TECHNOLOGY DEVELOPMENT BOARD vs SELCO INTERNATIONAL LTD. & ORS.
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 269/2024
TECHNOLOGY DEVELOPMENT BOARD …..Petitioner
Through: Mr. Anshuj Dhingra and Ms. Shubhangda Singh, Advs.
versus
SELCO INTERNATIONAL LTD. & ORS. …..Respondents
Through: Mr. Devashish Marwah and Mr. Aamir Siraj, Advs.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
ORDER (ORAL)
% 09.07.2024
I.A. 32634/2024 (delay of 19 days in refilling)
1. Though this Court was inclined to issue notice on this application, Mr. Devashish Marwah, learned Counsel for the respondents strenuously opposes issuance of notice and, waiving his right to respond to this application in writing, submits that this Court should decide this application on the basis of his oral arguments advanced at the bar.
2. This application is for condonation of delay of 19 days in re-filing OMP (Comm) 269/2024.
3. OMP (Comm) 269/2024 is directed against an arbitral award dated 4 January 2024. The OMP was first filed on 3 April 2024, which admittedly was within the ordinary period of 90 days for filing the petition as envisaged by Section 34(3)1 of the Arbitration and Conciliation Act, 1996 (the 1996 Act). The defects were notified by the Registry on 4 April 2024. The defects were removed and the petition was re-filed on 11 April 2024. Thereafter, the Registry subsequently pointed defect after defect, resulting in the petitioner having to refile the petition on 19 April 2024, 2 May 2024 and 6 May 2024.
4. On 8 May 2024, the Registry pointed out that, as 30 days had elapsed from 5 April 2024, the petitioner was required to file an application for condonation of delay. The petitioner, therefore, filed an application for condonation of delay in refiling on 22 May 2024. The delay in refiling was reckoned as 19 days from 3 May 2024, which date, in turn, was worked out by reckoning the period of 30 days cumulatively available for curing the defects under Rule 32 of Chapter IV of the Delhi High Court (Original Side) Rules, 20183 (the 2018 Rules) from 4 April 2024. The present application seeks condonation of delay till this date.
It appears that, thereafter, an entirely new defect was pointed by the Registry on 24 May 2024, which was that the petitioner was not accompanied by a physical copy of the court fees filed with it, but only mentioned the Court Fees number. The period of 7 days available for curing the said defect expired during court vacations. This defect was cured on 3 June 2024. Another defect was notified on 29 June 2024, which was brought to the petitioners knowledge on 6 July 2024. This defect was cured and the petition was filed on 6 July 2024.
5. Though Mr. Marwah, learned Counsel for the respondents submits that the present application seeks condonation of delay only till 22 May 2024, I see no reason to disbelieve the statement of learned Counsel for the respondents.
6. Mr. Marwah advanced, as his first contention, the plea that if defects are not rectified within 30 days of their being pointed out by the Registry, the refiling has to be treated as fresh filing. He relies, for this purpose, on Rule 3 of Chapter IV of the 2018 Rules.
7. On the Court pointing out that Rule 3 of Chapter IV of the 2018 Rules does not specifically state that if a petition is refiled beyond 30 days of the defects being pointed out, it would be treated as a fresh filing, Mr. Marwah submits that this principle has been laid down by a coordinate Bench of this Court in Chintels India Ltd v. Bhayana Builders Pvt Ltd4, a copy of which was handed over across the bar.
8. I have gone through the judgment in Chintels India exhaustively, but could not find any observation, much less a finding, in the said decision, to the effect that if the petition is refiled after curing defects beyond 30 days from the date when the defects are pointed out, it would amount to a fresh filing. On Mr. Marwah being queried in this regard, he places reliance on para 13 of the decision which reads thus:
13. Reliance is also placed on the judgment of this Court in Ahluwalia Contracts (India) Ltd. v. Housing & Urban Development Corporation5, wherein it has been held that sufficient cause must be shown in the application for condonation of delay in order to be entitled to get the benefit of extended 30 days under the Proviso to Section 34(3) of the Act and when the defects are cured after extended 30 days, it would be a case of fresh filing.
9. It is obvious that the reliance on para 13 of Chintels India is completely misconceived. Para 13 of Chintels India is merely a recording of the contention advanced by the Counsel before the Court and forms no part of the finding of the Court. There is, indeed, no finding in Chintels India to the effect that, if a petition is refiled after curing defects beyond 30 days being pointed out, it would constitute a fresh filing.
10. Mr. Marwah, thereafter, exhorted the Court to record this submission as his understanding of the law, though Chintels India does not say so.
