Kalika Prasad Ojha vs District Magistrate/Arbitrator, ...
2025 Latest Caselaw 1603 ALL

Allahabad High Court

Kalika Prasad Ojha vs District Magistrate/Arbitrator, ... on 4 July, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:37981
 
Court No. - 8
 
(C.M.A.No.IA/2/2025)
 
In re :
 

 
Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 45 of 2023
 

 
Appellant :- Kalika Prasad Ojha
 
Respondent :- District Magistrate/Arbitrator, District Amethi And Ors.
 
Counsel for Appellant :- Mohan Singh,Mahendra Pratap Singh
 
Counsel for Respondent :- Mohd. Yasir Abbasi,C.S.C.
 
Connected with 
 
(C.M.A.No.IA/1/2025)
 
In re :
 
Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 46 of 2023
 

 
Appellant :- Kalika Prasad Ojha
 
Respondent :- District Magistrate/ Arbitrator Amethi And Ors.
 
Counsel for Appellant :- Mohan Singh,Mahendra Pratap Singh
 
Counsel for Respondent :- Mohd. Yasir Abbasi,C.S.C.
 

 
Hon'ble Jaspreet Singh,J.
 

1. This is a batch of two appeals preferred under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act of 1996") being aggrieved against the order dated 30.5.2022 passed by Additional District Judge (E.C.Act), Room No.4, Sultanpur in Misc. Case No.155 of 2019 whereby the petition preferred by the petitioner under Section 34 of the Act of 1996 was rejected. This became the subject matter of ARPLD NO.45 OF 2023.

2. The other connected appeal also impugns the order of 30.5.2022 passed by the Additional District Judge, Court No.4, Sultanpur in Misc. Case No.84/2018 whereby the petition preferred by the appellant under Section 34 of the Act of 1996 was dismissed and this became the subject matter of ARPLD No.46 of 2023.

3. Both the appeals are accompanied by an application under Section 5 of the Limitation Act.

4. Learned counsel for the appellant has submitted that the grounds indicated for seeking condonation of delay is identical in both the matters. Since the issue involved in the two appeals are almost the identical, hence they are being decided by a common order.

5. The application seeking condonation of delay is accompanied by an affidavit of the appellant wherein the ground indicated is the illness of the appellant. The manner in which the delay had been explained, has been indicated in paragraphs 2 to 6 of the affidavit which for the purposes of record is being reproduced hereinbelow :-

"2. That it is submitted that after passing the judgement and order dated 30.5.2022 the deponent fallen ill and he was under treatment upto 31.12.2022. The true/photocopy of the medical certificate is being annexed herewith as Annexure No.D-1 to this affidavit.

3. That when the deponent feels good he met with Mr. Rajesh Kashyap Advocate on 07.01.2023, who prepared a petition under Art.227 of the constitution of India and filed the same before this Hon'ble Court challenging the validity of the impugned judgement and order dated 30.5.20222.

4. That the aforesaid petition under Art.227 No.1032/2023 was listed on 02.03.203 before this Hon'ble Court but on the preliminary objection regarding maintainability of petition the counsel for the petitioner withdrew the same with liberty.

5. That due to prolong medical treatment the financial condition of the deponent is not good and he is facing great problem, therefore he could not approach to this Hon'ble Court promptly after passing the aforesaid order dated 02.03.2023.

6. That the deponent anyhow arraigned some misc. expenses as well as relevant records again approached to Mr. Mahendra Pratap Singh Advocate on 26.5.2023 for filling the case against the impugned judgement and order dated 30.05.2022 passed by the learned court."

6. Learned counsel for the appellant submits that the illness of the appellant prevented him from approaching the court and in the given facts and circumstances, the delay be condoned.

7. He further submits that while considering the application for condonation of delay, the court must as far as possible adopt a legal oriented approach so that the controversy in between the parties, may be decided on merits rather than being foreclosed on technicalities.

8. Shri Mohd. Yasir Abbasi, learned counsel appearing for the National Highways Authority of India(hereinafter referred to as "N.H.A.I.") has objected to the aforesaid submissions and it has been stated that in appeals arising out of arbitration proceedings, the law of liberal constitution of sufficeint cause for seeking condonation of delay does not apply. It is further urged that unless and until the explanation of the delay has been cogently explained, the delay cannot be condoned.

9. Moreover, he further submits that since the appeals arise out of the Arbitration and Conciliation Act, in such cases, the delay of 120 days is termed to be condoned and beyond that the delay cannot be condoned. It is further submitted that in the instant case, even if paragraphs 2 to 6 as relied upon by the learned counsel for the appellant is seen, it would indicate that they are completely vague and there is no specific reasons given for not approaching the court within time. it is also pointed out that the medical certificate which has been filed with the affidavit, also does not inspire confidence as such in light of the pronouncements of the Hon'ble Apex Court in the case of Government of Maharashtra (Water Resources Department) Represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited : (2021) 6 SCC 460 as well as Division Bench decision of this Court in The Project Director, UPHSDP, Lucknow and others Vs. Commercial Court No.1 Lucknow and others ( Neutral Citation No.2025:AHC-LKO:26557) the delay cannot be condoned and the application seeking condonation of delay is liable to be dismissed.

