Dismissed

Haryana Tourism Corporation Limited v. M/S Shivalaya Construction Company

Punjab & Haryana HC14 May 2012CR/2268/2012

Case brief

AI extract

What is this about?

Haryana Tourism Corporation Limited filed a civil revision petition after a delay of over eight years. The Court dismissed it as barred by delay and laches, citing legal principles applicable to State instrumentalities and noting the petitioner's failure to provide a satisfactory explanation.

What did the court decide?

Petition dismissed on grounds of delay and laches; petitioner ordered to deposit costs of 50,000.

Haryana Tourism Corporation Limited… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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Civil Revision No. 2268 of 2012 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 2268 of 2012 (O&M) Date of decision: 14.5.2012

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Haryana Tourism Corporation Limited

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.. Petitioner

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M/s Shivalaya Construction Company and another

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.. Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. Chetan Mittal, Senior Advocate with Mr. Vishal Garg, Advocate for the petitioner.

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Rajesh Bindal J.

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The present petition has been filed in this court by Haryana Tourism Corporation Limited (for short, `the Corporation') impugning the order dated 6.1.2004 passed by learned District Judge, Gurgaon, whereby the petitioner was directed by the court below to file a petition in this court in accordance with High Court Rules and Orders and as per notification dated 17.9.2003. The petition has been filed in this court more than eight years after the passing of the impugned order.

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Briefly, the facts are that on account of a dispute arising out of execution of work, Civil Judge (Senior Division), Gurgaon appointed the Arbitrator on 9.2.2001 and directed him to decide the matter within a period of four months. The award was passed by the Arbitrator on 30.6.2001, against which the petitioner filed objections before the court of Civil Judge (Senior Division), Gurgaon on 19.11.2003. He referred the matter to learned District Judge, Gurgaon in terms of a notification issued by this court on 17.9.2003 and directed the parties to appear before the District Judge on 27.11.2003. The learned court below, vide order dated 6.1.2004, directed the petitioner to file the matter before this court in accordance with High Court Rules and Orders and notification dated 17.9.2003. The aforesaid

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Civil Revision No. 2268 of 2012 [2]

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order has been impugned before this court.

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Considering the fact that the petition has been filed more than eight years after the passing of the impugned order, learned counsel for the petitioner was asked to assist on this aspect before he proceeds on merits of the controversy. His only submission was that on account of wrong advice, the petitioner was not able to avail of its remedy at appropriate time. After the impugned order was passed by the learned District Judge, the matter was entrusted to a counsel in the High Court, however, thereafter it could not be pursued. The matter came to light only when notice in execution filed by respondent No. 1 was received. The petitioner being a State owned Corporation should not be condemned unheard as public money is involved. The award passed by the Arbitrator is totally arbitrary as no reasons have been assigned for awarding amount to respondent No. 1 on certain counts.

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After hearing learned counsel for the petitioner, this court is not convinced that latitude, as is sought to be claimed in the case in hand, deserves to be granted even to a State owned Corporation which is controlled by senior civil servants and manned by highly paid officers/officials at different levels and also advised by its Legal Department, Law Officers and Legal Advisors, who are paid handsomely regularly. As has been noticed above, on account of a dispute arising out of execution of work, Civil Judge (Senior Division), Gurgaon appointed the Arbitrator on 9.2.2001 and directed him to decide the matter within a period of four months. The award was passed by the Arbitrator on 30.6.2001, against which the petitioner filed objections before the court of Civil Judge (Senior Division), Gurgaon on 19.11.2003. He referred the matter to learned District Judge, Gurgaon referring to notification issued by this court on 17.9.2003. The learned court below, vide order dated 6.1.2004, directed the petitioner to file the matter before this court in accordance with High Court Rules and Orders and notification dated 17.9.2003.

