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PETITIONER: INDIAN STATISTICAL INSTITUTE

       Vs.

RESPONDENT: M/s ASSOCIATED BUILDERS AND ORS.

DATE OF JUDGMENT02/12/1977

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. UNTWALIA, N.L.

CITATION:  1978 AIR  335            1978 SCR  (2) 338  1978 SCC  (1) 483

ACT: Limitation  Act,  1963, S. 5, whether covers  delay  in  re- filing objections after rectification of defects-Condonation when delay due to circumstances beyond litigant’s control.

HEADNOTE: In  connection  with  a dispute  between  the  parties,  the appellant  submitted  his objections for setting  aside  the arbitration award.  The objection petition was filed  within the period of limitation, but was returned as defective,  in that the necessary stamps were not affixed, and the date  of the  verification  of  the petition was  not  entered.   The defects  were  rectified,  but  the  appellant  refiled  his objections  late,  due to his  advocate’s  misconduct.   The delay  was  caused by circumstances beyond  the  appellant’s control, but the High Court refused to condone the delay. Allowing the appeal the Court, HELD  : (1) There had not been any delay in  preferring  the objections.  The delay, if any was in re-presentation of the objection  petition  after rectifying the defects,  and  the delay  in  re-presentation is not subject  to  the  vigorous tests  which are usually applied in excusing the delay in  a petition under section 5 of the Limitation Act. [343 E-G] Mahant Bikram Dass v. Financial Commissioner & Ors. [1978] 1 SCR 262, applied. (2)The delay is not due to any want of bona fides or  care on  the  part  of the appellant. but  due  to  circumstances beyond his control.  He cannot be held guilty of  negligence so  as  to disentitle him to plead  sufficient  cause  under section 5 of the Limitation Act.  Section 149 of the Code of Civil  Procedure  confers ample power on the High  Court  to exercise  its  powers in order to do justice to  a  litigant where the failure is not due to any fault of his. [344 A-C] State  of West Bengal v. Administrator  Howrah  Municipality and  Ors., [1972] 2 S.C.R. 874 and Maliant Ram Das v.  Ganga Das, [1961] 3 S.C.R. 763; applied.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1298  of 1977.

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Appeal by Special Leave from the Judgment and Order dated 7- 2-77 of the Delhi High Court in Suit No. 574-A of 1976. D.N. Mukherjee, D. P. Mukherjee, G. S. Chatterjee and  A. K. Gannguli for the appellant. S. T. Desai and Bishainber Lal for Respondent No. 1. The Judgment of the Court was delivered by KAILASAM, J. At the conclusion of the hearing of the  appeal on November, 7, 1977 we had passed the operative part of the order stating that a reasoned judgment would follow.  We now proceed to give the reasons. This  appeal  is by special leave against the  judgment  and order dated 7th February, 1977 in suit No. 574-A of 1976  by a single judge of 339 the High Court of Delhi whereby he dismissed the appellant’s petition  for condonation of delay in filing  the  objection for setting aside the arbitration award given by respondents 2 and 3. A  contract  was entered into between  the  appellant-Indian Statistical  Institute-and the  first  respondent-Associated Builders & Ors., in respect of the work for construction  of Indian Statistical Institute Campus at Hauz Khas, New Delhi. The  contract  provided  for arbitration  for  settling  any dispute that may arise between the parties.  A dispute arose and the matter was referred to respondents 2 and 3 who  gave an award on 23rd July, 1976.  On 6th August, 1976 the  first respondent  filed  a  petition  under  section  14  of   the Arbitration  Act  in  the  Delhi  High  Court  calling  upon respondents  2 and 3 to submit the award and records of  the arbitration proceedings to the Court.  On 27th August,  1976 the arbitrators filed the award in the court.  The appellant was  served with a notice on 31st August, 1976 calling  upon it  to  submit  the objection for setting  aside  the  award within one month from the date of the service of the notice. The objection for setting aside the ’ award was filed in the High  Court  on 29th September, 1976 within  the  period  of limitation.  But as the objection petition was defective, in that  the necessary stamps were not affixed and the date  of tiff  verification  of  the petition was  not  entered,  the memorandum  of objection was returned on 12th October,  1976 for rectifying the defects.  When the matter was taken up by the  Deputy  Registrar  on 25th October, 1976,  Shri  D.  P. Mukherjee,  Advocate, appearing on behalf of  the  appellant made  a submission that the appellant wanted to  change  its advocate and that it may be given some more time for  filing the  objections.   On 10th November, 1976  two  applications were  filed by the appellant (I.A. No. 2522 of  1976)  under clause  4  of Chapter V of the Delhi  High  Court  (Original Side) Rules for determination of authority of Shri B.  Singh to  act as advocate on his behalf and another out  of  which the  present appeal arises for condonation of the delay  and for  extension  of time for filing  objections  for  setting aside   the  award.   The  petition  for  determination   of authority  of Shri B. Singh to act as advocate  was  ordered and we are not concerned with that in this appeal. The  Plea for condonation of delay and for the extension  of time  for filing the objection for setting aside  the  award Was on the ground that the appellant was unable to file  the petition  as its advocate Shri B. Singh exerted illegal  and unethical  pressure  and  wanted  a  sum  of  Rs.  15,000.1- unjustifiably.  The correspondence between the appellant and the  advocate Shri B. Singh which is relied on  for  proving the  obstructive  attitude of the learned  counsel  for  the appellant, which resulted in the delay, may be referred  to. Soon  after the award was passed before the receipt  of  the

