State Of Uttarakhand & Another vs SCIW-VKGA �JV�, SCO-263

Ritu Bahri, CJ

1) The State has come up in appeal against the impugned order dated 27.06.2023, passed by learned Additional District Judge, Commercial Court, Dehradun, in Arbitration Case No. 01 of 2022, whereby the claim of the appellants-State was rejected, and the award passed by the Arbitrator has been upheld.

2) There is a delay of 77 days in filing the present appeal. The case of the appellants is that after the order dated 27.06.2023, a request was sent to the office of Chief Engineer & Head of the Department (HOD), Public Works Department, Dehradun to seek directions from the level of the Government. Copy of letter is dated 03.08.2023 (Annexure No. 1 to the affidavit accompanying the delay condonation application). Thereafter, vide letters dated 21.08.2023 and 22.08.2023 (Annexure Nos. 2 and 3) permission was granted to file the appeal. Time was taken for getting in touch with the Chief Standing Counsel, High Court of Uttarakhand, campus Nainital, and thereafter vide letter dated 28.08.2023 (Annexure No. 4) permission was granted to file the appeal, and information was thereafter sent on 29.08.2023 to the Chief Standing Counsel, Uttarakhand Government. It has been stated that the time taken in said process caused the delay in filing the appeal.

3) The impugned order was passed on 27.06.2023, and the present appeal was filed on 12.12.2023. After the limitation expired, the delay is 77 days in filing the present appeal.

4) This Court had an occasion to examine a similar issue where the State of Uttarakhand had filed an appeal against order dated 25.03.2023, passed by the Commercial Court, whereby award passed by the Arbitrator had been upheld. In that case, reference was made to a Supreme Court Judgment rendered in Government of Maharashtra (Water Resources Department) represented by Executive Engineer Vs Borse Brothers Engineers and Contractors Pvt. Ltd., (2021) 6 SCC 460, where there was a delay of 85 days in filing the appeal against the order of the Commercial Court. The Supreme Court had dismissed the appeal on the ground that delay of 85 days could not be condoned. In Appeal from Order No. 182 of 2024, titled as ‘State of Uttarakhand & others Vs M/s Devbhoomi Construction Pvt. Ltd.”, decided by this Court on 09.05.2024, there was a delay of 315 days, and the appeal was dismissed only on the ground of delay.

5) In the present case the delay is of 77 days, and before the Supreme Court in the case of Government of Maharashtra (Supra) the delay was of 85 days. The Supreme Court in paragraph 63 of the said judgment has observed as under:

“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(1-A) 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 equality and justice, what may now be lost by the first party’s inaction, negligence or laches.”

6) Keeping in view the above fact, no case for condoning the delay is made out. The present appeal is also being dismissed on the ground of delay.