Full Judgment Text
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 11 December, 2023
+ FAO(OS) (COMM) 112/2020, CM APPL. 22633/2020, CM APPL.
22715/2020 & CM APPL. 26072/2020
INDIRA GANDHI NATIONAL
OPEN UNIVERSITY ..... Appellant
Through: Mr. Harmeet Sing Ruprah, Adv.
versus
SHARAT DAS AND ASSOCIATES
PVT LTD ..... Respondent
Through: Mr. Jayant Mehta, Sr. Adv. with Mr.
Aman Dhyani, Ms. Nitika Sethi &
Ms. Kanchan Semwal, Advs.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
VIBHU BAKHRU, J. (Oral)
1. The appellant has filed the present appeal under Section 37 of the
Arbitration and Conciliation Act, 1996 (hereafter ‘ the A&C Act ’),
impugning a judgment dated 04.06.2020 (hereafter ‘ impugned judgment ’),
rendered by the learned Single Judge in OMP(COMM) 26/2019, captioned
as Indira Gandhi National Open University v. M/s. Sharat Das and
Associates Pvt. Ltd.
2. By the impugned judgment, the appellant’s application under Section
34 of the A&C Act assailing an arbitral award dated 25.04.2018 (hereafter
‘ the impugned award ’), was rejected on the ground that it was filed beyond
the period of limitation as stipulated under Section 34(3) of the A&C Act.
3. It is not disputed that the impugned award was rendered on
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25.04.2018 and delivered on the same date.
4. In terms of Section 34(3) of the A&C Act, the time available for the
appellant to file an application under Section 34 of the A&C Act expired on
24.07.2018. Admittedly, the appellant filed an application under Section 34
of the A&C Act (CIS-ARBTN-233-2018 captioned Indira Gandhi National
Open University (IGNOU) v. M/s. Sharat Das & Associates Pvt. Ltd. ) before
the learned Commercial Court on the last date of period of limitation, that is
on 24.07.2018
5. Notice in the said application was issued by the learned Commercial
Court on 06.08.2018. The respondent appeared in the said proceedings and
objected to the jurisdiction of the learned Commercial Court to hear the said
application. Concededly, the objection raised was merited. Given the value
of the dispute, the learned Commercial Court did not have the jurisdiction to
entertain the said application. Accordingly, on 28.08.2018, the learned
counsel for the appellant, on instructions, sought to withdraw the said
application. His statement was recorded, and the learned Commercial Court
dismissed the application as withdrawn with liberty to file a fresh petition in
accordance with law.
6. In view of the above, the appellant filed the application under Section
34 of the A&C Act before this Court on 11.09.2018. The said application
was dismissed by the impugned judgment on the ground of delay in filing as
well as re-filing the application.
7. The learned Single Judge allowed the application of the appellant for
condonation of delay under Section 14 of the Limitation Act, 1968.
However, rejected the application for condonation of delay in re-filing the
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application, inter alia , construing the appellant’s initial filing before this
Court as non est. Whilst the appellant, being aggrieved by this decision has
filed the present appeal, the respondent has filed cross-objections assailing
the impugned judgment to the extent that the appellant’s application for
condonation of delay under Section 14 of the Limitation Act, 1963 was
allowed.
8. As is apparent from the sequence of events as noted above, there was
a delay of 48 (forty eight) days in filing the application under Section 34 of
the A&C Act. The delay of 35 (thirty-five) days is sought to be explained
on account of the appellant pursuing its remedy against the impugned award
in a Court not competent to entertain the same. In terms of Section 14 of the
Limitation Act, 1963, a litigant who approaches the Court, which does not
have jurisdiction and pursues his remedy in good faith, is entitled to the
benefit of Section 14 of the Limitation Act, 1963. Thus, the period spent by
the said litigant to pursue its remedy is required to be excluded for the
purpose of computing the period of limitation.
9. We find no infirmity with the decision of the learned Single Judge in
allowing the appellant’s application for condonation of delay of 35 (thirty-
five) days – that is, from 24.07.2018 to 28.08.2018 – under Section 14 of the
Limitation Act, 1968.
10. It is apparent from the above that even if the appellant is granted the
benefit of Section 14 of the Limitation Act, 1968, it is also required to
explain a further delay of 13 (thirteen) days being the period between
withdrawal of the application before the learned Commercial Court and
filing of the same before this Court on 11.09.2018.
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11. According to the appellant, there was a delay of 11 days for filing the
application, which is required to be condoned as it is entitled to some time to
file the application in this court after withdrawing the same from the learned
commercial court.
12. The application as filed before this Court was returned under defects
on 14.09.2018, and was re-filed on 25.09.2018. However, that too was
found defective. These defects were pointed out by the Registry on
26.09.2018. The application was re-filed on 30.10.2018. This pattern was
repeated successively – the filing was found to be defective, the defects were
notified to the appellant, the appellant refiled the application. In all, the
application was filed on eleven occasions. The application as filed on
16.01.2020 was finally accepted.
13. The learned Single Judge found that the application as filed initially
on 11.09.2018, and successively thereafter, was non est as it was not
accompanied by certain vital documents and the defects were foundational.
14. Clearly, if the application filed by the appellant under Section 34 of
the A&C Act was non est, the question of condonation of delay would not
arise. This is because in terms of Section 34(3) of the A&C Act, the Court
can condone a delay in filing the application beyond the period of three
months, subject to a maximum of thirty days. A non est filing would imply
that, in fact, there was no filing during the period, which could be condoned
by the court.
15. However, if the filing was found to be defective, which was
successively cured by re-filing of the application, the question as to whether
the delay ought to be condoned, is a matter that falls within the discretion of
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the Court. Section 34(3) of the A&C Act does not curtail the power of the
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Court to condone the delay in re-filing .
16. After some arguments, the learned counsel for the parties state that the
matter may be remanded to the learned Single Judge to consider the question
whether the initial filings were non est , in the light of the decision of this
Court in Oil and Natural Gas Corporation Ltd. v. Joint Venture of M/s Sai
Rama Engineering Enterprises (SREE) & M/s Megha Engineering &
Infrastructure Limited (MEIL): 2023/DHC/135-DB .
17. The submissions made by the learned counsel for the parties
commend to this Court. The impugned judgment is set aside to the extent
that the learned Single Judge has held the filing to be non est , and has
declined the appellant’s application for condonation of delay in re-filing the
application.
18. We clarify that nothing stated in this order should be construed as an
expression of opinion on the findings of the learned Single Judge. If the
Court finds that the initial filing was not non est , the Court shall also
consider whether condonation of delay in filing and refiling is warranted.
19. The Registry is directed to place the petition [OMP(COMM) 26/2019]
before the learned Single Judge on 15.12.2023.
VIBHU BAKHRU, J
AMIT MAHAJAN, J
DECEMBER 11, 2023
“SS”
1
Northern Railway v. Pioneer Publicity Corporation Pvt. Ltd .: (2017) 11 SCC 234
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