Full Judgment Text
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PETITIONER:
INDIAN STATISTICAL INSTITUTE
Vs.
RESPONDENT:
M/s ASSOCIATED BUILDERS AND ORS.
DATE OF JUDGMENT02/12/1977
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
UNTWALIA, N.L.
CITATION:
1978 AIR 335 1978 SCR (2) 338
1978 SCC (1) 483
ACT:
Limitation Act, 1963, S. 5, whether covers delay in re-
filing objections after rectification of defects-Condonation
when delay due to circumstances beyond litigant’s control.
HEADNOTE:
In connection with a dispute between the parties, the
appellant submitted his objections for setting aside the
arbitration award. The objection petition was filed within
the period of limitation, but was returned as defective, in
that the necessary stamps were not affixed, and the date of
the verification of the petition was not entered. The
defects were rectified, but the appellant refiled his
objections late, due to his advocate’s misconduct. The
delay was caused by circumstances beyond the appellant’s
control, but the High Court refused to condone the delay.
Allowing the appeal the Court,
HELD : (1) There had not been any delay in preferring the
objections. The delay, if any was in re-presentation of the
objection petition after rectifying the defects, and the
delay in re-presentation is not subject to the vigorous
tests which are usually applied in excusing the delay in a
petition under section 5 of the Limitation Act. [343 E-G]
Mahant Bikram Dass v. Financial Commissioner & Ors. [1978] 1
SCR 262, applied.
(2)The delay is not due to any want of bona fides or care
on the part of the appellant. but due to circumstances
beyond his control. He cannot be held guilty of negligence
so as to disentitle him to plead sufficient cause under
section 5 of the Limitation Act. Section 149 of the Code of
Civil Procedure confers ample power on the High Court to
exercise its powers in order to do justice to a litigant
where the failure is not due to any fault of his. [344 A-C]
State of West Bengal v. Administrator Howrah Municipality
and Ors., [1972] 2 S.C.R. 874 and Maliant Ram Das v. Ganga
Das, [1961] 3 S.C.R. 763; applied.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1298 of
1977.
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Appeal by Special Leave from the Judgment and Order dated 7-
2-77 of the Delhi High Court in Suit No. 574-A of 1976.
D.N. Mukherjee, D. P. Mukherjee, G. S. Chatterjee and A.
K. Gannguli for the appellant.
S. T. Desai and Bishainber Lal for Respondent No. 1.
The Judgment of the Court was delivered by
KAILASAM, J. At the conclusion of the hearing of the appeal
on November, 7, 1977 we had passed the operative part of the
order stating that a reasoned judgment would follow. We now
proceed to give the reasons.
This appeal is by special leave against the judgment and
order dated 7th February, 1977 in suit No. 574-A of 1976 by
a single judge of
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the High Court of Delhi whereby he dismissed the appellant’s
petition for condonation of delay in filing the objection
for setting aside the arbitration award given by respondents
2 and 3.
A contract was entered into between the appellant-Indian
Statistical Institute-and the first respondent-Associated
Builders & Ors., in respect of the work for construction of
Indian Statistical Institute Campus at Hauz Khas, New Delhi.
The contract provided for arbitration for settling any
dispute that may arise between the parties. A dispute arose
and the matter was referred to respondents 2 and 3 who gave
an award on 23rd July, 1976. On 6th August, 1976 the first
respondent filed a petition under section 14 of the
Arbitration Act in the Delhi High Court calling upon
respondents 2 and 3 to submit the award and records of the
arbitration proceedings to the Court. On 27th August, 1976
the arbitrators filed the award in the court. The appellant
was served with a notice on 31st August, 1976 calling upon
it to submit the objection for setting aside the award
within one month from the date of the service of the notice.
The objection for setting aside the ’ award was filed in the
High Court on 29th September, 1976 within the period of
limitation. But as the objection petition was defective, in
that the necessary stamps were not affixed and the date of
tiff verification of the petition was not entered, the
memorandum of objection was returned on 12th October, 1976
for rectifying the defects. When the matter was taken up by
the Deputy Registrar on 25th October, 1976, Shri D. P.
Mukherjee, Advocate, appearing on behalf of the appellant
made a submission that the appellant wanted to change its
advocate and that it may be given some more time for filing
the objections. On 10th November, 1976 two applications
were filed by the appellant (I.A. No. 2522 of 1976) under
clause 4 of Chapter V of the Delhi High Court (Original
Side) Rules for determination of authority of Shri B. Singh
to act as advocate on his behalf and another out of which
the present appeal arises for condonation of the delay and
for extension of time for filing objections for setting
aside the award. The petition for determination of
authority of Shri B. Singh to act as advocate was ordered
and we are not concerned with that in this appeal.