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As is evident from the paper book, an order passed by the District Judge subsequent to the passing of the impugned order has also been annexed as Annexure-P5. The same was passed on 22.1.2004. Though it is not evident from the order as to what was the subject-matter of dispute,

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Civil Revision No. 2268 of 2012 [3]

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however, the facts noticed in the order suggest that it was a review but against which order it is not very clear. The same was disposed of noticing that when in the main matter the party has been directed to approach this court, the application in question will also be considered along with the main case.

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Subsequent to the passing of the impugned order on 6.1.2004, a communication from the office of Advocate General, Haryana dated 13.10.2004 (Annexure-P6) has been placed on record whereby Additional Advocate General was assigned the case to be filed in this court on behalf of the Corporation. The counsel addressed a letter to the Registrar Judicial of this court on 6.12.2004 (Annexure-P7) with a request to place on record certain documents. A copy of the objections dated 22.11.2004 filed before this court against the award dated 30.6.2001 has also been placed on record as Annexure-P-8. Vide communication dated 26.10.2005/8.11.2005 (Annexure-P9), this court intimated the counsel for the petitioner before this court that Case No. 15 of 12.2.1999 has not been received in this court, however, Case No. 33 of 2003 between the parties, i.e., “M/s Shivalaya Construction v. Haryana Tourism Corporation” was returned to District Judge, Gurgaon vide letter dated 20.12.2003. As to why there was silence on the part of the petitioner for a period of more than one year is not evident from the record. Memo dated 26.10.2005/8.11.2005 of this court was communicated by the counsel for the petitioner in this court to the Corporation by writing the following letter:

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“On the above noted subject it is stated that the office of undersigned had taken the required steps of filing requisite application/objection as required under the laws.

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Thereafter, the matter was also taken up with the High Court registry to find out the status of the case and vide letter No. 1943 dated 26.10.2005/8.11.2005 (copy enclosed). It has been informed to us the above mentioned case i.e. Arb. Case No. 15 of 12.2.99 title as M/s Shivalya Construction v. Haryana Tourism

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Civil Revision No. 2268 of 2012 [4]

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Corporation, Faridabad was returned by the Hon'ble High Court to Ld. District and Sessions Judge, Gurgaon vide this Court's letter No. 3143 dated 20.12.2003. As of now, the issue stands disposed of at High Court level.

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Now you are requested to pursue the matter and take the necessary steps as required under the law at Gurgaon Court.”

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The only explanation given by the petitioner is that it remained under the impression that the matter is pending before this court and slept over the matter for a period of more than 5-1/2 years. The plea of being under a wrong impression is totally misconceived as a perusal of letter written by the counsel engaged by the petitioner before this court clearly mentioned that the issue stands disposed of at the High Court level.

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Hon'ble the Supreme Court in Office of the Chief Post Master General and others v. Living Media India Ltd. and another, 2012(2) S.C.T. 269, considered the issue as to whether delay in availing of the remedy by the instrumentalities of the State should be condoned liberally and opined as under:

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In our view, 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 under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably

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Civil Revision No. 2268 of 2012 [5]

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failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.”

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Considering the aforesaid factual background, where there is no justification for the petitioner for not availing of appropriate remedy at the right time and also for sleeping over the matter for a period of more than 5-1/2 years even after the communication was sent by the counsel engaged in this court clearly mentioning that there was nothing pending in this court, in my opinion, the present petition deserves to be dismissed on account of delay and laches. Ordered accordingly.

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Considering the conduct of the petitioner in wasting court's time, it is burdened with cost of ` 50,000/- which shall be deposited with High Court Legal Services Committee within a period of three months. In case of non-compliance, the matter be placed before the Court. For the amount of loss suffered, if any, by the Corporation on account of action/inaction on the part of any officer/official, the responsibility be fixed after holding enquiry and the amount of loss suffered be recovered from guilty officers/officials.

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(Rajesh Bindal) Judge

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14.5.2012 mk

Haryana Tourism Corporation Limited v. M/S Shivalaya Construction Company

Case brief

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Haryana Tourism Corporation Limited v. M/S Shivalaya Construction Company

Case brief

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