Indian Statistical Institute Vs. M/S
Associated Builders & Ors  INSC 226 (2 December 1977)
CITATION: 1978 AIR 335 1978 SCR (2) 338 1978
SCC (1) 483
Limitation Act, 1963, S. 5, whether covers
delay in re- filing objections after rectification of defects-Condonation when
delay due to circumstances beyond litigant's control.
In connection with a dispute between the
parties, the appellant submitted his objections for setting aside the
arbitration award. The objection petition was filed within the period of
limitation, but was returned as defective, in that the necessary stamps were
not affixed, and the date of the verification of the petition was not entered.
The defects were rectified, but the appellant refiled his objections late, due
to his advocate's misconduct. The delay was caused by circumstances beyond the
appellant's control, but the High Court refused to condone the delay.
Allowing the appeal the Court,
HELD : (1) There had not been any delay in
preferring the objections. The delay, if any was in re-presentation of the
objection petition after rectifying the defects, and the delay in
re-presentation is not subject to the vigorous tests which are usually applied
in excusing the delay in a petition under section 5 of the Limitation Act. [343
E-G] Mahant Bikram Dass v. Financial Commissioner & Ors.  1 SCR 262,
(2)The delay is not due to any want of bona
fides or care on the part of the appellant. but due to circumstances beyond his
control. He cannot be held guilty of negligence so as to disentitle him to
plead sufficient cause under section 5 of the Limitation Act. Section 149 of
the Code of Civil Procedure confers ample power on the High Court to exercise
its powers in order to do justice to a litigant where the failure is not due to
any fault of his. [344 A-C] State of West Bengal v. Administrator Howrah
Municipality and Ors.,  2 S.C.R. 874 and Maliant Ram Das v. Ganga Das,
 3 S.C.R. 763; applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1298 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 7- 2-77 of the Delhi High Court in Suit No. 574-A of 1976.
D.N. Mukherjee, D. P. Mukherjee, G. S.
Chatterjee and A. K. Gannguli for the appellant.
S. T. Desai and Bishainber Lal for Respondent
The Judgment of the Court was delivered by
KAILASAM, J. At the conclusion of the hearing of the appeal on November, 7,
1977 we had passed the operative part of the order stating that a reasoned
judgment would follow. We now proceed to give the reasons.
This appeal is by special leave against the
judgment and order dated 7th February, 1977 in suit No. 574-A of 1976 by a
single judge of 339 the High Court of Delhi whereby he dismissed the
appellant's petition for condonation of delay in filing the objection for
setting aside the arbitration award given by respondents 2 and 3.
A contract was entered into between the
appellant-Indian Statistical Institute-and the first respondent-Associated
Builders & Ors., in respect of the work for construction of Indian
Statistical Institute Campus at Hauz Khas, New Delhi.
The contract provided for arbitration for
settling any dispute that may arise between the parties. A dispute arose and
the matter was referred to respondents 2 and 3 who gave an award on 23rd July,
1976. On 6th August, 1976 the first respondent filed a petition under section
14 of the Arbitration Act in the Delhi High Court calling upon respondents 2
and 3 to submit the award and records of the arbitration proceedings to the
Court. On 27th August, 1976 the arbitrators filed the award in the court. The
appellant was served with a notice on 31st August, 1976 calling upon it to
submit the objection for setting aside the award within one month from the date
of the service of the notice.
The objection for setting aside the ' award
was filed in the High Court on 29th September, 1976 within the period of
limitation. But as the objection petition was defective, in that the necessary
stamps were not affixed and the date of tiff verification of the petition was
not entered, the memorandum of objection was returned on 12th October, 1976 for
rectifying the defects. When the matter was taken up by the Deputy Registrar on
25th October, 1976, Shri D. P. Mukherjee, Advocate, appearing on behalf of the
appellant made a submission that the appellant wanted to change its advocate
and that it may be given some more time for filing the objections. On 10th
November, 1976 two applications were filed by the appellant (I.A. No. 2522 of
1976) under clause 4 of Chapter V of the Delhi High Court (Original Side) Rules
for determination of authority of Shri B. Singh to act as advocate on his
behalf and another out of which the present appeal arises for condonation of
the delay and for extension of time for filing objections for setting aside the
award. The petition for determination of authority of Shri B. Singh to act as
advocate was ordered and we are not concerned with that in this appeal.