The Plea for condonation of delay and for the extension of
time for filing the objection for setting aside the award
Was on the ground that the appellant was unable to file the
petition as its advocate Shri B. Singh exerted illegal and
unethical pressure and wanted a sum of Rs. 15,000.1-
unjustifiably. The correspondence between the appellant and
the advocate Shri B. Singh which is relied on for proving
the obstructive attitude of the learned counsel for the
appellant, which resulted in the delay, may be referred to.
Soon after the award was passed before the receipt of the
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notice on 31-8-1976 the appellant wrote a letter to Shri B.
Singh, advocate, on 21st August, 1976 informing him that the
arbitrators have filed their award on 23rd July, t976 and as
per the award the appellant was directed to pay a sum of Rs.
3,04.510.33 p. to the respondents. Stating that the
appellant has decided to challenge the award, the counsel
was requested to’ draft and file the objections within the
time allowed for filing the objections. The appellant also
informed Shri B. Singh that its Law Officer would
340
be available for discussion in this case and for preparing
Objection petition in regard to the award. The letter
further stated that on the basis of the schedule of fees and
the discussions Shri B. Singh had with Shri Pandalal a fee
of Rs. 3000/- will be paid for the work of drafting only.
By the next letter, the appellant in continuation of letter
dated 21st August, 1976 requested Shri B. Singh to file the
objections and to conduct the case on their behalf and asked
for the objections to be filed within the time prescribed.
The letter also stated that Shri B. Singh will be paid as
per schedule of fees in the first week of October, 1976
subject to certain adjustments. On 22nd September, 1976
Shri B. Singh sent his bill for drafting, filing and
conducting objections. The bill contained two items-One for
professional fees for drafting the objections as per column,
3(d) of the schedule amounting to Rs. 3000/ and the second
item for professional fees for filing and conducting the
objections in the High Court of Delhi as per column 4(a) of
the schedule of fees amounting to Rs. 15,000/-. By another
letter dated 29th September, 1976 Shri B. Singh stated that
the objections have already been filed. Again on 13th
October, 1976 Shri B. Singh wrote to the appellant in which
he referred to his engagement for drafting objections and
filing and conducting the same in the High Court and the
fees demanded by him. He further stated that the objections
filed by him have been returned ’and the same must be
refiled after removing the objections otherwise the award
will, be. made a rule of the Court and thereby a decree for
Rs. 3,04,510.33 will be passed against the-appellant. Shri
B. Singh required papers along with the cheques for
professional fees to be handed over to him failing which
further action in the matter will be held up and the
appellant will be held responsible for all the consequences.
It may be noted that the objections filed in the court were
actually returned on 12th October, 1976 and the letter
demanding the fees and threatening further action will not
be taken if the demands were not met was written by Shri B.
Singh on the next day i.e. 13th October, 1976. In reply to
the letter dated 13th October, 1976 of Shri B. Singh the
appellant asked for particulars as to the circumstances in
which the objections filed in the court were returned and
the work that needed to be done before refiling and the time
by which it has to be refiled. The letter further stated
that the points raised by Shri B. Singh in his letter are
being looked into and a further communication will follow.
In the meanwhile the appellant requested Shri B. Singh as
its lawyer to look after their interest with utmost care
’and diligence and asked for ’the documents to be filed in
time. On 21-10-1976 the appellant wrote to Shri B. Singh
stating the facts and saying that it was never agreed to
between them that a sum of Rs. 15,000/- would be paid to
him. The appellant proceeded to state that Shri B. Singh
was paid a lump sum of Rs. 3,000,/- and it is surprising
that even after receiving Rs. 3,000/- he bad not cared to
give ’credit for the said amount in the above mentioned
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bill. The appellant also informed Shri B. Singh that it has
decided to withdraw the power in his favour and requested
him to handover all the documents and papers immediately.
After writing this letter to Shri B. Singh the appellant
engaged another advocate Shri Mukherjee. On 25th October,
1976, when the case came up for hearing before the Deputy
Registrar, Mr. Mukherjee, appearing for the appellant,
submitted that Indian Statis-
341
some more time for filing the objections. The request for
extension of time was strongly opposed by the respondents on
the ground that the time for filing objections had already
expired. The matter was listed to be posted before the
court for order on 15th November, 1976. In the meantime
Shri B. Singh wrote a letter to the appellant stating his
stand in the matter of settlement of his fees. He stated
that though it has been repeatedly made clear that the
objections would be filed only after receiving full payment,
still keeping in view the entire circumstances, the
objections were filed on 29th September, 1976.