10. The court has heard learned counsel for the parties and also perused the material on record.

11. From reading of paragraphs 2 to 6, as indicated in the affidavit filed in support of the application seeking condonation of delay, it indicates that it has been alleged by the appellant that he had suddenly fallen ill and has been under treatment upto 31.12.2022. He has not indicated as to what was his illness and what prevented the appellant from contesting the proceedings.

12. From perusal of the alleged medical certificate, it would reveal that the medical officer allegedly, who has issued the said certificate, has also not indicated as to the nature of the illness nor it has been indicated that in the circumstances, if the appellant did suffer from the said ailment, whether he required to be completely on the bed i.e. he could not move or walk at all. The certificate only indicates that the appellant would require medical attention, there is nothing worthwhile either in paragraph 2 to 6 to indicate from the medical certificate which may persuade this Court to consider the case of the appellant as to constitute a sufficient cause for not contesting the proceedings. Vague allegations and averments have been made and it appears to be a feeble plea on the part of the appellant to somehow cover the period of limitation in order to seek condonation of delay.

13. In this regard, the decision of the Apex Court in the case of Borse Brothers (supra), is relevant and the relevant paragraph of the said judgement are being reproduced hereinbelow for the ease of reference :

"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."

14. The same issue came up before the Division Bench of this Court in The Project Director, UPHSDP, Lucknow (supra) wherein the court after considering the earlier decision of the Apex Court in the case of Union of India Vs. Varindera Constructions Ltd. : (2020) 2 SCC 111 and Borse Brothers' (supra), has held as under (relevant paragraphs 21 and 22) :-

"(21) Law laid down in both the cases i.e Varindera Construction Ltd. (supra) and M/s N.V. International (supra) came up for consideration before a three-Judge Bench of the Apex Court in Government of Maharashtra Vs M/s Borse Brothers Engineers & Contractors Pvt. Ltd. : 2021 SCC OnLine SC 233, wherein the Apex Court noted the conflicting position vis-a-vis Consolidated Engineering Ltd (supra) and taking into consideration the provisions of Commercial Courts Act, 2015 and decision Consolidated Engineering Ltd. (supra) held that if the specified value of the subject matter is INR 3,00,000.00 or more, then an appeal under Section 37 of the Act must be filed within 60 days from the date of the order as per Section 13 (1A) of the Commercial Courts Act. However, in those rare cases, where the specified value is for a sum less than INR 3,00,000.00 then the appeal under Section 37 of the Act, 1996 would be governed by Articles 116 and 117 of the Schedule of the Limitation Act, as the case may be. The Hon?ble Supreme Court in the said case has held that Section 37 of the Act, 1996 when read with Section 43 of the Act, 1996 and Section 29(2) of the Limitation Act, makes it clear that Section 5 of the Limitation Act will apply to the appeals filed under Section 37 of the Act, 1996 and in holding the said applicability, the Apex Court noted with affirmative that Section 13(1A) of the Commercial Courts Act does not contain any provision akin tosection 34(3)of the Act, 1996 and merely provides for a limitation period of 60 days from the date of the judgment or order appealed against, without going into whether delay beyond this period can or cannot be condoned. However, the Apex Court also noted that condonation of delay, although allowed, cannot be seen in complete isolation of the main objective of the Act, i.e. speedy disposal of disputes. In the light of the same, the Apex Court observed that the expression ?sufficient cause? under Section 5 of the Limitation Act is not elastic enough to cover long delay and merely because sufficient cause has been made out, there is no right to have such delay condoned. The Apex Court further held that only short delay can be condoned by way of an exception and not by the way of rule, and that too, only when the party acted in a bona fide manner and not negligently. Thus, the Apex Court has inter alia held in Government of Maharashtra Vs M/s Borse Brothers Engineers & Contractors Pvt. Ltd. (Supra) as follows :-

?61. Given the aforesaid and the object of speedy disposal sought to be achieved both under theArbitration Actand the Commercial Courts Act, for appeals filed undersection 37of the Arbitration Act that are governed by Articles 116 and 117 of theLimitation Actor 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.?

(22) In the present appeal, this Court finds that the impugned order is dated 07.09.2024. Thus, as on 22.01.2025 i.e. when the appeal was firstly filed, the delay was of about 77 days and as on 07.02.2005 i.e. when the appeal was re-filed along with the application for condonation of delay after removing the defects, the delay was about 93 days. "

15. The same issue was dealt with by the another judgement of Division Bench of this Court in which one of us ( Jaspreet Singh,J) was a member in case of Chief Executive Officer, UPRRDA, Lucknow and others Vs. S.B.Enterprises, VIII, LOHATA : 2025 SCC Online ALL 1474, decided on 18.3.2025 wherein it was held as under ( paragraph 7) :-

"7. The law in relation to condonation of delay in cases relating to the Arbitration and Conciliation Act is well settled as the Hon'ble Supreme Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited : (2021) 6 SCC 460, has laid down as under :

"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."

16. In the light of the settled legal position and the manner in which the appellant has tried to justify the delay, the same cannot be condoned. The application seeking condonation of delay is bereft of any merit. Accordingly, the applications for condonation of delay in both the appeal, are rejected.

17. Consequently, both the appeals also deserve the same fate and accordingly the same too stand dismissed.

Order Date :- 4.7.2025

Shukla