SUPREME COURT OF INDIA

Before:- S.B. Majmudar, D.P. Mohapatra and N. Santosh Hegde, JJ.

Civil Appeal No. 652 of 2000 (Arising out of S.L.P. (C) No. 16931 of 19991. D/d. 28.01.2000.

Transparent Packers - Petitioner

Versus

The Arbitrator-Cum-Managing Director and another - Respondents

Arbitration and Conciliation Act, 1996, Section 34 - Application for condonation of delay accompanied by affidavit filed as evidence, rejected on the ground of non-appearance of the deponent in person - Held that the affidavit evidence is sufficient in support of the application for condonation of delay - If the opposite party wants the deponent to be present for cross-examination, it would be open to the other side to make such a request and the Court may call the deponent to appear - Application ordered to be considered on merits in accordance with law - Appeal disposed of condoning.

[Paras 3 and 4]

ORDER

S.B. Majmudar, D.P. Mohapatra and N. Santosh Hegde, JJ. - Leave granted.

2. We have heard learned senior counsel for the petitioner and learned counsel for Respondent No. 2 which is the contesting Respondent finally in this appeal. Respondent No. 1 is a proforma respondent.

3. The short question is whether the application for condonation of delay moved by the Appellant in support of its application under Section 34 of the Arbitration and Conciliation Act, 1996 could have been disposed of by the Court by holding that the application supported by affidavit filed was not maintainable. Learned Counsel for Respondent No. 2 vehemently contended that the Appellant should have entered into the witness box and affidavit of evidence was not appropriate evidence. It is difficult to appreciate this contention which has weighed with the learned trial Court. The revision application filed by the Appellant is also dismissed by the High Court. In our view, the affidavit evidence would have been sufficient evidence in support of the application for condonation of delay and if the other side wants the deponent to he present for cross-examination, it would obviously be open to the other side to make such a request. We are not concerned with the merits of the controversy whether the application for condonation of delay should be allowed for not but dismissal of the application for condonation of delay on the ground of its alleged non- maintainability cannot be sustained. The impugned order of the High Court and that of the trial Court are set aside. The application for condonation of delay filed in connection with the petition tinder Section 34 of the Arbitration and Conciliation Act, 1996 will now be considered by the trial Court after hearing the parties on merits and in accordance with law. The appeal is accordingly disposed of. No costs.

Application disposed of.