The Plea for condonation of delay and for the
extension of time for filing the objection for setting aside the award Was on
the ground that the appellant was unable to file the petition as its advocate
Shri B. Singh exerted illegal and unethical pressure and wanted a sum of Rs.
15,000.1- unjustifiably. The correspondence between the appellant and the
advocate Shri B. Singh which is relied on for proving the obstructive attitude
of the learned counsel for the appellant, which resulted in the delay, may be
Soon after the award was passed before the
receipt of the notice on 31-8-1976 the appellant wrote a letter to Shri B.
Singh, advocate, on 21st August, 1976
informing him that the arbitrators have filed their award on 23rd July, t976
and as per the award the appellant was directed to pay a sum of Rs.
3,04.510.33 p. to the respondents. Stating
that the appellant has decided to challenge the award, the counsel was
requested to' draft and file the objections within the time allowed for filing
the objections. The appellant also informed Shri B. Singh that its Law Officer
would 340 be available for discussion in this case and for preparing Objection
petition in regard to the award. The letter further stated that on the basis of
the schedule of fees and the discussions Shri B. Singh had with Shri Pandalal a
fee of Rs. 3000/- will be paid for the work of drafting only.
By the next letter, the appellant in
continuation of letter dated 21st August, 1976 requested Shri B. Singh to file
the objections and to conduct the case on their behalf and asked for the
objections to be filed within the time prescribed.
The letter also stated that Shri B. Singh
will be paid as per schedule of fees in the first week of October, 1976 subject
to certain adjustments. On 22nd September, 1976 Shri B. Singh sent his bill for
drafting, filing and conducting objections. The bill contained two items-One
for professional fees for drafting the objections as per column, 3(d) of the
schedule amounting to Rs. 3000/ and the second item for professional fees for
filing and conducting the objections in the High Court of Delhi as per column
4(a) of the schedule of fees amounting to Rs. 15,000/-. By another letter dated
29th September, 1976 Shri B. Singh stated that the objections have already been
filed. Again on 13th October, 1976 Shri B. Singh wrote to the appellant in
which he referred to his engagement for drafting objections and filing and
conducting the same in the High Court and the fees demanded by him. He further
stated that the objections filed by him have been returned 'and the same must
be refiled after removing the objections otherwise the award will, be. made a
rule of the Court and thereby a decree for Rs. 3,04,510.33 will be passed
against the-appellant. Shri B. Singh required papers along with the cheques for
professional fees to be handed over to him failing which further action in the
matter will be held up and the appellant will be held responsible for all the
It may be noted that the objections filed in
the court were actually returned on 12th October, 1976 and the letter demanding
the fees and threatening further action will not be taken if the demands were
not met was written by Shri B.
Singh on the next day i.e. 13th October,
1976. In reply to the letter dated 13th October, 1976 of Shri B. Singh the
appellant asked for particulars as to the circumstances in which the objections
filed in the court were returned and the work that needed to be done before
refiling and the time by which it has to be refiled. The letter further stated
that the points raised by Shri B. Singh in his letter are being looked into and
a further communication will follow.
In the meanwhile the appellant requested Shri
B. Singh as its lawyer to look after their interest with utmost care 'and
diligence and asked for 'the documents to be filed in time. On 21-10-1976 the
appellant wrote to Shri B. Singh stating the facts and saying that it was never
agreed to between them that a sum of Rs. 15,000/- would be paid to him. The
appellant proceeded to state that Shri B. Singh was paid a lump sum of Rs.
3,000,/- and it is surprising that even after receiving Rs. 3,000/- he bad not
cared to give 'credit for the said amount in the above mentioned bill. The
appellant also informed Shri B. Singh that it has decided to withdraw the power
in his favour and requested him to handover all the documents and papers
After writing this letter to Shri B. Singh
the appellant engaged another advocate Shri Mukherjee. On 25th October, 1976,
when the case came up for hearing before the Deputy Registrar, Mr. Mukherjee,
appearing for the appellant, submitted that Indian Statis- 341 some more time
for filing the objections. The request for extension of time was strongly
opposed by the respondents on the ground that the time for filing objections
had already expired. The matter was listed to be posted before the court for
order on 15th November, 1976. In the meantime Shri B. Singh wrote a letter to
the appellant stating his stand in the matter of settlement of his fees. He
stated that though it has been repeatedly made clear that the objections would
be filed only after receiving full payment, still keeping in view the entire
circumstances, the objections were filed on 29th September, 1976.
