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2023 DIGILAW 1003 (BOM)

Khabar Media Centre v. Purshottam

2023-04-19

AVINASH G.GHAROTE

body2023
JUDGMENT/ORDER 1. On 11/4/2023, the following position was recorded : "2] On 31/3/2023, the following factual position was recorded: "The award dtd. 7/11/2003 was challenged by way of an application under Sec. 34 of the A and C Act on 5/2/2004 in M.C.A. No. 459/2004 by the petitioner. M.C.A. No. 459/2004 came to be dismissed in default on 9/3/2017. The petitioner claims to be unaware of this and upon acquiring the knowledge, on 29/8/2019 an application for restoration with condonation of delay of 2 years 5 months came to be filed, which has been rejected by the impugned order dtd. 16/12/2019 (pg.22). List the matter on 5/4/2023 at the request of the learned counsel for the parties. 3] The preliminary objection raised by Mr.Sharma, learned counsel for the respondents, based upon the principle of merger is that the order dismissing the application under Sec. 34 of the A and C Act in default dtd. 9/3/2017 as well as the order dtd. 16/12/2019 refusing to condone the delay in filing the application for restoration, is an order which would stand merged in the order dismissing the application under Sec. 34 of the A and C Act and therefore, an appeal under Sec. 37(1)(c) of the A and C Act would lie. 4] Mr. Srivastava, learned counsel for the petitioner on the other hand submits that under Sec. 37(1) of the A and C Act, the expression used "and from no other orders" would indicate that what was appealable was only an order passed under Sec. 37(1)(c) of the A and C Act and not otherwise and therefore, considering the restrictions imposed by the above expression, the challenge to the impugned order would be amenable in writ jurisdiction." 2. It is the contention of Mr. Sharma, learned counsel for the respondent Nos.2, 3, 5 and 6 relying upon Chintels India Limited Vs. Bhayana Builders Private Limited 2021(4) SCC 602 , para 21 that since the order refusing to condone the delay in filing an application for restoring the proceedings under Sec. 34 of the Arbitration and Conciliation Act results in confirming the dismissal in default of the application under Sec. 34 of the Arbitration and Conciliation Act, what would lie would be an appeal under Sec. 37(1) of the Arbitration and Conciliation Act. 3. In my considered opinion, the contention is misconceived for the reason that in Chintels India Limited Vs. 3. In my considered opinion, the contention is misconceived for the reason that in Chintels India Limited Vs. Bhayana Builders (supra), the Hon'ble Apex Court was considering a proposition where the application for condonation of delay was in filing an application under Sec. 34 of the Arbitration and Conciliation Act, which in light of the provision of Sec. 34(3) of the Arbitration and Conciliation Act have to be filed within the statutory period as indicated therein. It is in this context, it has been held that the refusal to condone the delay would result in refusal to set aside the arbitral Award as in such a case, the application under Sec. 34 of the Arbitration and Conciliation Act itself could not be heard. 4. In the instant case, it is necessary to note that the proceeding under Sec. 34 of the Arbitration and Conciliation Act were filed within the time stipulated in Sec. 34(3) of the Arbitration and Conciliation Act, which is not a position in dispute. The said proceedings came to be dismissed in default on 09/3/2017 for restoration of which an application under Order 9 Rule 9 of the Code of Civil Procedure (CPC) along with an application for condonation of delay of 2 years and 5 months came to be filed which came to be rejected by the impugned order dtd. 16/12/2019. The position therefore, is quite distinct from what has been considered by the Hon'ble Apex Court in Chintels India Limited Vs. Bhayana Builders (supra). It would also be material to note that the interference under Sec. 37(1)(c) of the Arbitration and Conciliation Act, is even more limited than the parameters as contained in Sec. 34 of the Arbitration and Conciliation Act for interference in an Award and therefore, when Sec. 37(1) of the Arbitration and Conciliation Act uses the expression "and from no others" while providing for an appeal, it clearly mandates that the limited interference which is contemplated by Sec. 37(1)(c) of the Arbitration and Conciliation Act would be the only parameters available to the Court while exercising that power. 5. 5. Since the application under Sec. 34 of the Arbitration and Conciliation Act is before the "Court" as defined under Sec. 2(1)(e) of the Arbitration and Conciliation Act, it would be axiomatic that the powers which are possessed by the 'Court', including the power to dismiss in default as well as the power to restore, would be inherent in the 'Court'. 