High Court · 2025

Judgment

1. This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') is directed against judgement dated

09.09.2024 passed by Commercial Court, Kanpur Nagar, whereby application filed by the appellant under Section 34 of the Act against award passed by Uttar Pradesh Micro, Small and Medium Enterprises Facilitation Council, Kanpur dated 19.11.2019 has been dismissed.

3. Office has reported the appeal as barred by 182 days. An application under Section 5 of the Limitation Act, 1963 has been filed seeking condonation of delay in filing the appeal supported by affidavit of Assistant Secretary (Legal) LIC of India, North Central Zone, Legal Cell, Allahabad. It is, inter alia, indicated in the affidavit that delay has occasioned due to genuine and bonafide reasons. The judgement was passed by the Commercial Court on 09.09.2024. The counsel informed the Manager (Legal), Divisional Officer, Kanpur by letter dated 23.09.2024. On 08.10.2024, the Manager (Legal) transmitted the copy of the order to Divisional Officer, Meerut, which was received on 15.10.2024. On 17.10.2024, the Manager (LHPF) sought guidance from Manager (Sales), Meerut regarding the appropriate course.

4. It is claimed that after careful internal deliberation by the officials of the appellant, the Senior Divisional Manager, Meerut on 02.12.2024 recommended that an appeal be filed.

5. The Manager (LHPF), Meerut forwarded the recommendation to Zonal Office, Kanpur on 16.12.2024. Whereafter it is claimed that vide email dated 16.01.2025, the matter was forwarded to the Secretary, Zonal Legal Cell, Allahabad requiring appropriate steps for filing of the appeal. On certain documents being required by the counsel, the Zonal Legal Cell wrote to offices at Meerut and Kanpur on 23.01.2025. The counsel was supplied the information via email dated 07.02.2025, however, he required hard copies.

6. It is then claimed that during months of January and February, 2025, the Maha Kumbh Mela was going on at Allahabad and due to logistical constraints, the hard copies could not be sent to the counsel and in March, he was provided with hard copies of the case records. It is then claimed that in the last two weeks of March, due to annual closing of financial accounts, the officers of the appellant were engaged in related work and the counsel was unable to prepare the appeal in reasonable time.

7. In second week of April, the file was reallocated to another panel counsel, who again required physical records and upon being provided, the draft of the appeal was prepared on 04.05.2025, which after vetting was returned to the counsel on 05.05.2025, whereafter the appeal has been filed on 09.05.2025.

8. Submissions have been made that throughout the above period, voluminous files and documents were moved and exchanged between offices at Meerut, Kanpur and Allahabad and considerable time was consumed in entire office interactions, consultations and transfer of records. Submissions have also been made that the delay caused is neither deliberate nor due to inaction or negligence, the same was purely owing to internal procedural compliance, consultations and unexpected delay in sending documents. It is also claimed that the appellant has acted diligently in good faith and with due seriousness and there has been no intention to delay the matter and, therefore, the delay in filing the appeal deserves to be condoned. 2

9. A counter affidavit has been filed on behalf of the respondent no. 1 disputing the submissions made. Submissions have been made that it was the duty of the appellant to take decisions/actions within the period of limitation. It is denied that the appellant has acted diligently, in good faith and with due seriousness. Reference has been made to orders of this Court wherein similar appeals with delay have been dismissed.

10. Learned counsel for the appellant made submissions that the appellant has bonafidely indicated the entire sequence of events from the

date judgement dated 09.09.2024 was passed till the appeal was filed on

09.05.2025, from which it is apparent that there has been no negligence on part of the appellant and it is only on account of the procedure involved in seeking sanction for filing the appeal and getting the same prepared from the counsel that the delay occurred in filing the appeal and, therefore, the delay of 182 days deserves to be condoned.

11. Learned counsel for the respondents contested the submissions. It was submitted that a bare look at the affidavit reveals that despite the fact that the limitation in filing the appeal is 60 days, the appellant has proceeded in the matter without caring a bit for the period of limitation prescribed under the Act and in the name of seeking sanction and getting the appeal prepared is seeking extension of time/condonation of delay to the extent of 182 days.

