K.C. Palaniswamy v. Kasturi & Sons Limited

The Judgment of the Court was delivered by

K.K Sasidharan, J.

CMP Nos. 18929 and 18930 of 2016

Introductory

1. The Arbitration and Conciliation Act, 1996, was enacted by the Parliament for early resolution of the disputes taking into account the Himalayan arrears and docket explosure. The legislature, therefore, prescribed the outer time limit for filing application to set aside the Award under Section 34 of the Act and the maximum period upto which the Court can exercise the discretion to entertain the petition. The petitioners herein notwithstanding the legislative mandate, wanted this Court to entertain the intra court appeals, after a period of 422 and 471 days respectively, giving a go by to the time prescribed by the statute.

Brief Facts

2. The petitioners filed original petitions in O.P Nos. 98 and 272 of 2011 before the original side of this Court challenging the Award dated 16 December 2009 passed by the Arbitral Tribunal. The learned single Judge upheld the Award, by a common order dated 30 April 2015. The petitioners filed the intra court appeals challenging the order dated 30 April 2015 with applications to condone the delay of 422 and 471 days respectively.

3. The interlocutory applications to condone the delay is opposed by the first respondent by filing counter affidavit. According to the first respondent, the petitioner in CMP No. 18929 of 2016 is a court bird and is not an ordinary man unaware of the nitty-gritty of the litigation. According to the first respondent, the Courts have made adverse comments against him in several legal proceedings. The petitioners, without any reason wanted the delay to be condoned. The first respondent, further contended that none of the reasons given by the petitioners are sufficient to condone the huge delay.

4. Submissions.

5. The learned counsel for the petitioners submitted that the petitioners earlier engaged a counsel to file appeals. Since follow up action was not taken by the said counsel, the papers were taken back by the petitioner in CMP. No. 18929 of 2016 and ultimately, it was entrusted to the present counsel. According to the learned counsel, the petitioners explained the delay properly and as such, they have made out a case for condonation.

6. The learned Senior Counsel for the first respondent by placing reliance on the judgment of the Hon'ble Supreme Court in H. Dohil Constructions Co. P. Ltd. v. Nahar Exports Ltd., [(2015) 1 SCC 680], contended that the affidavits filed in support of the interlocutory applications are bereft of details. According to the learned Senior Counsel, the affidavits are silent as to whom the matter was entrusted on earlier occasions and the subsequent action taken by the petitioners to entrust the brief to the present counsel. The learned Senior Counsel by placing reliance on series of orders involving the petitioner in CMP. No. 18929 of 2016 contended that there were adverse comments made against him by this Court in W.P Nos. 29495 to 29497 of 2011 and in similar other matters reported in (2013) 6 SCC 740 [Chandran Ratnaswami v. K.C Palanisamy], 2008-2 LW (Crl) 1110 [The Inspector of Police v. Cheran Enterprises (P) Ltd.]. The learned Senior Counsel contended that Arbitration and Conciliation Act, was enacted with a view to attain finality to the litigation early. The petitioners wanted the litigation to be kept alive for years together and the same is evident from their casual way of doing things. The learned Senior Counsel further contended that the Award has become final and as such, it should not be re-opened by allowing these applications to condone the delay.

Discussion

7. The first respondent initiated proceedings for arbitration on the strength of the arbitration clause contained in the agreement dated 19 July 2004. The Arbitral Tribunal passed an Award on 16 December 2009. The petitioners challenged the Award with delay in O.P Nos. 98 and 272 of 2011.

8. The learned single Judge upheld the Award by order dated 30 April 2015. The petitioners, long after the period of limitation filed the intra court appeals on 30 June 2015.

9. The petitioner in the affidavit filed in support of the interlocutory application in CMP No. 18929 of 2016 contended that intra court appeal was originally filed before the Registry on 30 June 2015. The appeal papers were returned by the Registry on 3 July 2015 for compliance of certain remarks. The appeal was filed after affixing the court fee of Rs. 200/- instead of Rs. 5,000/-, which is the prescribed fee. Subsequently, the petitioner changed his erstwhile counsel. The papers were thereafter sent to two different law offices for curing the defects pointed out by the Registry. It was represented subsequently along with the application for condoning the delay of 422 days.

10. The petitioner in the affidavit filed in CMP No. 18930 of 2016 indicated the very same reasons given in the other application to condone the delay of 471 days in representing the appeal in OSA.SR No. 51848 of 2015.

