ORDER
G.K. Misra, C.J.
1. The petitioner-company is a manufacturer of steel having its factory at Rourkela in the State of Orissa. The petitioner entered into a contract with the opposite party for execution of certain works at Rourkela. Dispute and differences arose amongst the parties out of the execution of the said contract. Under the terms of the agreement the same was referred to the sole arbitrator Sri S. C. Banerii, the then Deputy Chief Engineer of the petitioner-company in 1965. The opposite party unnecessarily protracted the arbitration proceedings and finally on 30th of October 1966 the arbitrator passed the following order (Ext. 1).
“Present enlargement of time expires on 20-11-1966. It is apparent from the proceedings that it will not be possible to complete the proceedings and file the Award within this time. The claimants are therefore directed to apply for enlargement of time from the competent court.
(S. C. Banerjea)
Sole Arbitrator”.
2. The opposite party, however filed an application for extension of time under Section 28 of the Arbitration Act (hereinafter to be referred to as the Act) in the court of the Subordinate Judge. Sundargarh, only on 21-8-1969. Ground Nos. 4 and 5 taken in that application were as follows:
“4. That the petitioner had been to Punjab, his native place, and was ill for a very long time for which he could not apply for extension of time earlier,
5. That the petitioner cannot proceed with the case or arbitration unless time is further extended for making the award for a period of another four months.”
3. The petitioner filed objection on 19-1-1970. Paragraphs 3 and 4 of the objection runs thus:
“3. That the allegations made in paras 4 and 5 of the petition are false and hence denied. The allegations that the petitioner had been to Punjab and fell ill and hence could not apply for extension of time are false and hence denied.
4. That the petitioner is deliberately neglient and/or being conscious of his frivolous claim did not apply for time purposely. Sri. S. C. Baneriee has retired long since from service of the opposite party and may not now be available for arbitration. Sri Baneriee retired from service with effect from 30th June. 1966, and the petitioner being conscious of the same did not deliberately apply for extension.”
4. Amarnath Sharma (opposite party) examined himself as P. W. 1. No witness was examined by the petitioner. The substantive part of the learned Subordinate Judge’s finding is in paragraph 4 of his judgment dated 11-7-70.
“No doubt the petitioner’s story of illness does not find corroboration and the petitioner has not taken necessary pains to examine a doctor or anybody of Punjab to corroborate him. In course of cross-examination the petitioner has made a statement to the effect that year before last i.e. in 1968 he had taken up contract work at Burla. Much was argued by the learned counsel for the O. P. reiving on his statement. But in my view the above statement may not mean that the petitioner was then residing at Burla and as such could have taken steps for extension of time in 1968. In above premises I do not find any cogent reason to disbelieve the sworn testimony of the petitioner that he was in fact ill in Punjab for which reason he could not apply earlier.”
5. On the aforesaid conclusion the learned Subordinate Judge extended time by four months from that date. The civil revision has been filed against the order extending time.
6. The only evidence in the case on the basis of which the question of extension of time would be considered is the deposition of the opposite party (P. W. 1).
7. P. W. 1 deposed on 11-7-1970. In paragraph 9 of his deposition he stated “Year before last I had taken up contract work at Burla”. Thus, on his own case P. W. 1 had contract work at Burla in 1968. In the absence of any clarificatory statement on his behalf that he was getting the contract done through others though he was absent in Punjab the irresistible inference is that opposite party was present at Burla in 1968 and could have taken steps for extension of time. The learned Subordinate Judge himself has taken notice of the fact that the statement of the opposite party that he was ill from 1966 to 1969 is not corroborated by any independent evidence or by the evidence of the attending physician. Assuming that P. W. 1’s evidence can be accepted even without corroboration, his own version is destroyed by his admission in cross-examination that in 1968 he was at Burla. There is no statement in the deposition which is in support of the conclusion of the learned Subordinate Judge that the answer of the opposite party in cross-examination in paragraph 9 does not purport to mean what he says. On P. W. 1’s evidence itself there is no escape from the conclusion that the opposite party could have taken steps for extension of time in 1968, even assuming that he was in Punjab in 1966. 1967 and 1969. Even ground No. 4 contains an admission that the opposite party was not ill throughout but only ‘for a very long time’. The learned Subordinate Judge exercised his jurisdiction with material irregularity in ignoring the admission of the opposite party or in explaining away the same without any material in support of such conclusion. I would accordingly reverse the finding of fact recorded by the learned Subordinate Judge and hold that the opposite party was at Burla doing contract work in 1968 and he could have applied for extension of time under Section 28 of the Act in the Court of the Subordinate Judge. Sundargarh.
8. Mr. Sinha places strong reliance on Section 28(1) of the Act and contends that the Court has wide discretionary power in extending time. Section 28(1) runs thus:
“28. Power of Court only to enlarge time for making award. — (1) The Court may, if it thinks fit whether the time for making the award has expired or not and whether the award has been made or not enlarge from time to time the time for making the award”.
9. Law is well settled that the Court has got wide discretionary power to extend time. But as the amplitude of the power is wide the discretion must be exercised judiciously with care. In this regard I respectfully agree with the observations of a Division Bench in J. W. Oliver v. Mian Dost Mohammad. AIR 1935 Lah 191 (2). Their Lordships observed thus under the corresponding Section 12 of the Arbitration Act. 1899.
“The Arbitration Act prescribes a procedure for the expeditious and speedy settlement of disputes by private tribunals especially those arising in commercial transactions, and the Legislature has in the schedule fixed a period of three months for the delivery of awards in cases where no time is fixed in the reference. The Court has no doubt a discretion to extend time under Section 12, but it will do so only if cogent reasons are forthcoming. Obviously the discretion cannot be exercised in favour of a party who himself has been negligent and as in the present case, has been guilty of dilatory tactics”.
10. The impugned order comes directly within the mischief of the aforesaid dictum. Though in 1966 parties were called upon to have extension of time, the opposite party filed the application under Section 28(1) of the Act about three years after. Delay and dilatory tactics have not been explained by any cogent reason as the opposite party was doing his contract work at Burla in 1968 and could have taken steps for extension of time.
11. Mr. Sinha places strong reliance on Narsingh Das Hiralal Ltd. v. Bisandayal Satyanarain Firm. ILR (1953) Cut 495 = (AIR 1954 Orissa 29) and R. N. Rice Mills v. State of Orissa. ILR 1958 Cut 348 = (AIR 1959 Orissa 4). Both these decisions merely say that the power conferred under Section 28(1) is very wide and confers full discretion on the Court to enlarge the time-limit for making the award at any time and even after filing the award. These decisions, however, do not lay down any guides principles as to how the discretion is to be exercised, and they do not run counter to the Lahore case. There is nothing in these two decisions which would lead to any conclusion that Court would not reject the prayer for extension of time if laches and dilatory tactics are established. The two Orissa decisions do not assist the case of the opposite party.
12. On the aforesaid analysis, the impugned order is set aside and the civil revision is allowed; but in the circumstances, there will be no order as to costs.