In these circumstances, the appellant prayed
for condonation of delay in filing the objections and. for extension of time to
enable him to file the objections. The High Court while observing that Shri B.
Singh may have acted without care or attention of the interest of his client or
may have behaved recklessly, but nevertheless he was negligent. The High Court
was not convinced that the appellant was unable to take any steps for filing
objections for 'setting aside the 'award before 21st January, 1977. The High
Court observed that although Shri Mukherjee had also put in appearance on
behalf of ISI before the Deputy Registrar on 25th October, 1976 and sought time
for filing objections for setting aside the award, no objections were, filed
till 1st January, 1977.
It, however, observed that the appellant
would have got inspection of the record for the purposes of drafting and filing
objections for setting aside the award. The High Court proceeded to observe
that as material for drafting objections for setting aside the award was
already available either in the Court records or in the record of the ISI, the
appellant has not acted with due diligence in preparing the objections before
21st January, 1977. The High Court also was of the view that as objections
filed on 29th October, 1976 were not stamped, it could not be deemed to have
been filed at all. The Registrar of the Court having returned the objections
for re-filing after removing the defects, the objections ought to have been
refiled within a reasonable time but as the appellant did not file them within
reasonable time there was no sufficient cause for exercising its discretion.
The High Court also was not inclined to exercise its discretion and condone the
delay and to direct the payment of the deficit courtfees. To sum up the reasons
given by the learned Judge are : (i) though Shri B. Singh may have acted
without care or attention of the interest of his client or may have behaved
recklessly, but nevertheless as he was negligent the conduct on the part of the
counsel cannot be held as sufficient cause for condonation of delay;
(ii) the court found that Shri Mukherjee,
counsel for the appellant was unable to take any steps for filing the
objections for setting aside the award before 21st January specially when the
material for drafting objections was already available either in court records
or in the records with the appellant; (iii) Though it is not clear as to what
time the Deputy Registrar gave for removing the objections and refiling, it was
not done within a reasonable time.
The reasons given by the High Court are
unsound and totally unconvincing. We feel that the petition discloses
sufficient cause for condonation of the delay. The High Court found Shri B.
Singh "may 342 have acted without care or attention of the interest of his
client or may have behaved recklessly, but nevertheless he was negligent."
We are unable to perceive how the appellant was negligent. Even before the
notice was received from the Registry on 21st August, 1976 the, appellant
requested Shri B. Singh to Me the objections within the time allowed. On- the
basis of the threat demanding fees the appellant promised to pay Shri Singh Rs.
3000/- which was admittedly paid. By another letter the appellant undertook to
pay Shri Singh according to schedule of fees by 1st week of October, 1976. The
objections were filed on 29th September, 1976 i.e. within time but no 'stamps
were fixed to the objections and the date of verification was not entered. This
intimation was given by Shri Singh on 13th October, 1976 a day after the
objections were returned by the office. Shri B. Singh wrote to the appellant
informing him of the return, the necessity for removing the objections and
refiling the objections and threatening that it the fees were not paid the
matter would be held up. By the letter dated 21st October, 1976 Shri Singh
demanded Rs. 15,000/-. At the earliest opportunity, that is when the matter
came up before the Deputy Registrar the 'appellant prayed for time for filing
objections stating that he had decided to change his advocate. On 29th October,
1976 Shri B. Singh again wrote stating that though it had been repeatedly made
clear that objection would be filed only after receiving full payments, he had
filed objections in time on 29th September 1976. The learned Judge found that
though the material for drafting objections for setting the award was available
either in the records of the court, or in the record of the appellant.
there is no explanation for not filing
objections till 21st January, 1977. The High court ignored the fact that before
the vakalatnama of the counsel on the record is revoked no one can act for the
appellant. It was represented on behalf of the appellant at the earliest
opportunity that it had decided to change the counsel and prayed for extension
of time. The learned Judge ignored the plea of the appellant that from 25th
October, 1976 to 21st January, 1977 the appellant could not obtain the original
objections filed by Shri B. Singh and overlooked the fact that when the papers
were obtained from Shri B. Singh on 20th January, 1977 the objections were
promptly refiled on 21st January, 1977.
