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2014 DIGILAW 312 (BOM)

Mukti Films, a Firm v. Naresh Keshrimal Mehta

2014-02-07

N.M.JAMDAR

body2014
Judgment 1. By this Notice of Motion the Petitioner prays that delay of 382 days in taking out the Notice of Motion for restoration of Petition which was dismissed on 30 October 2012 for non-compliance of office objections, be condoned and the petition be restored to file. 2. Affidavit has been filed initially by the concerned Advocate and it has been ratified by the Applicant subsequently. When an Advocate files an affidavit placing on record that there was some difficulty because of which matter went unattended, normally this Court would not take a harsh view of the matter and restore the petition so that it can be heard on merits. However, the discretion of the Court has to be used in facts and circumstances of each case and keeping in mind the nature of the proceedings. These are arbitration proceedings. The legislature has provided specific non extendable limitation for challenging the award. Underlying legislative policy being expeditious disposal of the arbitration proceedings. The legislature has provided that the petition has to be filed within period of 90 days and if the Court so permits within 30 days after the expiry of 90 days. Thereafter even the Court is powerless to condone the delay. The legislature has provided for such stringent limitation for a specific purpose. This purpose cannot be lost sight of when request for condonation of delay is made in proceedings such as the present one. If unwarranted indulgence is shown to a party it will be against the policy of providing stringent time schedule. It is in the background of this position in law that facts of the present case need to be considered. 3. The award was passed on 13 March 2012. The Applicant participated in the arbitration proceedings and was fully aware of the arbitration award. The copy of the award was received on 14 March 2012. The period of 90 days expired on 14 June 2012 and the present petition came to be filed on 21 June 2012 i.e. beyond the period of 90 days by seven days. Thus, the Applicant did not file the petition within period of 90 days and condonation of further delay of 7 days was within the discretion of this Court. 4. The petition was thereafter placed before the Prothonotary and Senior Master for removal of objections on 30 October 2012. Thus, the Applicant did not file the petition within period of 90 days and condonation of further delay of 7 days was within the discretion of this Court. 4. The petition was thereafter placed before the Prothonotary and Senior Master for removal of objections on 30 October 2012. None attended the Petition and it was dismissed for non-prosecution. The present notice of Motion for restoration was taken out on 16 November 2013 i.e. after more than one year. The Advocate has filed an affidavit giving reason that on 30 October 2012, grandfather of the Advocate was hospitalised at the native place and therefore, he could not attend the proceedings. Then there is no explanation for the next year or so. It is stated that when he inquired on 13 November 2013, he found that the petition was dismissed on 30 October 2013. It is the only reason given in the affidavit in support. The Applicant has filed an affidavit ratifying what is stated by the Advocate, since an objection was taken by the Respondent that no affidavit has been filed by the Applicant. The learned counsel for the Respondent has contended that the excuse given in the affidavit is completely unjustifiable and everyone concerned has been absolutely negligent in prosecuting the petition. 5. The affidavit filed by the applicant gives explanation for one date i.e. on 30 October 2012, when the petition was dismissed before the Prothonotary that for some personal reasons the Advocate could not remain present. Assuming this is a valid reason, there is no explanation at all for the delay of 382 days thereafter. It cannot be that the Advocate was at his native place for 382 days and it is not even the case. 6. What about the conduct of the Applicant himself. Where was the Applicant since the award was passed. Is it not his duty to see that challenge to award is prosecuted diligently. Should he not be worried that the petition was not even admitted when the award was passed one and half years back. Is it not expected of a litigant to follow up with his advocate. There is nothing to indicate that the Applicant followed up the matter with the advocate. The Applicant had participated in the arbitration proceedings. He is not a rustic villager. Is it not expected of a litigant to follow up with his advocate. There is nothing to indicate that the Applicant followed up the matter with the advocate. The Applicant had participated in the arbitration proceedings. He is not a rustic villager. He was fully aware of the implications of not challenging an award, and that if the award is not challenged in time it can be enforced against him. Challenging the award thus was a serious issue and it is expected that the litigant would keep in touch with his advocate. 7. In this context decision of the Apex Court needs to be noticed. The Apex Court in the decision of Salil Dutta Vs T.M. And M.C. Private Ltd reported in - (1993) 2 Supreme Court Cases 185 observed as under – “8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an exparte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq v. Munshilal, (1981) 2 SCC 788 must be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessman who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. Maybe, it was part of their delaying tactics as alleged by the plaintiff. Maybe not. But one thing is clear – they chose to non-cooperate with the court. It is evident that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. Maybe, it was part of their delaying tactics as alleged by the plaintiff. Maybe not. But one thing is clear – they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted”. 