In these circumstances, the appellant prayed for condonation
of delay in filing the objections and. for extension of time
to enable him to file the objections. The High Court while
observing that Shri B. Singh may have acted without care or
attention of the interest of his client or may have behaved
recklessly, but nevertheless he was negligent. The High
Court was not convinced that the appellant was unable to
take any steps for filing objections for ’setting aside the
’award before 21st January, 1977. The High Court observed
that although Shri Mukherjee had also put in appearance on
behalf of ISI before the Deputy Registrar on 25th October,
1976 and sought time for filing objections for setting aside
the award, no objections were, filed till 1st January, 1977.
It, however, observed that the appellant would have got
inspection of the record for the purposes of drafting and
filing objections for setting aside the award. The High
Court proceeded to observe that as material for drafting
objections for setting aside the award was already available
either in the Court records or in the record of the ISI, the
appellant has not acted with due diligence in preparing the
objections before 21st January, 1977. The High Court also
was of the view that as objections filed on 29th October,
1976 were not stamped, it could not be deemed to have been
filed at all. The Registrar of the Court having returned
the objections for re-filing after removing the defects, the
objections ought to have been refiled within a reasonable
time but as the appellant did not file them within
reasonable time there was no sufficient cause for exercising
its discretion. The High Court also was not inclined to
exercise its discretion and condone the delay and to direct
the payment of the deficit courtfees. To sum up the reasons
given by the learned Judge are : (i) though Shri B. Singh
may have acted without care or attention of the interest of
his client or may have behaved recklessly, but nevertheless
as he was negligent the conduct on the part of the counsel
cannot be held as sufficient cause for condonation of delay;
(ii) the court found that Shri Mukherjee, counsel for the
appellant was unable to take any steps for filing the
objections for setting aside the award before 21st January
specially when the material for drafting objections was
already available either in court records or in the records
with the appellant; (iii) Though it is not clear as to what
time the Deputy Registrar gave for removing the objections
and refiling, it was not done within a reasonable time.
The reasons given by the High Court are unsound and totally
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unconvincing. We feel that the petition discloses
sufficient cause for condonation of the delay. The High
Court found Shri B. Singh "may
342
have acted without care or attention of the interest of his
client or may have behaved recklessly, but nevertheless he
was negligent." We are unable to perceive how the appellant
was negligent. Even before the notice was received from the
Registry on 21st August, 1976 the, appellant requested Shri
B. Singh to Me the objections within the time allowed. On-
the basis of the threat demanding fees the appellant
promised to pay Shri Singh Rs. 3000/- which was admittedly
paid. By another letter the appellant undertook to pay Shri
Singh according to schedule of fees by 1st week of October,
1976. The objections were filed on 29th September, 1976
i.e. within time but no ’stamps were fixed to the objections
and the date of verification was not entered. This
intimation was given by Shri Singh on 13th October, 1976 a
day after the objections were returned by the office. Shri
B. Singh wrote to the appellant informing him of the return,
the necessity for removing the objections and refiling the
objections and threatening that it the fees were not paid
the matter would be held up. By the letter dated 21st
October, 1976 Shri Singh demanded Rs. 15,000/-. At the
earliest opportunity, that is when the matter came up before
the Deputy Registrar the ’appellant prayed for time for
filing objections stating that he had decided to change his
advocate. On 29th October, 1976 Shri B. Singh again wrote
stating that though it had been repeatedly made clear that
objection would be filed only after receiving full payments,
he had filed objections in time on 29th September 1976. The
learned Judge found that though the material for drafting
objections for setting the award was available either in the
records of the court, or in the record of the appellant.
there is no explanation for not filing objections till 21st
January, 1977. The High court ignored the fact that before
the vakalatnama of the counsel on the record is revoked no
one can act for the appellant. It was represented on behalf
of the appellant at the earliest opportunity that it had
decided to change the counsel and prayed for extension of
time. The learned Judge ignored the plea of the appellant
that from 25th October, 1976 to 21st January, 1977 the
appellant could not obtain the original objections filed by
Shri B. Singh and overlooked the fact that when the papers
were obtained from Shri B. Singh on 20th January, 1977 the
objections were promptly refiled on 21st January, 1977.
