1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1221 OF 2007 IN ARBITRATION PETITION (L)NO.401 of 2006 WITH ARBITRATION PETITION NO.373 of 2005 M/s.Gorawara & Company .. Petitioners versus Shri Bharat C. Bagri .. Defendant ... Mr.N.K.Mudnaney for the petitioner in support of Notice of Motion. Mr.S.S.Purohit i/b M.s.Purohit & Co. for respondents. CORAM : D.G. KARNIK, J DATED :9th July 2009 P.C:- 1. Heard. 2. This motion is taken out by the petitioner for condonation of a delay. It is worthwhile to note that neither the motion nor the affidavit in support thereof clearly states as to the extent of the delay that is sought to be condoned. However, I am not inclined to dismiss the motion on that ground 2 alone. I am not satisfied that the delay has not been satisfactorily explained and therefore application deserves to be dismissed. 3. The petitioner is a member of the Delhi Stock Exchange (for short “the DSE”). The respondent is a member of Bombay Stock Exchange.(for short “the BSE”) Disputes arose between them regarding certain transactions done at BSE. As per the bye-laws of the BSE, the dispute was referred to arbitration. An award no.24 of 1999 was passed against the petitioner on 5th January 1999 by the Arbitral Tribunal. In Arbitration Petition no.373 of 2005, a decree in terms of the award was passed by this court on 9th January 2006. As the petitioner did not pay the amount of the decree, the respondent sought to recover the amount through attachment of assets and deposit of the petitioner with the DSE. By a letter dated 4th May 2006, the DSE informed the petitioner about the passing of the decree and took steps for recovery of the money from the deposit of the petitioner in accordance with the rules of the SEBI. Thereafter, the petitioner filed an arbitration petition bearing lodging no.401 of 2007 for setting aside the original award as well as the decree of the court passed in terms of the award. The present motion has been taken out for condonation of delay in making that arbitration petition. 5. Learned counsel for the petitioner submitted that the arbitration proceedings were held ex-parte and notice of arbitration petition was not 3 properly served on the petitioner. Petitioner had changed the address and despite the change of the address, the notice/summons was issued to the petitioner on the old address which consequently was not received by the petitioner. He further submitted that even notice of the filing of the award and application of the respondent for decree in terms of the award was issued at the old address and consequently was not served on the petitioner. The newspapers in which the notice/summons was published do not have wide circulation in Delhi and the petitioner was not aware of the proceedings in the court in relation to the award. As he was not aware, he could not apply earlier for setting aside the decree in terms of the award. The delay has been caused due to lack of notice and knowledge of the proceedings and hence deserves to be condoned. The petitioner was not aware of the arbitration proceedings and also the proceedings in which decree in terms of the award was passed. 5. In view of the fact that the notice of the application for passing a decree in terms of the award was served on the petitioner by publication in the newspaper and accepted by this court as a valid service, the ground that the petitioner was not aware of the proceedings cannot be accepted. However, even if it is assumed that the argument can be accepted still in my view, there has been a gross delay on the part of the petitioner even after the knowledge of the decree in terms of the award. 4 6. It is not disputed that the petitioner received the letter of the DSE dated 4th May 2006 on 6th May 2006 informing him of the award as well as decree of this court. Petitioner therefore had a clear knowledge of the award as well as the decree on 6th May 2006. The arbitration petition lodging no.401 of 2006 for setting aside the award and the decree has been filed in the court only on 24th July 2006. The date shows that it was typed in the month of June 2006 and the affidavit in support was sworn on 15th July 2006 and yet even thereafter for nine days, application was not filed. This delay has not at all been explained. 7. True that the delay appears to be small and a little more than a month if counted from the date of knowledge of the award and decree. However, quantum of delay is not the only material circumstance for determining whether sufficient cause for condonation of the delay is made out. The award has been passed in the year 1999. Petitioner is a commercial organization dealing regularly in shares as a member of the Stock Exchange. The dispute was between two members of Stock Exchange. Petitioner never informed the respondent about alleged change of the address. He successfully avoided the execution of the award which was passed in the year 1999. The respondent was therefore required to apply for a decree in terms of award as per provisions of the Arbitration Act of 1940. That also took considerable time. Even after being aware of the decree, the respondent did not act within the period of 30 days of the knowledge. 5 Satisfactory explanation has not been furnished why he could not approach the court within 30 days of the knowledge. In the circumstances, motion is dismissed. Consequently, registration of Arbitration Petition (Lodging) no. 401 of 2006 is refused. (D.G. KARNIK, J)