Ex.P.No.366/08,OMP No.518/09&IA.11403/09 Page 1 of 6 *IN THE HIGH COURT OF DELHI AT NEW DELHI + Ex. P. No.366/2008 % Date of decision:15.09.2009 M/S BWL LTD. .…Decree Holder Through: Mr. T.K. Ganju, Sr. Advocate with Ms. Sandhya Kohli and Mr. Puneet Parihar, Advocates. Versus NATIONAL HYDRO ELECTRIC POWER CORP…Judgment Debtor Through: Mr. A.T.M. Rangaramanujam, Sr. Advocate with Mrs. Shubhra Goyal Rana, Advocate. AND OMP No.518/2009 & IA No.11403/2009 POWER GRID CORPORATION OF INDIA LTD. .. Petitioner (Formerly known as NHPC Ltd.) Through: Mr. A.T.M. Rangaramanujam, Sr. Advocate with Mrs. Shubhra Goyal Rana, Advocate. Versus M/S BWL LTD. …… Respondent Through: Mr. T.K. Ganju, Sr. Advocate with Ms. Sandhya Kohli and Mr. Puneet Parihar, Advocates. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported in the Digest? No RAJIV SAHAI ENDLAW, J. 1. The execution petition was filed of arbitral award dated 14th March, 2006 stated to having the force of a decree under the Arbitration Act, 1996. Notice of the execution was ordered to be Ex.P.No.366/08,OMP No.518/09&IA.11403/09 Page 2 of 6 issued to the judgment debtor who appeared through counsel on 14th January, 2009 and sought time to file reply to the execution. No reply was filed and on 22nd April, 2009 a statement was made that the judgment debtor was ready to make the payment as per the award subject to verification of calculations. The matter was adjourned. On the next date i.e. 14th July, 2009, again statement was made by the counsel for the judgment debtor in court that the judgment debtor was in negotiation with the decree holder and shall pay the amount awarded/agreed between the parties within four weeks. It was ordered that if the payment is not made within four weeks, the bank account of the judgment debtor shall stand attached for the monies claimed in the execution. 2. Neither was any payment made nor any attachment effected. Before the next date the judgment debtor filed OMP No.518/2009 under section 34 of the Act along with an application under section 5 of the Limitation Act for condonation of delay in preferring the OMP. The OMP came up before this court first on 4st September, 2009 when the senior counsel for the judgment debtor (petitioner in OMP) sought time for filing an additional affidavit in support of the application for condonation of delay. The additional affidavit has been filed. 3. Condonation of delay in preferring the OMP is sought on the ground that the judgment debtor had within the prescribed time preferred petition under Section 34 of the Act before the court of the District Judge, Delhi. At this stage, the contention of the senior counsel for the decree holder may be noted. It is stated that the objections before the District Judge were preferred on 3rd July, 2006 and which were also barred by time and objection in which respect Ex.P.No.366/08,OMP No.518/09&IA.11403/09 Page 3 of 6 was taken before the court of the Additional District Judge. 4. The decree holder made an application in the petition preferred by the judgment debtor before the Additional District Judge, pleading that the court of the District Judge was not the court within the meaning of Section 2 (e) of the Act, competent to entertain the objections. The said application of the decree holder was allowed vide order dated 21st January, 2008 of the Additional District Judge. It was held that the claims before the arbitral tribunal being in excess of Rs.20 lacs, which was the maximum pecuniary jurisdiction of the court of the Additional District Judge, the court within the meaning of Section 2 (e) of the Act competent to entertain the objection petition under Section 34 of the Act was this court. The objection petition preferred by the judgment debtor was accordingly dismissed and liberty was given to the judgment debtor to collect the original documents if any filed in that court in accordance with law for presentation before the court of competent jurisdiction. 5. The petition under Section 34 of the Act came to be filed before this court only on 26th August, 2009 i.e. after more than 18 months from the date of the order aforesaid of the Additional District Judge and which has attained finality. 6. The senior counsel for the judgment debtor (petitioner in the OMP) has contended that as per Section 43(1) of the Act, the Limitation Act applies to these proceedings. Section 151 of the CPC is also sought to be invoked for condonation of delay. It is contended that on the basis of the facts pleaded in the application for condonation of delay and in the additional affidavit filed in support Ex.P.No.366/08,OMP No.518/09&IA.11403/09 Page 4 of 6 thereof, the judgment debtor is entitled to condonation of delay. Reliance is also placed on Rajpura Gas House Vs. B.S. Koli 2009 (3) Arb. LR 38 (Punjab & Haryana) holding Section 14 of the Limitation Act applicable in relation to Section 34 of the Arbitration Act. 7. Relying upon Radhey Shyam Gupta Vs. Kamal Oil & Allied Industrial Ltd. 2006 (88) DRJ 676 (DB), it is contended that the condonation of delay in re-filing is less rigorous than the condonation of delay in filing. 