Arbitration Case No. 345 of 2022 · High Court · 2025

Judgment

1. Heard Sri Anubhav Singh, learned counsel for the appellants, and Sri Pranjal Mehrotra, learned counsel for the respondent no.2.

2. The instant appeal has been filed, by four appellants here-in, who are the family members, against the judgment and order dated

31.01.2023 passed by the Court of District Judge/Court under Arbitration and Conciliation Act, 1996, Gautam Buddh Nagar in Arbitration Case No. 345 of 2022 as well as the Arbitral Award dated 16.05.2016 passed by the Arbitrator/District Magistrate, Gautam Buddh Nagar.

4. The present appeal has been reported to be filed beyond 16 days.

Learned counsel for the appellants stated in the affidavit filed in support of the delay condonation application filed under Section 5 of the Limitation Act that due to ill health of the appellant no.4 (the mother of the appellants no. 1 to 3), appeal could not be preferred within time and therefore in view of the bona-fide reason, the delay may be condoned in filing the instant appeal.

5. In support of his submission, learned counsel for the appellants has 2 placed reliance upon the judgment of this Court passed in the cases of State of Uttar Pradesh & Ors. Vs. M/s. Satish Chand Shivhare and Brothers; 2022 LiveLaw (SC) 430 & M/s Jaitley Construction Co. Vs. Union of India [Civil Appeal No(s). of 2023 (arising out of S.L.P. (Civil) No(s). 12180 of 2023)].He has further placed reliance upon the judgment of this Court passed in the cases of Mathura Vrindavan Development Authority Vs. M/s. Agarwal Construction Company (Appeal Under Section 37 of Arbitration and Conciliation Act, 1996 Defective No. 590 of 2023) & Ajeet Singh and 3 others Vs. Union of India, Ministry of Indian Railways and 3 others ( Appeal Under Section 37 of Arbitration and Conciliation Act, 1996 Defective No. 280 of 2024).

6. Per contra, Sri Pranjal Mehrotra, learned counsel appearing for respondent no.2 opposed the prayer and submits that no proper explanation has been given by the appellants for condoning the delay of 16 days. He further submits that anyone of the appellants could have come and file the appeal within the prescribed limit. He further submits that once the appellants did not chose to approach the Court within the time prescribed, the present appeal is liable to be dismissed.

8. After hearing the parties, the Court has perused the record. Admittedly, the appeal has been filed beyond the period of 16 days and the only reason assigned for the same is that the appellant no.4 (the mother of appellants no.1 to 3) fell ill and therefore the appeal could not be preferred within the time.

9. On perusal of the rejoinder affidavit, it does not reflect that from which date, the appellant no.4 (the mother of the appellant nos. 1 to 3) fell ill, due to which, the appellants could not approach the Court within the time. 3

10. The limitation in filing the appeal should not be condoned on mere asking. Such as, the arbitration Act is enacted for the speedy redressal and delay, if any, can be allowed only if a very strong cause is made out that too supported by a proper explanation.

11. In the case in hand, four appellants have approached this Court and one of them has filed an affidavit. For the sake of argument, it is accepted that one of the appellants here-in fell ill, but other appellants could have approached this Court, or rather, one of the appellants could have come and file the appeal within the time prescribed.

12. This Court in the case of Ajeet Singh (supra) has held as under: “6. There is a substantial delay of 55 days in preferring this appeal under Section 37 of the Act.

7. The issue with regard to filing an appeal under Section 37 of the Act is no longer res integra as the same has been settled by the Supreme Court. One may rely on the judgement in M/s N.V. International Vs. State of Asam & Others [2020 (2) SCC 109]. The relevant paragraph thereof is delineated below :-

5. We may only add that what we have done in the aforesaid judgment is to add to the period of 90 days, which is provided by statute for filing of appeals under Section 37 of the Arbitration Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul and Others (supra), as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 Act, and which has been strengthened from time to time by amendments made thereto. The present delay being beyond 120 days is not liable, therefore, to be condoned."

8. Furthermore, paragraph no. 61 of the judgement in Government Maharashtra (Water Resources 4 Department) Represented by Executive Engineer Vs. M/s Borse Brothers Engineers & Contractors Pvt. Ltd. [(2021) 6 SCC 460] is required to be looked into. The relevant paragraph is delineated below :- "61. 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."

