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2017 DIGILAW 256 (BOM)

Dhanpal Tamanna Gulavane v. L & T Finance Ltd.

2017-02-07

A.M.BADAR, ANOOP V.MOHTA

body2017
JUDGMENT : ANOOP V. MOHTA, J. Admit. 2. Heard finally by consent. 3. The present Appeal, under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, “Arbitration Act”) is taken out by the Appellant (original Petitioner), as the learned Judge, by impugned order dated 20 September 2016, dismissed the Notice of Motion for condonation of 24 days delay in filing the Petition under Section 34 of the Arbitration Act. 4. The Arbitration Petition is filed against an exparte order of the year 2009 along with Notice of Motion for condonation of delay. As per Section 34 of the Arbitration Act, the Petition needs to be filed within 90 days. If case is made out, the power is granted to the Court to consider and to condone the delay, if filed within 30 days thereafter (90 plus 30), but it should be within 120 days. Admittedly, the Petition is filed within 120 days but beyond 90 days. Considering the fact that it is the exparte Award and the reason so mentioned in the supporting affidavit and in the interest of justice and to give opportunity to the Appellant to contest the matter on merits, and as the Petitioner has no other remedy but only to challenge the Award by invoking such Petition. Therefore, in the interest of justice to give opportunity, we are inclined to interfere with the impugned order. 5. We have noted, as pointed out by the learned counsel for the Appellant, that the delay was not condoned by recording that there are no grounds for challenging the Award. The merits of the matter could not have been the foundation for such rejection, apart from the exparte Award, and the Respondents concerned, as stated, had taken away the Tractor without even giving the proper notice to the Appellant. 6. In the background, we are inclined to grant the Petition/Notice of Motion, as prayed, in the Appeal itself, instead of remanding the matter for reconsideration on this aspect of delay. This is to avoid further delay in the matter. 7. As submitted by the learned counsel for the Respondent that the delay even if any, the Court wants to condone, it should be subject to directing the Appellant to deposit certain amount out of Rs.94,757/- the payable amount. This is to avoid further delay in the matter. 7. As submitted by the learned counsel for the Respondent that the delay even if any, the Court wants to condone, it should be subject to directing the Appellant to deposit certain amount out of Rs.94,757/- the payable amount. The learned counsel for the Appellant, on instructions, makes statement that the Appellant/Petitioner will deposit Rs.50,000/- within two weeks from today. This deposit is a condition precedent. 8. Therefore, we are inclined to pass the following order : ORDER (i) Impugned order dated 20 September 2016 is quashed and set aside. (ii) Notice of Motion No.2257/2009 is allowed. The delay of 24 days in filing the Arbitration Petition is condoned. (iii) Arbitration Petition (L) No. 555 of 2009 is restored to file. The learned Judge to deal with the same in accordance with law at the earliest. (iv) The Appellant to deposit Rs. 50,000/- within two weeks from today as a condition precedent. (v) The Appeal is accordingly allowed. (vi) There shall be no order as to costs.