IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1175 OF 2009 NOTICE OF MOTION NO.1175 OF 2009 NOTICE OF MOTION NO.1175 OF 2009 IN IN IN ARBITRATION PETITION NO.194 OF 2009. ARBITRATION PETITION NO.194 OF 2009. ARBITRATION PETITION NO.194 OF 2009. Mishu Ahluwalia & Anr. ..Petitioner versus M/s.Kotak Mahindra Bank Ltd. & Anr. ..Respondents Mr.Pankaj Shah i/b. Dipak Khilari for the petitioner Ms.Asha Nair i/b. Mahesh Menon & Co. for the respondent No.1. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 26th March, 2009. DATED : 26th March, 2009. DATED : 26th March, 2009. P.C. 1. The learned Advocate for the respondent No.1 has no objection if the Notice of Motion is taken up for hearing without filing affidavit in reply. By consent taken up for final hearing. 2. The petitioner has filed application under Section 34 of the Arbitration and Conciliation Act, 1996. The petitioner claims that the award was served upon the petitioner in January 2009 and according to him the filing of the petition is within time. However, the petitioner has filed this Notice of Motion and prayed that the delay in -2- filing arbitration petition be condoned. The office has raised objection as regards delay by contending that nothing is placed before the Court to show that the award was received in January 2009. This objection was sought to be over ruled by the learned Advocate for the petitioner by contending that the learned Advocate will satisfy the Court. Thereafter the petitioner has taken out this Notice of Motion. Hence the motion is taken up for hearing. 3. Learned Advocate for the petitioner submitted that the packet containing the award was sent to the branch where he was working in the past and that is how some clerk who was working in the branch handed over the said packet to the petitioner in January 2009. 4. The Xerox copy of the forwarding letter enclosing the award sent by the Arbitrator was made available to the Court. The said forwarding letter is dated 18.9.2006. One could have accepted the word of the petitioner that some clerk from the earlier branch handed over to the petitioner the copy of the award along with the forwarding letter in the month of January 2009, provided the -3- petitioner could have disclosed the name of the clerk who handed over the said award to the petitioner in the month of January 2009. It was easily possible for the petitioner to disclose the name of the said man who delivered the award to the petitioner in January 2009. If the award was sent by the Arbitrator in September 2008, it is inconceivable that it would be delivered in the branch in January 2009. The petitioner should have disclosed the name of the clerk so that the said clerk could have been put to enquiry and then the matter could have been sorted out. In the normal course the petitioner could have filed an affidavit of the said clerk as to why the packet was not delivered till January 2009. In my view, the explanation given by the petitioner is not worth accepting and in my view the petitioner does not wish to place before the Court true facts and wanted to put this reason of late delivery as a reason to secure condonation of delay. In my view, in the peculiar facts and circumstances, considering the entire matter on the basis of normal situation and probabilities the petitioner has not been able to explain the delay and hence the notice cannot be admitted. Hence the Order. -4- ORDER . Notice of motion is dismissed with no order as to costs. . On account of dismissal of the Notice of Motion, there is no question of considering the Arbitration Petition NO.194 of 2009 on merits. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)