- (1.) PREFACE 1. In usual course we are faced with controversies mostly on a straight line. Seldom, we face problem with multiple twist. The present case would have a blue moon situation. If we look to the pleadings we would find an appeal preferred by Union of India being barred by 3506 days being almost ten years. Ordinarily, the Court of law would not touch it being delayed by a decade. However if one goes to the route he would find a complex twist. It is well -settled principle of law, to consider an application for condonation of delay, the Court should ordinarily not look to the facts. Here, in the midst of hearing of the application we find, to effectively dispose of the application for condonation, the Court would have to go into the facts of the case. At the end of it they might come to a conclusion that would not only dispose of the application for condonation but also the appeal itself. Hence, we permitted the parties to address us not only on the application for condonation but also on the merits of the appeal. We permitted the parties to do so not only for ends of justice but also for our benefit to have a glance of the entire situation while dispensing justice, otherwise we would be failing in our duty. In this backdrop, we proceed to decide the issue. FACTS :
(2.) FEW dates would be relevant. To find out the genesis of the controversy we look way back in 1992, when Union of India invited tender for construction of workshop building at Ichapur. After the consideration of the tenders submitted for the purpose, the authority accepted the offer of the respondent on January 29, 1993. The authority subsequently entrusted the job through work order issued on February 22, 1993. The contractor was supposed to complete the work within one year. After various extensions being given up to 1996, the work was completed belatedly, as per the record actual date of completion as agreed and acknowledged by the parties was February 26, 1996. The dispute arose as to the settlement of final bill. The authority paid the amount as according to them payable on March 31, 1997 that the contractor did not agree.
(3.) THE parties invoked the arbitration clause on July 16, 1997. The Hon'ble Acting Chief Justice appointed a former Judge of this Court to act as Arbitrator vide order dated July 1, 1999 passed in an application under Section 11(6) of the Arbitration and Conciliation Act, 1996. Accordingly, the Arbitrator entered upon reference and ultimately published a reasoned award for Rs.18,28,774.00 along with future interest. The amount would include interest on the principal claim up to the date of the award. The Arbitrator published his award on February 16, 2001. The appellant authority did not accept the award. They decided to challenge the same. Here lies the twist. The authority approached the learned District Judge, Barasat under Section 34 of the said Act of 1996 as according to the authority the said Court was the "Principal Civil Court" within the meaning of Section 2(1)(e) of the said Act of 1996. The authority filed the application on May 14, 2001 as we find from page -90 of the application for stay. The respondent/claimant challenged the jurisdiction of the learned District Judge by filing an application under Section 42 of the said Act of 1996 inter alia contending, the High Court appointed the Arbitrator vide order dated July 1, 1999 in A.P. No. 331 of 1998, hence, the High Court was the "Principal Civil Court" within the meaning of Section 34 coupled with Section 42 of the said Act of 1996. Vide order dated April 29, 2003 the learned District Judge dismissed the application under Section 34 by observing, the said Court lacked jurisdiction to entertain the application under Section 34 in view of the provisions of Section 42. The authority accepted the said decision and approached this Court by filing a fresh petition under Section 34. Vide judgment and order dated October 18, 2012 the learned Single Judge dismissed the said application as not maintainable on the ground, the application was delayed. It would be profitable to quote few paragraphs of the said judgment and order and make it a part of this judgment: - "The petition is not maintainable and is liable to be dismissed as such without the merits of the matter being gone into. The petition is for challenging an award which was made and published on February 16, 2001. The parties are, unfortunately, unable to indicate any specific averment in the petition as to the date of the receipt of the award by the petitioner. In the absence of a specific date in such regard, the nearest proximate date of March 24, 2001 which is reflected in the list of dates set forth in the petition maybe taken as the earliest possible date of the receipt of the award. It appears from such list of dates that on May 14, 2001 a petition was filed in the Barasat court to challenge the award and by August 29, 2001 the respondent herein had applied under Section 42 of the 1996 Act for dismissal of the Barasat petition. A copy of the application for dismissal of the petition was made available to advocate representing the petitioner herein in the Barasat court on May 28, 2002 and an affidavit to the application for dismissal was filed by the Union of India on July 16, 2002. The Barasat petition was dismissed on April 29, 2003 and a certified copy of the relevant order obtained on June 12, 2003. The present petition was filed not before September 10, 2003. Between March 24, 2001 and May 14, 2001 about 50 days elapsed; between June 12, 2003 and September 10, 2003 nearly three months elapsed. Thus, even if the period between May 5, 2001 and June 12, 2003 is disregarded though there is no good ground as to why it should be the petition for setting aside the award has been carried to this Court beyond the period of three months and thirty days as envisaged in the proviso to Section 34(3) of the 1996 Act. It is, in such circumstances, not necessary to go into the merits of excluding the period between May 14, 2001 and June 12, 2003, though several questions would arise in that context. The first of the questions would be whether the petitioner herein had proceeded bona fide before the other court; the next would be whether the petitioner should get the benefit for the entirety of the period when an application for dismissal of the Barasat petition was filed and Section 42 of the 1996 Act was urged therein. The further question that would arise is whether the period of two months between the rejection of Barasat petition and the petitioner obtaining the certified copy of the order would also be relevant to be excluded from the period stipulated under Section 34(3) of the 1996 Act. The entirety of the benefit of doubt has been given to the petitioner in making the present assessment since the award was, in all likelihood, received by the petitioner long prior to March 24, 2001. AP No. 250 of 2003 is dismissed as not maintainable as it is barred by the laws of limitation and the delay in filing the petition beyond the extended period recognized in Section 34(3) of the Act cannot be condoned".;