Full Judgement
Delhi High Court
Viceroy Engineering vs Smiths Detection Veecon Systems ... on 22 February, 2024
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25.01.2024
% Pronounced on: 22.02.2024
O.M.P. (COMM) 302/2019
VICEROY ENGINEERING ..... Petitioner
Through: Mr.Gandharav Anand, Advocate
versus
SMITHS DETECTION VEECON SYSTEMS PRIVATE LIMITED
..... Respondent
Through: Ms. Payal Chawla, Advocate
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
REVIEW PET. 2/2024 (seeking review of judgment dated 04.12.2023 by respondent)
1. By way of present petition filed under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure ('CPC'), the respondent/review petitioner seeks review of the judgement dated 04.12.2023 passed in I.A. 6933/2022 in the present matter. Vide said judgement, review petitioner's objections on the maintainability of the petition for it being non-est and time barred were dismissed whereas the application filed by Viceroy Engineering for condonation of delay in filing and re-filing was allowed.
2. The review petitioner has confined its challenge only to the latter
Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI OMP(COMM.) 302/2019 Page 1 of 4 Signing Date:29.02.2024 12:21:13 aspect i.e., allowing of the Viceroy's application thereby condoning the delay in filing and re-filing of the petition, on the strength of decisions in DSIIDC Ltd. v. Mapsa Tapes Pvt. Ltd. reported as 2021 SCC OnLine Del 2728 and DDA v. Durga Construction Co. reported as 2013 SCC OnLine Del 4451. The review petitioner contends that the entire delay has not been explained. Another contention raised is that there is variance in the averments made in the initial application being I.A. 10637/2019 and those made in the latter application being I.A. 6933/2022. It has also been urged that Viceroy had filed the subsequent application after a considerable delay. Though a delay of 25 days was claimed however, the actual delay is 48 days beginning from 15.06.2019 to 02.08.2019.
3. The review petition is contested on behalf of Viceroy. Learned counsel has relied on the decision of the Supreme Court in USS Alliance v. State of U.P. & Ors. reported as 2023 SCC OnLine SC 778, to canvass the submission that an application for condonation of delay can be filed at any time till the pendency of the proceedings. The petition was initially filed on 29.06.2019, which concededly was non est, as per the defects pointed out on 04.07.2019. The petition was re-filed on 10.07.2019 in proper format, which has already been held to be not a non-est filing vide the order-in-review. Admittedly, the said aspect is also not under challenge in the present review petition.
4. This Court in the impugned order has already held that though the three months period expired on 15.06.2019 however, the petition could not be filed as the Registry was closed on account of summer vacations. The petition came to be filed on 10.07.2019 with a delay of 25 days, which was within the extended permissible period of 30 days as provided by the
Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI OMP(COMM.) 302/2019 Page 2 of 4 Signing Date:29.02.2024 12:21:13 proviso to Section 34(3) of the Arbitration and Conciliation Act ('A&C Act'). The explanation tendered by Viceroy was found to be satisfactory by this Court and consequently, the delay was condoned. It is further noted that inadvertently, a typographical error crept in the order-in-review inasmuch as the limitation period in reference to Section 34 of the A&C Act was mentioned as 90 days instead of 3 months, though the same had no bearing on the issues raised and consideration in the order-in-review.
5. Insofar as re-filing delay is concerned, this Court considered Chapter IV of the Delhi High Court (Original Side) Rules, 2018 which provides that the objections need to be removed within a total aggregate period of 30 days. Pertinently, Section 34(3) has no applicability to re-filing. The decisions referred to by the review petitioner relate to cases wherein there was an inordinate delay as in the case of Mapsa Tapes (Supra), there was a delay of nearly 7 months whereas in Durga Construction (Supra), there was a delay of 166 days, for which no satisfactory explanation was provided. However, in the present case, the delay in filing as well as in re-filing has been satisfactorily explained by Viceroy.
6. None of the grounds canvassed by the review petitioner qualify for review under Section 114 and Order 47 of CPC. It is neither a case of discovery of hitherto unknown important matter or evidence which could not be produced by the review petitioner at the time of the passing of the order-in-review, nor is there an error apparent on the face of the record which would necessitate the court to review its order.
7. The petition for review is more in the nature of an appeal against the order-in-review. The review petitioner is precluded in law from reagitating the issue before the court, under the garb of review. This legal position is
Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI OMP(COMM.) 302/2019 Page 3 of 4 Signing Date:29.02.2024 12:21:13 well settled by way of several authoritative judgments pronounced by Supreme Court and High Courts. Recently, in Sanjay Kumar Aggarwal v. State of Tax Officer reported as 2023 SCC OnLine SC 1406, the Supreme Court has reiterated and reinforced the legal contours of review jurisdiction, crystallized over a period of time. The ratio which emerges is that in the review jurisdiction an issue cannot be "reheard and corrected" as it were an appeal.
8. In view of the above, I find no ground to entertain the present review petition. Accordingly, the same is dismissed.
MANOJ KUMAR OHRI (JUDGE) FEBRUARY 22, 2024 na
Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI OMP(COMM.) 302/2019 Page 4 of 4 Signing Date:29.02.2024 12:21:13
