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2021 DIGILAW 115 (JK)

Mool Raj Chadha & Sons v. Union of India

2021-03-24

JAVED IQBAL WANI

body2021
JUDGMENT : 1. This order shall disposed of the instant application seeking condonation of delay in filing an appeal against the order dated 05.11.2015 passed by Court of Principal District Judge, Jammu rejecting the application filed by the appellant/applicant herein under Section 34 of the Arbitration and Conciliation Act, 1997. There is a delay of 319 days which is sought to be condoned. 2. On facts of the present case, Arbitration award dated 14.01.2012 passed by non-applicant No. 3 herein, was thrown challenge to by the applicant herein, under Section 34 of the Arbitration and Conciliation Act, 1997. 3. The said petition came to be instituted on 26.03.2012 and dismissed on 05.11.2015 by the Court of Principal District Judge, Jammu. The said order is being questioned by the applicant in a time barred appeal under Section 37 of the Act accompanied with the instant application for condonation of delay. 4. In the application, it is being stated that the applicant herein, has been subjected to harassment by respondent Nos. 1 and 2 which landed him with a serious heart disease in the year 2010. 5. The applicant contends that his wife also suffered major heart attack on account of severe depression caused due to the cancellation of a contract at the hands of the respondent No. 1 and 2. 6. It is being contended that the petitioner being a heart patient was advised by the doctors to avoid travelling as such, had engaged a counsel for filing of the appeal who could not file the same on account of ill health of the applicant and his wife. The applicant states to have suffered a major heart attack in May 2016 resulting into a surgery and his confinement to bed. 7. It is being contended that despite under adverse circumstances, the applicant contacted the counsel who had apprised him that an execution proceeding is going on and that an attachment warrant qua his property stands issued. On account of his ill health and of his wife, the applicant states to have not filed the appeal in time. The medical record of the year 2010 and 2016 is placed on record in support of the contentions raised in the application reflecting the medical history of the applicant. 8. On account of his ill health and of his wife, the applicant states to have not filed the appeal in time. The medical record of the year 2010 and 2016 is placed on record in support of the contentions raised in the application reflecting the medical history of the applicant. 8. Per contra non-applicants have filed objections and resisted and controverted the contentions raised by the applicant and as such, seek dismissal of the application primarily on the premise that the applicant, a contractor had been allotted a work for execution by non-applicants with date of commencement as 24.09.2005 and date of completion as 23.07.2006 which work was not completed by the applicant, even after four years resulting into cancellation of the contract w.e.f. 29.06.2010 whereupon arbitration proceedings were taken recourse to and respondent No. 3, Arbitrator passed an award for a sum of Rs. 30,90,227.02/- in favor of the non-applicants and against the applicant. 9. Heard learned counsel for the parties. 10. Learned counsel for the parties made their submissions in line with contentions raised in their respective pleadings. 11. Before adverting to the application in hand, it would be advantageous and appropriate to refer to the judgement of the Apex Court passed in the case of "Government of Maharashtra (Water Resources Department) represented by Executive Engineer Vs. M/S Borse Brothers Engineers & Contractors Pvt. Ltd." reported in "2021 SCC online SC 233" being relevant and germane herein, wherein at para 61 following is laid down:- "Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under Section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or Section 13 (1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches". 12. 12. Keeping in mind the aforesaid legal position, perusal of the record of the case reveals that the appeal is admittedly barred by time with a long delay of 319 days. The explanation offered in the application for condoning the delay mainly relates to the purported ill health of the applicant dating back to the year 2010 and admission of the applicant at Medanta Hospital w.e.f. 15.05.2016 to 24.05.2016. The other documents appended with the application relating to the illness of the applicants seemingly are medical prescription of private doctors and one OPD Card of J and K Health Department, Jammu, dated 18.12.2015, 18.03.2016 and 03.05.2016 respectively. The said prescriptions per se do not reveal anywhere that the applicant was advised to remain confined to bed. After the passing of the order dated 05.11.2015 (supra), the explanation falls woefully short of making out any sufficient cause warranting condonation of delay. The explanation therefore cannot said to be credible or bona fide. 13. It is established that law of limitation has to be applied with all its rigour prescribed by a statute and that the Courts have no power to extend the period of limitation on equitable grounds. As has been observed and laid down by the Apex Court in Government of Maharashtra case (supra) a short delay beyond period prescribed in filing an appeal under Section 37 of the Act is to be condoned by way of exception and not by way of rule that too in a case where a party has otherwise acted bona fide and not in a negligent manner keeping in mind that the opposite party may have acquired both in equity and justice. 14. Viewed in the context what has been observed, discussed and analysed hereinabove the applicant seemingly has been negligent in filing the appeal consciously allowing the period of limitation to expire. The case of the applicant does not qualify to be an exceptional one warranting condonation of delay on the basis of the explanation offered in the application more so in view of the fact that the non-applicants have earned an award in their favour through arbitration on 14.01.2012. Resultantly, the application merits dismissal and is dismissed.