The Madhya Pradesh High Court has reaffirmed that parties should not bear the consequences of their counsel’s absence when no personal presence is required and no notice of hearing is provided. In a significant ruling under the Arbitration and Conciliation Act, 1996, the Court restored a Section 34 application dismissed in default, emphasizing that procedural lapses by legal representatives cannot defeat substantive rights.
Background & Facts
The Dispute
The petitioner, Shri Roopinder Deep Singh Gill, challenged an ex parte arbitral award dated 21.11.2015, issued by a sole arbitrator appointed unilaterally by the respondent, Indiabulls Housing Finance Ltd. He filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the award before the District Court, Jabalpur.
Procedural History
The case progressed through multiple stages:
- 06.02.2017, 11.04.2017, 06.07.2017: Respondent’s counsel sought and obtained multiple adjournments to file a reply.
- 04.09.2017: The District Court dismissed the Section 34 application in default, as the petitioner and his counsel were absent. The court noted the respondent’s counsel was present.
- 18.01.2018: Petitioner filed an application for restoration under Order 9 Rule 9 CPC.
- 12.02.2020: The District Court rejected the restoration application, holding that the delay in filing was not condonable under Section 5 of the Limitation Act, citing lack of documentation for illness and failure to specify the number of days of delay.
Relief Sought
The petitioner sought restoration of the Section 34 application, arguing that his absence was neither willful nor negligent, and that the dismissal was a consequence of his counsel’s unexplained absence, for which he should not be penalized.
The Legal Issue
The central question was whether Section 5 of the Limitation Act permits condonation of delay in filing a restoration application under Order 9 Rule 9 CPC, where the original application was dismissed in default due to counsel’s absence, and the party had no notice or obligation to appear on the date of dismissal.
Arguments Presented
For the Petitioner
The petitioner relied on the settled principle that a party cannot be made to suffer for the mistake of counsel, as affirmed in S.P. Chengalvaraya Naidu v. Jagannath. He argued that his absence on 04.09.2017 was not willful because the hearing was exclusively for the respondent’s reply, and his personal presence was not required. He further submitted that the District Court erred in rejecting the condonation application merely because the delay in days was not explicitly quantified, when such calculation was readily ascertainable.
For the Respondent
The respondents did not appear before the High Court. The lower court’s reasoning, however, was that the application for condonation lacked specificity regarding the duration of delay and failed to produce medical evidence for the claimed illness of the petitioner’s mother, thereby failing to establish sufficient cause under Section 5 of the Limitation Act.
The Court's Analysis
The High Court undertook a meticulous review of the case diary and the application for condonation. It observed that the hearing on 04.09.2017 was scheduled solely for the filing of the respondent’s reply, and no direction had been issued to the petitioner to appear. The Court emphasized that the presence of counsel is sufficient in such proceedings, and the absence of the petitioner’s counsel cannot be attributed to the party’s negligence.
"The case was dismissed owing to default of the counsel and it is settled in law that party cannot be made to suffer for mistake of counsel."
The Court further rejected the District Court’s reliance on the absence of a specific number of days of delay, noting that the period between 04.09.2017 and 18.01.2018 was clearly 136 days, and even excluding holidays, the delay of 106 days was not exorbitant. The Court held that the District Court’s refusal to compute the delay was an error of law, not a discretionary assessment.
The Court also found that the illness of the petitioner’s mother, though not supported by medical records, was a plausible explanation consistent with the timeline and the petitioner’s subsequent prompt action upon learning of the dismissal. The Court held that strict documentary proof is not mandatory where the explanation is credible and the delay is not inordinate.
The Verdict
The petitioner succeeded. The High Court set aside both the dismissal order dated 04.09.2017 and the rejection order dated 12.02.2020. It held that delay in filing a Section 34 restoration application is condonable where absence was not willful, counsel’s default is the cause, and the explanation for delay is reasonable. The Section 34 application was restored, and the matter was directed to be transferred to the Commercial Court for fresh service and adjudication.
What This Means For Similar Cases
Counsel’s Default Cannot Be Attributed to the Party
- Practitioners must argue that non-appearance due to counsel’s oversight does not constitute willful neglect under Order 9 Rule 9 CPC.
- Courts must distinguish between party negligence and counsel’s failure, especially when the party’s presence was not mandated.
- File affidavits explaining counsel’s absence and the party’s lack of notice to strengthen condonation applications.
Quantification of Delay Is Not a Bar to Condonation
- Courts cannot reject condonation applications solely because the number of days of delay is not stated in the petition.
- The court has a duty to calculate the delay from the record; failure to do so amounts to a legal error.
- Always include a simple calculation in the application, but if omitted, argue that the court can and must compute it.
Medical Evidence Is Not Always Mandatory for Illness-Based Delay
- While documentary proof strengthens a claim, credible personal affidavits explaining illness or family emergency may suffice if consistent with the timeline.
- Courts must apply a liberal approach to condonation under Section 5 of the Limitation Act in arbitration matters, given the quasi-judicial nature of proceedings.
