* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order delivered on: March 04, 2014 + O.M.P. No.705/2012 UNION OF INDIA Through .....Petitioner Mr.Ruchir Mishra, Adv. with Mr.Mukesh Kr.Tiwari,Adv versus M/S GUPTA CONSTRUCTION CO AND ANR. ....Respondents Through Mr.Vinit Trehan, Adv. with Ms.Sarika Goel, Adv. for R-1 CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. (ORAL) I.A. No.13972/2012 (for condonation of delay in filing the objection petition) & I.A. No.13973/2012 (for condonation of delay in re-filing the objection petition) 1. By way of present application under Section 34 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) the petitioner has assailed award dated 6th May, 2011 passed by the learned Arbitrator for setting aside the arbitral award. 2. The brief facts which led to the filing of present application were as under :(i) The petitioner invited the tender for the work of Aesthetic improvement of Bungalows under “I” Division during 20062007 with an estimated cost of Rs.75,59,928/- tender was opened on 6th January, 2007. OMP No.705/2012 Page 1 of 8 (ii) The respondent was declared to be the lowest bidder and after the negotiations with Chief Engineer (NDZ-I), CPWD, the respondent was awarded the contract for the amount of Rs.1,08,92,127/- vide agreement. The gross amount of work done by the respondent under this agreement amount to Rs.1,87,76,340/-. The said amount was paid in seven installments as and when running bills along with measurements received in the Division Office for payment. The 7th and final bill was paid to the respondent on 6th November, 2008. (iii) The respondent invoked Clause 25 of the agreement and requested Chief Engineer for appointment of arbitrator for adjudication of disputes. (iv) The learned Arbitrator directed the respondent to file the statement of facts in respect of his claims within 15 days from the date of receipt of notice dated 1st January, 2009 and also directed the petitioner to file their counter statement of facts within 30 days of the receipt of the statement of facts from the respondent and the date of hearing was fixed on 9th October, 2009. (v) On 9th October, 2009, respondent neither filed the statement of facts nor appeared before the learned Arbitrator. Accordingly, the learned Arbitrator passed an order dated 9th October, 2009, giving another opportunity to the respondent with the directions to file statement of facts by 15th November, 2009 and fixed the next date of hearing as 18th November, 2009. OMP No.705/2012 Page 2 of 8 (vi) On 18th November, 2009, the respondent neither filed the statement of facts nor appeared before the learned Arbitrator. Consequently, the learned Arbitrator vide its order dated 20th November, 2009 terminated the case under Section 25 (a) of the Act. (vii) Thereafter, the respondent filed petition under Section 15 of the Act with the prayer for appointment of an arbitrator or alternatively for appointment of a fresh arbitrator for adjudication of disputes. Vide order dated 20th May, 2010, this court set aside the order dated 20th November, 2009 passed by the learned Arbitrator and simultaneously directed the Arbitrator to issue fresh notice of hearing to both the parties and thereafter, proceed to decide the matter on merits in accordance with the law. (viii) In compliance of the orders dated 20th May, 2009 passed by this court, the learned Arbitrator issued fresh notice dated 25th June, 2010 directing the respondent to submit the statement of facts and claims within 20 days from the date of issue of the notice and also directed the petitioner to file counter statement of the facts within 30 days of the receipt of the statement of the facts from the respondent. The respondent filed statement of facts and after filing the statement of facts, the respondent filed another application before the learned Arbitrator for amendment in the amount under Claim No.3 stating that by advertence or otherwise or by means of typographic error in Claim No.3, the respondent claimed a sum of Rs.6,25,000/- on account of wrongful sanction of rates of various extra items OMP No.705/2012 Page 3 of 8 whereas, the correct amount which should have been claimed is Rs.36,35,000/-. (ix) On 9th March, 2011, the petitioner submitted the counter statement of facts before the learned Arbitrator. (x) On 6th May, 2011, the sole arbitrator signed the award on the non judicial stamp paper and awarded Rs.18,26,490/- to the respondents against all their claims and simple interest as awarded under para 7.1 of claim No.5 which was received by the petitioner on 9th May, 2011. (xi) The objections under Section 34 of the Act challenging the award before the District Judge, Delhi, on 5th August, 2011 within the period of 90 days. After filing the objections, the respondent No.1 filed an application under Order VII rule 10 CPC raising objections that the claim made by the respondent No.1 before the Arbitrator was more than Rs.20 lacs although the respondent No.1 was awarded less than a sum of Rs.20 lacs. Thus, the Additional District Judge had no jurisdiction to entertain the petition filed by the petitioner under Section 34 of the Act. While accepting the contention of the respondent No.1, who relied upon the decision of this Court in the case of Union of India vs. S.R. Construction Company & Anr., 207 (4) Arb.CR 141 (Delhi), the Court opined that it has no pecuniary jurisdiction to entertain the petition and order was passed to return the petition to the petitioner to be filed before the Court of competent jurisdiction on furnishing the certified copy of the same on the court record. OMP No.705/2012 Page 4 of 8 3. An oral statement was made by the learned counsel for the petitioner that date may be fixed directing the parties to appear before the court of competent jurisdiction for which no objection was raised by the learned counsel appearing on behalf of the respondent No.1. In view thereof, direction was passed by