Allahabad High Court
State Of U.P. And 2 Others vs M/S Prayag Electric Company And Another on 3 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:161915 Court No. - 5 Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 213 of 2024 Appellant :- State Of U.P. And 2 Others Respondent :- M/S Prayag Electric Company And Another Counsel for Appellant :- Rudra Pratap Singh,Shubham Agrawal Counsel for Respondent :- Ashish Agrawal,Shubham Agrawal Hon'ble J.J. Munir,J.
Order on Civil Misc. Delay Condonation Application No. 1 of 2018
1. Heard Mr. Rishi Kumar, learned Additional Chief Standing Counsel appearing on behalf of the appellants in support of the delay condonation application and Mr. Ashish Agrawal, learned counsel appearing on behalf of the respondents, in reply.
2. This is an application under Section 5 of the Limitation Act, 1963 (for short, 'the Act of 1963'), seeking to condone the delay in filing an Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act of 1996'). The total period of delay reported by the Stamp Reporter is 140 days.
3. The appeal has been preferred from a judgment and order dated 28.11.2017 passed by the learned District Judge, Allahabad in Arbitration Case No.30 of 2002, under Section 34 of the Act of 1996, brought to set aside the Arbitrator's award dated 21.04.2002 passed against the applicant-appellants. The learned District Judge has, by his order dated 28.11.2017, rejected the application under Section 34 of the Act of 1996, leading the applicants to prefer the accompanying appeal under Section 37 of the Act last mentioned. The explanation about the delay in preferring this appeal can most faithfully be recapitulated in the words of the deponent, filing the affidavit in support of the delay condonation application, that read:
"2. That after obtaining copy of the judgment and order dated 28.11.2017 Executive Engineer wrote a letter dated 3.5.2018 to superintending engineer lift irrigation Mandal Varanasi for approval to file appeal against the judgment and order dated 28.11.2017. A copy of the letter dated 3.5.2018 is being filed herewith and marked as Annexure No.1 to this affidavit.
3. That on 10.5.2018 senior staff officer Nalkoop Varanasi also wrote a letter for approval to file appeal. A copy of the letter dated 10.5.2018 is being filed herewith and marked as Annexure No.2 to this affidavit.
4. That on 19.06.2018 additional legal advisor also wrote a letter to Chief Standing Counsel for filing appeal against the judgment and order dated 28.11.2017. A copy of the letter dated 19.06.2018 is being filed herewith and marked Annexure No.3 to this affidavit.
5. That on 27.06.2018 joint Secretary U.P. Government inform to Chief Engineer (yantrik) irrigation and water sansdhan department that on 19.6.2018 consent has been given for filing appeal. A copy of the letter dated 27.6.2018 is being filed herewith and marked as Annexure No.4 to this affidavit.
6. That on 30.06.2018 Executive Engineer lift irrigation Nirman Khand Varanasi nominated Assistant Engineer for doing pairavi in the present case. A copy of the letter dated 30.6.2018 is being filed herewith and marked as Annexure No.5 to this affidavit.
7. That on 4.07.2018 the signature of the pairokar as been verified and then the pairokar came Allahabad on 16.7.2018 and prepare the case without any further delay and filed case. A copy of the letter dated 4.7.2018 is being filed herewith and marked as Annexure No.6 to this affidavit.
8. The delay, if any, in filing the present First Appeal From Order is neither deliberate nor intentional but due to some unavoidable administrative reasons, which were beyond the control to the appellants, as such the same is liable to be condoned by this Hon'ble Court."
4. A Division Bench of this Court in Kanpur Development Authority v. M/s. Aradhana Constructions, 2023:AHC: 236754-DB had before their Lordships an application for condonation of delay, in aid of an appeal under Section 37 of the Act of 1996, preferred from a judgment and decree of the Commercial Court, Kanpur Nagar in an execution case. No doubt, in that case, there was the added dimension of the limitation under Section 13 (1-A) of the Commercial Courts Act, 2015 (for short, 'the Act of 2015'), but in examining the law relating to condonation of delay, in an appeal under Section 37 of the Act of 1996, binding authority on the point was noticed in the following words:
"8. The primary aspect which arises for consideration in this appeal is as to whether the petition filed under Section 37 of the Act 1996 was within the period of limitation provided therein. If not, whether the delay is condonable by exercise of power under Section 5 of Limitation Act.
