Visa Steel Ltd vs Kohli Builders and Developers Ltd

Arindam Sinha, J

Mr. Mukherji, learned senior advocate appears and submits, his client has preferred the appeal. There is noting that it is defective on delay of 103 days. He relies on order dated 10th January, 2022 of the Supreme Court in, inter alia, Miscellaneous Application no.21 of 2022 in Suo Motu Writ Petition(C) no.3 of 2020 (In Re: cognizance for extension of limitation), clause III in paragraph-5. Said clause is reproduced below.

“III. In cases where the limitation would have expired during the period between 15th March, 2020 till 28th February, 2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01..03.2022 is greater than 90 days, that longer period shall apply.”

He then relies on order dated 18th November, 2021 passed by a learned Single Judge of this Court in FAO no.237 of 2021 (KD Gold and Diamonds Private Limited v. M/s. Khimji and Sons) to submit, application for condonation of delay is not necessary or cannot be necessary since, by operation of order dated 10th January, 2022 (supra) there is no delay.

Mr. Das, learned senior advocate appears on behalf of respondent and submits, the appeal is an afterthought. His client preferred its appeal in time. Respondent therein is appellant here. Respondent had appeared. It is only thereafter respondent has filed this appeal, obviously to delay adjudication in his client’s appeal.

He relies on judgment of the Supreme Court in Government of Maharashtra v. Borse Brothers Engineers and Contractors Pvt. Ltd. reported in 2021(2) Arb. LR 82 (SC), paragraphs 61 and 63. The paragraphs are reproduced 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.

Apart from this, there is a long delay of 131 days beyond the 60 day period provided for filing an appeal under section 13(1A) of the Commercial Courts Act. There is no explanation worth the name contained in the condonation of delay application, beyond the usual file-pushing and administrative exigency. This appeal is therefore dismissed.”

He submits, the appeal should be dismissed as defective.

By order dated 10th January, 2022 (supra) the Supreme Court directed, inter alia, where limitation would have expired during period between 15th March, 2020 till 28th February, 2022, all persons shall have limitation period of 90 days from 1st March, 2022. Impugned judgment is dated 23rd October, 2021. Excluding the date of judgment and last date of limitation of 90 days provided by article 116 in Limitation Act, 1963, the appeal ought to have been filed by 12th January, 2022. Mukherji’s client had 90 days from 1st March, 2022 to file the appeal. The appeal was presented on 4th May, 2022, well within the period of limitation prescribed and thereafter directed by the Supreme Court.

In the facts aforesaid, there is no scope of applying Borse Brothers (supra). The appeal is declared to have been filed within time.

By consent, list on 5th August, 2022 along with ARBA no.1 of 2022 marked at 2.00 p.m.

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