Oriental Insurance Co. Ltd. Vs. M/S Oceanic Solvent Industries Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167092
CourtDelhi High Court
Decided OnOct-30-2014
JudgeRAJIV SHAKDHER
AppellantOriental Insurance Co. Ltd.
RespondentM/S Oceanic Solvent Industries Ltd.
Excerpt:
$~10 * in the high court of delhi at new delhi + o.m.p. 681/2009 oriental insurance co.ltd. ..... petitioner through: mr. vishnu mehra, advocate versus m/s oceanic solvent industries ltd. ..... respondent through: mr. virender kumar sharma, advocate coram: hon'ble mr. justice rajiv shakdher order % 30.10.2014 ia no22357/2012 (for restoration) and ia no.22358/2012 (condonation of delay) 1. i have heard the learned counsels for the parties at some length at the hearing held on 03.10.2013, in connection with the captioned applications. the order dated 03.10.2013 records in extenso the assertions of both counsels. the said order reads as follows :“ia nos. 22357/2012 (for restoration) & 22358/2012 (condonation of delay) 1. even, as per the petitioner, there is a delay of 180 days in filing the application for restoration which seeks recall of order dated 06.09.2011. the restoration application was filed on 04.12.2012. there is a delay of nearly fifteen (15) months in filing the captioned application for restoration.2. mr mehra, who appears for the petitioner/ applicant, says that the petitioner had notice of the dismissal of the main petition after it was served with a notice in the execution petition filed by the respondent being: ex. p. no.87/2012. mr mehra says that he was engaged to appear in the matter by the petitioner after it was transferred from mr atul nanda on his designation as a senior advocate. it is mr mehra’s say that he was apprised of the proceeding when he entered appearance in the execution petition on 24.07.2012. for this purpose, he draws my attention to order dated 24.07.2012 passed in the said execution petition.3. it is noticed that even between 24.07.2012 and 04.12.2012, when the restoration application was filed, there is a delay of nearly five (5) months. to explain this delay, there are certain averments made in the application for condonation of delay. 3.1 mr mehra says that he had filed an application for inspection, immediately after the hearing held on 24.07.2012, with the registry of this court. it is his submission that inspection was not given as the files were not available, as they were transferred from the old building to the new building of this court. 3.2 the application for inspection, however, which mr mehra had filed, is not on record. the record, however, shows that an application for inspection of record was made on 17.10.2012. the delay, thereafter, is sought to be explained on the ground that the court was closed for dussehra vacations between 20.10.2012 to 29.10.2012 and on account of a member of his family having taken seriously ill. for all these reasons it is averred that the matter could not be attended to till 15.11.2012.4. in view of the above, the registry is directed to place on record a report as to whether, as claimed by the learned counsel for the petitioner, case files were not available for inspection between july, 2012 and 17.10.2012 5. at this stage, mr sharma, learned counsel for the respondent says that as a matter of fact notice in the execution petition was received by the applicant/ petitioner on 02.05.2012, and that his inquiries have revealed that an advocate was appointed by the applicant/ petitioner vide letter dated 17.05.2012. mr sharma, therefore, contends that the applicant/ petitioner would have to also explain the delay in between 02.05.2012 and 24.07.2012.6. this aspect will be examined after the report of the registry is placed on record. the registry will furnish a report within three weeks from today. 7.2. list on 13.02.2014...” as would be evident from the order dated 03.10.2013, the registry was directed to furnish a report with regard to the contentions advanced by mr. mehra that he had sought inspection of the court file which, according to him had contributed in the delay in moving the application for restoration. the registry has furnished a report to this court, which is indicative of the fact that, the record was shifted out from the original side branch located in ‘c’ block to the basement located in ‘a’ block, in june 2012. 2.1 the report further records that the petitioner had submitted a “parcha” for inspection on 07.08.2012. it is further stated that since the concerned dealing assistant raised “some objections”, the inspection was not granted. it was, however, also indicated that parcha for inspection was received by the inspection branch on the very next date i.e., 08.08.2012. the registry, however, says that the case file was not made available to the learned counsel as there were again “some objections”, raised by the dealing assistant. 2.2 according to the procedure indicated in the report, inspections are allowed by the assistant registrar (original). on inspection being allowed by the assistant registrar (original), the same are distributed to the concerned dealing assistants for “adding the files”. it is thereafter that the court attendants collect the files for making them available to the concerned advocates. 