Dismissed

M/S National Highways Authority of India v. Hindustan Construction Co. Ltd.

Delhi HC14 May 2015O.M.P./152/2014

Case brief

AI extract

What is this about?

The Court considered an application for condonation of delay in re-filing a petition under Section 34 of the Arbitration and Conciliation Act. After finding the Registry's report inaccurate and the petitioner's explanation untrue, the Court dismissed the application for condonation and subsequently dismissed the petition.

What the court decided

AI extract

M/S National Highways Authority of India Vs Hindustan Construction… — Arbitration | Delhi HC (2015)

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$~16 * IN THE HIGH COURT OF DELHI AT NEW DELHI

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O.M.P. 152/2014

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M/S NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner Through: Mr. Rajiv Kapur with Mr. Anil Kumar and Mr. Rahul Ranjan, Advocates.

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versus

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HINDUSTAN CONSTRUCTION CO LTD .... Respondent

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Through: Mr. Dayan Krishnan, Senior
Advocate with Ms. Malaika Lal, Advocate.
CORAM: JUSTICE S. MURALIDHAR
O R D E R
% 14.05.2015
IA No. 2283/2014

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This is an application seeking condonation of 37 days‟ delay in re-

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filing the petition.

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The petition under Section 34 of the Arbitration and Conciliation

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Act 1996 („Act‟), challenging the Award dated 12^th August, 2013, was first filed by the petitioner on 11^th November, 2013. After defects were

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pointed out on 12^th November 2013 by the Registry, the petition was

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OMP 152/2014 Page 1 of 7

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re-filed on 22^nd November 2013. Thereafter the Registry had again pointed out that some of the defects were yet to be cured. The petition was re-filed for the third time on 17^th December, 2013 but all the

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defects were not yet cured. One of the defects pointed out by the Registry on 18^th December 2013 was that no application seeking condonation of delay in re-filing had been filed. Admittedly, the

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petition was thereafter re-filed for the fourth time only on 18^th January, 2014.

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Paras 2 and 3 of the application which purport t offer an application

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for the delay read as under:

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“2. That the said petition was refilled on 17-122013, which was again put under objection on 1812-2013. However, when the counsel went to collect the file under objection, it was found to be misplaced in the registrar somewhere.

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That after though such by the staff therein, the said file was traced out by them and was returned to the counsel on 18-1-2014 and is being refilled within time now.”

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OMP 152/2014

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Page 2 of 7

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In the reply filed to the application, it is pointed out by the Respondent that although the petitioner claims to have re-filed the petition on 25^th January 2014, it was re-filed last only on 30^th January, 2014, i.e. after delay of 50 days from 11^th December 2013 when it was first returned with defects with the stipulation that it should be re-filed within 30 days. Reference is also made to Rule 5 of Chapter-1A (a) of Volume 5 of the Delhi High Court Rules, in terms of which the refiling was to take place within 30 days. It is submitted that if a petition is filed beyond the prescribed period of 30 days, it should be considered as a fresh filing for the purposes of Section 34 (3) of the Act.

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In view of the averments in the application, the Court on 16^th May

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2014 passed the following order:

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“I.A. No. 2283/2014

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The Registry is directed to send a report with regard to the filing and re-filing of the objection petition. It shall also indicate the specific objections raised on each of the occasion, and how they were dealt with by the petitioner.

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OMP 152/2014

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Page 3 of 7

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The case of the petitioner is also that the petition was misplaced for about a month in the Registry and it was thereafter traced. The Registry shall send a specific report in this regard as well.

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Adjourned to 13.08.2014.”

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The Registry first submitted a tabulated chart setting out the dates of filing, return with defects, re-filing etc. The report dealt with the delays in re-filing, but was silent on the issue of the file being misplaced by the Registry between 18^th December 2013 and 18^th January 2014 as alleged by the Petitioner. Accordingly, by an order dated 6^th February 2015, the Registrar (Original) was directed to submit a report on the above aspect within six weeks.

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Pursuant to the above order, the Registrar (O) submitted a report,

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the relevant portion 3 of which reads as under:

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“It has been informed that this petition was once again refilled on 17^th December 2013 and on 18th December 2013 on checking certain objections were again raised and the same was sent to Return Counter on 19th December 2013. It remained at the

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OMP 152/2014

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4 of 7

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Return counter till 9th January 2014 on which date it was collected for removing objections and remained with the petitioner till 25th January 2014, when it was refilled. The relevant pages of the Register maintained at the Return counter evidencing pendency of the petition with objections from 19^th December 2013 to 9^th January 2014 and proof of it being returned to the Petitioner are annexed herewith as Annexure 'A' and respectively. The report submitted by the AOJ (Filing) in this respect is placed at Annexure 'C. The proof of refiling of the petition on 25th January 2014 is placed at Annexure 'D'.”

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Photocopies of the relevant pages of the register have been enclosed with the report. In view of the above report of the Registrar (O), it appears that the file was sent to the Return Counter on 19^th December 2013 itself and remained there till 9^th January 2014, on which date it was collected for removal of objections. The report is categorical that the file remained with the counsel for the Petitioner till 25^th January 2014, when it was re-filed.

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OMP 152/2014

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Page 5 of 7

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Mr. Rajeev Kapur, learned counsel for the Petitioner, contests the above report and states that the Petitioner stands by its version that the file remained misplaced at the filing counter by the Registry and that it could be collected by the Petitioner only on 18^th January 2014. Alternatively, he submits that the delay is not substantial and is liable to be condoned. Reliance is placed on the judgment in Delhi Development Authority v. Durga Construction Co. 2013 (139) DRJ 133 (DB) . Mr. Kapur urges that the delay in re-filing should be condoned and the petition should be considered on merits.

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The Court finds that the only explanation given in the application for condonation of delay is that the Registry misplaced the file between 18^th December 2013 and 18^th January, 2014. Since the entire blame for the delay was being laid on the Registry, the Court had required the Registrar (O) to submit a report. The report of the Registrar (O), supported by copies of the relevant pages of the concerned register, makes it clear that the file remained at the Return Counter between 19^th December 2013 and 9^th January 2014. It was collected on 9^th January 2014 itself and remained with the counsel for

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OMP 152/2014

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Page 6 of 7

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the Petitioner till 25^th January, 2014. This falsifies the explanation offered by the Petitioner for the delay in re-filing the petition.

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This Court is not persuaded to doubt the correctness of the report submitted by the Registrar (O) of this Court. It is supported by documents which form part of the record of the Registry. Since the

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explanation offered by the Petitioner for the delay is untrue, the
question of the Court exercising discretion to condone the delay
cannot arise.
12. The application is dismissed.
O.M.P. No. 152 of 2014

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Consequently, the petition under Section 34 of the Act is dismissed.

S.MURALIDHAR, J

MAY 14, 2015/n

OMP 152/2014

Page 7 of 7

M/S National Highways Authority of India v. Hindustan Construction Co. Ltd.

Case brief

What is this about?

What the court decided

M/S National Highways Authority of India v. Hindustan Construction Co. Ltd.

Case brief

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