Jalgaon Municipal Corporation, Jalgaon District Jalgaon Through It’s Commissioner v. Atlanta Infrastructure Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO.11527 OF 2025IN ARBITRATION APPEAL (ST)/31267/2025Jalgaon Municipal Corporation, Jalgaon District Jalgaon Through It’s CommissionerVERSUSAtlanta Infrastructure Limited…Advocate for Applicant : Mr. Mukul Kulkarni h/f Mr. N. R. DayamaAdvocate for Respondent : Mr. M. M. Vashi, Senior Advocate I / b Mr. G. R. Syed...WITH CA/11528/2025 IN ARBITRATION APPEAL (ST)/31267/2025CORAM : ARUN R. PEDNEKER, J.DATE : 28th NOVEMBER, 2025ORDER :1.Heard.2.By the present application, the applicant seeks condonation of delay of267 days caused in filing the Arbitration Appeal under Section 37 of theArbitration and Conciliation Act, 1996. In the said Arbitration Appeal, theapplicant challenges the order dated 16/10/2024 passed under Section 34 ofthe Act by the learned District Judge, Jalgaon, in Civil MiscellaneousApplications No. 02 of 2007 and 03 of 2007, whereby the applications cameto be rejected and the Judgment and Award dated 30/09/2006 passed by thelearned Arbitrator was confirmed. 2CA 11527-20253.The learned Counsel for the applicant has relied upon the followingrelevant dates and has prayed for condonation of delay in view of thefollowing facts and circumstances :The date of the Award under Section 34 of the Arbitration andConciliation Act, 1996 is 16/10/2024. It is the case of the applicant that hewas not informed by his Advocate about the said Award. The applicantcame to know about the Award only on 27/03/2025 when the notice ofexecution was served upon him. It is stated that, on receipt of the notice, the applicant addressed a letter to his Advocate on 13/05/2025 inquiringabout the Award. The applicant’s Advocate applied for a certified copy on15/05/2025.4.It is further stated that on 20/05/2025 the applicant sent a letter tohis ex-employee, who was dealing with the matter before the learnedArbitrator and before the District Court. On 19/06/2025 the applicantreceived a reply from the said ex-employee indicating that he is ready toassist whenever necessary in the matter relating to the expansion projectof Jalgaon Airport.5.The applicant thereafter realised that a criminal case was pending, and that certain record relating to the tender had been handed over to theInvestigating Officer in 2015. Accordingly, the Corporation, by a letterdated 18/07/2025, sought the said record from the police, who replied on 3CA 11527-2025the same day stating that the record is in the Court.6.On 24/07/2025 the Corporation applied to the Court for return of therecord. On 30/08/2025 the applicant came to know that the documentswere not in the Court. Consequently, on 30/09/2025 they once againapproached the police. On 03/10/2025 the police supplied the documents. Thereafter, the appeal came to be filed on 09/10/2025.7.The applicant/appellant submits that, in the above process, a delayof 267 days occurred in filing the appeal, and therefore the same deservesto be condoned.8.The learned Counsel appearing for the respondents, in reply to theapplication for condonation of delay, submits that the Award was passed bythe learned Arbitrator on 30/09/2006. Under Claim No.1, the respondentswere granted an amount of ₹47,88,297/-, and under Claim No.2, they weregranted ₹6,11,62,046.55. The counter-claim was also allowed, and anamount of ₹3,18,15,897/- was granted to the respondents from theclaimants. On 26/12/2006, both the applicants and the respondentschallenged the Award under Section 34 of the Arbitration and ConciliationAct, 1996 before the District Judge, Jalgaon, and both applications came tobe rejected by a common order dated 16/10/2024.9.The respondents submit that the delay in filing the appeal is 299 4CA 11527-2025days and not 267 days, and that no sufficient cause has been shown forcondonation of delay. The reasons mentioned are irrelevant for hecondonation of delay in filing appeal. 10.The law on the subject of condonation of delay in filing appeal underSection 37 of he Arbitration Act is discussed in the case of Government ofMaharashtra (Water Resources Department) represented byExecutive Engineer Vs. Borse Brothers Engineers and ContractorsPrivate Limited, (2021) 6 SCC 460, the Hon’ble Supreme Court, atparas 61 has observed as under : -“61.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 and 117of the Limitation Act or Section 13(1-A) of the CommercialCourts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and notby way of rule. In a fit case in which a party has otherwiseacted bona fide and not in a negligent manner, a short delaybeyond such period can, in the discretion of the court, becondoned, always bearing in mind that the other side of thepicture is that the opposite party may have acquired both inequity and justice, what may now be lost by the first party’sinaction, negligence or laches. ”11.In the judgment of Borse Brothers (supra), the Hon’ble SupremeCourt has concluded that the delay has to be condoned in cases, where theparty was prevented by “sufficient cause” from prosecuting his case. Theexpression “sufficient cause” is not elastic enough to cover long