9. A coordinate Bench of this Court in National Highway Authority of India Vs. Smt. Sampata Devi and Ors. [2023 (12) ADJ 787], in similar facts and circumstances, discussed in great detail a catena of judgements of the Supreme Court and has come to the following conclusion :- "(44) In view of the authoritative Judgments of the Apex Court in M/s Borse Brothers Engineers & Contractors (supra), it must be held that an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 should be filed within 60 days from the date of the order as per Section 13(1A) of the Commercial Courts Act, 2015. However, in those rare cases where the specified value is for a sum less than INR 3,00,000.00 then the appeal under Section 37 would be governed by Articles 116 and 117 of the Schedule of the Limitation Act, as the case may be. 5 (45) Further, Section 5 of the Limitation Act will apply to the appeals filed under Section 37 of the Act, 1996 and in holding the said applicability, the Apex Court noted with affirmative that Section 13(1A) of the Commercial Courts Act does not contain any provision akin to section 34(3)of the Arbitration Act, 1996 and merely provides for a limitation period of 60 days from the date of the judgment or order appealed against, without going into whether delay beyond this period can or cannot be condoned. (46) Further, the expression 'sufficient cause' under Section 5 of the Limitation Act is not elastic enough to cover long delays and merely because sufficient cause has been made out, there is no right to have such delay condoned. The Apex Court further held that only short delays, can be condoned only by way of an exception and not by the way of rule, and that too only when the party acted in a bona fide manner and not negligently. (47) Since, in the present bunch of appeals, the impugned order passed by the Additional District Judge, Barabanki under Section 34 of the Act, 1996 has been sought to be challenged by NHAI by filing a belated appeal under Section 37 of the Act, 1996 beyond the permissible 60 days without any "sufficient cause", the above-captioned appeals are held to be time barred."

10. This Court in Union of India & 2 Others Vs. M/s Kailash Construction Company [Appeal U/s 37 of Arbitration & Conciliation Act (Defective) No. 10/2024, decided on 27.05.2024], after considering various judgements of the Apex Court, has held as under:- "14. It is essential to underscore that condonation of delay is not an endorsement of laxity or indifference towards procedural timelines. On the contrary, it is a remedy granted in exceptional circumstances where genuine 6 hardships or impediments beyond the control of the petitioner have led to the delay. Courts must exercise caution in granting such relief, balancing the principles of justice and fairness with the need for expeditious resolution of disputes.

15. At its core, the requirement for sufficient grounds to justify delay condonation serves to uphold the principles of fairness, equity, and due process. In a legal system predicated on the rule of law, all litigants are entitled to a fair and impartial adjudication of their rights and claims. This necessitates adherence to procedural timelines and the timely disposition of cases to prevent undue prejudice or hardship to either party. Granting delay condonation as a matter of right would undermine these principles, potentially enabling litigants to abuse the judicial process and prolong litigation without valid justification.

16. Moreover, the requirement for sufficient grounds to justify delay condonation serves to promote judicial efficiency and the expeditious resolution of disputes. Time is of the essence in legal proceedings, and undue delays can impede the administration of justice, erode public confidence in the judicial system, and burden the courts with unnecessary caseloads. By imposing a threshold requirement for demonstrating sufficient grounds for delay condonation, the law encourages litigants to prioritize diligence and promptness in prosecuting their cases, thereby facilitating the efficient management of judicial resources and the timely resolution of disputes.

17. In light of the foregoing, while the delay in this case appears substantial, it is incumbent upon the appellant to provide cogent and compelling reasons justifying the same. Mere assertions of inadvertence or oversight are unlikely to suffice; rather, concrete evidence demonstrating the 7 circumstances that led to the delay and the efforts undertaken to remedy the situation is imperative."

11. Upon a perusal of the above judgements, it is clear that the Arbitration Act, being a legislation for speedy redressal, the delay in filing the appeal can only be allowed if the appellant makes out a very strong case and explains the reasons for delay.

12. The Court has perused the delay condonation application.

13. In the affidavit filed in support of the delay condonation application delay has not been properly explained and only averment has been made that the delay caused by the appellant is unintentional and same is caused due to financial difficulty and lack of legal proceedings as well as lost of documents.

14. Thereafter on 10.9.2024 two weeks' time was accorded to the appellant to explain the delay by way of supplementary affidavit.

15. However, on perusal of the supplementary affidavit filed today, the Court is not satisfied with the cause shown for condonation of delay.

16. Time & again, the Apex Court as well as this Court has held that the Arbitration Act, being a legislation for speedy redressal, the delay in filing the appeal can only be allowed if the appellant makes out a very strong case and explains the reasons for delay.

17. In the aforesaid appeals, the Court does not find any such reason provided, which would enable this Court to condone the delay. 8

18. In view of the facts & circumstances of the case as well as the law laid down by the Apex Court and this Court, no sufficient ground has been shown to condone the delay in preferring appeals.

19. Accordingly, the delay condonation applications filed in all the aforesaid appeals are hereby rejected. Order in Appeals

20. Since the delay condonation applications filed in all the aforesaid appeals have been rejected, consequently, all the aforesaid appeals are dismissed as barred by limitation.”

