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2023 DIGILAW 1516 (CAL)

Union of India v. S. N. Kanungo (Since deceased)

2023-09-29

HARISH TANDON, RAI CHATTOPADHAYAY

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JUDGMENT : Rai Chattopadhayay, J. 1. In this mandamus appeal, the Court is required to decide as to the legality and propriety of the order of the Additional District Judge at Port Blair, dated September 7, 2018, in Misc. Judl. Case No. 02 of 2014. By dint of the same the trial court has dismissed appellant’s prayer under section 5 of the Limitation Act, praying for condonation of delay in filing an application for setting aside abetment. Being aggrieved, the appellant/Union of India has challenged the same by filing the present appeal. 2. The Court finds it is not necessary to go into the other details of facts of the case, excepting the following: 3. An arbitration award dated May 31, 2007, is the reason of dispute between the parties. The present appellant was not satisfied with the said award and had preferred an application under section 34 of the Arbitration and Conciliation Act, 1996, before the District Judge, for setting aside the said award. During pendency of the case the respondent No.1 had died on October 15, 2012. The present appellant had not been prompt in following up the case with adequate steps pursuant thereto and the said case under section 34 of the Arbitration and Conciliation Act, 1996, abetted. Thereafter, only on February 4, 2014 had the present appellants filed before the trial court the Misc. Judl. Case No. 02 of 2014, to prefer applications under order 22 rule 4 of the Code of Civil Procedure, 1908, that under order 22 rule 9(2) of the said Code, along with an application for condonation of delay under section 5 of the Limitation Act 1963. The trial court has proceeded to find that such applications have been preferred at an inordinate delayed period of time, that is, after more than 15 months from the death of the respondent and after more than 12 months from the date of abetment. The trial court has also found that no sufficient ground has been pleaded to explain the reasons for such delay. The trial court has recorded regarding its dissatisfaction to accept the reasons shown by the present appellants for such delay, to be cogent and sufficient and dismissed Misc. Judl. Case No. 02 of 2014, vide the impugned order, that is dated September 7, 2018. Hence this appeal. 4. Mr. The trial court has recorded regarding its dissatisfaction to accept the reasons shown by the present appellants for such delay, to be cogent and sufficient and dismissed Misc. Judl. Case No. 02 of 2014, vide the impugned order, that is dated September 7, 2018. Hence this appeal. 4. Mr. V.D. Sivabalan, who is representing the appellant has submitted that the finding of the District Judge so far as insufficiency of the reasons shown by the appellant for occurrence of delay is concerned, may be considered to be erroneous and based on unworthy considerations. Being department of the Administration, the appellant is impaired with several procedural complications, which fact has been overlooked by the District Judge. It has further been stated that the settled position of law regarding a lenient approach to be taken towards condonation of delay, particularly in case where substantial right of the party is at stake, had also been allegedly ignored by the District Judge, resulting into delivery of the order as impugned in this appeal. 5. The appellant, according to Mr. V.D. Sivabalan, is interested to contest the case and has a fair possibility to secure a favourable order in the same. However, even then the finding of the District Judge that the present appellant has not been vigilant to follow up his case, is only jeopardising the appellant’s rights. 6. It has been submitted that a delay of 219 days in filing an application for setting aside abetment along with the application for condonation of delay that period, may be condoned and the impugned order be set aside for the ends of justice. 7. Mr. Lokesh Chezian is representing the respondents. He obviously supports the impugned order dated September 7, 2018. He says that the intentional latches on the part of the appellant in following up of the Court’s proceeding was evident to the Court and the Court has accordingly taken a decision which cannot be termed as erroneous. He says further that the abetment of the case filed under Section 34 of the Arbitration and Conciliation Act, 1996 has given rise to the right of the respondent for harvesting the fruit of the arbitration award. From the same, according to Mr. Lokesh Chezian, his client cannot be deprived of without any sufficiently convincing and sufficient cause. He says further that the abetment of the case filed under Section 34 of the Arbitration and Conciliation Act, 1996 has given rise to the right of the respondent for harvesting the fruit of the arbitration award. From the same, according to Mr. Lokesh Chezian, his client cannot be deprived of without any sufficiently convincing and sufficient cause. He has stated that there is no cogent reason for this Court to interfere into the order dated September 7, 2018 of the District Judge in Misc. Judl. Case No. 02 of 2014, as impugned in this appeal. 8. A contract being No. 9/95-96 incorporated an arbitration clause. The contract was executed between the parties for the work namely “extension of runway by 1524 M (1500 fit) at Port Blair, SH: earth work”. With regard to monitory issues over there, the dispute was referred to the Arbitrator. Arbitrator has intervened and ultimately declared an award on May 31, 2007. Arbitrator has awarded in favour of the present respondents for a payment of Rs.6,72,79,298/- along with interest @ 12 per cent per annum up to April 20, 2001. A further stipulation was made for payment of 18 per cent per annum, in case of default. 