11. The affidavits filed in support of the respective interlocutory applications are bereft of details. The affidavits are silent with regard to the identity of the counsel, who was entrusted originally to file the appeals. There is nothing on record to show as to how many days the papers were pending with the said counsel. There is no reason given by the petitioners as to why they paid a sum of Rs. 200/- as against Rs. 5,000/- which is the prescribed fee for filing the appeal against the order in the original petition. It was the contention of the petitioners that two of the lawyers after perusing the voluminous documents returned the papers and expressed their inability to take up the matter due to conflict of interest. The identity of those lawyers or law offices are also not disclosed. It was further contended that certain papers and records got misplaced. There is nothing to indicate as to when the records are misplaced and as to when those records were traced out at a later point of time. The petitioners failed to disclose as to when the matters were entrusted to the present counsel. In short, the affidavits filed in support of the applications does not contain any reason much less justifiable reason.

12. The petitioner in CMP No. 18929 of 2016 is stated to be a multi-millionaire and a former member of the legislative assembly. He is not a lay man unaware of the legal procedure. He was a party to various proceedings. The Courts have earlier made comments about his conduct in some of the earlier proceedings. Even though, the learned Senior Counsel for the first respondent wanted to make a mention of all those proceedings, we refrain from doing so as the same is not necessary for the disposal of the interlocutory applications before us. However, the fact remains that the petitioners have not demonstrated that they were prevented from representing the intra court appeal papers before the Registry on account of certain reasons beyond their control.

13. The Hon'ble Supreme Court in H. Dohil Constructions Co. P. Ltd. v. Nahar Exports Ltd. [(2015) 1 SCC 680] considered the interlocutory application filed to condone the delay of 1727 days in filing the appeal. The facts of the said case are more or less similar to the case on hand. In the said case, the Hon'ble Supreme Court found that even though the delay in filing the appeal was only 9 days, the net result is that appeal can be taken into record only when such a delay in refiling is condoned.

14. The Supreme Court in Nahar Exports Ltd., observed that when enormous delay occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the concerned party from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals. As in the present case, the Supreme Court found that the appellants therein failed to give convincing reasons as to how they were disabled from rectifying the defects pointed out by the Registry and refiling appeal papers within time. The appellants in the said case also filed the appeals without payment of proper court fee as in the present case. The Supreme Court on consideration of the entire reasons observed that there was no bona fide in the claim that the appellants were seriously interested in challenging the judgment of the Trial Court.

15. The observation made by the Supreme Court in Nahar Exports Ltd., case (cited supra) would apply to the present case with all force.

16. The Award in the subject case was passed as early as on 16 December 2009. The Award was confirmed by this Court by order dated 30 April 2015. The petitioners have not shown any kind of urgency. They have taken their own time to file the appeals and thereafter to represent the appeal papers. In a matter of this nature, the petitioners must produce acceptable materials before the Court to demonstrate that they were prevented by sufficient cause from representing the appeals within the time granted by the Registry.

17. The petitioners are not poor people without proper resources to pay the court fee. Even the court fee of Rs. 5000/- was not paid initially. The petitioners paid only a sum of Rs. 200/- at the first instance and filed applications to receive the balance court fee of Rs. 4,800/- in each of these appeals. Therefore, it was not a proper presentation of appeals.

18. The Award passed by the Arbitral Tribunal contained an observation with regard to the conduct of the petitioners. The first respondent paid their portion of the fee. However, the petitioners failed to pay their contribution and disappeared from the scene and the same made the Arbitral Tribunal to make certain comments against the petitioners. The course of conduct adopted by the petitioners through out the proceedings shows that they are unfair, both to the Arbitral Tribunal and to the Court. Such litigants are not entitled to invoke the equitable jurisdiction.

19. The discretion to condone the delay should be exercised only in case the party has approached the Court with clean hands and indicated the actual reasons for the delay either in filing the proceedings or re-presenting the papers to comply with the direction given by the Registry. The petitioners have miserably failed to plead and prove the reasons for the delay in re-presenting the papers. We therefore do not find any reason to condone the delay.

20. In the up shot, we dismiss the Civil Miscellaneous Petitions. Consequently, OSA Sr. Nos. 51833 and 51848 of 2015 are rejected. Connected Miscellaneous Petitions are closed.