delaysbeyond the period provided by the appeal provision itself. The appeals filed 5CA 11527-2025under section 37 of the Arbitration Act are governed by Articles 116 and117 of the Limitation Act. The delay of 90 days or 30 days is to becondoned by way of an exception and not by way of a rule. In a fit case, where the party has acted bona fide and not in a negligent manner, a shortdelay beyond such prescribed period may, in the discretion of the Court, becondoned, always keeping in mind that the opposite party may haveacquired, both in equity and in justice, rights which may now be lost due tothe first party’s inaction, negligence, or laches.12.The Hon’ble Supreme Court, in the case of Borse Brothers (supra),has also observed, relying upon the judgment of Postmaster General v.Living Media (India) Ltd., (2012) 3 SCC 563, that the Governmentdepartment cannot be given any special benefit, and Governmentdepartments are equally under an obligation to act with due diligence andcommitment. Condonation of delay is an exception and cannot be treatedas an anticipated benefit for Government agencies. Unless supported by areasonable and acceptable explanation showing bona fide effort, the usualplea of procedural delay or bureaucratic red tape cannot be accepted. Thelaw shelters everyone under the same light and should not be swirled forthe benefit of a few.13.The learned Counsel for the applicant has relied upon the judgmentof the Division Bench of this Court in State of Maharashtra v. MoryaInfrastructure Pvt. Ltd., Beed (Civil Application No. 651 of 2023 in 6CA 11527-2025Commercial Arbitration Appeal (Stamp) No. 1440 of 2023), wherein a delayof 187 days was condoned. In that case, the Court observed that whileconsidering an application for condonation of delay, the Court must bear inmind that a party should not lose its right to prefer an appeal merely ontechnicalities. In the peculiar facts of that case, the Court exercised itsdiscretion to condone the delay, noting that the issue involved the veryconstitution of the arbitral tribunal, which went to the root of the legality ofthe Award, particularly when the matter related to public money. The delaywas therefore condoned upon payment of costs of ₹10,000/-. The SpecialLeave Petition filed before the Hon’ble Supreme Court was dismissed, withthe Supreme Court observing that condonation of delay is discretionary, and therefore no interference was warranted with the order passed by theHigh Court.14.In the present case, however, the circumstances are entirelydifferent. The order under Section 34 of the Arbitration and ConciliationAct, 1996 was passed on 16/10/2024, whereas the appeal has been filedonly on 09/10/2025, almost after one year. The applicant has stated that hebecame aware of the order only on 27/03/2025. Thereafter, the applicantembarked upon a process of seeking documents from the police authoritiesand then from the Magistrate. This exercise is wholly unnecessary for filingan appeal under Section 37 of the Act. The documents relevant for theappeal were already part of the arbitral record and those considered in theproceedings under Section 34. Since the Award was passed in 2006 and 7CA 11527-2025had already been challenged before the District Court, there was no needto obtain any documents from the police relating to a criminal investigationor documents forming part of a charge-sheet.15.Importantly, the applicant has not explained how any of thedocuments sought from the police or the Magistrate were required for filingthe present appeal. A reading of the appeal memo shows that the groundsraised in the appeal memo concerns non-application of mind, absence ofreasoning, failure to frame points for determination, non-compliance withSections 24, 28 and 31(3) of the Arbitration Act, improper appreciation ofevidence, erroneous grant of monetary claims, and alleged conflict withpublic policy. None of these grounds depend upon any documents fromcriminal proceedings. The appeal could have been filed on the basis of theAward, the evidence before the Arbitrator, and the order passed underSection 34 of the Act.16.Thus, the prolonged exercise of calling for documents from the policeand the Magistrate was wholly irrelevant and cannot justify the delay. Evenassuming that any additional documents were required, the applicant couldhave filed the appeal within the prescribed period of limitation andthereafter taken steps to bring such documents on record. The explanationoffered, therefore, does not constitute sufficient cause for condoning thedelay, particularly in view of the settled legal position that the strictlimitation regime prescribed under Section 34 applies with equal rigour to 8CA 11527-2025appeals under Section 37, and that delay can be condoned only inexceptional circumstances. No such exceptional circumstance is made outin the present case.17.In view of the law laid down in Borse Brothers (supra), this is not afit case for exercising discretion in favour of the applicant. The applicationfor condonation of delay is, therefore, rejected and consequently theappeal also stands dismissed. Pending CA/11528/2025 stands disposed of.( ARUN R. PEDNEKER, J. ) vj gawade/-.