NALLATHAL SPINNING MILLS Vs. SRI CONSTRUCTIONS

JUDGEMENT

(1.) THIS Revision Petition has been filed against the order dated 09.07.2010 in dismissing the application in I.A.No.61 of 2007, an application filed under Sections 148 and 151 of the Code of Civil Procedure and thereby refusing to condone the delay of 422 days in representing the appeal papers.

(2.) THE brief facts of the averments raised before the Court below by the revision petitioner in support of his case for condonation of delay are as follows:- Originally, the petitioner engages Thiru.R.Sankaranarayanan as his Counsel to deal with the arbitration proceedings before the High Court, Madras, and he entrusted all the papers and documents with him pertaining to the Arbitration proceedings. Subsequently, on 07.04.2006, an Award was passed in Arbitration No.4 of 2005. On 27.04.2006, the petitioner challenged the award by filing appropriate petition under Section 34 of the <ACT>Arbitration and Conciliation Act, 1996</ACT> well within the limitation period by engaging another counsel before the learned Principal District Judge, Namakkal. However, the appeal papers were returned on 01.06.2006, by the learned Principal District Judge, for compliance of certain defects. In representing the appeal papers, there has been a delay caused to the extent of 422 days as he could not able to contact his then counsel who defended him in the arbitration proceedings. At last, he was given to understand that his then counsel very often used to visit foreign countries in connection with his profession apart from attending Supreme Court and other High Courts. He was able to meet him when his then counsel when he came down to Komarapalayam to attend a wedding and immediately thereafter, he had managed to meet him at Chennai and obtained the material documents. In that process, there had been a delay of 422 days in representing the appeal papers. In the mean time, he was served with attachment notice in R.E.P.No.23 of 2007. Hence, this petition to condone the delay of 422 days in representing the papers.

(3.) THE learned Senior Counsel Mr.M.S.Krishnan would submit in his argument that the lower Court has erred in not accepting the prayer of the petitioner for condonation of delay in re-presentation of the application which is inconsistent with law. He would further submit in his argument that the application was filed in time and it was returned for certain defects in the application and the counsel, who was engaged by the petitioner, namely Mr.R.Sankaranarayanan, was out of station and gone abroad and therefore, it was not represented by the local counsel immediately, and the petitioner could meet the counsel only after a longer period and asked about his application and thereafter only, the counsel acted and had re-presented the application with an application for condonation of delay and therefore, the petitioner should not be penalised for the omission of the counsel. He would further submit that it is only a delay in re-presentation and therefore, it is a matter in between the petitioner and the Court and however, the respondent was also given an opportunity to state his objections. He would also submit in his argument that the lower Court did not exercise its discretion to condone the delay, even though the re-presentation of delay would not extend the period of limitation, as the application was presented in time. He would further submit in his argument that the delay of 422 days caused in re-presentation of the application was not wilful, on the part of the petitioner and he has got a very good case in the application. He would also submit that the petitioner has questioned the arbitration agreement itself and on the foot of the said ground, the application is likely to be allowed and therefore, the meritorious claim of the petitioner should not be shut by rejecting the application at the threshold, by refusing the condonation of delay in re-presentation. He would also submit that the lower Court has found that the reasons submitted for condoning the delay are not convincing and acceptable, cannot prejudice the petitioner, since the petitioner was not responsible for the omission of representation and the petitioner should not be penalised for the act of his counsel. He would draw the attention of this Court to a judgment of Hon'ble Apex Court reported in AIR 1972 SC 749 in between THE State of West Bengal v. THE Administrator, Howrah Municipality and others, for the principle that the expression "Sufficient Cause" should receive a liberal construction, so as to advance substantial justice, when no negligence or inaction or want of bona-fide is imputable to a party. He would also bring it to the notice of this Court yet another judgment of Hon'ble Apex Court reported in 1998(7) SCC 123 in between N.Balakrishnan v. M.Krishnamurthy, for the same principle. THE learned Senior Counsel would bring it to the notice of this Court to a judgment of Hon'ble Apex Court reported in 2002(1) CTC 769 in between Ram Nath Sao @ Ram Nath Sahu and others v. Goberdhan Sao and others, for the same principle. He would also cite a judgment of this Court reported in 2006(4) LW 230 in between M.N.Abdul Wahab v. Salem City Municipality Corporation for the principle that the negligence of other persons should not be considered as that of the party, who is applying for condonation. He would also draw the attention of the Court to a judgment of this Court reported in 2009(4)CTC 722 in between S.Janaki v. M/s.Swetha Associates, represented by its partner, Mr.P.Sureshkumar and others, for the principle that the Court should not refuse to condone the delay in filing any application, even, if the defendant has contributed to such delay and in such circumstances, this Court should consider the position of the opposite party by compensating with cost for his laches, if any.