12. Further submissions have been made that delay in filing appeal under Section 37 of the Act, cannot be condoned like in other matters, as has been observed by Hon'ble Supreme Court. Further submissions were made that the appellant cannot seek premium over its inaction in the name of being a Corporation. Reliance was placed on Government of Maharashtra Vs. M/s Borse Brothers Engineers and Contractors Pvt. Ltd. : (2021) 6 SCC 460 and Office of the Chief Postmaster General & others Vs. Living Media India Limited & another : (2012) 3 SCC 563. 3

13. We have considered the submissions made by counsel for the parties and have perused the material available on record.

14. The appeal, as noticed, is barred by 182 days i.e. about six months. A perusal of the dates as indicated in the affidavit supporting the application seeking condonation of delay reveals that after passing of the judgement dated 09.09.2024, despite being aware that the limitation for filing the appeal is 60 days, the appellant never exhibited any urgency in filing the appeal in time, rather the task for filing the appeal apparently has been treated as secondary to other tasks like annual closing of financial accounts.

15. It would be seen that the judgement dated 09.09.2024 was received by the appellant from counsel on 23.09.2024 and the decision to file the appeal was taken on 02.12.2024, by then the appeal had already become barred by limitation. Despite loosing limitation for filing appeal, even after sanction of filing the appeal, the appellant chose to proceed at snail's pace, as even after decision for filing the appeal having been taken on 02.12.2024, the papers were forwarded to the panel counsel on

17.01.2025 i.e. after one and half months.

16. The most outstanding feature of the affidavit which is reflective of the attitude of the appellant in filing the present appeal is reflected when it is claimed that in the months of January and February, due to Maha Kumbh at Allahabad, the requisite papers could not be sent to the counsel and in last two weeks of March, due to annual closing of financial accounts, the needful could not be done. The said claim made in the affidavit shows the casual manner in which the appellant was dealing with the appeal and conveniently lost two more months. Whereafter also, it has taken one month and 9 days in filing the appeal, when the same was finally filed on 09.05.2025.

17. Hon'ble Supreme Court in the case of Borse Brothers Engineers and Contractors Pvt. Ltd (supra) has laid down as under:- 4 "63. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches."

18. Hon’ble Supreme Court, after referring to the object of speedy disposal sought to be achieved, both under the Limitation Act and the Commercial Courts Act, observed that a delay beyond 60 days is to be condoned by way of exception and not by way of rule and in a fit case in which a party has otherwise acted bonafidely and not in a negligent manner, a short delay beyond such period, can in the discretion of the Court, be condoned.

19. In the present case, it would be seen that the delay is of 182 days, which cannot be said by any stretch of imagination to be a ‘short delay’ and as would be seen from the above discussion the appellant has acted in a most negligent manner.

20. So far as the claim made that the appellant being a Corporation, some leeway is available, the said aspect also has been considered by Hon’ble Supreme Court in the case of Living Media India Limited (supra), wherein it has been laid down as under:- "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of 5 various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

21. Hon’ble Supreme Court has laid down that condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

22. As noticed in the present case, the conduct of the appellant is writ large wherein sanction itself was granted after the limitation for filing the appeal had expired and thereafter also it has taken the appellant five months in filing the appeal, which is result of nothing but inaction, negligence and laches.

23. In view of the above discussion, we do not find any reason to condone a huge delay of 182 days in filing the appeal. The application seeking condonation of delay is, therefore, dismissed.

24. Consequently, the appeal is also dismissed. Order Date :- 8.7.2025 SL (Kshitij Shailendra, J) (Arun Bhansali, CJ) SHYAM LAL High Court of Judicature at Allahabad 6

date judgement dated 09.09.2024 was passed till the appeal was filed on

09.05.2025, from which it is apparent that there has been no negligence on part of the appellant and it is only on account of the procedure involved in seeking sanction for filing the appeal and getting the same prepared from the counsel that the delay occurred in filing the appeal and, therefore, the delay of 182 days deserves to be condoned.

