High Court
Legal Reasoning
1 928IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD928 CIVIL APPLICATION NO. 7402 OF 2018 IN ARBAST/12273/2018MAHARASHTRA KRISHNA VALLEY DEVELOPMENT CORPORATIONVERSUSJAMIR CHANNUBHAI SHAIKH...Advocate for Applicant : Mr. Rajale Gulab B.Advocate for Respondent : Mr. Mr. G. K. Naik-Thigle...CORAM:ARUN R. PEDNEKER, J.DATE:12th MARCH, 2024PER COURT:1.Heard.2.The present application is filed for condoning the delay of432 days in filing the arbitration appeal under section 37 of theArbitration and Conciliation Act, 1996, against the order dated07.10.2016, passed by the District Judge, Ahmednagar, under section 34of the Act. The appeal is filed along with application for condonation ofdelay. The grounds for condonation of delay are raised at paras 3 to 6,are as under:-“3.The applicant submits that the proceedings before thelower court were filed and represented by the State onbehalf of Executive Engineer, K.I.P. Division No.7 Shrigondaas the issues and work in dispute related prior to the passing 2 928of M.K.V.D.C. Act, 1996. It is further submitted that in theproceedings i.e. Arbitration proceeding before the SoleArbitrator and the Award passed by the Sole Arbitrator dated21.10.1997 the Department was represented through by theState. It is submitted that in the meanwhile when theproceedings before the lower court were pending theDivision i.e. The Executive Engineer K.I.P. Division No.7Shrigonda was closed and the charge of the said Divisionlater on came to be handed over to another Division i.e. TheExeuctive Engineer, Kukadi Construction and DistributionDivision Kolwadi.4.The applicant submits that the impugned commonjudgment and order passed in Arbitration ApplicationNo.17/2009 was passed by District Judge Ahmednagar on07.10.2016. The applicant submits that application forcertified copies was given on 13.10.2016 by the Advocate ofDepartment represented by through the State. It is submittedthat the certified copies were ready on 19.11.2016 and thesame were handed over to the Advocate on 24.11.2016.5.The applicant further submits that even thoughlast date of filing the appeal was 06.02.2017 as the State didnot prefer appeal, the authorities of the concerned Divisionimmediately contacted the Panel Advocate of theCorporation and he instructed the authorities to supplynecessary documents such as copy of award, arbitrationproceedings, written statement of the Corporation, decreeforms, alongwith the certified copies of Judgment and order 3 928and also court fees an expenses which were required forfiling of the present appeal.6.The applicant submits on the receipt of the saiddocuments which were demanded the Advocate on Panelalso informed the authorities in respect of necessary courtfees and stamps and expenses in filing the appeal before thisHonourable High Court. The applicant submits that thePanel Advocate also informed the concerned Division,authorities to take immediate steps to arrange for therequired court fees, stamps and expenses, so that the appealcould be filed. The applicant submits that time was taken forsecuring funds in respect of court fees and expenses in filingthe Arbitration Appeal with the applicant-Corporation. It isfurther submitted thereafter some important documents inrespect of said appeal i.e. Award, certified copies ofarbitration application were lost and misplaced from theoffice of the Advocate for the applicant thereby a furthersome more delay was caused in securing the same and filingthis appeal. It is therefore submitted that due to the abovementioned facts and circumstances a delay of 426 days hasoccurred in filing the Appeal. It is therefore submitted thatdelay which has occurred is neither deliberate orintentional.”3.The law on the subject can be seen from the case ofGovernment of Maharashtra (Water Resources Department) representedby Executive Engineer Vs. Borse Brothers Engineers and Contractors 4 928Private Limited, (2021) 6 SCC 460, the Hon’ble Supreme Court, at paras58 and 65 has obser58.ved as under:-“58.Given the object sought to be achieved under both theArbitration Act and the Commercial Courts Act, that is, thespeedy resolution of disputes, the expression “sufficientcause” is not elastic enough to cover long delays beyond theperiod provided by the appeal provision itself. Besides, theexpression “sufficient cause” is not itself a loose panacea forthe ill of pressing negligent and stale claims. This Court, inBasawaraj v. LAO, has held: (SCC pp.85-88, paras 9-15)“9. Sufficient cause is the cause for which the defendantcould not be blamed for his absence. The meaning of theword “sufficient” is “adequate” or “enough”, inasmuch asmay be necessary to answer the purpose intended.Therefore, the word “sufficient” embraces no more than thatwhich provides a platitude, which when the act done sufficesto accomplish the purpose intended in the facts andcircumstances existing in a case, duly examined from theviewpoint of a reasonable standard of a cautious man. In thiscontext, “sufficient cause” means that the party should nothave acted in a negligent manner or there was a want ofbona fide on its part in view of the facts and circumstancesof a case or it cannot be alleged that the party has “not acteddiligently” or “remained inactive”. However, the facts andcircumstances of each case must afford sufficient ground toenable the court concerned to exercise discretion for thereason that whenever the court exercises discretion, it has tobe exercised judiciously. The applicant must satisfy the courtthat he was prevented by any “sufficient cause” fromprosecuting his case, and unless a satisfactory explanation isfurnished, the court should not allow the application forcondonation of delay.The court has to examine whether themistake is bona fide or was merely a device to cover anulterior purpose. (See Manindra Land and Building Corpn.Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] , Mata Din v.A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , 5 928Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 :AIR 2011 SC 1150] and Maniben Devraj Shah v. MunicipalCorpn. Of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3SCC (Civ) 24 : AIR 2012 SC 1629] .)10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993]this Court explained the difference between a “good cause”and a “sufficient cause” and observed that every “sufficientcause” is a good cause and vice versa. However, if anydifference exists it can only be that the requirement of goodcause is complied with on a lesser degree of proof than thatof “sufficient cause”.11. The expression “sufficient cause” should be given aliberal interpretation to ensure that substantial justice isdone, but only so long as negligence, inaction or lack ofbona fides cannot be imputed to the party concerned,whether or not sufficient cause has been furnished, can bedecided on the facts of a particular case and no straitjacketformula is possible. (Vide Madanlal v. Shyamlal [(2002) 1SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v.Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .)12. It is a settled legal proposition that law of limitation mayharshly affect a particular party but it has to be applied withall its rigour when the statute so prescribes. The court has nopower to extend the period of limitation on equitablegrounds. “A result flowing from a statutory provision is neveran evil. A court has no power to ignore that provision torelieve what it considers a distress resulting from itsoperation.” The statutory provision may cause hardship orinconvenience to a particular party but the court has nochoice but to enforce it giving full effect to the same. Thelegal maxim dura lex sed lex which means “the law is hardbut it is the law”, stands attracted in such a situation. It hasconsistently been held that, “inconvenience is not” a decisivefactor to be considered while interpreting a statute.13. The statute of limitation is founded on public policy, itsaim being to secure peace in the community, to suppressfraud and perjury, to quicken diligence and to preventoppression. It seeks to bury all acts of the past which have 6 928not been agitated unexplainably and have from lapse of timebecome stale. According to Halsbury's Laws of England, Vol.28, p. 266:“605. Policy of the Limitation Acts.—The courts haveexpressed at least three differing reasons supporting theexistence of statutes of limitations namely, (1) that longdormant claims have more of cruelty than justice in them,(2) that a defendant might have lost the evidence todisprove a stale claim, and (3) that persons with good causesof actions should pursue them with reasonable diligence.”An unlimited limitation would lead to a sense of insecurityand uncertainty, and therefore, limitation preventsdisturbance or deprivation of what may have been acquiredin equity and justice by long enjoyment or what may havebeen lost by a party's own inaction, negligence or laches.(See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. JalgaonMedium Project [(2008) 17 SCC 448 : (2009) 5 SCC (Civ)907] .)14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] thisCourt held that judicially engrafting principles of limitationamounts to legislating and would fly in the face of law laiddown by the Constitution Bench in Abdul Rehman Antulay v.R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR1992 SC 1701] .15. The law on the issue can be summarised to the effectthat where a case has been presented in the court beyondlimitation, the applicant has to explain the court as to whatwas the “sufficient cause” which means an adequate andenough reason which prevented him to approach the courtwithin limitation. In case a party is found to be negligent, orfor want of bona fide on his part in the facts andcircumstances of the case, or found to have not acteddiligently or remained inactive, there cannot be a justifiedground to condone the delay. No court could be justified incondoning such an inordinate delay by imposing any 7 928condition whatsoever. The application is to be decided onlywithin the parameters laid down by this Court in regard tothe condonation of delay. In case there was no sufficientcause to prevent a litigant to approach the court on timecondoning the delay without any justification, putting anycondition whatsoever, amounts to passing an order inviolation of the statutory provisions and it tantamounts toshowing utter disregard to the legislature.”(emphasis supplied)63.Given the aforesaid and the object of speedy disposalsought to be achieved both under the Arbitration Act and theCommercial Courts Act, for appeals filed under Section 37 ofthe Arbitration Act that are governed by Articles 116 and117 of the Limitation Act or Section 13(1-A) of theCommercial Courts Act, a delay beyond 90 days, 30 days or60 days, respectively, is to be condoned by way of exceptionand not by way of rule. In a fit case in which a party hasotherwise acted bona fide and not in a negligent manner, ashort delay beyond such period can, in the discretion of thecourt, be condoned, always bearing in mind that the otherside of the picture is that the opposite party may haveacquired both in equity and justice, what may now be lost bythe first party’s inaction, negligence or laches. ”4.In the judgment of Borse Brothers (supra), the Hon’bleSupreme Court has concluded that the delay has to be condoned in cases,where the party was prevented by “sufficient cause” from prosecuting hiscase. The expression “sufficient cause” is not elastic enough to cover longdelays beyond the period provided by the appeal provision itself. Theappeals filed under section 37 of the Arbitration Act are governed byArticles 116 and 117 of the Limitation Act. The delay of 90 days or 30days is to be condoned by way of an exception and not by way of a rule.
Legal Reasoning
8 928In a fit case, in which the party has otherwise acted bonafide and not in anegligent manner a short delay beyond such period can in the discretionof the court be condoned.5.In the instant case, the reasons which are mentioned in theapplication as quoted above are administrative in nature and cannot beaccepted for condoning the large delay of 432 days. The authorityconcerned has to act in due diligence. The applicant has not given“sufficient cause”, why the appellant was prevented from prosecuting theappeal after 90 days of the impugned order. The reasons assigned areadministrative in nature and the same possibly can be considered if theappeal is filed with a short delay. Large delay cannot be considered formere administrative reasons. As such, the application for condonation ofdelay is dismissed.6.Mr. G. K. Naik-Thigle, learned counsel for the respondent hassubmitted that he would not file an application for withdrawal of theamount for three weeks. Statement is accepted. [ARUN R. PEDNEKER, J.]marathe