RAJA RAM AND SONS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, M/s. Raja Ram and Sons entered into a contract with the respondents, Union of India for providing provisional O T. M. accommodation (Phase III at Gurdaspur. A dispute had arisen between the parties as Arbitrator was appointed as provided in the terms of the contract, who, vide his award dated 2. 10. 1986, allowed the claim of the petitioner for Rs. 69,534 02 plus interest. Out of this amount a sum of Rs. 17. 225/- which was an award in respect of item No. 12, was also made in favour of the petitioner. It was further held as established that the amount covered by item No. 12 was payable to the petitioner but the arbitrator opined that this payment could not be justified in the light of some judgment of the Bombay High Court. The petitioner thereafter filed an application under Section 17 of the Arbitration Act, for making the Award, a rule of the Court, The respondents also deposited the entire sum of Rs 69,534. 02 in Court Vide order dated 8. 8. 1988, the application under Section 17 of the Act was allowed and as the amount had already been deposited by the respondent, the Award was ordered to be made a rule of the Court and also found to be fully satisfied, It appears that subsequently the respondent sought to withdraw the sum of Rs. 17,225/- and it was at that stage that it came to the knowledge of the petitioner that the aforesaid sum though found to be established was not to be paid to them in view of the award of the Arbitrator. Aggrieved against that portion of the award the petitioners preferred an appeal before the Additional District Judge, Chandigarh, on 22. 2. 1990 along with an application under Section 5 of the Limitation Act for condonation of delay in the late filing of the appeal. This appeal was dismissed on account of being belated as also on merits as it was found that it had been preferred by a person who was not authorised to do so. It was also found by the appellate Court that as no affidavit in support of the application under Section 5 of the Limitation Act had been filed, the application for condonation of delay could not be taken into account.

(2.) MR. Hemant Kumar Gupta, learned counsel for the petitioner has urged that the objection with regard to the non-filing of the affidavit was not seriously taken up at any stage otherwise there would have been no difficulty in filing the requisite affidavit. He has brought to my notice Order 19 Rule 1 C P. C. which provides that the Court may at any time order that any fact may be proved by affidavit, and for that purpose the Court can itself require a party to file an affidavit. He has also urged that in any case as the amount of Rs. 17,225/- as a matter of fact stood or established in favour of the petitioner, hyper technicalities should not come into play. Finally, be has urged that the finding recorded by the appellate Court that the appeal was not filed by a duly authorised person is also without force as a power of attorney duly signed by Hargopal Nath, partner of the firm was on the record of the case and as a matter of fact the appeal had been filed by the aforesaid Hargopal Nath. Shri A. S. Tewatia, learned counsel for the respondents has sought to maintain the judgment of the learned appellate Court on the reasons given therein.

(3.) AFTER hearing learned counsel for the parties I find merit in the contentions of the learned counsel for the petitioner. Admittedly, the application for condonation of delay was filed though not supported by an affidavit and in view of the admitted case that Rs. 17,225/- was established to be paid to the petitioner, the appellate Court ought to have sought an affidavit from the petitioner before disposing of the application under Section 5 of the Limitation Act. There is also palpable merit in the second assertion of the learned counsel for the petitioner that the appeal was filed by Hargopal Nath the duly authorised partner of the petitioner-firm as the power of attorney executed by the said partner in favour of the counsel was admittedly on the record.