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notice on 31-8-1976 the appellant wrote a letter to Shri  B. Singh, advocate, on 21st August, 1976 informing him that the arbitrators have filed their award on 23rd July, t976 and as per the award the appellant was directed to pay a sum of Rs. 3,04.510.33  p.  to  the  respondents.   Stating  that   the appellant  has decided to challenge the award,  the  counsel was  requested to’ draft and file the objections within  the time allowed for filing the objections.  The appellant  also informed Shri B. Singh that its Law Officer would 340 be  available for discussion in this case and for  preparing Objection  petition  in  regard to the  award.   The  letter further stated that on the basis of the schedule of fees and the  discussions Shri B. Singh had with Shri Pandalal a  fee of  Rs. 3000/- will be paid for the work of  drafting  only. By the next letter, the appellant in continuation of  letter dated 21st August, 1976 requested Shri B. Singh to file  the objections and to conduct the case on their behalf and asked for  the objections to be filed within the time  prescribed. The  letter also stated that Shri B. Singh will be  paid  as per  schedule  of fees in the first week  of  October,  1976 subject  to  certain adjustments.  On 22nd  September,  1976 Shri  B.  Singh  sent  his bill  for  drafting,  filing  and conducting objections.  The bill contained two items-One for professional fees for drafting the objections as per column, 3(d)  of the schedule amounting to Rs. 3000/ and the  second item  for  professional fees for filing and  conducting  the objections in the High Court of Delhi as per column 4(a)  of the schedule of fees amounting to Rs. 15,000/-.  By  another letter dated 29th September, 1976 Shri B. Singh stated  that the  objections  have  already been filed.   Again  on  13th October, 1976 Shri B. Singh wrote to the appellant in  which he  referred to his engagement for drafting  objections  and filing  and  conducting the same in the High Court  and  the fees demanded by him.  He further stated that the objections filed  by  him  have been returned ’and  the  same  must  be refiled  after removing the objections otherwise  the  award will, be. made a rule of the Court and thereby a decree  for Rs. 3,04,510.33 will be passed against the-appellant.   Shri B.  Singh  required  papers  along  with  the  cheques   for professional  fees  to be handed over to him  failing  which further  action  in  the  matter will be  held  up  and  the appellant will be held responsible for all the consequences. It may be noted that the objections filed in the court  were actually  returned  on  12th October, 1976  and  the  letter demanding  the fees and threatening further action will  not be taken if the demands were not met was written by Shri  B. Singh on the next day i.e. 13th October, 1976.  In reply  to the  letter  dated 13th October, 1976 of Shri B.  Singh  the appellant  asked for particulars as to the circumstances  in which  the objections filed in the court were  returned  and the work that needed to be done before refiling and the time by  which it has to be refiled.  The letter  further  stated that  the points raised by Shri B. Singh in his  letter  are being  looked into and a further communication will  follow. In  the meanwhile the appellant requested Shri B.  Singh  as its  lawyer  to look after their interest with  utmost  care ’and  diligence and asked for ’the documents to be filed  in time.   On 21-10-1976 the appellant wrote to Shri  B.  Singh stating  the  facts and saying that it was never  agreed  to between  them  that a sum of Rs. 15,000/- would be  paid  to him.   The appellant proceeded to state that Shri  B.  Singh was  paid  a lump sum of Rs. 3,000,/- and it  is  surprising that  even after receiving Rs. 3,000/- he bad not  cared  to give  ’credit  for the said amount in  the  above  mentioned