2.3 the registry has indicated that there is no practice of making a record qua the nature of the objections raised, if any, on the inspection parcha. it is reported that there is a long standing practice that once objections are raised, parchas are collected by the concerned advocates themselves. 2.4 the observation of the registry, thus make it clear that the nature of objections raised vis-a-vis inspection parcha are not known, as no record is maintained at its end. what has, however, come through that, the learned counsel for the petitioner, was allowed inspection of files on 17.10.2012.3. what transpires from the above, is that, there were two inspection parchas submitted by the learned counsel for the petitioner. it can be safely presumed that first one had some objections and, therefore, immediately on the very next date a second parcha was filed. there is no third parcha filed by the counsel for the petitioner.4. in the given facts, it can be safely presumed in favour of the petitioner, that inspection on 17.10.2012, was triggered by the second inspection parcha dated 08.08.2012. this is more so as the registry has no record of what objections, if any were raised, vis-a-vis request made for inspection. it simply says that since there were objections, inspection was not granted. it does not explain as to how inspection was granted to the petitioner on 17.10.2012 when no parcha for inspection was filed by the petitioner after 08.08.2012. 4.1 therefore, broadly, the learned counsel for the petitioner has attempted to explain at least part of the delay. having said so, there is some part of the delay, the blame for which, clearly rests on, if not the client, the counsel for the petitioner. the learned counsel for the petitioner, as is indicated in the order of 03.10.2013, stated that since a member of his family had taken ill, he could not take necessary steps for moving the application for restoration after having inspected record on 17.10.2012. the fact that there was dusehra vacations between 20.10.2012 and 29.10.2012, was also trotted as a reason for delay. though there is no material backing of the plea of illness, i do not wish to doubt the bonafides of the counsel on this score as there is nothing on record which would contradict his stand.5. on the other hand, the learned counsel for the respondent has suffered immensely on account of the delay.6. in my view, in the given facts and circumstances of the case, the grievance of the non-applicant/respondent can be met by imposition of costs. 6.1 accordingly, while allowing the application for condonation of delay and, therefore, the application for restoration, i impose a cost of rs.20,000/on the petitioner which will be paid to the non-applicant/respondent within two weeks from today. the applications are accordingly disposed of. ia no.14944/2009 (condonation of delay of 22 days in filing the petition) and ia no.14945/2009 (condonation of delay of 45 days in refilling the petition) 7. i am informed by mr. sharma, the learned counsel for the respondent that replies have been filed. rejoinder thereto, if any, be filed before the next date of hearing.8. list on 28.01.2015. ia no.20889/2014 (application for permission to be given for taking on record attested / certified copy of the impugned award dated 04.05.2009).9. issue notice to the non-applicant/respondent.10. mr. sharma accepts notice. he seeks time to file a reply. let the same be filed within four weeks. rejoinder thereto, if any, be filed before the next date of hearing.11. it is important to note that the petitioner had earlier moved an application, which was ia no.14943/2009 for seeking exemption from filing a certified copy of the award dated 04.05.2009. this application was allowed on 28.05.2010. on that date, the counsel for the respondent had given his no objection to the application being allowed though the operative directions, based on the submission of the counsel for the petitioner, was that, the original award may be filed in four weeks. the original award has not been filed. 11.1 therefore, the petitioner will file an affidavit stating therein as to whether or not it received the award and, if it did, why it was not filed within the time frame given on 28.05.2010. 11.2 this has become relevant as there are applications to which reference has been made hereinabove where condonation of delay in initial filing of the award and re-filing, is sought. 11.3 it is the contention of the counsel for the respondent that because original award was not filed, the initial filing of the petition under section 34 of the arbitration and conciliation act was virtually non-est. for this purpose, he relies upon the observations made in paragraph 45 of the judgment of a division bench of this court in the case of executive engineer vs. shri ram construction co. , 2010 (4) arb. lr314(delhi). 11.4 this is an aspect which the court will examine after an affidavit has been filed by the petitioner.12. list on 28.01.2015. ia no.14942/2009 (u/s. 151 cpc) 13. in my view, this application has been rendered infructuous in view of the fact that the amount awarded (vide award dated 04.05.2009) even according to the counsel for the respondent has been deposited in court in the execution proceedings bearing no.87/2012. the application is accordingly disposed of.14. dasti. rajiv shakdher, j october30 2014 yg
Judgment:

