of brevity).

APP525-12

Mlns

Learned counsel for the respondent-Mahindra & Mahindra Financial Services Ltd. raised a preliminary objection that the appeal is not maintainable as the impugned order cannot be said to have been passed under section 34 of the Act.

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We are of the view that since dismissal of the application for condoning delay has the effect of dismissal of the arbitral petition under section 34 of the Act, the judgment refusing to condone delay has to be treated as an order under section 34 of the Act. The appeal is, therefore, maintainable.

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As regards merits of the order rejecting the application for condoning delay, we are of the view that in the facts and circumstances of the case, the delay was required to be condoned.

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It is the case of the appellant who are farmers, that they had taken loan from the respondent finance company for purchasing of the three tractors for the appellant who are family members. It subsequently transpired that the respondent had obtained signatures on ten agreements. Since the appellants had paid all the loan amounts under the three agreements and no amount was due and payable by appellant to the respondent, they had refused to accept the envelopes from the respondent. The learned Single Judge has however declined to take the said case into consideration on the ground that the allegation of the appellant pertains to merits of the case which is not to be gone into while deciding the application for condonation of delay.

APP525-12

Mlns

It is true that ordinarily while considering an application for condonation of delay, merits of the case are not required to be adjudicated upon, but at the same time, the Apex Court has held as in the case of Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others reported in AIR 1987 Supreme Court 1353, that the Courts should take a liberal approach in condoning delay. It is also held by the Supreme Court that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

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Without expressing any opinion on the merits of the grounds of challenge raised by the appellant in their arbitration petition under section 34 of the Act, we set aside the impugned order dated 4 July 2012, and condone the delay of 197 days in filing the arbitration petition. The registry shall place Arbitration Petition No.209 of 2012 for admission hearing before the learned Single Judge taking up such matters as per the roster.

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Both the appeals are accordingly allowed and the Arbitration Petition Nos.209 of 2012 and 212 of 2012 shall be placed for admission hearing before the learned Single Judge.

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Since the appeals are disposed of, the Notice of Motions also stand disposed of.

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CHIEF JUSTICE

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N.M.JAMDAR, J.

Gopalbhai T.Rathod v. Mahindra and Mahindra Financial Services Ltd.and 3 Ors.

Case brief

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Gopalbhai T.Rathod v. Mahindra and Mahindra Financial Services Ltd.and 3 Ors.

Case brief

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