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bill.  The appellant also informed Shri B. Singh that it has decided  to withdraw the power in his favour  and  requested him  to handover all the documents and  papers  immediately. After  writing  this letter to Shri B. Singh  the  appellant engaged  another advocate Shri Mukherjee.  On 25th  October, 1976,  when the case came up for hearing before  the  Deputy Registrar,  Mr.  Mukherjee,  appearing  for  the  appellant, submitted that Indian Statis- 341 some  more time for filing the objections.  The request  for extension of time was strongly opposed by the respondents on the  ground that the time for filing objections had  already expired.   The  matter was listed to be  posted  before  the court  for  order on 15th November, 1976.  In  the  meantime Shri  B. Singh wrote a letter to the appellant  stating  his stand  in the matter of settlement of his fees.   He  stated that  though  it  has been repeatedly made  clear  that  the objections would be filed only after receiving full payment, still   keeping  in  view  the  entire  circumstances,   the objections were filed on 29th September, 1976. In these circumstances, the appellant prayed for condonation of delay in filing the objections and. for extension of time to enable him to file the objections.  The High Court  while observing that Shri B. Singh may have acted without care  or attention of the interest of his client or may have  behaved recklessly,  but  nevertheless he was negligent.   The  High Court  was  not convinced that the appellant was  unable  to take any steps for filing objections for ’setting aside  the ’award  before 21st January, 1977.  The High Court  observed that  although Shri Mukherjee had also put in appearance  on behalf  of ISI before the Deputy Registrar on 25th  October, 1976 and sought time for filing objections for setting aside the award, no objections were, filed till 1st January, 1977. It,  however,  observed that the appellant  would  have  got inspection  of the record for the purposes of  drafting  and filing  objections  for setting aside the award.   The  High Court  proceeded  to observe that as material  for  drafting objections for setting aside the award was already available either in the Court records or in the record of the ISI, the appellant has not acted with due diligence in preparing  the objections  before 21st January, 1977.  The High Court  also was  of the view that as objections filed on  29th  October, 1976  were not stamped, it could not be deemed to have  been filed  at all.  The Registrar of the Court  having  returned the objections for re-filing after removing the defects, the objections  ought to have been refiled within  a  reasonable time  but  as  the  appellant  did  not  file  them   within reasonable time there was no sufficient cause for exercising its  discretion.   The High Court also was not  inclined  to exercise its discretion and condone the delay and to  direct the payment of the deficit courtfees.  To sum up the reasons given  by the learned Judge are : (i) though Shri  B.  Singh may have acted without care or attention of the interest  of his client or may have behaved recklessly, but  nevertheless as  he was negligent the conduct on the part of the  counsel cannot be held as sufficient cause for condonation of delay; (ii)  the court found that Shri Mukherjee, counsel  for  the appellant  was  unable  to take any  steps  for  filing  the objections  for setting aside the award before 21st  January specially  when  the material for  drafting  objections  was already available either in court records or in the  records with the appellant; (iii) Though it is not clear as to  what time  the Deputy Registrar gave for removing the  objections and refiling, it was not done within a reasonable time. The reasons given by the High Court are unsound and  totally

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unconvincing.    We   feel  that  the   petition   discloses sufficient  cause  for condonation of the delay.   The  High Court found Shri B. Singh "may 342 have acted without care or attention of the interest of  his client  or may have behaved recklessly, but nevertheless  he was negligent." We are unable to perceive how the  appellant was negligent.  Even before the notice was received from the Registry on 21st August, 1976 the, appellant requested  Shri B. Singh to Me the objections within the time allowed.   On- the  basis  of  the  threat  demanding  fees  the  appellant promised  to pay Shri Singh Rs. 3000/- which was  admittedly paid.  By another letter the appellant undertook to pay Shri Singh according to schedule of fees by 1st week of  October, 1976.   The  objections were filed on 29th  September,  1976 i.e. within time but no ’stamps were fixed to the objections and  the  date  of  verification  was  not  entered.    This intimation  was given by Shri Singh on 13th October, 1976  a day after the objections were returned by the office.   Shri B. Singh wrote to the appellant informing him of the return, the  necessity for removing the objections and refiling  the objections  and threatening that it the fees were  not  paid the  matter  would  be held up.  By the  letter  dated  21st October,  1976  Shri Singh demanded Rs.  15,000/-.   At  the earliest opportunity, that is when the matter came up before the  Deputy  Registrar the ’appellant prayed  for  time  for filing objections stating that he had decided to change  his advocate.   On 29th October, 1976 Shri B. Singh again  wrote stating  that though it had been repeatedly made clear  that objection would be filed only after receiving full payments, he had filed objections in time on 29th September 1976.  The learned  Judge found that though the material  for  drafting objections for setting the award was available either in the records  of  the court, or in the record of  the  appellant. there is no explanation for not filing objections till  21st January, 1977.  The High court ignored the fact that  before the  vakalatnama  of the counsel on the record is revoked no one can act for the appellant.  It was represented on behalf of  the  appellant at the earliest opportunity that  it  had decided  to change the counsel and prayed for  extension  of time.   The learned Judge ignored the plea of the  appellant that  from  25th  October, 1976 to 21st  January,  1977  the appellant could not obtain the original objections filed  by Shri  B. Singh and overlooked the fact that when the  papers were  obtained from Shri B. Singh on 20th January, 1977  the objections were promptly refiled on 21st January, 1977. On  the  facts we are constrained to say that  we  are  most unhappy  at  the unsympathetic attitude taken  by  the  High Court.   The  appellant was totally helpless and  could  not have  refiled  the  memorandum  of  objections  before  21st January, 1977 in the circumstances in which it found itself. Further,  the learned Judge did not even take notice of  the fact that the petition for condonation of delay was  pending and before that was disposed of the memorandum of objections cannot be properly refiled. Regarding  the conduct of Shri B. Singh the counsel who  was engaged  by the appellant we feel the less said the  better. The  facts disclose that he was paid Rs. 3,000/-.  He  filed the  objections without affixing any stamp, which  does  not appear  to be due to oversight, and when they were  returned for  rectifying defects, he made a demand for  Rs.  15,000/- which  is  unconscionable.  The subsequent  conduct  is  not making the papers available cannot be innocently  explained. We 343