9. Challenging the said arbitral award dated May 31, 2007, the present appellant preferred a case under Section 34 of the Arbitration and Conciliation Act, 1996 (Other Suit No. 05 of 2011 - Union of India vs. S.N. Kanungo and another) in the Court of District Judge, Port Blair, on August 29, 2007. During the pendency of the said case, the respondent S.N. Kanungo died on October 15, 2012. Now therefore the legal representatives of the said deceased-respondent were required to be made parties in the case, within a period of 90 days from the date of death. The same was not done within the statutory time frame. Consequently the case abated, after expiry of 90 days period i.e. after January 14, 2013. 10. At this juncture if the appellant thought of coming back within the arena of adjudication in a Court of law, it should have preferred an appropriate application within a period of 60 days from the date of abetment, in terms of Article 121 of the Limitation Act. In this particular case, such period would have expired after March 14, 2013. However, the present appellant ultimately has filed the Misc. Judl. In this particular case, such period would have expired after March 14, 2013. However, the present appellant ultimately has filed the Misc. Judl. Case No. 02 of 2014 only on February 04, 2014 i.e. after more than twelve months from the date of abetment. 11. Therefore the present appellant was also required to file its prayer for condonation of delay in filing the Misc. Case, as above and such prayer of the appellant for condonation of delay should have been supported by cogent and sufficient reason as to the cause there. 12. The cause shown by the present appellant in the trial Court in a nutshell is that the Government Pleader was changed, conducting counsel was not properly communicated the relevant instructions and also that the procedural complication took additional time to deal with the process of filing of the Misc. Case. According to the appellant as a Government department, the said reasons are justified and sufficient for it, so long as the department is interested to contest in the case. However, according to the respondent, the reasons are not at all convincing and sufficient in accordance with law to justify an order accepting those. 13. It is now well settled that while considering an application for condonation of delay, the Court would approach not very strictly but in a lenient manner, so that the party interested to agitate their substantiate right, can proceed with the same. 14. Indeed, as an administrative department, the appellant must have got certain protocol to be gone through before proceeding in a Court of law. As it is not a swift conversion between two private individuals and would require application of mind by the Officers on different strata thereof, that would definitely and naturally take some more time then in case of two private individual. 15. On this basis, the reasons shown by the appellant cannot be blatantly overthrown as not sufficient or unconvincing. 16. On the other hand, the Court must not be oblivious on the fact that the pursuant to a contract both the parties thereto had certain rights and duty and liabilities respectively. In case one is aggrieved for infringement of his right under the terms of the contract, he is authorised under the law of the land to agitate his grievances before the Court of law. In case one is aggrieved for infringement of his right under the terms of the contract, he is authorised under the law of the land to agitate his grievances before the Court of law. After all, it should be borne in mind that the payment of public money is involved in the case through the present appellant and if the judgment debtor desires to test the legality and propriety of the verdict, he should not in a slipshod and technical manner, be debarred to do the same. 17. On consideration the facts as above, this Court finds that in the impugned order the Trial Court has dealt with the matter in pursuance with the technicalities only, and without considering the larger perspective or even what might have served the ends of justice. 18. Therefore this Court is of the opinion that the decision of dismissing the Misc. Judl. Case. No. 02 of 2014 by the District Judge vide the impugned order dated September 7, 2018 is based on limited considerations of counting days only whereas the facts of the case would require a more intensified understanding of its tenets so that it would meet the ends of justice. 19. In the mind of this Court, the reasons shown by the present appellant before the Trial Court for condonation of delay of 219 days, in filing the application for setting aside abetment should be considered as sufficient, for the reasons, as discussed above. 20. Hence, this Court further finds that the impugned order is liable to be set aside and the Misc. Judl. Case No. 02 of 2014 be allowed. 21. For the reason as above, FMAT/3/2018 should succeed. The impugned order dated September 7, 2018 in Misc. Judl. Case No. 02 of 2014 in the Court of District Judge is set aside. Further order is made to the effect that the reasons shown for delay having been found as sufficient, the Misc. Judl. Case No. 02 of 2014 be allowed and the application under Section 34 of the Arbitration and Conciliation Act, 1996 being Other Suit No. 05 of 2011 be restored in its original file and number. 22. The trail Court is hereby requested to proceed with the said case in accordance with law and as expediously as possible without granting any unnecessary adjournments to any of the parties. 23. 22. The trail Court is hereby requested to proceed with the said case in accordance with law and as expediously as possible without granting any unnecessary adjournments to any of the parties. 23. With the above directions, the appeal and connected applications are disposed of. No order as to costs. 24. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities. I agree. - Harish Tandon, J.