the Additional District Judge on 27 th March, 2012 to appear before the Registrar General of this Court on 7th May, 2012 at 10:30 am. 4. The contention of the petitioner is that there was bonafide belief and impression that the relevant record would be transmitted to this court well before 7th May, 2012 and upon appearance of both the parties, the Registrar General will fix the matter for further proceedings. However, when the petitioner through counsel appeared before the Registrar General, it was revealed that the record from the District Court was not transmitted to this Court. Accordingly, the petitioner filed the present OMP on 11 th May, 2012 after obtaining the certified copy. The Registry raised certain objection with regard to the filing of objections without application for condonation of delay. The certified copy of Section 34 petition of District Court was obtained by the petitioner on 7th April, 2012. 5. Admittedly the original objections were filed within three months from the date of receipt of copy of the award. The delay has happened due to misunderstanding by the petitioner for the reasons stated above and in view thereof, four days’ day has happened even after the expiry of 30 days. It is a matter of fact that after raising of objections by the Registry, the petitioner subsequently filed an application for condonation of delay of 46 days in re-filing the petition. OMP No.705/2012 Page 5 of 8 6. The explanation given in the second application is that the delay in re- filing has occurred on account of time consumed in procuring documents, arbitral record and preparing needful applications and completing other formalities as well as administrative formalities in approving the applications for filing before this court. So the prayers in both the applications are made that the delay of four days in filing the petition be condoned and in the second application, delay of 46 days delay in re-filing be condoned. 7. Both the applications are opposed by the respondent No.1. 8. Learned counsel for the respondent No.1 states that the objections under Section 34 ought to have been filed before this Court after passing the order dated 27th March, 2012 and since the same are not filed within the time, the objections are liable to be dismissed. Learned counsel for the respondent No.1 has referred to the decision in the case of Union of India vs. M/s. Harbhagwan Harbhajan Lal, 2010 (6) R.A.J. 310 (Del), in which the decision of the Supreme Court in Union of India vs. M/s. Popular Construction Co., AIR 2011 SC 4010 had been discussed. Counsel states that delay in filing the objections under Section 34 cannot be condoned and even delay of re-filing is not liable to be condoned as there is no bonafide on the part of the petitioner to file the objections before this Court. 9. After considering the entire gamut of the matter, it emerges that admittedly the objections under Section 34 were filed before the District Judge, Delhi, within the period of 90 days. It is not in dispute that on the objection raised by the respondent No.1, the learned Additional District OMP No.705/2012 Page 6 of 8 Judge has come to the conclusion that the court has no pecuniary jurisdiction to entertain the objections and order was passed on 27 th March, 2012 to the effect that the petition be returned to be filed before the Court of competent jurisdiction. But at the same time, it was agreed by the parties to appear before the High Court on 7th May, 2012. On 7th May, 2012, when the matter was not listed before the Registrar General of this Court, on enquiry it came to the notice of the learned counsel for the petitioner that the record has not been received nor was filed by the petitioner. 10. It appears to the Court that the grounds taken by the petitioner are bonafide and the benefit of delay would go in favour of the petitioner. It is not dispute that the original objections under Section 34 were filed in time. As far as re-filing is concerned, in Delhi Development Authority vs. M/s. Durga Construction Co., 2014 (1) R.A.J. 490 (Del.), the Division of this Court has come to the conclusion that the aspect of re-filing has to be considered as per its own merit. In view of the statement made in the application for condonation of delay in re-filing, I am of the considered view that the reasons given in the said application are sufficient to condone the said delay. 11. It is manifest that the petitioner has been pursuing its remedy with all diligence without avoiding any delay. The original objection rather was filed within the prescribed period of three months. Thus, there was not even a single day delay in challenging the Award. It is different matter if some delay has happened on returning the petition on account of lack of pecuniary jurisdiction and to refile the same in this court. At the best the said delay of few days is to be considered as delay in re-filing and an advantage cannot be derived by the respondent for such a delay when the objection under Section OMP No.705/2012 Page 7 of 8 34 are filed in time. No doubt the court has to consider the application for condonation of delay in refilling as per its own merit and incase the petitioner is able to make out a case by establishing a case of sufficient cause, the same can be considered in view of observation made by the Division Bench in the case of Durga Construction (Supra). 12. Thus, there is no force in the submission of respondent that such delay even one day in filing the petition if returned for want of pecuniary jurisdiction is to be considered and treated in the same manner when the main objections under Section 34 are filed. 13. Thus, the prayers made in both the applications are allowed. The delay in filing as well as in re-filing the petition is condoned. 14. The applications are disposed of. O.M.P. No.705/2012 & I.A. No.13971/2012 (for stay) List on 28th April, 2014. MANMOHAN SINGH, J. MARCH 04, 2014/jk OMP No.705/2012 Page 8 of 8