On the facts we are constrained to say that we are most
unhappy at the unsympathetic attitude taken by the High
Court. The appellant was totally helpless and could not
have refiled the memorandum of objections before 21st
January, 1977 in the circumstances in which it found itself.
Further, the learned Judge did not even take notice of the
fact that the petition for condonation of delay was pending
and before that was disposed of the memorandum of objections
cannot be properly refiled.
Regarding the conduct of Shri B. Singh the counsel who was
engaged by the appellant we feel the less said the better.
The facts disclose that he was paid Rs. 3,000/-. He filed
the objections without affixing any stamp, which does not
appear to be due to oversight, and when they were returned
for rectifying defects, he made a demand for Rs. 15,000/-
which is unconscionable. The subsequent conduct is not
making the papers available cannot be innocently explained.
We
343
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feel that Shri B. Singh has acted in a most unbecoming
manner in the discharge of his duties as a member of the
noble profession to which he belongs. We refrain from
issuing any notice or calling upon him to explain as he
is not under our disciplinary control. We, direct that a
copy of the judgment be sent to the Al India Bar Council for
taking such action as they may deem fit.
On the facts disclosed we feel sufficient grounds are made
out for condoning the delay in filing the objections. The
two defects that were pointed out were (i) the objections
were not properlystamped and (ii) the verification was
not dated. So far as the deficiency in stamps is concerned,
under section 149, Civil ProcedureCode, the ,Court has
ample jurisdiction to allow the person by whom such fee is
payable to pay such court fees at any stage. The defect in
not affixing the date of the verification is not a material
one to be taken serious note of. In the circumstances, it
cannot be said that objections were not filed within time or
that because they were not properly stamped the objections
could not be taken as having been filed at all. Therefore,
in our views there had not been any delay ’in preferring the
objections. The delay, if any, was in complying with the
directions of the Registrar to rectify the defect and
refiling the objections. The delay, as we have pointed out
earlier, is not due to any want of care on the part of the
appellant but due to circumstances beyond its control.
The High Court was in error in holding that there was any
delay in filing the objections for setting aside the award.
The time prescribed by the Limitation Act for filing of the
objections is one month from the date of the service of the
notice. It is common ground that the objections were filed
within the period prescribed by the Limitation Act though
defectively. The delay, if any, was in representation of
the objection petition after rectifying the defects.
5 of the limitation Act provides for extension of the
prescribed period of limitation. If the petitioner
satisfies the court that he had sufficient cause for not
preferring the objections within that period. When there is
no delay in presenting the objection petition section 5 of
the Limitation Act has no application and the delay in
representation is not subject to the rigorous tests which
are usually applied in excusing the delay in a petition
under section 5 of the Limitation Act. The application
filed before the High Court for condonation of the delay in
preferring the objections and the order of the court
declining to condone the delay are all due to
misunderstanding of the provisions of the Civil Procedure,
Code. As we have already pointed out in the return the
Registrar did not even specify the time within which the
petition will have to be re-presented.
In a recent judgment of this Court delivered on August 3,
1977 in Mahant Bikram Dass v. Financial Commissioner and
Ors.,(1) it is pointed out that the petition under section 5
of the Limitation Act seeking to condone the delay in
preferring an appeal is different from a petition for
excusing the delay in re-presentation.
(1) [1978] ISCR 262
344
Even in cases where there has been delay in filing of an
appeal or objection petition within the time prescribed when
the delay is not due to want of bona fides by the petitioner
and is due to the party having acted in a particular manner
on the wrong advice given by his legal adviser, he cannot be
held guilty of negligence so as to disentitle him to plead
sufficient cause under section 5 of the Limitation Act.
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(State of West Bengal v. Administrator, Howrah Municipality
& Ors. (1).
Equally when the petition is not properly stamped the Court
has ample powers to extend the time for affixing proper
court-fee. Section 149 of the Code of Civil Procedure
confers ample power on the High Court to exercise its powers
in order to do justice to a litigant where the failure is
not due to any fault of the. litigant. (Mahant Ram Das v.
Ganga Das(2) ).
We are satisfied that the High Court was not justified in
dismissing the petition on the ground that the objections
were filed beyond time. We allow the appeal and direct the
respondents to pay ’costs of the appellant in this Court.
M.R.
Appeal allowed.
(1) [1972] 2 S.C.R. 871.
(2) [1961] 3 S.C.R. 763.
345