6. It is also material to note, that the impugned order is one rejecting the application for condonation of delay in filing an application under Order 9 Rule 9 of CPC, which is yet to be decided on account of the rejection of the application for condonation of delay as its consideration, has been interdicted by the impugned order refusing to condone the delay. In that view of the matter, in my considered opinion, writ jurisdiction of this Court would be available to the petitioner to question the order refusing to condone the delay as that is not a situation, contemplated by Sec. 37(1)(c) of the Arbitration and Conciliation Act. The objection to the tenability of the petition as raised by Mr. Sharma, learned counsel for the respondent Nos.2, 3, 5 and 6 is therefore, rejected. 7. On merits, the petition questions the order dtd. 16/12/2019, passed below Exh.1 refusing to condone the delay in filing an application under Order 9 Rule 9 of CPC to set aside the order dtd. 09/03/2017, passed by the learned PDJ, dismissing the application under Sec. 34 of the Arbitration and Conciliation Act holding that the sufficient cause was not shown. Mr. Shrivasata, learned counsel for the petitioner submits, that in the proceedings under Sec. 34 of the Arbitration and Conciliation Act, there is no necessity of the parties, to remain present in the Court, and to be aware of the day to day affairs in the proceedings and it is normal course of event for the parties to rely upon the counsels, to indicate when their presence is necessary. He therefore, submits, that when the petitioner placed reliance upon the counsel and claimed ignorance about the order dtd. He therefore, submits, that when the petitioner placed reliance upon the counsel and claimed ignorance about the order dtd. 09/3/2017, dismissing the application under Sec. 34 of the Arbitration and Conciliation Act in default, the petitioner was clearly within his rights, to contend that in absence of any intimation regarding the stage of the proceedings and any action being required to be taken by the petitioner to claim that the knowledge about the dismissal was made known to him in the month of August, 2019 is clearly a justifiable cause specifically, so also in view of the fact that the counsel engaged to prosecute the application under Sec. 34 of the Arbitration and Conciliation Act, had stepped on the other side of the bar. He therefore submits, that the expression sufficient cause has to be construed in a liberal manner so as to afford the litigant, of at least a right, to have a reasonable opportunity of raising a challenge to the award. He also submits, that any inconvenience which may be caused can always be compensated in terms of money, for which the petitioner is willing to pay a costs of Rs.30, 000.00. 8. Mr. Sharma, learned counsel for the respondent Nos. 2, 3, 5 and 6 vehemently opposes the submission contending that though the presence of the petitioner was not required in the application under Sec. 34 of the Arbitration and Conciliation Act in the Court, however, it was for them to be abreast with the proceedings and therefore, they cannot claim any ignorance of the same on account of counsel engaged having stepped on the other side of the bar. 9. The question of condonation of delay, in my considered opinion, needs to be considered in the light of the principles enunciated by the Hon'ble Apex Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others 2013 12 SCC 469 in which the principles have been laid down in para 21 and it has been held that a liberal approach has to be adopted in the matter of condonation of delay and what should be the paramount consideration would be the cause of substantial justice being promoted. Managing Committee of Raghunathpur Nafar Academy and others 2013 12 SCC 469 in which the principles have been laid down in para 21 and it has been held that a liberal approach has to be adopted in the matter of condonation of delay and what should be the paramount consideration would be the cause of substantial justice being promoted. In that view of the matter, considering the factual position as enunciated above, it would be logical to presume that when in the proceedings are under Sec. 34 of the Arbitration and Conciliation Act, the presence of the parties, is not required in the Court, for the day to day proceedings therefore, it is not expected for the party to be aware of the same, as opposed to the proceedings pending before the Court of first instance, and in such cases, the reason given, is quite plausible, accepting which, the impugned order is hereby quashed and set aside and the application for condonation of delay is allowed, however, at the costs of Rs.30, 000.00, which according to Mr. Sharma, learned counsel for the respondent Nos.2, 3, 5 and 6 should be donated to the High Court Bar Association, Nagpur, for procuring the high speed scanner to be further donated to the Taluka Bar Association. 10. The costs shall be deposited by the petitioner with the High Court Bar Association, Nagpur, by the end of this week and the receipt demonstrating the payment of costs shall be filed in this proceedings. The petition is accordingly allowed in the above terms.