Karnataka High Court
M/S Deepak Cables (India) Ltd vs Karnataka Power Transmission Ltd on 10 October, 2023
Author: G.Narendar
Bench: G.Narendar
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NC: 2023:KHC:36791-DB
MFA No. 1177 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE G.NARENDAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO. 1177 OF 2019 (AA)
BETWEEN:
M/S DEEPAK CABLES (INDIA) LTD
A COMPANY REGISTERED
UNDER THE PROVISIONS OF
COMPANIES ACT, 1956,
Digitally signed by REPRESENTED BY ITS INTERIM
YAMUNA K L RESOLUTION PROFESSIONAL
Location: High MR. RAVISHANKAR DEVARAKONDA
Court of Karnataka NO.7, N.S. IYENGAR STREET,
SESHADRIPURAM
BANGALORE - 560 020.
...APPELLANT
(BY SRI. L M CHIDANANDAYYA., ADVOCATE)
AND:
1. KARNATAKA POWER TRANSMISSION LTD.,
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956,
AND HAVING ITS CORPORATE
OFFICE AT KAVERI BHAVN,
BANGALORE - 560 009.
REPRESENTED BY ITS DIRECTOR
(ADMIN & HR)
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MFA No. 1177 of 2019
2. CHIEF ENGINEER (ELE)
TENDERING & PROCUREMENT
KPTCL, CORPORATE OFFICE
KAVERI BHAVAN
BANGALORE: 560 009.
3. CHIEF ENGINEER (ELE)
TRANSMISSION ZONE-HASSAN
KPTCL, HASSAN: 573201.
4. EXECUTIVE ENGINEER (ELE)
MAJOR WORKS,
MANGALORE DIVSION, KPTCL,
MANGALORE - 575002.
...RESPONDENTS
(BY SRI. S.SRIRANGA, SR. ADV. FOR
SMT. SUMANA NAGANANDA., ADV. FOR R1, R2 & R3,
R4 - SERVED AND UNREPRESENTED.)
THIS MFA IS FILED U/S.37(1)(C) OF THE ARBITRATION
AND CONCILIATION ACT, AGAINST THE JUDGMENT AND
DECREE DT.15.03.2017 PASSED ON A.S.NO.146/2016 ON THE
FILE OF THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, (CCH-33), PARTLY ALLOWING THE
MEMORANDUM OF PLAINT FILED U/S.34 OF ARBITRATION AND
CONCILIATION ACT R/W RULE 4 OF HON'BLE HIGH COURT OF
KARNATAKA ARBITRATION (PROCEEDINGS BEFORE THE
COURTS) RULES 2001.
THIS APPEAL, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, G.NARENDAR J.,
DELIVERED THE FOLLOWING:
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NC: 2023:KHC:36791-DB
MFA No. 1177 of 2019
JUDGMENT
Heard the learned counsel for the appellant and the learned senior counsel Sri S. Sriranga for the respondents on I.A. 1/2019.
2. The learned counsel for the appellant/applicant submits that the copy of the award was not served upon the appellant and hence, delay has occurred. He would submit that even otherwise, the order under challenge Court is vitiated as being contrary to the law laid down by the Hon'ble Apex Court. He would contend that the challenge Court has proceeded to modify the award which amounts to crossing the lakshman rekha and he places reliance on the judgment of the Hon'ble Apex Court in the case of Project Director, National Highways No.45 E and 220 National Highways Authority of India vs. M. Hakeem and Another.1 He would submit that challenge Court has no authority to modify the award and is either entitled to 1 (2021) 9 SCC 1 -4- NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 set-aside the award or uphold an award, as has been laid down by the Hon'ble Apex Court.
3. Per contra, learned senior counsel appearing on behalf of the respondent would submit that the delay is enormous and is an unexplained delay. He would submit that merely because the appellant is represented by IRP would not place it in on a different pedestal and that law governing the aspect of delay in preferring the appeal is governed by the law laid down by the Hon'ble Apex Court in Government of Maharashtra (Water Resources Department) represented by Executive Engineer Vs. Borse Brothers Engineers and Contractors Private Limited2. The law as expounded in the ruling cited supra holds the field and the issue is no more res-integra.
4. We have perused the judgment of the award Court. The learned counsel for the appellant would take the Court through the operative portion of the judgment 2 (2021) 6 SCC 460 -5- NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 wherein, the challenge Court has granted pendente lite interest at the rate of 10% and thereby, reduced the interest rate granted by the Tribunal at the rate of 15%.
