CONTINENTAL CONSTRUCTION LIMITED Vs. CONTINENTAL FLOAT GLASS LIMITED

JUDGEMENT

(1.) An award was made and published by the Arbitrators on July 24,1984. The same was filed in Court. Notice of the award was given to the parties. The respondent-applicant filed objections to the award vide I.A. 8611 /94. The matter came up before the Court for hearing on 8th March, 1995. On that date, no one appeared for the respondent-applicant. Accordingly, the objections were dismissed, the award was made a rule of the Courtand a decree in terms thereof was passed. Thereafter the applicant-respondent filed an application, being I.A. 2800/ 95, under Order 9 Rule 13, Civil Procedure Code for setting aside the ex-parte decree alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the application. The matter came up on December 15,1995 before Jaspal Singh, J. On that date, the order sheet shows that none of the parties appeared in the matter and a notice was directed to be issued to the parties. Subsequently on March 13,1996 the matter came up before Arun Kumar,J, who directed it to be listed for May 15,1996. On May 15,1996 there was no appearance on behalf of the applicant-respondent and accordingly, the application was dismissed.

(2.) Thereafter on July 6, 1996 the respondent-applicant filed an application, being I.A. 6257/96, under0rder9 Rule 13 for recalling the order dated May 15,1996. In the application it is averred that on March 13,1996 both the parties were present in Court and were represented by their Counsel; that the Court adjourned the case to July 18,1996 and accordingly the Advocate of the applicant informed the Senior Counsel that the matter had been adjourned to 18th July, 1996; that the applicant came to know about the order dated May 15, 1996, dismissing I.A. 2800/95, only on June 15,1996 through the letter of the same date received from the petitioner. In the circumstances it is prayed by the applicant that the order May 15, 1996 be recalled as wrong date was noted due to a sheer unintentional mistake. This application is accompanied by I.A. 6258/96 under Section 5 of the Limitation Act in which the stand taken in the application under Order 9 Rule 13 has been reiterated. Both the applications are accompanied by affidavits of Mr. J. L.Malhotra, Administrative Officer of the applicant-Company. There is also a third application by the respondent being I.A. 6259/96 undersection 151,CPC for stay of the warrant of attachment issued by this Court in execution of the decree passed on March 8, 1995.

(3.) Learned Senior Counsel appearing for the applicant submitted that the absence of the applicant on May 15, 1996 was unintentional and resulted from a bonafide mistake in noting down the date. He also contended that the applicant had taken every possible step to prosecute the case and it had engaged a Counsel in the matter. He further submitted that the interest of the client should not be permitted to be permanently prejudiced for the bonafide mistake in noting the date by the Counsel. On the other hand, learned Counsel for the petitioner/non-applicant submitted that the non-appearance of the applicant on May 15,1996 should not be excused as the absence was not a bonafide one. He also invited my attention to the fact that even on a previous occasion the applicant did not appear in the matter with the result that its objections were dismissed and the award was made a rule of the Court. Leaned Counsel for the petitioner/non-applicant further contended thatno useful purpose would be served even if the application seeking recall of the order dated May 15, 1996, is granted and I.A. No. 2800/95 under Order 9 Rule 13, CPC for setting aside of the ex-parte order is restored as provisions of Order 9 Rule 13, CPC cannot be invoked in a matter where the objections to the award of an Arbitrator are dismissed for non-appearance. I have considered the submissions of learned Counsel for the parties. It is the categorical stand of the applicant that it has noted a wrong date as a result of which the applicant could not appear before the Court on May 15,1996. There is nothing on record to throw any doubt in regard to the factual stand taken by the applicant. A bonafide mistake on the part of the Counsel should not be allowed to jeopardise the interest of a litigant. Similar considerations would prevail in regard to the request for condonation of delay in filing the instant application as the delay, if any, in filing the same is also based upon the mistake of the Counsel in noting the date of hearing of the matter.