9. The Hon'ble Supreme Court in P. Radha Bai vs. P. Ashok Kumar, 2019 (13) SCC 445, has held as follows:-
"33.2. The proviso to Section 34 (3) enables a court to entertain an application to challenge an award after the three months' period is expired, but only within an additional period of thirty dates, "but not thereafter". The use of the phrase "but not thereafter" shows that the 120 days' period is the outer boundary for challenging an award. If Section 17 were to be applied, the outer boundary for challenging an award could go beyond 120 days. This Court has consistently taken this view that the words "but not thereafter" in the proviso of Section 34 (3) of the Arbitration Act are of a mandatory nature, and couched in negative terms, which leaves no room for doubt."
10. The Hon'ble Supreme Court in Union of India vs. M/s Varindra Construction Ltd., 2020 (2) SCC 111, has held that since a Section 34 application has to be filed within a maximum period of 120 days including the grace period of 30 days, an appeal filed from the self-same proceeding under Section 37 should be covered by the same drill. Given the fact 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.
11. That the Hon'ble Supreme Court in the matter of Government of Maharashtra (Water Resources Department) Represented by Executive Engineer Vs. M/s Borse Brothers Engineers & Contractors Pvt. Ltd., 2021 (6) SCC 460, has held that, given the aforesaid 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 of the Limitation Act or Section 13(1A) of the Commercial Courts Act, a delay beyond prescribed time can only be condoned by way of exception and not by way of rule only in a fit case in which a party has otherwise acted bonafide 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.
12. That the Hon'ble Supreme Court in the matter of Mahindra and Mahindra Financial Services Ltd. Vs Maheshbhai Tinabhai Rathod and others, 2022 (4) SCC 162, has held that where limitation is prescribed and the extent to which it can be condoned is circumscribed, the Court, under Section 5 of Limitation Act cannot condone the delay beyond the period prescribed under the Arbitration and Conciliation Act."
5. Given the facts, that are not much discussed in M/s. Aradhana Constructions (supra), their Lordships of the Division Bench declined to condone the delay of 114 days in preferring the appeal. In Union of India v. M/s. Bharat Construction, 2022 (6) AWC 5557, which again involved, apart from Section 34 of the Act of 1996, the provisions of Section 13(1-A) of the Act of 2015, the Division Bench was of opinion that given the position of the law, which their Lordships surveyed in great detail, the delay of 258 days in preferring the appeal could not be condoned. The Division Bench relied upon State of Maharashtra (Water Resources Department) represented by Executive Engineer v. M/s. Borse Brothers Engineers and Contractors Private Limited, (2021) 6 SCC 460, in particular, the following remarks in paragraph No.63 of the report:
"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 party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches."
6. It is in the context of all this law noticed by the Division Benches of this Court in M/s. Aradhana Constructions and M/s. Bharat Construction (supra) that the prayer for condonation of delay has to be considered here. But, before that is done, it would be apposite to notice the provisions of Section 34 (3) of the Act of 1996, which read:
"34. Application for setting aside arbitral award.--(1) x x x (2) x x x (2-A) x x x (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
(emphasis by Court)
7. While the remarks of their Lordships in M/s. Borse Brothers (supra) in paragraph No.63 of the report might have made it possible for the Court to consider 'sufficient cause' in the event of delay beyond 120 days also and then to exercise discretion, if the delay deserved condonation, the discouragement against the liberal-handed approach in condoning delays in the exercise of powers under Section 5 of the Act of 1963, be it an appeal under the Act of 1996 from an order of the District Judge, governed by Articles 116 and 117 of the Act of 1963 or from a Commercial Court's order, governed by Section 13(1-A) of the Act of 2015, is unmistakable.