Apart from the same, it is seen that the cost granted by the Tribunal has been reduced from Rs.5.00 lakhs to Rs.3.00 lakhs, in our prima-facie opinion, we are not inclined to agree with the contention of the learned appellant's counsel that the same tantamounts to a modification. Apparently, the interest awarded is not a contracted rate of interest and being discretionary relief, would not tantamount to a modification of the award. In our prima-facie opinion would not tantamount to modification of the award.
5. Be that as it may, we do not wish to record any opinion on the said aspect. The law with regard to the condonation of delay is well elucidated and settled by the Hon'ble Apex Court in Borse Brothers case stated supra.
The Hon'ble Apex Court as in paragraphs No.23 and 24 examined the aspect of limitation in preferring the appeal -6- NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 under Section 37 of the Arbitration and Conciliation Act, 1996 and has observed in paragraphs No.23, 24, 32, 43, 55, 56, 57, 58 and 63 as under:-
"23. Section 37 of the Arbitration Act, when read with Section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37. This takes us to Articles 116 and 117 of the Limitation Act, which provide for a limitation period of 90 days and 30 days, depending upon whether the appeal is from any other court to a High Court or an intra-High Court appeal. There can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virtue of Section 43 of the Arbitration Act and by virtue of Section 29(2) of the Limitation Act.
24. This aspect of the matter has been set out in the concurring judgment of Raveendran, J. in Consolidated Engg., as follows : (SCC pp. 188-90, paras 40-43) "40. Let me next refer to the relevant provisions of the Limitation Act. Section 3 of the Limitation Act provides for the bar of limitation. It provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every -7- NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. "Prescribed period" means that period of limitation computed in accordance with the provisions of the Limitation Act. "Period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule to the Limitation Act [vide Section 2(j) of the said Act]. Section 29 of the Limitation Act relates to savings. Sub-section (2) thereof which is relevant is extracted below:
'29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.'
41. Article 116 of the Schedule prescribes the period of limitation for appeals to the High Court (90 days) and appeals to any other court (30 days) -8- NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 under the Code of Civil Procedure, 1908. It is now well settled that the words "appeals under the Code of Civil Procedure, 1908" occurring in Article 116 refer not only to appeals preferred under the Code of Civil Procedure, 1908, but also to appeals, where the procedure for filing of such appeals and powers of the court for dealing with such appeals are governed by the Code of Civil Procedure. (See decision of the Constitution Bench in Vidyacharan Shukla v.
Khubchand Baghel) Article 119(b) of the Schedule prescribes the period of limitation for filing an application (under the Arbitration Act, 1940), for setting aside an award, as thirty days from the date of service of notice of filing of the award.
42. The Arbitration and Conciliation Act is no doubt, a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. The Arbitration and Conciliation Act does not prescribe the period of limitation, for various proceedings under that Act, except where it intends to prescribe a period different from what is prescribed in the Limitation Act. On the other hand, Section 43 makes the provisions of the Limitation Act, 1963 applicable to proceedings--both in court and in arbitration--under the Arbitration and Conciliation Act. There is also no express exclusion of application of any provision of the Limitation Act to proceedings under the -9- NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 Arbitration and Conciliation Act, but there are some specific departures from the general provisions of the Limitation Act, as for example, the proviso to Section 34(3) and sub-sections (2) to (4) of Section 43 of the Arbitration and Conciliation Act.
43. Where the Schedule to the Limitation Act prescribes a period of limitation for appeals or applications to any court, and the special or local law provides for filing of appeals and applications to the court, but does not prescribe any period of limitation in regard to such appeals or applications, the period of limitation prescribed in the Schedule to the Limitation Act will apply to such appeals or applications and consequently, the provisions of Sections 4 to 24 will also apply. Where the special or local law prescribes for any appeal or application, a period of limitation different from the period prescribed by the Schedule to the Limitation Act, then the provisions of Section 29(2) will be attracted. In that event, the provisions of Section 3 of the Limitation Act will apply, as if the period of limitation prescribed under the special law was the period prescribed by the Schedule to the Limitation Act, and for the purpose of determining any period of limitation prescribed for the appeal or application by the special law, the provisions contained in Sections 4 to 24 will apply to the extent to which they are not expressly excluded by such special law. The object of
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 Section 29(2) is to ensure that the principles contained in Sections 4 to 24 of the Limitation Act apply to suits, appeals and applications filed in a court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Limitation Act, except to the extent of express exclusion of the application of any or all of those provisions." (emphasis in original)
32. Thus, from the scheme of the Arbitration Act as well as the aforesaid judgments, condonation of delay under Section 5 of the Limitation Act has to be seen in the context of the object of speedy resolution of disputes.