11. The Court could have even considered that submission, but for the fact that, in another judgment of a learned Single Judge of this Court in Delhi State Industrial & Infrastructure Development Corporation Ltd v. Mapsa Tapes Pvt Ltd6, it has been noted thus:
47. In terms of Chapter IV, Rule 3 of the Delhi High Court (Original Side) Rules, 2018 any filing beyond a period of thirty days is to be considered as a fresh filing and if this principle is strictly followed, the above petition filed on 02.08.2019 would necessarily have to be considered as a fresh filing. However, this principle appears to be diluted by the decision of the Supreme Court in Northern Railway v. Pioneer Publicity Corporation7.
12. Thus, the coordinate Bench of this Court has clearly held that the principle that refiling after a period of 30 days from pointing out of defects constitutes a fresh filing, stands diluted by the decision of the Supreme Court in Pioneer Publicity Corporation.
13. This, therefore, exposes the initial submission of Mr. Marwah to the effect that, if the petition is refiled beyond 30 days of pointing out of defects, it would be treated as fresh filing, as completely unsupported by law and, in fact, contrary to the position which emerges from the decision by the Supreme Court in Northern Railway, as noticed in Mapsa Tapes.
14. Mr. Marwah thereafter places reliance on para 48 of the Mapsa Tapes, in which the coordinate Single Bench has held that there is no principle that the delay in refiling must be condoned even though there is no reasonable explanation for the delay.
15. In the very next paragraph of the said decision, however, the learned Single Judge has noted the precedent of the Division Bench in D.D.A. v. Durga Construction Co8, in which the Division Bench of this Court has clearly held that the Court has to be more liberal while dealing with applications seeking condonation of delay in refiling, as compared to applications seeking condonation of delay in filing. Of course, if condonation of delay in refiling is inordinate, the Court would put the applicant strictly to explain the said delay. Otherwise, the Court has, while dealing with an application for condonation of delay in refiling, to bear in mind the hallowed principle that Courts are intended to adjudicate on disputes, so as to enable their reaching a quietus, and not to avoid adjudicating disputes on technical grounds, thereby leaving the wound to fester untreated.
16. It may also merit mention that Mapsa Tapes was a case in which the initial filing was beyond time and, therefore, the litigant was seeking condonation of delay not only in refiling but also in filing of the petition.
17. As against that, in the present case, the petition has been filed within time in the first instance on 3 April 2024. The defects were, no doubt, successively pointed out by the Registry again and again, resulting in the petition refiling the petition after removal of defects on 22 May 2024.
18. Ms. Singh, learned Counsel for the petitioner submits that the period of 19 days was computed from 3 May 2024, which date was, in turn, reckoned by computing 30 days from 4 April 2024 when the defects were first pointed out. There is logic in this method of computation, as Rule 3 of Chapter IV of the 2018 Rules specifically permits the delay to be condoned within an aggregate period of 30 days.
19. At this juncture, I deem it necessary to make an observation, which may require consideration while dealing with the application of Rule 3 Chapter IV of the 2018 Rules in a given case. The Rule is somewhat peculiarly worded. According to the Rule, if the defects are found by the Registry in any pleadings, the Registry has to specify the objections and return the pleadings for refiling after removing the objections. Thereafter, the Rule goes on to state that refiling has to be done within a time not exceeding 7 days at a time and 30 days in aggregate.
20. This throws up a serious issue as to the position which would obtain if the Registry is to point out fresh defects when the matter is refiled. In the opinion of this Court, it is the duty of the Registry to identify all defects in the pleadings and point them out at one stage, so that they can be rectified. The words 7 days at a time and 30 days in aggregate as implied in Rule 3 of Chapter IV of the 2018 Rules have, in my opinion, to be reasonably interpreted. If the Registry is to point out defects in instalments, with fresh defects being pointed out each time, it would be unreasonable to expect the litigant to have to cure all defects within 30 days. The principle that the defects have to be cured within 7 days at a time and 30 days in aggregate can, therefore, reasonably applies only to the defects which are originally pointed out at the time when the petition is filed. For example, if there are ten defects pointed out when the petition is originally returned, the petitioner would have to cure the defects within 7 days. Assuming that, even after 7 days, one or more of the said defects remain uncured, the matter would be returned pointing out the uncured defects and the petitioner would have 7 days more days to cure it. These repeated opportunities would be granted upto the maximum period of 30 days.
21. The period of 30 days, in my view, cannot apply if the Registry is pointing out fresh defects time after time. Rule 3 of Chapter IV of the 2018 Rules does not envisage such a situation. To draw on the above example, if the Registry points out ten defects and, even though the said ten defects are cured, fresh defects are pointed out by the Registry, the litigant would be entitled to have a fresh period of 7 days at a time and 30 days in aggregate to cure those defects. That, in my view, is the only reasonable way of interpreting Rule 3 of Chapter IV of the 2018 Rules.