8. Now is time to turn to the explanation given in the present case by the applicants for seeking condonation of delay, where, what has first to be understood is the expression 'sufficient cause', occurring in Section 5 of the Act of 1963. Again, in a context similar to the present one, except the shadow of Section 13(1-A) of the Act of 2015, that was there before their Lordships of the Supreme Court in M/s. Borse Brothers, 'sufficient cause', for all that it would mean, was enunciated thus:
"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 [Ajmer Kaur v. State of Punjab, (2004) 7 SCC 381] , 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) "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. 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 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. [Brahampal v. National Insurance Co., (2021) 6 SCC 512] , 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 [Brahampal v. National Insurance Co., (2021) 6 SCC 512] , 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 such discretion conferred upon the court. [Refer to Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad [Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad, AIR 1963 SC 120] ; Prakash Chand Agarwal v. Hindustan Steel Ltd. [Prakash Chand Agarwal v. Hindustan Steel Ltd., (1970) 2 SCC 806] ] 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.
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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 [P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 : (2018) 5 SCC (Civ) 773] , 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 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 inPopular 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. : 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 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 [Brahampal v. Dilbag Singh, 2016 SCC OnLine Utt 2582] 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 claims. This Court, in Basawaraj v. LAO [Basawaraj v. LAO, (2013) 14 SCC 81] , 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 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 [Manindra Land & Building Corpn. v. Bhutnath Banerjee, AIR 1964 SC 1336] , Mata Din v. A. Narayanan [Mata Din v. A. Narayanan, (1969) 2 SCC 770] , Parimal v. Veena [Parimal v. Veena, (2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24] .)
10. In Arjun Singh v. Mohindra Kumar [Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993] 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 [Madanlal v. Shyamlal, (2002) 1 SCC 535] and Ram Nath Sao v. Gobardhan Sao [Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195] .)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it 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) 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. [Popat & Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510] , Rajender Singh v. Santa Singh [Rajender Singh v. Santa Singh, (1973) 2 SCC 705] and Pundlik Jalam Patil v. Jalgaon Medium Project [Pundlik Jalam Patil v. Jalgaon Medium Project, (2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] .)
14. In P. Ramachandra Rao v. State of Karnataka [P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 : 2002 SCC (Cri) 830] 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 [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93] .
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 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)
59. Likewise, merely because the Government is involved, a different yardstick for condonation of delay cannot be laid down. This was felicitously stated in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] ["Postmaster General"], as follows : (SCC pp. 573-74, paras 27-29) "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
60. The decision in Postmaster General [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] has been followed in the following subsequent judgments of this Court:
(i) State of Rajasthan v. Bal Kishan Mathur [State of Rajasthan v. Bal Kishan Mathur, (2014) 1 SCC 592] at paras 8-8.2;
(ii) State of U.P. v. Amar Nath Yadav [State of U.P. v. Amar Nath Yadav, (2014) 2 SCC 422] at paras 2-3;
(iii) State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] at paras 11-13; and
(iv) State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654 : (2021) 1 SCC (Civ) 101 : (2021) 1 SCC (Cri) 117 : (2021) 1 SCC (L&S) 84] at paras 3-4."
9. The remarks in paragraph Nos.59 and 61 of the report in M/s. Borse Brothers and earlier authorities of the Supreme Court mentioned there would show that the State, as a litigant, does not enter the Court in a delay condonation matter with a premium about its explanation, making it acceptable by a different and more liberal standard than a private litigant. Here, if the explanation offered by the applicants were seen, it brooks little doubt that after the judgment and order dated 28.11.2017 was obtained by the Executive Engineer, he wrote a letter to the Superintending Engineer, Lift Irrigation Division, Varanasi for the first time on 03.05.2018. The judgment impugned was delivered on 28.11.2017, and though not expressly said in the affidavit, when a copy of the same was ready and when it was received, it appears from the rather unexplained dates mentioned on the folio that a certified copy of the impugned judgment was applied for on 06.12.2017, it was ready on 15.12.2017 and delivered on 18.12.2017. Even if the aforesaid unexplained dates mentioned on the folio of the certified copy are not understood the way this Court has taken it, the period of limitation would have to be reckoned from the date of the judgment delivered by the learned District Judge. In either case, from 28.11.2017 or 15.12.2017, the applicants waited admittedly until 03.05.2018, when the Executive Engineer, Lift Irrigation Construction Division, Varanasi addressed his first letter to the Superintending Engineer, Lift Irrigation Circle, Varanasi, moving him to appeal the learned District Judge's judgment under Section 37 of the Act of 1996.