11. Learned counsel for the respondents contested the submissions. It was submitted that a bare look at the affidavit reveals that despite the fact that the limitation in filing the appeal is 60 days, the appellant has proceeded in the matter without caring a bit for the period of limitation prescribed under the Act and in the name of seeking sanction and getting the appeal prepared is seeking extension of time/condonation of delay to the extent of 182 days.

12. Further submissions have been made that delay in filing appeal under Section 37 of the Act, cannot be condoned like in other matters, as has been observed by Hon'ble Supreme Court. Further submissions were made that the appellant cannot seek premium over its inaction in the name of being a Corporation. Reliance was placed on Government of Maharashtra Vs. M/s Borse Brothers Engineers and Contractors Pvt. Ltd. : (2021) 6 SCC 460 and Office of the Chief Postmaster General & others Vs. Living Media India Limited & another : (2012) 3 SCC 563. 3

13. We have considered the submissions made by counsel for the parties and have perused the material available on record.

14. The appeal, as noticed, is barred by 182 days i.e. about six months. A perusal of the dates as indicated in the affidavit supporting the application seeking condonation of delay reveals that after passing of the judgement dated 09.09.2024, despite being aware that the limitation for filing the appeal is 60 days, the appellant never exhibited any urgency in filing the appeal in time, rather the task for filing the appeal apparently has been treated as secondary to other tasks like annual closing of financial accounts.

15. It would be seen that the judgement dated 09.09.2024 was received by the appellant from counsel on 23.09.2024 and the decision to file the appeal was taken on 02.12.2024, by then the appeal had already become barred by limitation. Despite loosing limitation for filing appeal, even after sanction of filing the appeal, the appellant chose to proceed at snail's pace, as even after decision for filing the appeal having been taken on 02.12.2024, the papers were forwarded to the panel counsel on

17.01.2025 i.e. after one and half months.

16. The most outstanding feature of the affidavit which is reflective of the attitude of the appellant in filing the present appeal is reflected when it is claimed that in the months of January and February, due to Maha Kumbh at Allahabad, the requisite papers could not be sent to the counsel and in last two weeks of March, due to annual closing of financial accounts, the needful could not be done. The said claim made in the affidavit shows the casual manner in which the appellant was dealing with the appeal and conveniently lost two more months. Whereafter also, it has taken one month and 9 days in filing the appeal, when the same was finally filed on 09.05.2025.

17. Hon'ble Supreme Court in the case of Borse Brothers Engineers and Contractors Pvt. Ltd (supra) has laid down as under:- 4 "63. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches."

18. Hon’ble Supreme Court, after referring to the object of speedy disposal sought to be achieved, both under the Limitation Act and the Commercial Courts Act, observed that a delay beyond 60 days is to be condoned by way of exception and not by way of rule and in a fit case in which a party has otherwise acted bonafidely and not in a negligent manner, a short delay beyond such period, can in the discretion of the Court, be condoned.

19. In the present case, it would be seen that the delay is of 182 days, which cannot be said by any stretch of imagination to be a ‘short delay’ and as would be seen from the above discussion the appellant has acted in a most negligent manner.

20. So far as the claim made that the appellant being a Corporation, some leeway is available, the said aspect also has been considered by Hon’ble Supreme Court in the case of Living Media India Limited (supra), wherein it has been laid down as under:- "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of 5 various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

21. Hon’ble Supreme Court has laid down that condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

22. As noticed in the present case, the conduct of the appellant is writ large wherein sanction itself was granted after the limitation for filing the appeal had expired and thereafter also it has taken the appellant five months in filing the appeal, which is result of nothing but inaction, negligence and laches.

23. In view of the above discussion, we do not find any reason to condone a huge delay of 182 days in filing the appeal. The application seeking condonation of delay is, therefore, dismissed.

24. Consequently, the appeal is also dismissed. Order Date :- 8.7.2025 SL (Kshitij Shailendra, J) (Arun Bhansali, CJ) SHYAM LAL High Court of Judicature at Allahabad 6