43. The next important argument that needs to be addressed is as to whether the hard-and-fast rule applied by this Court in N.V. International is correct in law. Firstly, as has correctly been argued by Shri Shroti, N.V. International does not notice the provisions of the Commercial Courts Act at all and can be said to be per incuriam on this count. Secondly, it is also correct to note that the period of 90 days plus 30 days and not thereafter mentioned in Section 34(3) of the Arbitration Act cannot now apply, the limitation period for filing of appeals under the Commercial Courts Act being 60 days and not 90 days. Thirdly, the argument that absent a provision curtailing the condonation of delay beyond the period
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 provided in Section 13 of the Commercial Courts Act would also make it clear that any such bodily lifting of the last part of Section 34(3) into Section 37 of the Arbitration Act would also be unwarranted. We cannot accept Shri Navare's argument that this is a mere casus omissus which can be filled in by the Court.
55. Reading the Arbitration Act and the Commercial Courts Act as a whole, it is clear that when Section 37 of the Arbitration Act is read with either Article 116 or 117 of the Limitation Act or Section 13(1-A) of the Commercial Courts Act, the object and context provided by the aforesaid statutes, read as a whole, is the speedy disposal of appeals filed under Section 37 of the Arbitration Act. To read Section 5 of the Limitation Act consistently with the aforesaid object, it is necessary to discover as to what the expression "sufficient cause" means in the context of condoning delay in filing appeals under Section 37 of the Arbitration Act.
56. The expression "sufficient cause" contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the object and context of a statute. Thus, in Ajmer Kaur v. State of Punjab, this Court, in the context of Section 11(5) of the Punjab Land Reforms Act, 1972, held as follows :
(SCC pp. 386-87, paras 10-11)
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 "10. Permitting an application under Section 11(5) to be moved at any time would have disastrous consequences. The State Government in which the land vests on being declared as surplus, will not be able to utilise the same. The State Government cannot be made to wait indefinitely before putting the land to use. Where the land is utilised by the State Government, a consequence of the order passed subsequently could be of divesting it of the land. Taking the facts of the present case by way of an illustration, it would mean that the land which stood mutated in the State Government in 1982 and which was allotted by the State Government to third parties in 1983, would as a result of reopening the settled position, lead to third parties being asked to restore back the land to the State Government and the State Government in turn would have to be divested of the land. The land will in turn be restored to the landowner. This will be the result of the land being declared by the Collector as not surplus with the landowner. The effect of permitting such a situation will be that the land will remain in a situation of flux. There will be no finality.
The very purpose of the legislation will be defeated. The allottee will not be able to utilise the land for fear of being divested in the event of deaths and births in the family of the landowners. Deaths and births are events which are bound to occur.
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 Therefore, it is reasonable to read a time-limit in sub-section (5) of Section 11. The concept of reasonable time in the given facts would be most appropriate. An application must be moved within a reasonable time. The facts of the present case demonstrate that redetermination under sub-section (5) of Section 11 almost 5 years after the death of Kartar Kaur and more than 6 years after the order of the Collector declaring the land as surplus had become final, has resulted in grave injustice besides defeating the object of the legislation which was envisaged as a socially beneficial piece of legislation. Thus we hold that the application for redetermination filed by Daya Singh under sub-section (5) of Section 11 of the Act on 21-6-1985 was liable to be dismissed on the ground of inordinate delay and the Collector was wrong in reopening the issue declaring the land as not surplus in the hands of Daya Singh and Kartar Kaur.
