Condonation of delay in filling statement of defence

[Sanu Kumar]

One of my neighbour enter into agreement with finance company for purchase of vehicle and taken loan of of approx 2 lakh.As per agreement the loan amount shall paid in 35 monthly installment but he has only paid installment for 13 month.Due to breakdown of vehicle and serious illness rest of the installment was not paid.The company brought the dispute before sole arbitrator as agreed in agreement .A notice is send along with statement of claim asking the respondent to appear before arbitrator with statement of defence.But due to serious illness ,the same couldn’t have filled even after four month from the date of issue of notice from arbitrator…sir my query is that.. should we file statement of defence along with plea of condonation of delay before arbitrator or there is any other recourse…please suggest

[Dr. Ashok Dhamija]

Yes, you should file the statement of defence to the arbitrator, if necessary, with a request to condone the delay, if any, if the arbitration proceedings are still not over.

It may be pointed out that under the provisions of the Arbitration and Conciliation Act, the arbitral tribunal is not bound by the Civil Procedure Code and the Evidence Act. Parties are free to agree to the procedure to be adopted; failing which the arbitral tribunal has the freedom to conduct the proceedings in the manner deemed appropriate by it. Further, the Supreme Court has held that the principles of natural justice apply to such proceedings. This implies that a reasonable opportunity of being heard has to be given to each party.

Therefore, it you were prevented by a genuine reason from submitting your statement of defence in time and if the arbitration proceedings are still going on, you may submit your defence with a request to condone the delay, if any. The arbitral tribunal, as mentioned above, has sufficient powers to appropriately adopt a procedure that is just and fair in the circumstances of the case, and to comply with the principles of natural justice.

I may also point out that if an arbitral award is passed without hearing you, then under the provisions of Section 34 of the said Act, an application to set aside the arbitral award can be filed before the competent court, inter alia, on the grounds that a party was unable to present its case, or a party was under some incapacity, or the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings.

Please note that Section 5 of the said Act forbids judicial intervention in arbitration matters except as provided under the Act. Therefore, it would be advisable to make use of whatever opportunity is available during the arbitration proceedings.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sanu Kumar]

Thank you so much sir for the last clarification. There is another legal advice which I wanted from you.This pertains to loss of payment of receipt by the lawyer.The problem aggravated as there is no Xerox copy of that document and in absence thereof,the claim would be defeated. So,please provide the legal remedy

[Dr. Ashok Dhamija]

There are provisions in the Evidence Act, as per which if an original document is lost then it can also be proved by oral accounts of a person who has actually seen the original document, provided first the proof of the document having been lost is given in court. Your lawyer should be aware of these provisions in the Evidence Act or otherwise read the provisions in that Act as to how to prove a document by secondary evidence by way of oral accounts.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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