State Of Jharkhand vs M/S R. M. Sinha And Co

Heard Mr. Rahul Kumar Gupta, learned counsel for the petitioner along with Mr. Akash Bhushan, learned counsel appearing on behalf of the

petitioner.

Heard Mr. Vibhor Mayank, learned counsel appearing on behalf of the opposite party.

I.A. No. 8304 of 2018 has been filed for condonation of 306 days’ delay in filing the present C.M.P. No. 158 of 2018.

This civil miscellaneous petition has been filed for restoration of Arbitration Appeal No. 1 of 2017 to its original file which stood dismissed on

account of non-compliance of order dated 07.04.2017 passed by this Court. It is not in dispute that Arbitration Appeal No. 1 of 2017 was filed against

the judgment dated 07.07.2015 passed in Arbitration Application No. 1 of 2011 by the learned court of Senior Civil Judge-I, Sahibganj whereby the

application for setting-aside the award under Section 34 of the Arbitration and Conciliation Act, 1996 was dismissed on the point of limitation by

holding that the award was challenged after 49 days beyond 3 months plus 30 days and such delay could not be condoned by resorting to Section 5 of

the Limitation Act.

The learned counsel, while pressing I.A. No. 8304 of 2018 for condonation of 306 days’ delay in filing the instant civil miscellaneous petition,

referred to the petition and has submitted that for restoration of the Arbitration Appeal No. 1 of 2017, one civil miscellaneous petition bearing Oath no.

1698 dated 06.09.2017 was prepared and filed before this Court and the office of the conducting counsel was under the impression that the C.M.P.

for restoration of the appeal was already on record, but later on it came to the knowledge of the learned counsel that the civil miscellaneous petition

got misplaced prior to getting it registered before the Court.

However, during the course of hearing of this petition, it is not denied by the counsel appearing on behalf of the petitioner that under the normal

procedure of filing before this Court, a receipt of filing is also generated whose copy is served upon the petitioner’s counsel. However, he submits

that the receipt of filing is also not available with him as it appears that at some point of time, the prepared affidavit got misplaced. He further submits

that at times, the receipt is not being instantly given, but it is certainly given within a day or two. The learned counsel for the petitioner submits that in

this view of the matter the present petition for condonation of delay was filed and there has been a delay of 306 days in filing the present petition for

restoration.

Learned counsel appearing on behalf of the opposite party, on the other hand, opposes the prayer for condonation of delay and submits that the

statements made by the petitioner explaining the delay are vague and not acceptable. He also submits that it is not even apparent from this petition as

to when the petitioner came to know that the civil miscellaneous petition was not registered pursuant to Oath No. 1698 dated 06.09.2017. He submits

that delay in filing the petition for restoration of case is totally unexplained and may be rejected.

Learned counsel for the opposite party also submits that the appeal got dismissed on 21.04.2017 and the so-called Oath No. 1698 is dated

06.09.2017, for alleged filing of restoration application, but there is no explanation of delay from 21.05.2017 to 06.09.2017 in filing of the so-called civil

miscellaneous petition by virtue of Oath No. 1698 dated 06.09.2017.

Learned counsel for the opposite party further submits that otherwise also the objection to the award was filed after delay of 49 days beyond 3

months plus 30 days and under the Arbitration and Conciliation Act, 1996 such delay could not have been condoned. He further submits that the

rectified award is dated 22.08.2010 which was communicated on 26.08.2010 and the application for setting-aside of the Award was filed on

14.02.2011. Therefore, he submits that no useful purpose will be served by restoring the main appeal to its original file and this is over and above the

fact that there is no explanation whatsoever for the delay caused from 21.04.2017 till 06.09.2017 in filing the application for restoration of arbitration

appeal.

The learned counsel for the petitioner, in response, has referred to a judgment passed by the Hon’ble Supreme Court dated 22.10.2019 passed

in Civil Appeal No. 8298 of 2019 (The State of Manipur and Ors. Vs. Koting Lamkang) and submits that in the said case also, the delay in filing

appeal though not under Arbitration and Conciliation Act, 1996 was in two part; one relating to filing of the appeal before a wrong forum which was to

the extent of 44 days and the other related to totally unexplained delay. In the said case, the Hon’ble Supreme Court has considered the

administrative lapses which are generally there in the State authorities and therefore, the Hon’ble Supreme Court condoned the totally unexplained

delay and allowed the civil appeal. He submits that the in the said matter, the concerned High Court had, inter alia, refused to condone the unexplained

delay which was subject matter of challenge before the Hon’ble Supreme Court.

After hearing the counsel for the parties and considering the facts and circumstances of this case, this Court finds that there is no dispute that the

petition under Section 34 of the Arbitration and Conciliation Act, 1996 was dismissed on account of delay, against which the Arbitration Appeal No. 1

of 2017 was filed, which was also barred by limitation by 461 days as per office note in Arbitration Appeal No. 1/2017 and I.A. No. 609/17 was filed

for condonation of delay.

This Court also finds that the Arbitration Appeal No. 1 of 2017 was dismissed on account of non removal of defects for which two weeks’

time was granted on 07.04.2017 to remove the defects. The appeal was dismissed due to non-compliance of the order dated 07.04.2017. The appeal

stood dismissed on 21.04.2017.

This Court finds that the petitioner has stated in para 14 of the petition for condonation of delay that one civil miscellaneous petition bearing Oath

No. 1698 dated 06.09.2017 was prepared and filed before this Court. The filing receipt is also not available with the petitioner and accordingly, it has

not been annexed. It is also not in dispute that as per the procedure of this Court, upon filing of any petition, filing receipt is generated which is served

upon the counsel through his advocate clerk within a short time. The filing receipt having not been filed, the contention of the petitioner that the civil

miscellaneous petition was filed before this court earlier cannot be accepted. This Court further finds that otherwise also there is no explanation for

delay caused after 21.04.2017 till 06.09.2017 and there is not even a whisper of any kind of administrative lapses on the part of the present appellant

(State).

So far as the judgment passed by the Hon’ble Supreme Court in the case cited by the petitioner is concerned, this Court finds that in the

peculiar facts and circumstances of the said case, the Hon’ble Supreme Court had condoned the unexplained delay by indicating that the same

was required in public interest and if the delay was not condoned, the public interest was likely to suffer. There is no corresponding similar fact

situation in the present case, accordingly, the said judgment does not apply to the facts and circumstances of this case. Moreover, for matters arising

out of arbitration proceedings no additional leverage can be given to State for their lethargy.

Accordingly, this Court finds that there is no explanation for delay caused in filing the application for restoration of Arbitration Appeal No. 1 of

2017 at least till 06.09.2017 and the explanation furnished for the period from 06.09.2017 onwards till the filing of the present petition for restoration of

Arbitration Appeal on 10.04.2018 is also not satisfactory and such explanation has been rejected in the aforesaid paragraph. In view of the aforesaid,

the petition for condonation of delay being I.A. No. 8304 of 2018 is hereby rejected.

This civil miscellaneous petition is accordingly dismissed.