1991 PLP 2047 (MLD)

"Section

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. (2) Any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect." The application is opposed by the defendants stating that it is not maintainable having been filed at a highly belated stage. Defendants have also refuted the allegation of the plaintiff that due to their non-co-operation the Arbitrator could not prepare and complete the Award within time. It is pointed out by them that the last order for extension of time was made on 25-7-1987 when four months' time was granted for completing the proceedings and filing of Award which expired long ago. However, after the expiry of last extended period, the plaintiffs' attorney was reminded several times by the defendants to seek further time from the Court, but for one reason or the other the plaintiffs avoided to make any application. In the middle of year 1989, the matter came up for final arguments, but the plaintiffs' attorney filed written arguments at a very late stage, and failed to supply a copy thereof to defendants' counsel to prepare counter arguments in defence of their case. Accordingly, it was contended by the defendants that the plaintiffs have failed to show sufficient cause for making the present application. It was submitted by Mr. Iqbal Kazi, learned counsel for the plaintiff that on 10 different dates beginning from 6-3-1988 till 3-4-1989, the proceedings before the Arbitrators were fixed for defendants' evidence and it was on account of delay caused by them that the proceedings could not be finalised and the award could not be given within time. On 3-4-1989 when the defendants closed their side, parties were directed to file written arguments. On 15-10-1989 the plaintiffs filed written arguments, but no written arguments as yet had been filed by the defendants. Reference was made by the learned counsel to Annexure `B', dated 22-2-1990 being a reminder from Mr. Shamsul Arfin, Arbitrator, addressed to learned counsel for the defendants stating that they were required to file their written arguments in the month of May, 1989, but they have failed to do so and a final chance was being given to them to submit their arguments by the end of February, 1990 failing which the Arbitrator would proceed to decide the matter. Again reference was made to the defendants' Advocate's letter dated 30-7-1990 being Annexure `C' addressed to the Arbitrator, in which the only grievance of the defendants was that they were not being supplied copy of written arguments by the plaintiff and they themselves suggested that the plaintiff should apply to the Court for extension of time. The relevant portions are as follows:- " .the undersigned is quite unable to give detailed and exhaustive reply/written arguments to counteract the plaintiffs' case and/or to safeguard the interest of Government of Sindh. It is therefore requested that the plaintiffs' attorney Mehmood may kindly be directed to first make an application to Hon'ble Court to give notice to the undersigned for extension of time in the matter of arbitration proceedings and to supply the copy of the written arguments of his side to regularise the proceedings as required by law and further to enable him to submit written arguments on behalf of the defendants. However, the undersigned without prejudice to the defendants' case is ready to co-operate with plaintiffs if they make an application under section 28 of the Act for extension of time by 30th September, 1990 and in the meanwhile supply copy of written arguments of the plaintiffs to enable the undersigned to prepare the defendants' case accordingly and submit the same to your honour: It was further contended by Mr.IqbaI Kazi, learned counsel for the plaintiff that at no point of time the defendants ever raised any objection after the expiry of last extension of time for making and filing of the Award that they would not participate in the proceedings unless further extension of time was granted by the Court. The defendants, therefore, waived their right to question the delay and are estopped from challenging the application. Reliance was placed by learned counsel on 1981 CLC 379 at pages 381 and 384, PLD 1990 SC 359 at page 363, P L D 1958 Kar.

378. Learned counsel for the defendants, on the other hand, contended that the plaintiffs are guilty of negligence. They did not diligently pursue the arbitration proceedings before the Arbitrator. It was on 27-9-1987 when last extension was granted by the Court for a period of four months which expired on 26-1-1988 since when the plaintiffs till 24-11-1990 have remained inactive. In such a case they cannot be allowed to take advantage of their gross negligence. In support reliance was placed by the learned counsel on AIR 1935 Lah. 191 at page 192, AIR 1957 Pat. 673, AIR 1925 Sindh

150. I have gone through and examined the contentions raised by the learned counsel as well as the case-law in support thereof. There is no doubt that the arbitration proceedings had remained pending for a long time. These proceedings are now in its final stage. The parties have adduced their evidence and the plaintiff has filed written arguments. The grievance of the defendants had been that they were not supplied copy of written arguments by the plaintiff. Mr. Iqbal Kazi, learned counsel for the plaintiff states that both the parties were directed by the arbitrator to supply written arguments but the defendants have not submitted the same as yet and have been insisting that the plaintiff should first supply copy thereof to the defendants. However, he is ready to supply written arguments to the defendants' counsel as may be directed by the Court. Mr. S. Ahmed Farooqi has also candidly admitted that the defendants themselves wanted the plaintiff to obtain extension of time for making and filing of award but he will not allow the plaintiff to cast uncalled for aspersion on the defendants. Without going into the question as to who has to be blamed for delay, I am mindful of the fact that the arbitration proceedings are in its final stage and what is left to be done is submission of written arguments by the defendants and giving of award by the arbitrator. It will therefore be in the interest of justice that extension of time for two months as prayed may be granted for making and filing of award in the Court. I accordingly grant this application with further direction to the plaintiff to supply copy of his written arguments to the defendants' counsel within seven days hereof. AA./226/K Order accordingly.