On the facts we are constrained to say that
we are most unhappy at the unsympathetic attitude taken by the High Court. The
appellant was totally helpless and could not have refiled the memorandum of
objections before 21st January, 1977 in the circumstances in which it found
Further, the learned Judge did not even take
notice of the fact that the petition for condonation of delay was pending and
before that was disposed of the memorandum of objections cannot be properly
Regarding the conduct of Shri B. Singh the
counsel who was engaged by the appellant we feel the less said the better.
The facts disclose that he was paid Rs.
3,000/-. He filed the objections without affixing any stamp, which does not
appear to be due to oversight, and when they were returned for rectifying
defects, he made a demand for Rs. 15,000/- which is unconscionable. The
subsequent conduct is not making the papers available cannot be innocently
We 343 feel that Shri B. Singh has acted in a
most unbecoming manner in the discharge of his duties as a member of the noble
profession to which he belongs. We refrain from issuing any notice or calling
upon him to explain as he is not under our disciplinary control. We, direct
that a copy of the judgment be sent to the Al India Bar Council for taking such
action as they may deem fit.
On the facts disclosed we feel sufficient
grounds are made out for condoning the delay in filing the objections. The two
defects that were pointed out were (i) the objections were not properlystamped
and (ii) the verification was not dated. So far as the deficiency in stamps is
concerned, under section 149, Civil ProcedureCode, the ,Court has ample
jurisdiction to allow the person by whom such fee is payable to pay such court
fees at any stage. The defect in not affixing the date of the verification is
not a material one to be taken serious note of. In the circumstances, it cannot
be said that objections were not filed within time or that because they were
not properly stamped the objections could not be taken as having been filed at
all. Therefore, in our views there had not been any delay 'in preferring the
objections. The delay, if any, was in complying with the directions of the
Registrar to rectify the defect and refiling the objections. The delay, as we
have pointed out earlier, is not due to any want of care on the part of the
appellant but due to circumstances beyond its control.
The High Court was in error in holding that
there was any delay in filing the objections for setting aside the award.
The time prescribed by the Limitation Act for
filing of the objections is one month from the date of the service of the
notice. It is common ground that the objections were filed within the period
prescribed by the Limitation Act though defectively. The delay, if any, was in
representation of the objection petition after rectifying the defects.
5 of the limitation Act provides for
extension of the prescribed period of limitation. If the petitioner satisfies
the court that he had sufficient cause for not preferring the objections within
that period. When there is no delay in presenting the objection petition
section 5 of the Limitation Act has no application and the delay in
representation is not subject to the rigorous tests which are usually applied
in excusing the delay in a petition under section 5 of the Limitation Act. The
application filed before the High Court for condonation of the delay in
preferring the objections and the order of the court declining to condone the
delay are all due to misunderstanding of the provisions of the Civil Procedure,
Code. As we have already pointed out in the return the Registrar did not even
specify the time within which the petition will have to be re-presented.
In a recent judgment of this Court delivered
on August 3, 1977 in Mahant Bikram Dass v. Financial Commissioner and Ors.,(1)
it is pointed out that the petition under section 5 of the Limitation Act
seeking to condone the delay in preferring an appeal is different from a
petition for excusing the delay in re-presentation.
(1)  ISCR 262 344 Even in cases where
there has been delay in filing of an appeal or objection petition within the
time prescribed when the delay is not due to want of bona fides by the
petitioner and is due to the party having acted in a particular manner on the
wrong advice given by his legal adviser, he cannot be held guilty of negligence
so as to disentitle him to plead sufficient cause under section 5 of the Limitation
(State of West Bengal v. Administrator,
Howrah Municipality & Ors. (1).
Equally when the petition is not properly
stamped the Court has ample powers to extend the time for affixing proper
court-fee. Section 149 of the Code of Civil Procedure confers ample power on
the High Court to exercise its powers in order to do justice to a litigant
where the failure is not due to any fault of the. litigant. (Mahant Ram Das v.
Ganga Das(2) ).
We are satisfied that the High Court was not
justified in dismissing the petition on the ground that the objections were
filed beyond time. We allow the appeal and direct the respondents to pay 'costs
of the appellant in this Court.
(1)  2 S.C.R. 871.
(2)  3 S.C.R. 763.