Delhi High Court: The Division Bench of Rajiv Shakdher and Tara Vitasta Ganju*, JJ., opined that appellant’s petition was dismissed in default on two occasions, which showed complete lack of due diligence in its prosecution. The Court dismissed the appeal and held that the pre-conditions for such application to be allowed as held by the Supreme Court in Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169 (‘Consolidated Engineering Case’) and Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu, 1959 SCR 564 (‘Madhavrao Narayanrao Case’) did not co-exist as appellant had been completely remiss in prosecution of this case.
Background
The present appeal was filed under Section
Analysis, Law, and Decision
The issue for consideration before this Court was “whether for calculating limitation under Section 34(3) of Act, delay of 6263 days could be excluded and condoned by this Court under Section 14 of Limitation Act?”.
The Court observed that Section 14 of Limitation Act was enacted by legislature to exempt a period covered by litigious activity and to protect a litigant against bar of limitation when a proceeding was dismissed on account of a technical defect instead of being decided on merits and the intent was to prevent a litigant from being saddled with an adverse decision, which was, on account of the fact that the Court did not have the jurisdiction to entertain the case.
The Court relied on Consolidated Engineering Case (supra), wherein the Supreme Court while elaborating on the principles laid down in Madhavrao Narayanrao Case (supra) had pithily put the conditions which must be satisfied for applicability of Section 14 of Limitation Act, which were as follows:
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Both prior and subsequent proceedings were civil proceedings prosecuted by same party;
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Prior proceeding had been prosecuted with due diligence and in good faith;
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The failure of prior proceeding was due to defect of jurisdiction or other cause of like nature;
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Prior proceeding and subsequent proceeding must relate to same matter in issue; and
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Both proceedings were in a court.
The Court observed that in Madhavrao Narayanrao Case (supra) while discussing the term ‘due care and attention’ in the context of Section 14 of Limitation Act, it was held that what needed to be seen was whether appellant had brought on the record any evidence to show that he was prosecuting the previously instituted suit with due diligence.
The Court opined that since both prior and subsequent proceedings were civil proceedings being prosecuted by appellant, the first pre-condition was satisfied. Further, prior and subsequent proceedings both relate to subject matter of challenge to the Award, and both were being prosecuted in a Court, hence, fourth and fifth pre-conditions also stood satisfied. The Court further opined that since the arbitration proceedings were held at New Delhi and the Contract executed between the parties had not been filed before this Court, there was not enough material available to adjudicate upon the third pre-condition.
The Court also opined that the fact that appellant’s petition was dismissed in default on two occasions was a fact which showed complete lack of due diligence in its prosecution. Further, no explanation was provided by appellant as to why the petition under Section 34 of Act was filed before a Court in Delhi which lacked jurisdiction to entertain such petition. The Court noting the sequence of events in the present case opined that there was complete absence of due diligence, and the appeal was completely devoid of any reasons as to why the petition under Section 34 of Act was pending adjudication in the Courts at Saharanpur for more than 15 years. The Court thus opined that prior proceedings were not being prosecuted diligently or in good faith, hence, the third pre-condition was not satisfied.
The Court dismissed the appeal and held that the pre-conditions for such application to be allowed as held by the Supreme Court in Consolidated Engineering Case (supra) and Madhavrao Narayanrao Case (supra) also did not co-exist as appellant had been completely remiss in prosecution of the present case.
[U.P Jal Vidyut Nigam Ltd. v. C.G. Power & Industrial Solution Ltd., 2023 SCC OnLine Del 7916, decided on 12-12-2023]
*Judgment authored by: Justice Tara Vitasta Ganju
Advocates who appeared in this case :
For the Appellant: Pradeep Mishra, Daleep Dhyani, Advocates
For the Respondent: Ramesh Singh, Senior Advocate; Monisha Handa, Mohit D. Ram, Advocates