11. The above reasoning is in consonance with the provision in sub-section (7) of Section 11 of the Act. Sub-section (7) uses the words 'where succession has opened after the surplus area or any part thereof has been determined by the Collector...'. The words "determined by the Collector" would mean that the order of the Collector has attained finality. The provisions regarding appeals, etc. contained in Sections 80-82
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 of the Punjab Tenancy Act, 1887, as made applicable to proceedings under the Punjab Land Reforms Act, 1972, show that the maximum period of limitation in case of appeal or review is ninety days. The appeal against the final order of the Collector dated 30-9-1976 whereby 3.12 ha of land had been declared as surplus was dismissed on 27- 3-1979. The order was allowed to become final as it was not challenged any further. Thus the determination by the Collector became final on 27- 3-1979. The same could not be reopened after a lapse of more than 6 years by order dated 23-7- 1985. The subsequent proceedings before the Revenue Authorities did not lie. The order dated 23- 7-1985 is non est. All the subsequent proceedings therefore fall through. The issue could not have been reopened." (emphasis supplied)
57. Nearer home, in Brahampal v. National Insurance Co., this Court specifically referred to the difference between a delay in filing commercial claims under the Arbitration Act or the Commercial Courts Act and claims under the Motor Vehicles Act, 1988, as follows : (Brahampal case, SCC pp. 519 & 521-22, paras 14 & 20-23) "14. This Court has firstly held that purpose of conferment of such power must be examined for the determination of the scope of
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 such discretion conferred upon the court. [Refer to Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad; Prakash Chand Agarwal v. Hindustan Steel Ltd.] Our analysis of the purpose of the Act suggests that such discretionary power is conferred upon the courts to enforce the rights of the victims and their dependants. The legislature intended that courts must have such power so as to ensure that substantive justice is not trumped by technicalities.
* * *
20. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015.
21. In P. Radha Bai v. P. Ashok Kumar, wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely be a procedural prescription. In effect the Court held that a complete petition has to be filed
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 within the time prescribed under Section 34 of the Arbitration Act and " [Ed. : The matter between two asterisks have been emphasised in original.] not thereafter" [Ed. : The matter between two asterisks have been emphasised in original.] . The Court while coming to the aforesaid conclusion, reasoned as under : (SCC p. 458, para 36) '36.1. First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveals that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternate dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. [Ed. : The matter between two asterisks has been emphasised in original.] This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. [Ed. :
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 The matter between two asterisks has been emphasised in original.] If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Act's objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.' Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.
22. Undoubtedly, the statute has granted the courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of "sufficient cause". Although there exists no straitjacket formula for the courts to condone delay, but the courts must not only take into consideration the entire facts and circumstances of the case but also the conduct of the parties. The concept of reasonableness dictates that the courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.
23. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the appellants, which was on account of illness of the wife of Appellant 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper- technical and cannot be sustained in the eye of the law." (emphasis supplied)
58. Given the object sought to be achieved under both the Arbitration Act and the Commercial Courts Act, that is, the speedy resolution of disputes, the expression "sufficient cause" is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression "sufficient cause" is not itself a loose panacea for the ill of pressing negligent and stale
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 claims. This Court, in Basawaraj v. LAO [Basawaraj v. LAO, has held : (SCC pp. 85-88, paras 9-15) "9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land & Building Corpn. v. Bhutnath Banerjee, Mata Din v. A. Narayanan, Parimal v. Veena and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai.
10. In Arjun Singh v. Mohindra Kumar this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".
11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only [Ed. : The matter between two asterisks has been emphasised in original.] so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned [Ed. : The matter between two asterisks has been emphasised in original.], whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. 'A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.' The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, Para 605 p. 266:
'605. Policy of the Limitation Acts.--The courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely, (1) that long dormant claims have more of cruelty than justice in them, (2)
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.' An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat & Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project.)
14. In P. Ramachandra Rao v. State of Karnataka this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature." (emphasis supplied)
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(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
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NC: 2023:KHC:36791-DB MFA No. 1177 of 2019 party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches"
6. A reading of paragraph No.63 would obviate any detailed discussion. Condonation cannot be as a matter of course and ought to be for sufficient reasons.
The fact remains that the award is dated 16.06.2016 and the IRP came to be appointed in 2018 well after the stage had passed. Even as on the date the IRP came to appointed in 2018, the appeal was barred by limitation.
No special circumstances making out an exception to the general rule is made out by the appellant. The observations of the Hon'ble Apex Court in paragraph No.59 are also a useful indicator as to how the delay has to be appreciated, irrespective of the standing of the parties.
7. In that view of the matter, we are of the considered opinion that no case is made out for condoning the extraordinary delay of 600 days in preferring the appeal.
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8. Accordingly, I.A. 1/2019 stands rejected.
Consequently, appeal also stands rejected.
Sd/-
JUDGE Sd/-
JUDGE CHS List No.: 1 Sl No.: 21