10. By the time the first step was taken, the limitation of 90 days was already over. There is absolutely no explanation given in the affidavit as to what prevented the applicants from applying or even moving to appeal between 28.11.2017 and 03.05.2018, when the Executive Engineer wrote his first letter to the Superintending Engineer, requesting the latter to secure necessary permission for filing an appeal to this Court. In the absence of any explanation for the delay between 28.11.2017 and 03.05.2018, it can hardly be said that there is any sufficient cause shown, on the foot of which this Court may consider exercising our discretion to condone the delay.
11. In the counter affidavit filed to the delay condonation application, the delay for the period subsequent to 03.05.2018, that was sought to be explained with reference to the correspondence between various officials of the State, has been answered by the respondents, saying that internal correspondence would not explain away the delay by 'sufficient cause', so as to entitle the applicants to have it condoned. In the rejoinder affidavit, all that is said to clarify the delay and make out 'sufficient cause' is to be found in paragraph Nos.11, 12 and 13, which read:
"11. That the contents of paragraph no. 9 and 10 of the counter affidavit has not admitted as averted further in its reply it is submitted that as soon the copy of the judgment and order dated 28.11.2017 was received by the office, executive engineer initiated the process through letter dated 03.05.2018 and before parawise narrative, complete facts along with the annexure was collected which took sometime, this is why the delay between 28.11.2017 to 03.05.2018 and the delay was not deliberate.
12. That in reply to the contents of paragraph no. 11 of the counter affidavit is not admitted as stated further it is humbly submitted that being government entity without proper approval and permission from the higher and competent authority no appeal could be filed without approval of the State/ Department concerned.
13. That the contents of the paragraph no. 12 of the counter affidavit as stated are not admitted hence denied. It is submitted here that the delay if any, in filing the appeal is neither deliberate nor intentional but due to unavoidable administrative reasons, which were beyond the control to the appellant."
12. Now, the contents paragraph No.11 of the rejoinder affidavit do not explain, what made the Executive Engineer wait between 28.11.2017 to 03.05.2018 in applying for permission to appeal internally. Even if he did not have some papers, about which it is said that these were being organized and collected, how long would it take to collect papers for the purpose of seeking an internal permission to appeal, can well be understood not as a period of time stretching over five months.
13. The next limb of the explanation, that has come through as a buttress in the rejoinder paragraph No.12 thereof, says that the applicants being a Government entity, no appeal, without proper approval and permission from higher and competent Authority, could be filed. It has been repeatedly emphasized and the Government have been almost warned by Courts not to take support of their position as a sovereign while pitted against private parties in litigation, where they have limitation to explain. This was precisely the principle that was laid down in Postmaster General and others v. Living Media India Ltd. and another, (2012) 3 SCC 563 and State of M.P. and others v. Bherulal, (2020) 10 SCC 654, both of which were quoted with approval by the three Judge Bench of the Supreme Court in M/s. Borse Brothers.
14. This Court must notice here that repeat pleas of the kind that the State is entitled to a premium in matters of condonation of delay do not just come from the concerned of the officials, In-charge of State litigation, or the other officials involved, anxious to secure a certificate of approval from the highest Court accessible, but more by the fact that officials of the State almost pride themselves in the fact that they have a machinery at their command to litigate at the cost of the exchequer, which they can unscrupulously use to drag a private litigant in Court for years.
15. Before parting with this matter, it must be remarked that looking to the overall conduct of the applicants, this Court was minded to award heavy costs to the respondents, but considering the fact that the burden ultimately would pass on the ordinary tax-payers, we refrain from doing so.
16. In the considered opinion of this Court, no sufficient cause to condone the delay, involved in preferring this appeal, is made out. This application for condonation of delay is, accordingly, rejected.
Order on Appeal u/s 37 of the Arbitration and Conciliation Act, 1996 Defective No. 213 of 2024
17. The application for condonation of delay having been rejected by my order of date passed on the said application, the memo of appeal stands rejected as time barred.
18. There shall be no order as to costs.
Order Date :- 03.10.2024 Anoop (J.J. Munir, J.)