$~10 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. 681/2009 ORIENTAL INSURANCE CO.LTD. ..... Petitioner Through: Mr. Vishnu Mehra, Advocate versus M/S OCEANIC SOLVENT INDUSTRIES LTD. ..... Respondent Through: Mr. Virender Kumar Sharma, Advocate CORAM: HON'BLE MR. JUSTICE RAJIV SHAKDHER ORDER

% 30.10.2014 IA No22357/2012 (for restoration) and IA No.22358/2012 (condonation of delay) 1. I have heard the learned counsels for the parties at some length at the hearing held on 03.10.2013, in connection with the captioned applications. The order dated 03.10.2013 records in extenso the assertions of both counsels. The said order reads as follows :

“IA Nos. 22357/2012 (for restoration) & 22358/2012 (condonation of delay) 1. Even, as per the petitioner, there is a delay of 180 days in filing the application for restoration which seeks recall of order dated 06.09.2011. The restoration application was filed on 04.12.2012. There is a delay of nearly fifteen (15) months in filing the captioned application for restoration.

2. Mr Mehra, who appears for the petitioner/ applicant, says that the petitioner had notice of the dismissal of the main petition after it was served with a notice in the execution petition filed by the respondent being: Ex. P. No.87/2012. Mr Mehra says that he was engaged to appear in the matter by the petitioner after it was transferred from Mr Atul Nanda on his designation as a senior advocate. It is Mr Mehra’s say that he was apprised of the proceeding when he entered appearance in the execution petition on 24.07.2012. For this purpose, he draws my attention to order dated 24.07.2012 passed in the said execution petition.

3. It is noticed that even between 24.07.2012 and 04.12.2012, when the restoration application was filed, there is a delay of nearly five (5) months. To explain this delay, there are certain averments made in the application for condonation of delay. 3.1 Mr Mehra says that he had filed an application for inspection, immediately after the hearing held on 24.07.2012, with the registry of this court. It is his submission that inspection was not given as the files were not available, as they were transferred from the old building to the new building of this court. 3.2 The application for inspection, however, which Mr Mehra had filed, is not on record. The record, however, shows that an application for inspection of record was made on 17.10.2012. The delay, thereafter, is sought to be explained on the ground that the court was closed for dussehra vacations between 20.10.2012 to 29.10.2012 and on account of a member of his family having taken seriously ill. For all these reasons it is averred that the matter could not be attended to till 15.11.2012.

4. In view of the above, the registry is directed to place on record a report as to whether, as claimed by the learned counsel for the petitioner, case files were not available for inspection between July, 2012 and 17.10.2012 5. At this stage, Mr Sharma, learned counsel for the respondent says that as a matter of fact notice in the execution petition was received by the applicant/ petitioner on 02.05.2012, and that his inquiries have revealed that an advocate was appointed by the applicant/ petitioner vide letter dated 17.05.2012. Mr Sharma, therefore, contends that the applicant/ petitioner would have to also explain the delay in between 02.05.2012 and 24.07.2012.

6. This aspect will be examined after the report of the registry is placed on record. The registry will furnish a report within three weeks from today. 7.

2. List on 13.02.2014...”

As would be evident from the order dated 03.10.2013, the Registry was directed to furnish a report with regard to the contentions advanced by Mr. Mehra that he had sought inspection of the court file which, according to him had contributed in the delay in moving the application for restoration. The Registry has furnished a report to this court, which is indicative of the fact that, the record was shifted out from the Original Side Branch located in ‘C’ block to the Basement located in ‘A’ block, in June 2012. 2.1 The report further records that the petitioner had submitted a “parcha” for inspection on 07.08.2012. It is further stated that since the concerned dealing assistant raised “some objections”, the inspection was not granted. It was, however, also indicated that parcha for inspection was received by the Inspection Branch on the very next date i.e., 08.08.2012. The Registry, however, says that the case file was not made available to the learned counsel as there were again “some objections”, raised by the dealing assistant. 2.2 According to the procedure indicated in the report, inspections are allowed by the Assistant Registrar (Original). On inspection being allowed by the Assistant Registrar (Original), the same are distributed to the concerned dealing assistants for “adding the files”. It is thereafter that the court attendants collect the files for making them available to the concerned advocates. 2.3 The Registry has indicated that there is no practice of making a record qua the nature of the objections raised, if any, on the inspection parcha. It is reported that there is a long standing practice that once objections are raised, parchas are collected by the concerned advocates themselves. 2.4 The observation of the Registry, thus make it clear that the nature of objections raised vis-a-vis inspection parcha are not known, as no record is maintained at its end. What has, however, come through that, the learned counsel for the petitioner, was allowed inspection of files on 17.10.2012.

