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UNION OF INDIA vs M/S JAY SHREE METALS AND ENGG. CO.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 26.04.2024
Judgment pronounced on: 05.07.2024

+ CM(M) 2414/2024, CM APPL. 24371/2024—Stay

UNION OF INDIA ….. Petitioner
Through: Mr. Vijay Joshi, Adv.

versus

M/S JAY SHREE METALS AND ENGG. CO. ….. Respondent
Through: Mr. Rohit Sharma, Mr. Nikhil Purohit and Mr. Jatin Lalwani, Advs.

CORAM:
HON’BLE MS. JUSTICE SHALINDER KAUR

J U D G M E N T

1. The issue in controversy in the present petition pertains to dismissal of the application of the petitioner filed under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 seeking condonation of delay in filing the restoration application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”).
2. The factual matrix of the case shows that on 29.10.2010 the learned Sole Arbitrator passed an award thereby awarding an amount of Rs. 55,54,296.80/- in favour of the respondent herein. Being aggrieved by the said award, the petitioner had filed the petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as “the Act”) before this Court which came to be registered as O.M.P No. 338/2011 titled as “Union of India v. Jay Shree Metals &Engg. Co.”
3. Due to enhancement in pecuniary jurisdiction of this Court, vide order dated 21.12.2016 the matter got transferred to the court of District Judge, Patiala House Courts, New Delhi and was re-numbered as ARBT No. 711/2017. Subsequently, on account of non-appearance of petitioner, vide order dated 02.07.2018, the learned Trial Court dismissed the petition preferred by the petitioner herein under Section 34 of the Act as dismissed in default.
4. In the year 2019, the respondent had filed the execution petition seeking the enforcement of award dated 29.10.2010 passed by the learned Sole Arbitrator which came to be registered as Execution petition no. 305/2019 before the learned District Court, Patiala House Court.
5. It is the case of the petitioner that the petitioner for the first time came to know about the dismissal of the petition preferred by it only on 25.03.2022, when the executing court had issued notice to the petitioner thereby directing to appear on 08.07.2022. Henceforth, the counsel was nominated to pursue the matter before the executing court on behalf of the petitioner.
6. Petitioner on 07.07.2022 filed the application under Order IX Rule 9 CPC seeking restoration of the petition and setting aside the order dated 02.07.2018 along with application under Section 5 of the Limitation Act, 1963 read with Section 151 CPC to condone the delay in filing the restoration application. The said application came to be registered as Misc DJ 92/2022 in ARBT no. 711/2017. Respondent filed its reply on 07.03.2024. Subsequently, the learned Additional District Judge-01, Patiala House Courts, New Delhi (hereinafter referred to as “Trial Court”) passed the impugned order dated 04.04.2024 thereby dismissing the application preferred under Order IX Rule 9 CPC on ground of delay in filing the restoration application.
7. The said impugned order has been assailed before this Court under Article 227 of the Constitution of India.
Submissions by the Petitioner:
8. Mr. Vijay Joshi, learned counsel for the petitioner submitted that originally the petition before this Court was filed by the authorized empanelled counsel of the Union of India at Delhi High Court and after transfer of the case to the Patiala House Court, New Delhi, the authority of the erstwhile counsel automatically got revoked, in view of the Allocation of Business Rules issued by the Department of Legal Affairs Ministry of Law & Justice. Therefore, issuance of court notice dated 19.04.2018 in ARBT No. 711/2017 to the erstwhile counsel not empanelled on the panel of Union of India at District Court is itself irregular as the erstwhile counsel cannot said to be an authorized person to represent and defend the interest of Union of India at District Court. Moreover, no court notice had been issued by the learned Trial Court to the petitioner department.
9. Learned counsel submitted that the impugned order dated 02.07.2018 came to the knowledge of petitioner department on 25.03.2022, thus, the time for filing the restoration application shall be counted from the date of knowledge of the dismissal order. Moreover, the limitation shall be counted in terms of Article 137 of the Limitation Act, 1963 which prescribes of three years in filing the application.
10. In support of his plea, learned counsel relied on the following judgments:
(i) Rafiq &Anr. v. Munshilal & Anr.: 1981 AIR 1400
(ii) Ramnath v. Gobardhan Sao &Ors.: AIR 2002 SC 1201
Submissions by the Respondent:
11. Mr. Rohit Sharma, learned counsel for the respondent refuted the submissions of the petitioner by stating that mere reason that the panel advocate authorised to appear for petitioner only in this Court did not intimate the petitioner about dismissal of petitioner, is not sufficient to condone the delay of Four years in filing the restoration application. Moreover, since the petitioner is having the benefit of a legal department with numerous law officers and advocates, therefore, the excuse given is not justified.
12. Learned counsel for the respondent submitted that the limitation period for filing an application for restoration has been prescribed under Article 122 of the Limitation Act, 1963 to be 30 (thirty) days from the date of dismissal of the concerned petition. In the instant case, the petition filed by the petitioner under Section 34 of the Act was dismissed in default on 02.07.2018. The limitation period for filing an application for restoration expired on 01.08.2018. However, the filing of the present application on 07.07.2022 is an object failure on part of the respondent to claim restoration of the petition.
13. Learned counsel further submitted that the petitioner has sought to excuse the delay by taking recourse to Section 5 of the Limitation Act, which states that an application may be admitted beyond the prescribed period only if the applicant demonstrates “sufficient cause” for not filing the application within such period and the petitioner has miserably failed to explain “sufficient cause” before this Court.
14. Learned counsel submitted that even subsequent to the receipt of notice dated 25.03.2022 issued by the Executing Court, the petitioner filed the application after a delay of about three months. Only a bald claim is made that officials of the petitioner made several attempts to contact its panel counsel for Delhi High Court and could only contact him on 30.06.2022. The Petitioner has failed to furnish any proof for this bald allegation, and the same is vehemently denied as misconceived.
15. He further submitted that no explanation was provided for non-appearance of the petitioner’s counsel on the date i.e. 21.12.2016, when the matter was transferred from this Court. Also, the petitioner has not even claimed that its panel counsel in the High Court was not aware of the transfer of the case to District Court.
16. To strengthen the submissions, learned counsel for the respondent has relied upon the following judgments:
(i) Union of India v. Central Tibetan Schools Admn.: (2021) 11 SCC 557;
(ii) Postmaster General v. Living Media India Ltd.: (2012) 3 SCC 563;
(iii) Conservator of Forests v. Timblo Irmaos Ltd.: (2021) 14 SCC 516;
(iv) State (NCT of Delhi) v. Kamla Mendiratta: 2023 SCC OnLine Del 4771.
Findings & Conclusion:
17. Section 5 of the Limitation Act allows the condonation of delay in filing appeals and applications if the applicant/appellant can demonstrate “sufficient cause” for not filing the same within the prescribed period of limitation. The Court has the discretion to accept the delayed application, if it’s convinced that the application has a valid reason for the delay. It is trite law decided in N. Balakrishnan vs. M. Krishnamurthy: (1998) 7 SCC 123, that the length of delay is not material; what matters is the acceptability of the explanation. The Hon’ble Supreme Court held as under:
“It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.”