13. In view of the judgments of the Hon’ble Supreme Court as well as of this Court as referred here-in-above, no case for condonation of delay is made out and therefore, the delay condonation application is dismissed, accordingly. Order on Appeal

14. Consequent upon the dismissal of the delay condonation application, the appeal is also dismissed. Order Date :- 23.01.2025 Pravesh Mishra/- PRAVESH KUMAR MISHRA High Court of Judicature at Allahabad

Learned counsel for the appellants stated in the affidavit filed in support of the delay condonation application filed under Section 5 of the Limitation Act that due to ill health of the appellant no.4 (the mother of the appellants no. 1 to 3), appeal could not be preferred within time and therefore in view of the bona-fide reason, the delay may be condoned in filing the instant appeal.

5. In support of his submission, learned counsel for the appellants has 2 placed reliance upon the judgment of this Court passed in the cases of State of Uttar Pradesh & Ors. Vs. M/s. Satish Chand Shivhare and Brothers; 2022 LiveLaw (SC) 430 & M/s Jaitley Construction Co. Vs. Union of India [Civil Appeal No(s). of 2023 (arising out of S.L.P. (Civil) No(s). 12180 of 2023)].He has further placed reliance upon the judgment of this Court passed in the cases of Mathura Vrindavan Development Authority Vs. M/s. Agarwal Construction Company (Appeal Under Section 37 of Arbitration and Conciliation Act, 1996 Defective No. 590 of 2023) & Ajeet Singh and 3 others Vs. Union of India, Ministry of Indian Railways and 3 others ( Appeal Under Section 37 of Arbitration and Conciliation Act, 1996 Defective No. 280 of 2024).

6. Per contra, Sri Pranjal Mehrotra, learned counsel appearing for respondent no.2 opposed the prayer and submits that no proper explanation has been given by the appellants for condoning the delay of 16 days. He further submits that anyone of the appellants could have come and file the appeal within the prescribed limit. He further submits that once the appellants did not chose to approach the Court within the time prescribed, the present appeal is liable to be dismissed.

8. After hearing the parties, the Court has perused the record. Admittedly, the appeal has been filed beyond the period of 16 days and the only reason assigned for the same is that the appellant no.4 (the mother of appellants no.1 to 3) fell ill and therefore the appeal could not be preferred within the time.

9. On perusal of the rejoinder affidavit, it does not reflect that from which date, the appellant no.4 (the mother of the appellant nos. 1 to 3) fell ill, due to which, the appellants could not approach the Court within the time. 3

10. The limitation in filing the appeal should not be condoned on mere asking. Such as, the arbitration Act is enacted for the speedy redressal and delay, if any, can be allowed only if a very strong cause is made out that too supported by a proper explanation.

11. In the case in hand, four appellants have approached this Court and one of them has filed an affidavit. For the sake of argument, it is accepted that one of the appellants here-in fell ill, but other appellants could have approached this Court, or rather, one of the appellants could have come and file the appeal within the time prescribed.

12. This Court in the case of Ajeet Singh (supra) has held as under: “6. There is a substantial delay of 55 days in preferring this appeal under Section 37 of the Act.

7. The issue with regard to filing an appeal under Section 37 of the Act is no longer res integra as the same has been settled by the Supreme Court. One may rely on the judgement in M/s N.V. International Vs. State of Asam & Others [2020 (2) SCC 109]. The relevant paragraph thereof is delineated below :-

5. We may only add that what we have done in the aforesaid judgment is to add to the period of 90 days, which is provided by statute for filing of appeals under Section 37 of the Arbitration Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul and Others (supra), as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 Act, and which has been strengthened from time to time by amendments made thereto. The present delay being beyond 120 days is not liable, therefore, to be condoned."

8. Furthermore, paragraph no. 61 of the judgement in Government Maharashtra (Water Resources 4 Department) Represented by Executive Engineer Vs. M/s Borse Brothers Engineers & Contractors Pvt. Ltd. [(2021) 6 SCC 460] is required to be looked into. The relevant paragraph is delineated below :- "61. 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."