3. What transpires from the above, is that, there were two inspection parchas submitted by the learned counsel for the petitioner. It can be safely presumed that first one had some objections and, therefore, immediately on the very next date a second parcha was filed. There is no third parcha filed by the counsel for the petitioner.

4. In the given facts, it can be safely presumed in favour of the petitioner, that inspection on 17.10.2012, was triggered by the second inspection parcha dated 08.08.2012. This is more so as the Registry has no record of what objections, if any were raised, vis-a-vis request made for inspection. It simply says that since there were objections, inspection was not granted. It does not explain as to how inspection was granted to the petitioner on 17.10.2012 when no parcha for inspection was filed by the petitioner after 08.08.2012. 4.1 Therefore, broadly, the learned counsel for the petitioner has attempted to explain at least part of the delay. Having said so, there is some part of the delay, the blame for which, clearly rests on, if not the client, the counsel for the petitioner. The learned counsel for the petitioner, as is indicated in the order of 03.10.2013, stated that since a member of his family had taken ill, he could not take necessary steps for moving the application for restoration after having inspected record on 17.10.2012. The fact that there was Dusehra vacations between 20.10.2012 and 29.10.2012, was also trotted as a reason for delay. Though there is no material backing of the plea of illness, I do not wish to doubt the bonafides of the counsel on this score as there is nothing on record which would contradict his stand.

5. On the other hand, the learned counsel for the respondent has suffered immensely on account of the delay.

6. In my view, in the given facts and circumstances of the case, the grievance of the non-applicant/respondent can be met by imposition of costs. 6.1 Accordingly, while allowing the application for condonation of delay and, therefore, the application for restoration, I impose a cost of Rs.20,000/on the petitioner which will be paid to the non-applicant/respondent within two weeks from today. The applications are accordingly disposed of. IA No.14944/2009 (condonation of delay of 22 days in filing the petition) and IA No.14945/2009 (condonation of delay of 45 days in refilling the petition) 7. I am informed by Mr. Sharma, the learned counsel for the respondent that replies have been filed. Rejoinder thereto, if any, be filed before the next date of hearing.

8. List on 28.01.2015. IA No.20889/2014 (application for permission to be given for taking on record attested / certified copy of the impugned award dated 04.05.2009).

9. Issue notice to the non-applicant/respondent.

10. Mr. Sharma accepts notice. He seeks time to file a reply. Let the same be filed within four weeks. Rejoinder thereto, if any, be filed before the next date of hearing.

11. It is important to note that the petitioner had earlier moved an application, which was IA No.14943/2009 for seeking exemption from filing a certified copy of the award dated 04.05.2009. This application was allowed on 28.05.2010. On that date, the counsel for the respondent had given his no objection to the application being allowed though the operative directions, based on the submission of the counsel for the petitioner, was that, the original award may be filed in four weeks. The original award has not been filed. 11.1 Therefore, the petitioner will file an affidavit stating therein as to whether or not it received the award and, if it did, why it was not filed within the time frame given on 28.05.2010. 11.2 This has become relevant as there are applications to which reference has been made hereinabove where condonation of delay in initial filing of the award and re-filing, is sought. 11.3 It is the contention of the counsel for the respondent that because original award was not filed, the initial filing of the petition under Section 34 of the Arbitration and Conciliation Act was virtually non-est. For this purpose, he relies upon the observations made in paragraph 45 of the judgment of a Division Bench of this court in the case of Executive Engineer Vs. Shri Ram Construction Co. , 2010 (4) Arb. LR314(Delhi). 11.4 This is an aspect which the court will examine after an affidavit has been filed by the petitioner.

12. List on 28.01.2015. IA No.14942/2009 (u/s. 151 CPC) 13. In my view, this application has been rendered infructuous in view of the fact that the amount awarded (vide award dated 04.05.2009) even according to the counsel for the respondent has been deposited in court in the execution proceedings bearing no.87/2012. The application is accordingly disposed of.

14. Dasti. RAJIV SHAKDHER, J OCTOBER30 2014 yg