8. Need is not felt to go into the facts justifying the delay. The Supreme Court in Union of India Vs. Popular Construction Co. (2001) 8 SCC 470 held on an interpretation of Section 34 (3) of the Act that the court is empowered to condone delay of one month only beyond the period prescribed for preferring the objections and no more. Though Section 43(1) of the Act does not appear to find mention in the said judgment but the specific issue of power of the court to condone the delay in preferring the objections having been considered by the Supreme Court in the said judgment, the said judgment is binding on this court. 9. The Supreme Court has undoubtedly, subsequently in Consolidated Engg. Enterprises Vs. Principal Secretary, Irrigation Department (2008) 7 SCC 169 held that Section 14 of the Limitation Act would still apply in the matter of preferring objections. However even if, in computing the period of limitation for preferring the petition, the time during which the judgment debtor has been prosecuting the proceedings before the District Judge is to be excluded, even thereafter there is delay of more than Ex.P.No.366/08,OMP No.518/09&IA.11403/09 Page 5 of 6 the time which the court as per Popular Construction Co. (Supra) is empowered to condone. It is for this reason that necessity is not felt to go into the reasons set out for condonation of delay. 10. As far as the contention of the senior counsel for the petitioner as to “re-filing” is concerned, re-filing is in the same court and not in a different court. The Supreme Court in Sri Amar Chand Inani Vs. Union of India AIR 1973 SC 313 had held that when the plaint was returned for presentation to the proper court and was presented in that court, the suit can be deemed to be instituted in the proper court only when the plaint was presented in that court; that suit in the proper court cannot be treated to be a continuation of suit filed in the wrong court. Thus, institution in a court which has no jurisdiction to entertain, is no institution and the only advantage which can be availed thereof is to have the time spent in the said other court excluded under Section 14 of Limitation Act, if conditions thereof are satisfied. Thus the institution of the petition by the judgment debtor in this court cannot be said to be an act of “re- filing” for principles with respect thereto, to apply. I have even otherwise in Gautam Associates Vs. Food Corporation of India MANU/DE/1750/2009 held that the Original Side Rules of this court do not permit condonation of delay in re-filing even. It was further held that the legislative intent in Section 34 of Arbitration Act cannot be defeated by condoning liberally the delay in re-filing. 11. The senior counsel for the decree holder has also contended that the action of the judgment debtor in this case of having preferred the petition under Section 34 of the Act after having made statements on two dates in the execution proceedings assuring payment is mala fide. Ex.P.No.366/08,OMP No.518/09&IA.11403/09 Page 6 of 6 12. The application for condonation of delay is thus dismissed and consequently the OMP No.518/2009 is also dismissed as barred by time. 13. With the dismissal of the OMP, there is no bar to execution. The senior counsel for the judgment debtor again states that execution be deferred for two weeks. In the circumstances issue Warrants of Attachment with respect to the Bank Account No.CA 10596547153 with State Bank of India, Jawaharlal Nehru University, New Mehrauli Road, New Delhi-110067 and Current Account No.10315031267 with State Bank of India, Gandhi Nagar, Jammu - 181152 in the total sum of Rs.83,75,576/- stated to be due under the decree. If the amount in one account is sufficient for the aforesaid purposes the other account shall not stand attached. Else the monies in the two accounts for the aforesaid total amount shall stand attached. However in view of the submission of the senior counsel for the judgment debtor the warrants be issued after two weeks from today. Upon the decree holder filing affidavit after two weeks that the payment has not been made, the registry to give Warrants of Attachment dasti to the counsel for the decree holder. 14. List the execution awaiting report of warrants, on 25th November, 2009. RAJIV SAHAI ENDLAW (JUDGE) September 15th, 2009 J