delhihighcourt

M/S JAY FE CYLINDERS LTD. vs MANISH JAIN

$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 149/2023, I.A. 7531/2023 & I.A. 7533/2023
M/S JAY FE CYLINDERS LTD. …..Petitioner
Through: Mr. Vinay Garg, Sr. Advocate with Mr. Kaushal Gautam, Mr. Snehpreet Kaur and Mr. K.S. Rekhi, Advocates.

versus

MANISH JAIN …..Respondent
Through: Mr. Sanjeev Mahajan, Mr. Rishabh Varshney and Mr. Pranjal Tandon, Advocates.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 04.09.2024
I.A. 7533/2023

1. This is an application for condonation of delay of 28 days in filing the present petition.

2. Mr. Sanjeev Mahajan, learned counsel for the respondent has essentially advanced two contentions to contest this application.

3. The first contention is that the Statement of Truth which is mandatorily required to accompany the petition was filed only on 17 April 2023, which was beyond the extendable period of 120 days as envisaged in Section 34(3) of the Arbitration and Conciliation Act 19961. He relies, for this purpose, on the fact that the affidavit, a copy of which was supplied to him bears the date of 17 April 2023.

4. Mr. Vinay Garg, learned Senior Counsel for the petitioner has explained this discrepancy. He has pointed out, from the log of filing of this petition as provided by the Registry, and the notice received from the Registry of this Court when the petition was initially filed, that the petition was in fact filed on 13 April 2023 and defects were marked by the Registry on 15 April 2023. It is seen that the absence of a Statement of Truth is not one of the defects which has been marked by the Registry. As such, prima facie, the petition as filed on 13 April 2023 was accompanied by the necessary Statement of Truth.

5. Mr. Garg submits that the petition was refiled on 17 April 2023 after removing the defects pointed out by the Registry and that, at that time, a fresh Statement of Truth was filed by the petitioner, as there were changes which had to be made in the petition itself.

6. He further points out that the list of objections raised by the Registry on 15 April 2023 itself notes that 526 pages were filed by the petitioner. As such, he submits that it is not as though the petitioner merely resorted to a shadow filing on 13 April 2023 and substantially filed the petition only on 17 April 2023.

7. That, indeed, is not even the objection of Mr. Mahajan. Mr. Mahajan’s essential objection is that the Statement of Truth bears the date of 17 April 2023. As is already noted above, the petition was originally filed on 13 April 2023 and defects were marked on 15 April 2023. The absence of a Statement of Truth is not one of the defects marked by the Registry.

8. Apparently, therefore, the petition, as originally filed, was accompanied by a Statement of Truth.

9. In that view of the matter, the mere fact that the second Statement of Truth had to be filed with the modified petition after curing the defects pointed out by the Registry on 17 April 2023 cannot render the petition time-barred.

10. The submission of Mr. Mahajan that the initial filing of this petition was beyond 120 days from the date of receipt of the arbitral award is, therefore, rejected.

11. Mr. Mahajan next contends that no sufficient cause of action has been shown by the petitioner to condone the delay beyond the period of 90 days from the date of receipt of the arbitral award.

12. Mr. Garg submits, and quite rightly, that this Court is generally liberal in condoning the delay in filing the Section 34 petition if it is within a period of 120 days from the date of receipt of the arbitral award.

13. That apart, the petitioner had initially filed the Section 34 petition before the learned District Judge (Commercial Court)2 at Patiala House on 28 March 2023. The petition, as so filed, was returned by the learned Commercial Court on 13 April 2023 and was refiled before this Court on the very same date.

14. In the application for condonation of delay, it has been pointed thus:
“2. That the accompanying petition was prepared and was ready to be filed on 14.03.2023 only however the counsel for the Petitioner unfortunately fell severely ill on that very day. The counsel for the Petitioner deeming his illness to be a viral fever waited a couple of days to recover however his condition worsened even further and he started facing difficulty in breathing. That is when the counsel was treated at Moti Bagh on 17.03.2023 and was put on heavy medication to counter his illness. He was also advised complete bed rest.”

15. The medical records supporting the afore extracted para 2 of the application for condonation of delay, are also on record.

16. In that view of the matter, this Court is not inclined to dismiss this petition on the ground of delay. The delay in filing the petition is accordingly condoned.

17. I.A.7533/2023 stands accordingly allowed.

O.M.P. (COMM) 149/2023 & I.A. 7531/2023

18. Issue notice. Notice is accepted on behalf of the respondent by Mr. Sanjeev Mahajan. Reply be filed within four weeks from today with advance copy to learned counsel for the petitioner who may file rejoinder thereto if any, within four weeks thereof.

19. Registry is directed to requisition the arbitral record and provide electronic copy thereof to learned counsel for both sides.

20. List on 28 November 2024.

C.HARI SHANKAR, J
SEPTEMBER 4, 2024/mk
Click here to check corrigendum, if any
1 “the 1996 Act” hereinafter
2 “the learned Commercial Court”, hereinafter
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O.M.P. (COMM) 149/2023 Page 2 of 2