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feel  that  Shri  B. Singh has acted in  a  most  unbecoming manner  in  the discharge of his duties as a member  of  the noble  profession  to  which he belongs.   We  refrain  from issuing any notice or calling upon him to    explain  as  he is  not under our disciplinary control.  We, direct  that  a copy of the judgment be sent to the Al India Bar Council for taking such action as they may deem fit. On  the facts disclosed we feel sufficient grounds are  made out  for condoning the delay in filing the objections.   The two  defects that were pointed out were (i)  the  objections were not properlystamped  and (ii) the  verification  was not dated. So far as the deficiency in stamps is  concerned, under section 149, Civil ProcedureCode,   the  ,Court   has ample  jurisdiction to allow the person by whom such fee  is payable to pay such court fees at any stage.  The defect  in not affixing the date of the verification is not a  material one  to be taken serious note of.  In the circumstances,  it cannot be said that objections were not filed within time or that  because they were not properly stamped the  objections could not be taken as having been filed at all.   Therefore, in our views there had not been any delay ’in preferring the objections.   The delay, if any, was in complying  with  the directions  of  the  Registrar to  rectify  the  defect  and refiling the objections.  The delay, as we have pointed  out earlier,  is not due to any want of care on the part of  the appellant but due to circumstances beyond its control. The  High Court was in error in holding that there  was  any delay in filing the objections for setting aside the  award. The time prescribed by the Limitation Act for filing of  the objections is one month from the date of the service of  the notice.  It is common ground that the objections were  filed within  the period prescribed by the Limitation  Act  though defectively.   The delay, if any, was in  representation  of the   objection  petition  after  rectifying  the   defects. 5  of  the  limitation Act provides  for  extension  of  the prescribed   period  of  limitation.   If   the   petitioner satisfies  the  court that he had sufficient cause  for  not preferring the objections within that period.  When there is no  delay in presenting the objection petition section 5  of the  Limitation  Act  has no application and  the  delay  in representation  is not subject to the rigorous  tests  which are  usually  applied in excusing the delay  in  a  petition under  section  5 of the Limitation  Act.   The  application filed before the High Court for condonation of the delay  in preferring  the  objections  and  the  order  of  the  court declining   to   condone   the  delay   are   all   due   to misunderstanding  of the provisions of the Civil  Procedure, Code.   As  we have already pointed out in  the  return  the Registrar  did  not even specify the time within  which  the petition will have to be re-presented. In  a recent judgment of this Court delivered on  August  3, 1977  in  Mahant Bikram Dass v. Financial  Commissioner  and Ors.,(1) it is pointed out that the petition under section 5 of  the  Limitation  Act seeking to  condone  the  delay  in preferring  an  appeal  is different  from  a  petition  for excusing the delay in re-presentation. (1)  [1978] ISCR 262 344 Even  in  cases where there has been delay in filing  of  an appeal or objection petition within the time prescribed when the delay is not due to want of bona fides by the petitioner and is due to the party having acted in a particular  manner on the wrong advice given by his legal adviser, he cannot be held  guilty of negligence so as to disentitle him to  plead sufficient  cause  under section 5 of  the  Limitation  Act.

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(State of West Bengal v. Administrator, Howrah  Municipality & Ors. (1). Equally when the petition is not properly stamped the  Court has  ample  powers to extend the time  for  affixing  proper court-fee.   Section  149  of the Code  of  Civil  Procedure confers ample power on the High Court to exercise its powers in  order to do justice to a litigant where the  failure  is not  due to any fault of the. litigant. (Mahant Ram  Das  v. Ganga Das(2) ). We  are satisfied that the High Court was not  justified  in dismissing  the petition on the ground that  the  objections were filed beyond time.  We allow the appeal and direct  the respondents to pay ’costs of the appellant in this Court. M.R. Appeal allowed. (1)  [1972] 2 S.C.R. 871. (2) [1961] 3 S.C.R. 763. 345