9. A coordinate Bench of this Court in National Highway Authority of India Vs. Smt. Sampata Devi and Ors. [2023 (12) ADJ 787], in similar facts and circumstances, discussed in great detail a catena of judgements of the Supreme Court and has come to the following conclusion :- "(44) In view of the authoritative Judgments of the Apex Court in M/s Borse Brothers Engineers & Contractors (supra), it must be held that an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 should be filed within 60 days from the date of the order as per Section 13(1A) of the Commercial Courts Act, 2015. However, in those rare cases where the specified value is for a sum less than INR 3,00,000.00 then the appeal under Section 37 would be governed by Articles 116 and 117 of the Schedule of the Limitation Act, as the case may be. 5 (45) Further, Section 5 of the Limitation Act will apply to the appeals filed under Section 37 of the Act, 1996 and in holding the said applicability, the Apex Court noted with affirmative that Section 13(1A) of the Commercial Courts Act does not contain any provision akin to section 34(3)of the Arbitration Act, 1996 and merely provides for a limitation period of 60 days from the date of the judgment or order appealed against, without going into whether delay beyond this period can or cannot be condoned. (46) Further, the expression 'sufficient cause' under Section 5 of the Limitation Act is not elastic enough to cover long delays and merely because sufficient cause has been made out, there is no right to have such delay condoned. The Apex Court further held that only short delays, can be condoned only by way of an exception and not by the way of rule, and that too only when the party acted in a bona fide manner and not negligently. (47) Since, in the present bunch of appeals, the impugned order passed by the Additional District Judge, Barabanki under Section 34 of the Act, 1996 has been sought to be challenged by NHAI by filing a belated appeal under Section 37 of the Act, 1996 beyond the permissible 60 days without any "sufficient cause", the above-captioned appeals are held to be time barred."

10. This Court in Union of India & 2 Others Vs. M/s Kailash Construction Company [Appeal U/s 37 of Arbitration & Conciliation Act (Defective) No. 10/2024, decided on 27.05.2024], after considering various judgements of the Apex Court, has held as under:- "14. It is essential to underscore that condonation of delay is not an endorsement of laxity or indifference towards procedural timelines. On the contrary, it is a remedy granted in exceptional circumstances where genuine 6 hardships or impediments beyond the control of the petitioner have led to the delay. Courts must exercise caution in granting such relief, balancing the principles of justice and fairness with the need for expeditious resolution of disputes.

15. At its core, the requirement for sufficient grounds to justify delay condonation serves to uphold the principles of fairness, equity, and due process. In a legal system predicated on the rule of law, all litigants are entitled to a fair and impartial adjudication of their rights and claims. This necessitates adherence to procedural timelines and the timely disposition of cases to prevent undue prejudice or hardship to either party. Granting delay condonation as a matter of right would undermine these principles, potentially enabling litigants to abuse the judicial process and prolong litigation without valid justification.

16. Moreover, the requirement for sufficient grounds to justify delay condonation serves to promote judicial efficiency and the expeditious resolution of disputes. Time is of the essence in legal proceedings, and undue delays can impede the administration of justice, erode public confidence in the judicial system, and burden the courts with unnecessary caseloads. By imposing a threshold requirement for demonstrating sufficient grounds for delay condonation, the law encourages litigants to prioritize diligence and promptness in prosecuting their cases, thereby facilitating the efficient management of judicial resources and the timely resolution of disputes.

17. In light of the foregoing, while the delay in this case appears substantial, it is incumbent upon the appellant to provide cogent and compelling reasons justifying the same. Mere assertions of inadvertence or oversight are unlikely to suffice; rather, concrete evidence demonstrating the 7 circumstances that led to the delay and the efforts undertaken to remedy the situation is imperative."

11. Upon a perusal of the above judgements, it is clear that the Arbitration Act, being a legislation for speedy redressal, the delay in filing the appeal can only be allowed if the appellant makes out a very strong case and explains the reasons for delay.

12. The Court has perused the delay condonation application.

13. In the affidavit filed in support of the delay condonation application delay has not been properly explained and only averment has been made that the delay caused by the appellant is unintentional and same is caused due to financial difficulty and lack of legal proceedings as well as lost of documents.

14. Thereafter on 10.9.2024 two weeks' time was accorded to the appellant to explain the delay by way of supplementary affidavit.

15. However, on perusal of the supplementary affidavit filed today, the Court is not satisfied with the cause shown for condonation of delay.

16. Time & again, the Apex Court as well as this Court has held that the Arbitration Act, being a legislation for speedy redressal, the delay in filing the appeal can only be allowed if the appellant makes out a very strong case and explains the reasons for delay.

17. In the aforesaid appeals, the Court does not find any such reason provided, which would enable this Court to condone the delay. 8

18. In view of the facts & circumstances of the case as well as the law laid down by the Apex Court and this Court, no sufficient ground has been shown to condone the delay in preferring appeals.

19. Accordingly, the delay condonation applications filed in all the aforesaid appeals are hereby rejected. Order in Appeals

20. Since the delay condonation applications filed in all the aforesaid appeals have been rejected, consequently, all the aforesaid appeals are dismissed as barred by limitation.”

13. In view of the judgments of the Hon’ble Supreme Court as well as of this Court as referred here-in-above, no case for condonation of delay is made out and therefore, the delay condonation application is dismissed, accordingly. Order on Appeal

14. Consequent upon the dismissal of the delay condonation application, the appeal is also dismissed. Order Date :- 23.01.2025 Pravesh Mishra/- PRAVESH KUMAR MISHRA High Court of Judicature at Allahabad