18. In the case of Office Of The Chief Post Master & Ors vs Living Media India Ltd.& Anr: (2012) 3 SCC 563, the Hon’ble Supreme Court while considering the delay / latches and acceptable explanation for delay on the part of State as a litigant held as under:
“13. 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 bonafide 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.”

19. The Apex Court declined to condone the delay of 663 days in filing the special leave petition in the case titled as State of Madhya Pradesh & Others vs. Bherulal: (2020) 10 SCC 654 held as under:
“5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.”

20. Having regard to the forth-going, the primary ground of the petitioner is that the learned Trial Court did not issue court notice to the petitioner department rather issued court notice to the erstwhile panel advocate who was pursuing the matter of the petitioner before High Court of Delhi and could not represent the petitioner in the district courts. Thus, the petitioner was not in knowledge about the transfer and pendency of the present case in the district courts. However, the moment the dismissal came to its notice, the petitioner immediately contacted the advocates and moved the application for restoration of the petition.
21. It is noticed that the learned Trial Court issued court notices to the petitioner upon transfer of the case from this Court to District Courts on 09.05.2017 and 03.10.2017. Thereafter, the court notice was issued to the Panel Counsel in High Court on 19.04.2018. It is an undisputed position that the court notice issued to the Panel Counsel of petitioner department in High Court was served.
22. Its lamentable state that officers of the petitioner department did not care to make any enquiry regarding the progress of the petition from the Panel Counsel for over a period of Four years which reflects regretful penitent of the department for being grossly negligent and ignorant about the petition filed by the petitioner department in court of law despite being equipped with a law department and assemblage of Advocates and law officers.
23. The petitioner has also failed to explain as to why its Panel Counsel did not inform the petitioner about the receipt of the court notice. Even otherwise, there is no explanation for not approaching the Trial Court immediately upon the receipt of the notice of the execution petition and a further three months time was spent in filing the restoration application.
24. The application is highly belated suffering from delay and latches without any sufficient cause to exercise the judicial discretion in favour of the petitioner though being Union of India.
25. Having considered the above, this Court finds no ground to condone the delay in filing the restoration application under Order IX Rule 9 of the CPC. Consequently, the present petition along with pending application stands dismissed.

SHALINDER KAUR, J.
JULY 05, 2024
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CM(M) 2414/2024 Page 9 of 9