22. It is, therefore, essential and not merely advisable that the Registry is vigilant and points out all defects in the pleadings at one time, so that a litigant is not subjected to needless visitations to the Registry again and again to cure the defects. Such situation results in case such as this, where a Court has to spend needless time navigating an application seeking condonation of delay.
23. In the present case, all defects, which were originally pointed out by the Registry were, according to learned Counsel for the petitioner, cured on or before 6 July 2024. At the highest, the delay in doing so was, therefore, of only one day beyond 30 days.
24. On 8 May 2024, the Registry pointed out that a condonation of delay application was required to be filed. That application was also filed by the petitioner on 22 May 2024.
25. All the defects initially pointed out by the Registry, therefore, stood cured by 6 July 2024 and an application for condonation of delay was also filed on 22 May 2024. In fact, there was no reason for the petitioner to seek condonation of delay till 22 May 2024, as 22 May 2024 was only the date when the condonation of delay application was filed. The defects stood cured by 6 July 2024.
26. In that view of the matter, since all defects stood cured by 6 July 2024, which was only one day beyond the period of 30 days provided in Rule 3 of Chapter IV of the 2018 Rules, I am of the opinion that the Court cannot possibly reject this petition on the ground of delay in refiling.
27. This is quite apparent from the fact that this Court had held time and again including, inter alia, in Durga Construction that the Court has to be liberal while dealing with applications for refiling of pleadings.
28. Mr. Marwah also objected to the affidavit filed with the present application, pointing out that the date of notarization is not indicated on the affidavit. Ms. Singh, learned Counsel for the petitioner submits that, in the original affidavit, the date of notarization is correctly reflected as 21 May 2024 and that it is only because while scanning, this date, which figures at the bottom of the page, was not scanned and that, in the scanned copy, the date is not visible. There is, therefore, no substance in this objection either.
29. As already noted towards the commencement of this order, the Court was constrained to pass this order as Mr. Marwah was unwilling even for the Court to issue notice on the application for condonation of delay and insisted on the application being decided on the basis of his oral submissions and material on record.
30. Mr. Marwah interjects at this point to submit that the Court has not recorded his submission that no sufficient explanation is to be found in the application to condone the delay.
31. I have already observed that, in fact, the delay is only of one day, if one were to reckon the period of 30 days from 4 April 2024 when the defects were first pointed out. In fact, the Court has not gone into each occasion that the defects were pointed out by the Registry in order to save time. If any defects were pointed out after 4 April 2024, which were not pointed out earlier, the petitioner would be entitled to reckon the period of 7 days/30 days from the date when the said defects were pointed out, in which case there may not be any delay in refiling at all.
32. The submission that the application for condonation of delay in refiling should be dismissed is not supported by sufficient grounds, is also, therefore rejected.
33. Based on the material on record and after hearing learned Counsel for both sides, no case for rejection of IA 32634/2024 can be said to be made out. The delay is, accordingly, condoned.
34. The application stands allowed accordingly.
I.A. 32633/2024 (exemption)
35. Allowed, subject to all just exceptions.
36. The application stands disposed of.
O.M.P. (COMM) 269/2024
37. Issue notice. Notice is accepted by Mr. Devashish Marwah.
38. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the petitioner who may file rejoinder thereto, if any, within four weeks thereof.
39. Renotify on 12 September 2024.
I.A. 32632/2024 (requisition of Arbitral Tribunal record)
40. This is an application for requisitioning of the arbitral record. The Registry is directed to requisition the record from the learned Arbitral Tribunal positively at least a week in advance of the next date of hearing and provide an electronic copy to learned Counsel for both sides.
41. The application is disposed of accordingly.
C.HARI SHANKAR, J
JULY 9, 2024
rb
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1 (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
2 3. Defective pleading/ document.
(a) If on scrutiny, the pleading/ document is found defective, the Deputy Registrar/ Assistant Registrar, Incharge of the Filing Counter, shall specify the objections, a copy of which will be kept for the Court Record, and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate.
(b) If the pleading/ document is not taken back for amendment within the time allowed under sub-rule (a), it shall be registered and listed before the Court for its dismissal for non-prosecution.
(c) If the pleading/ document is filed beyond the time allowed under subrule (a) the pleading/ document must be accompanied with an application for condonation of delay in re-filing of the said pleading/ document.
3 the Original Side Rules hereinafter
4 2020 SCC OnLine Del 1715
5 2016 SCC OnLine Del 2306
6 280 (2021) DLT 164
7 (2017) 11 SCC 234
8 2013 SCC OnLine Del 4451
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