8. Before the Apex Court earlier decision of the Apex Court in the case of Rafiq v. Munshilal reported in - (1981) 2 SCC 788 was cited, in support of the submission that for fault of the Advocate an innocent party should not suffer. The Apex Court in the case of Salil Dutta considered the facts of case before it and held that the party therein was not a rustic villager but a Company and it was difficult to believe that the party therein simply believed the advocates and being educated they would have known that non-participation would have resulted in adverse decision. Accordingly, the Apex Court proceeded to law down the proposition which have been reproduced above. This decision of the Apex Court in the case of Salil Dutta has been followed in a recent decision by the Apex Court in the case of Mahanagar Telephone Nigam Ltd Vs State of Maharashtra – (2013) 9 SSC 92, where the Apex Court was considering delay of 401 days. 9. If the litigant was diligent and the advocate was negligent, the principle that for fault of advocate a client should not suffer, may be invoked. But if the litigant himself is found to be negligent then blame cannot be put only on the advocate. 10. The Applicant has proceeded as if this is a traditional civil litigation which will move at it's own pace. Not that such conduct is to be pardoned even in traditional civil litigation, but what is emphasized here is that the arbitration proceedings stand on a different pedestal. Parties cannot proceed with arbitration proceedings in completely negligent and indifferent manner. 10. The Applicant has proceeded as if this is a traditional civil litigation which will move at it's own pace. Not that such conduct is to be pardoned even in traditional civil litigation, but what is emphasized here is that the arbitration proceedings stand on a different pedestal. Parties cannot proceed with arbitration proceedings in completely negligent and indifferent manner. If such a negligence is to be condoned then it will be contrary to the legislative policy. 11. The purpose and object of the Act is to achieve expeditious and effective disposal of the arbitral matters. This object will be defeated if the disputes remain pending in the Court for years. The arbitral tribunals are private tribunals chosen by the parties. The parties select the arbitrators and therefore, in the arbitration proceedings the involvement of the parties is more emphasized rather than of role of the advocates as in the traditional litigation. Long drawn litigation is costly in terms of money, time and energy. In business litigation the businessmen are concerned with finality of the litigation so that they can concentrate on their business. Since the arbitration proceeding is to be decided by a judge chosen privately between the parties, parties cannot show indifference and apathy to this process. 12. The legislation has made it clear that beyond the period of limitation, the Court will not have power to set aside the award and thus a statutory right is created in favour of a party to enforce the award. Object is to give finality to the award. Unlike any other litigation, the legislature has deliberately provided that after 120 days of limitation period, whatever be the circumstance (except permissible), the award will become final. The emphasis is on speed and promptness and a deliberate intention to treat arbitration award differently. Because of this distinction, the parameters of exercising of discretion in traditional litigation and arbitration must differ and cannot be compared. 13. No doubt in a situation such as the present one Court has a discretion to condone the delay, but the right accrued to a party cannot be casually taken away when the other party is indifferent and apathetic. Because of this distinction, the parameters of exercising of discretion in traditional litigation and arbitration must differ and cannot be compared. 13. No doubt in a situation such as the present one Court has a discretion to condone the delay, but the right accrued to a party cannot be casually taken away when the other party is indifferent and apathetic. It cannot be that a party diligently prosecutes the arbitration, secures award, puts it to execution and the other party shows complete negligence and walks in the Court whenever chooses and then hundreds of days delay is condoned in it's favour, and the right accrued to execute an award is taken away. Here the petition is filed after delay, petitioner did not bother to remove objections, did not bother to contact the advocate and after two years casually seeks to restore the Petition. Even if such cases, if discretion is to be used, then it will make mockery of the legislative policy of giving finality to arbitral award. 14. Furthermore, whether the Applicant and the advocate were simply negligent or it was a part of the design by the applicant to deliberately delay the proceedings is also an issue. The learned counsel for the Respondent has submitted that it is only when the Respondent moved for attachment that the Applicant has moved this present Notice of Motion. There appears to be substance in this grievance. The legal position that when a petition under Section 34 is filed the award cannot be executed has given rise to lot of misuse at the hands of unscrupulous litigants and such conduct needs to be curbed. 15. Looking from any point of view, I am unable to persuade myself to take a lenient view and condone the acts of the Applicant and restore this petition. In the circumstances, Notice of Motion is rejected.