* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 7.9.2009
Date of Order: 15th September, 2009
IA No. 2319/2006 in CS(OS) No. 884A/2003
% 15.09.2009
J.P.N.Singh ... Plaintiff/Petitioner
Through: Mr. J.P.Sengh, Sr. Advocate with
Mr. Sumeet Batra, Advocate
Versus
National Building Construction
Corporation Ltd ... Defendant/Respondent
Through: Ms. Poonam
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
The applicant/respondent had moved an application under Section
30 of Arbitration Act, 1940 being IA No. 14/2004. This application was
dismissed on 6.1.2006 by this Court for non-prosecution as none had been
appearing before the Joint Registrar on the last three dates of hearings and the
award was made a rule of Court in CS(OS) No. 884A/2003. The applicant
thereafter moved an application being IA No. 2319/2006 under Order 9 Rule 13
IA No. 2319/2006 in CS(OS) No. 884A/2003 J.P.N.Singh v. NBCC Ltd. Page 1 of 4
CPC. Notice of this application was ordered to be served on 27.2.2006 to the
non-applicant subject to deposit of costs of Rs.10,000/- returnable for 15th May,
2006. On 15.5.2006, the Counsel for both the parties were present and Counsel
for the respondent/applicant was put to notice that in case she wanted the
application to be allowed, she should proceed with the matter on merits. The
Counsel stated that she was not ready to argue the matter on merits and finding
that costs imposed vide order dated 27.2.2006 was also not deposited, the Court
passed following order:
“I see no reason to restore the matter when the respondent
is not willing to argue the mater on merits and has not even
complied with the Order for either process fee or deposit of
costs.
List on 11.8.2006″
2. Simultaneously, the applicant/respondent had moved an application
being IA No. 2320/2006 for stay of execution. The Court vide order dated
15.5.2006 rejected the application.
3. It is obvious from the above order passed by the Court that the
application made by the applicant under Order 9 Rule 13 CPC stood dismissed
on 15.52006. The applicant thereafter moved an application under Order 47
Rule 1 CPC being IA No. 6679/2006 for review of order dated 15.5.2006. In this
application for review the Counsel stated that on 15.5.2006, the Court
dismissed/rejected the IA No. 2320/06 for stay of execution and issued notice to
the Counsel for the petitioner for 11.8.2006 in IA no. 2319/2006, application for
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restoration. In fact, this statement made in the review application was totally
contrary to order dated 15.5.2006. The review application was disposed of vide
order dated 16.11.2006 and the Court observed that there was no error apparent
on the face of the record for review of order dated 15.5.2006. The Court
however observed that in case the defendant seeks an interim relief, nothing
precluded the learned Judge hearing IA No. 2319/2006 for considering the prayer
made by the defendant.
4. It seems that due to misrepresentation made by the Counsel for the
review applicant, that application IA no. 2319/2006 was still surviving, the Court
passed this order without actually verifying the record that application IA No.
2319/2006 already stood dismissed. The order dated 15.5.2006 shows that
application IA No. 2319/2006 was rejected however, date of 11.8.2006 was given
inadvertently in the case although nothing survived in the case because both the
applications stood dismissed. IA No. 2319/2006 was again wrongly listed before
the Court on 1.12.2006. It was again dismissed for non-prosecution because
none appeared for the respondent/applicant. Thereafter, an application under
Order 9 Rule 9 CPC was made for restoration on IA No. 2319/2006 as if IA No.
2319/2006 was surviving. During the hearing of this application, it seems it was
not brought to the notice of the Judge that the application IA no. 2319/2006 had
already been dismissed and by no order it had been revived. The Court
therefore passed an order that a sum of Rs.5,00,000/- be deposited by
IA No. 2319/2006 in CS(OS) No. 884A/2003 J.P.N.Singh v. NBCC Ltd. Page 3 of 4
respondent/applicant and on depositing a sum of Rs.5,00,000/- further
proceedings in the execution shall remain stayed. In the meantime
claimant/petitioner expired and the matter proceeded for substitution of his LRs.
The matter was again taken up on 27.5.2009 when the LRs of deceased
petitioner were brought on record and the application under Order 9 Rule 9 CPC
for restoration of application IA No. 2319/2006 was also allowed and it was
recorded that application IA no. 2319/2006 shall stand revived. However, the
order dated 15.5.2006 shows that this application was dismissed and the order
dated 15.5.2006 was not recalled by any subsequent order. I, therefore consider
that this application (IA No. 2319/2006) under Order 9 Rule 13 CPC already
stands dismissed and it cannot be heard again on merits.
September 15, 2009 SHIV NARAYAN DHINGRA, J.
vn
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