MUKTI FILMS Vs. NARESH KESHRIMAL MEHTA

JUDGEMENT

(1.) BY this Notice of Motion the Petitioner prays that delay of 382 days in taking out the Notice of Motion for restoration of Petition which was dismissed on 30 October 2012 for non -compliance of office objections, be condoned and the petition be restored to file.

(2.) AFFIDAVIT has been filed initially by the concerned Advocate and it has been ratified by the Applicant subsequently. When an Advocate files an affidavit placing on record that there was some difficulty because of which matter went unattended, normally this Court would not take a harsh view of the matter and restore the petition so that it can be heard on merits. However, the discretion of the Court has to be used in facts and circumstances of each case and keeping in mind the nature of the proceedings. These are arbitration proceedings. The legislature has provided specific non extendable limitation for challenging the award. Underlying legislative policy being expeditious disposal of the arbitration proceedings. The legislature has provided that the petition has to be filed within period of 90 days and if the Court so permits within 30 days after the expiry of 90 days. Thereafter even the Court is powerless to condone the delay. The legislature has provided for such stringent limitation for a specific purpose. This purpose cannot be lost sight of when request for condonation of delay is made in proceedings such as the present one. If unwarranted indulgence is shown to a party it will be against the policy of providing stringent time schedule. It is in the background of this position in law that facts of the present case need to be considered.

(3.) THE petition was thereafter placed before the Prothonotary and Senior Master for removal of objections on 30 October 2012. None attended the Petition and it was dismissed for non -prosecution. The present notice of Motion for restoration was taken out on 16 November 2013 i.e. after more than one year. The Advocate has filed an affidavit giving reason that on 30 October 2012, grandfather of the Advocate was hospitalised at the native place and therefore, he could not attend the proceedings. Then there is no explanation for the next year or so. It is stated that when he inquired on 13 November 2013, he found that the petition was dismissed on 30 October 2013. It is the only reason given in the affidavit in support. The Applicant has filed an affidavit ratifying what is stated by the Advocate, since an objection was taken by the Respondent that no affidavit has been filed by the Applicant. The learned counsel for the Respondent has contended that the excuse given in the affidavit is completely unjustifiable and everyone concerned has been absolutely negligent in prosecuting the petition.