M.C.D. vs Kamla Valves Manufacturing

Shiv Narayan Dhingra, J.—During pendency of the suit under Sections 14 and 15 of the Arbitration Act, 1940, the defendant No. 1 filed an

IA No. 3990/00 raising objections against the award. These objections of the objector/applicant were dismissed in default on 10th April, 2001.

The applicant filed an OA No. 4678/01 under Order 9 Rule 13 CPC to set aside the order dated 10th April, 2001. Again none appeared to

prosecute this OA No. 4678/01 and this application was dismissed in default on 3rd September, 2002. Applicant then filed second application,

i.e., IA No. 10053/02 under Order 9 Rule 13 CPC to set aside the order dated 10th April, 01. This application was also dismissed in default on

30th October, 2002. From 30th October, 2002 till 2006 the applicant kept sleeping coolly. Then third IA No. 13816/06 under Order 9 Rule 13

was made by the applicant for setting aside the order dated 10th April, 2001. This application was also dismissed in default on 24th September,

2007 and thereafter applicant made two applications bearing IA No. 13815/06 u/s 5 to condone the delay in filing fourth application No.

13816/06 under Order 9 Rule 13 CPC. This application 13815/06 was dismissed in default on 24th September, 2007. Then applicant filed fifth

IA No. 11524/07 under Order 9 Rule 13 to set aside the order dated 10th April, 2001. This application is accompanied by another application

being IA No. 11523/07 u/s 5 of Limitation act which is subject matter of disposal of this order. He also filed another IA No. 11475/07 for

restoration of IA Nos. 13815/06 and 13816/06 which were dismissed on 24.9.2007.

The plea taken by the applicant is that applicant had its office at Howrah (Calcutta) and carrying its business from Calcutta. After service of

summons of the suit, the proprietor of applicant firm engaged an Advocate, Mr. R.K. Singh for handling the suit and challenging the award.

Thereafter the proprietor contacted his Advocate in Delhi and he was told that the application for setting aside the award and deciding the suit has

been filed and was being prosecuted. The applicant kept on requesting his Advocate to send him the orders passed by the Court. On 10.10.2006

the applicant was shocked to receive a notice of execution case No. 200/06 filed by the Delhi Jal Board and then the applicant came to know that

the award has been made a rule of the Court. The applicant all along had been under the impression that his objection petition had been allowed

and the award has been set aside. He then tried to contact his earlier Advocate but was unable to do so as the Advocate was not available at his

office. His whereabouts were not known. The applicant however traced him out and found that he was seriously ill and bed ridden. The applicant

then came to Delhi and engaged a new set of Advocates and learnt about the past proceedings on inspection of file by his new Advocate. It is

stated that the applicant suffered only due to negligence of his earlier Advocate who did not discharge his professional duty as expected and the

applicant should not be made to suffer for negligence of the Advocate. About the applications No. 13815/06 and 13816/06 being dismissed in

default on 24.9.07 nothing is stated.

The present applications cannot be entertained not only because of callous and negligent attitude of the applicant but also since the Court is

being taken for granted. The objections by the applicant were filed in 2000. The applicant has stated that he was businessman of Calcutta and was

operating from Calcutta but the fact remains that he has accepted business in Delhi and had entered into a contract with MCD for execution of

work in Delhi. He cannot take an excuse that he was not stationed at Delhi and therefore has a right to remain in his house in Calcutta without

bothering about the case in Delhi. From 2000 to 2006, the applicant did not pursue his case. He states he was dependent on his Advocate and

presumed that the award has been set aside, while it is his own plea that his Advocate did not send him orders of the Court and he did not receive

order of the Court setting aside the award. I therefore consider that the Court cannot give liberty to a person to sleep over the matter for years

together and then suddenly woken up after 6 or 7 years and tell the Court that now he has waken up and the hands of the clock should be set

back and the order passed by the Court should be recalled. The award was made rule of the Court on 10th April, 01 when the objections of the

applicant were dismissed and decree was passed. I find no cogent reason given by the applicant to condone the delay of 6 long years in moving

the application. The applications made by the applicant are hereby dismissed being without merit.