Union of India and anr. Vs. M/S. Maa Kali Supply Agency - Court Judgment

SooperKanoon Citationsooperkanoon.com/1060709
CourtKolkata High Court
Decided OnFeb-26-2013
JudgeBANERJEE
AppellantUnion of India and anr.
RespondentM/S. Maa Kali Supply Agency
Excerpt:
order sheet apo no.4 of 2013 with ap no.117 of 2008 in the high court at calcutta civil appellate jurisdiction union of india & anr. versus m/s.maa kali supply agency before: the hon'ble justice banerjee the hon'ble justice dr.mrinal kanti chaudhuri date :26. h february, 2013. mr.l.k. chatterjee, mrs.aparna banerjee for the appellant. mr.dipak basu, sr.advocate, mr.m.c. ghose, mr.abhijit chowdhury for respondent. the court : this appeal would arise out of an order passed by the learned single judge dismissing the application for condonation of delay in an arbitration proceeding initiated under section 34 of the arbitration and conciliation act, 1996. section 34(3) would make it clear, the application would have to be made within three months and after three months has lapsed, the court would be competent to condone the delay for a maximum period of 30 days. hence total period to make an application for setting aside is 120 days and not beyond. the appellant contended, fraud was committed upon them. the award holder purposely concealed the award from the appropriate authority by taking recours.to unfair means through a section of railway officials who acted at the behest of the award holder. the delay was thus caused. hence they should get the benefit of section 17 of the limitation act, 1963. the learned single judge was not impressed. he dismissed the application. the appellant preferred an appeal. the division bench upheld the judgment and order of the learned single judge, yet gave a further opportunity to the appellant to disclose particulars of fraud. matter came up on remand before the learned single judge. however, the situation did not improve as we find from the record. the learned single judge dismissed the petition again and in our view, very rightly. identical issue was dealt with by the division bench (one of us was a party) in the case of union of india & anr. versus m/s.shree durga iron stores wherein the division bench vide judgment and order dated september 25, 2012 upheld the order of the learned single judge and dismissed the appeal. mr.l.k. chatterjee, learned counsel appearing for the appellant railway would contend, the present case has a distinguishing feature. however, he is unable to make out any distinction save and except the fact, the division bench in the instant case remanded the matter back to the learned single judge for being heard afresh. mr.chatterjee would contend, once the matter was remanded back, it was incumbent upon the learned single judge to examine the particulars of fraud that was placed before him by the railways. he further contends, at the time of admission of the appeal the division bench asked him to keep in deposit a sum of rs.12 lakhs that should be refunded in any event. per contra, mr.dipak basu, learned senior counsel appearing for the respondent does not seriously oppose the prayer of mr.chatterjee with regard to refund. mr.basu would, however, contend, no new material was disclosed by the railways even on remand. hence the learned single judge was right in dismissing the application. we raised in have the considered instant appeal the rival with contentions. regard to the issue applicability of section 17 of the limitation act, 1963 was dealt with by the division bench in the case of shree durga iron stores (supra).we follow the same. we have perused the pleadings. we do not find any particulars of fraud disclosed by the railways that would inspire confidence of the court in applying section 17. the appeal fails and is hereby dismissed. the registrar, original side is directed to refund the amount so deposited by the appellant together with interest accrued thereon less the commission, costs and charges within a period of two weeks from the date of communication of this order. as per the award, the respondent was to deposit the balance consideration together with interest at the rate of 20% per annum within 30 days. in case the respondent does not comply with such direction, the railways would be free to cancel the contract as per the award. however, the time to deposit, extended for a month from date. ( banerjee, j.) (dr.mrinal kanti chaudhuri, j.) pa is
Judgment:

ORDER

SHEET APO No.4 of 2013 with AP No.117 of 2008 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction UNION OF INDIA & ANR.

Versus M/S.MAA KALI SUPPLY AGENCY BEFORE: The Hon'ble JUSTICE BANERJEE The Hon'ble JUSTICE DR.MRINAL KANTI CHAUDHURI Date :

26. h February, 2013.

Mr.L.K.

Chatterjee, MRS.Aparna Banerjee for the appellant.

Mr.Dipak Basu, Sr.Advocate, Mr.M.C.

Ghose, Mr.Abhijit Chowdhury for respondent.

The Court : This appeal would arise out of an order passed by the learned Single Judge dismissing the application for condonation of delay in an arbitration proceeding initiated under Section 34 of the Arbitration and Conciliation Act, 1996.

Section 34(3) would make it clear, the application would have to be made within three months and after three months has lapsed, the Court would be competent to condone the delay for a maximum period of 30 days.

Hence total period to make an application for setting aside is 120 days and not beyond.

The appellant contended, fraud was committed upon them.

The award holder purposely concealed the award from the appropriate authority by taking recouRs.to unfair means through a section of Railway officials who acted at the behest of the award holder.

The delay was thus caused.

Hence they should get the benefit of Section 17 of the Limitation Act, 1963.

The learned Single Judge was not impressed.

He dismissed the application.

The appellant preferred an appeal.

The Division Bench upheld the judgment and order of the learned Single Judge, yet gave a further opportunity to the appellant to disclose particulars of fraud.

Matter came up on remand before the learned Single Judge.

However, the situation did not improve as we find from the record.

The learned Single Judge dismissed the petition again and in our view, very rightly.

Identical issue was dealt with by the Division Bench (one of us was a party) in the case of Union of India & Anr.

versus M/S.Shree Durga Iron Stores wherein the Division Bench vide judgment and order dated September 25, 2012 upheld the order of the learned Single Judge and dismissed the appeal.

Mr.L.K.

Chatterjee, learned Counsel appearing for the appellant Railway would contend, the present case has a distinguishing feature.

However, he is unable to make out any distinction save and except the fact, the Division Bench in the instant case remanded the matter back to the learned Single Judge for being heard afresh.

Mr.Chatterjee would contend, once the matter was remanded back, it was incumbent upon the learned Single Judge to examine the particulars of fraud that was placed before him by the Railways.

He further contends, at the time of admission of the appeal the Division Bench asked him to keep in deposit a sum of Rs.12 lakhs that should be refunded in any event.

Per contra, Mr.Dipak Basu, learned Senior Counsel appearing for the respondent does not seriously oppose the prayer of Mr.Chatterjee with regard to refund.

Mr.Basu would, however, contend, no new material was disclosed by the Railways even on remand.

Hence the learned Single Judge was right in dismissing the application.

We raised in have the considered instant appeal the rival with contentions.

regard to The issue applicability of Section 17 of the Limitation Act, 1963 was dealt with by the Division Bench in the case of Shree Durga Iron Stores (supra).We follow the same.

We have perused the pleadings.

We do not find any particulars of fraud disclosed by the Railways that would inspire confidence of the Court in applying Section 17.

The appeal fails and is hereby dismissed.

The Registrar, Original Side is directed to refund the amount so deposited by the appellant together with interest accrued thereon less the commission, costs and charges within a period of two weeks from the date of communication of this order.

As per the award, the respondent was to deposit the balance consideration together with interest at the rate of 20% per annum within 30 days.

In case the respondent does not comply with such direction, the Railways would be free to cancel the contract as per the award.

However, the time to deposit, extended for a month from date.

( BANERJEE, J.) (DR.MRINAL KANTI CHAUDHURI, J.) pa is