Union Of India vs Lakshman Singh, Civil Contractor, General Order Supplier

Heard Mr. Sudhir Kumar, learned counsel appearing on behalf of the appellant.

Heard Mr. Ranjan Kumar, learned counsel appearing on behalf of the respondent.

This appeal has been filed under Section 37 of the Arbitration and Conciliation Act, 1996 challenging the judgment and order dated 14.06.2017

passed by the Ld. Court of Civil Judge (Sr. Div.) 1st, Dhanbad in Misc. (Arbitration) Case No. 34 of 2015 whereby the application filed on behalf of

the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the Award passed by the learned Arbitrator, has been

rejected.

An interlocutory application being I.A. No. 6254 of 2018 has been filed for condonation of delay of 202 days in filing the present arbitration appeal.

The impugned order is dated 14.06.2017 and considering the copy time, the limitation for filing appeal expired on 03.10.2017 and the appeal has been

filed on 23.02.2018.

Learned counsel appearing on behalf of the respondent submits that the delay of 202 days cannot be condoned in view of the judgment passed by

the Hon’ble Supreme Court in Civil Appeal No. 9244 of 2019 (M/S N.V. International Vs. The State of Assam & Ors.) decided on 06.12.2019

wherein it has been held that the appeal has to be necessarily filed within a period of 90 days with a further period of condonable delay of 30 days i.e.

within a total period of 120 days and any further delay cannot be condoned. He further submits that otherwise also, there is no proper explanation

furnished by the appellant in the petition for condonation of delay.

Learned counsel appearing on behalf of the appellant, on the other hand, has referred to a judgment passed by the Hon’ble Bombay High Court

which is reported in (2005) SCC OnLine Bom 814 ( Oil and Natural Gas Corporation Ltd. Vs. Jagson International Ltd.) to submit that for filing an

appeal under Section 37, no period of limitation has been prescribed and accordingly, there is only single requirement that the appeal should be filed

within a reasonable time. He submits that despite the aforesaid law, since the office has pointed out this defect of delay of 202 days, a petition has

been filed for condonation of delay. However, so far as the judgment passed by the Hon’ble Supreme Court in Civil Appeal No. 9244 of 2019

dated 06.12.2019 which has been cited by the respondent is concerned, the counsel for the appellant has nothing to say.

After hearing the counsel for the parties, this Court finds that the point regarding condonation of delay in filing an appeal under Section 37 of the

Arbitration and Conciliation Act, 1996 is squarely covered by the aforesaid judgment of the Hon’ble Supreme Court passed in Civil Appeal No.

9244 of 2019 decided on 06.12.2019 wherein it has been clearly observed that so far as the filing of appeal is concerned, Article 116 of the Limitation

Act would come into play and ultimately, it has been held in para 5 that a period of 90 days is available to file an appeal under Section 37 of the

Arbitration and Conciliation Act, 1996 and the grace period of 30 days under Section 5 of the Limitation Act is available. It has also been held that

delay beyond 120 days is not liable to be condoned. The Hon’ble Supreme Court has followed the earlier judgment and order dated 17.09.2018

passed in SLP (C) No. 23155 of 2013 (Union of India Vs. Varindera Const. Ltd.), wherein it has been held as under:

“… that an appellate proceeding is a continuation of the original proceeding, as has been held in Lachmeshwar Prasad Shukul and Others Vs.

Keshwar Lal Chaudhuri and Others, AIR 1941 Federal Court 5, and repeatedly followed by our judgments, we feel that any delay beyond 120 days in

the filing of an appeal under Section 37 from an application being either dismissed or allowed under Section 34 of the Arbitration and Conciliation Act,

1996 should not be allowed as it will defeat the overall statutory purpose of arbitration proceedings being decided with utmost despatch.â€​

Admittedly, in the present case, the delay in filing the appeal is 202 days and considering the judgment passed by the Hon’ble Supreme Court,

the delay of 202 days cannot be condoned by this Court, therefore, the petition for condonation of delay being I.A. No. 6254 of 2018, is hereby

rejected.

Accordingly, this arbitration appeal is also dismissed.

Let a copy of this order be communicated to the learned court below through ‘FAX’.