Allahabad High Court
Secretary, Irrigation, Government Of ... vs M/S Gautam Builders And Another on 21 March, 2025
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:42252-DB
Court No. - 21
Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 95 of 2025
Appellant :- Secretary, Irrigation, Government Of Up, And 2 Others
Respondent :- M/S Gautam Builders And Another
Counsel for Appellant :- Rajiv Singh
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Anish Kumar Gupta,J.
1. The instant appeal has been filed by the Department of Irrigation under Section 37 of the Arbitration and Conciliation Act, 1996 (the 'Act, 1996') challenging the judgment and order of Commercial Court dated 19.01.2021, rejecting the objection of the appellants under Section 34 of the Act, 1996 against the award of the Arbitrator dated 15.02.2011 as barred by limitation.
2. The appeal has been filed with a delay of 1448 days. If we go through the explanation given for the delay, we find it to be a result of gross negligence and callous approach and not for any reason beyond the control of the appellants.
3. The impugned order of the Commercial Court is dated 19.01.2021. On 12.02.2021, the Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur wrote to the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to obtain legal opinion in respect of the said order. The Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur after getting legal opinion from the District Government Counsel, Kanpur Nagar forwarded the same to the Executive Engineer along with letter dated 08.03.2021. On 12.03.2021 the Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur forwarded the legal opinion to the Superintending Engineer, Second Circle, Irrigation Works, Kanpur with a request to take proper and appropriate steps. The Superintending Engineer, in turn, forwarded the same to the Chief Engineer (Ram Ganga) Irrigation and Water Resource Department, U.P. Kanpur. At the same time, he also directed the Executive Engineer to prepare a brief history of the case. On 03.04.2021, the Executive Engineer once again wrote to the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to prepare a brief history of the case. On 08.07.2021, the Executive Engineer informed the Superintending Engineer about the application of the respondent to comply with the judgment and order of the Commercial Court dated 19.01.2021. Despite having full knowledge that the claimant-respondent has been insisting for compliance of the order, no concrete step was taken to ensure filing of the appeal. On 07.01.2022, the Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur Nagar again wrote the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to provide a brief history of the case. On 03.03.2022, the history of the case was provided to the Executive Engineer. The Executive Engineer, for reasons best known to him, returned the file once again to Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to provide summary of the case in five sets under his signature. On 04.04.2022, the said direction was complied with. Again, the Executive Engineer vide letter dated 16.04.2022 returned the file to Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur with direction to rectify some errors and resubmit it to his office. It is stated that the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur resubmitted the file vide letter dated 21.04.2022. The Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur, thereafter, vide letter dated 13.05.2022 forwarded the file to the Superintending Engineer and who on 18.05.2022 forwarded the file to Chief Engineer (Ram Ganga), Irrigation and Water Resource Department, U.P. Kanpur. This time, the Chief Engineer returned the file for obtaining signatures of Superintending Engineer over the same as was done by the Executive Engineer in the past in respect of the summary provided by Assistant Engineer. The Superintending Engineer on 19.05.2022 further returned the file to the Executive Engineer with direction to verify it under his signature and resubmit it. The Executive Engineer vide letter dated 23.05.2022 transmitted the file to Assistant Engineer to provide verified copy of the attachments to the summary of the case. The Assistant Engineer vide letter dated 31.05.2022 complied with the direction. The file was transmitted to the office of Executive Engineer and then to the office of Superintending Engineer and thereafter, to the office of Chief Engineer. It is stated that on 09.06.2024, the Superintending Engineer directed the Executive Engineer to remain present in the office of Chief Engineer to ensure resolution of the issue. However, it is alleged that the Executive Engineer failed to take appropriate steps and speedy action in the matter.
4. On 01.02.2024, the Superintending Engineer directed the Executive Engineer to take appropriate steps to contest the execution proceedings initiated by the claimant-respondent. At this stage, it is alleged that the Executive Engineer vide letter dated 01.02.2024 called for explanation from Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur about the delay caused in the matter. Thereafter, on 08.02.2024, it is further alleged that Executive Engineer directed Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to do effective pairvi in the execution case. It is noteworthy that while direction was issued to do effective pairvi in execution case, no direction was issued to ensure filing of the appeal. On 08.02.2024, the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur informed the Executive Engineer that a copy of the brief history has been provided to the circle office. On 13.02.2024, the Superintending Engineer again directed Executive Engineer to provide information to his office regarding action taken in the execution case but not regarding filing of the appeal. On 28.03.2024, again direction was issued by Superintending Engineer to inform him of the status of execution case. On 02.05.2024, it is alleged that the Superintending Engineer called a meeting in his office and on 18.05.2024, the Executive Engineer again submitted brief history of the case in five sets to the Superintending Engineer and the Superintending Engineer vide letter dated 22.05.2024 forwarded the file to the Chief Engineer.
5. On 25.05.2024, the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur was present in the office of the Chief Engineer. He again raised certain objections and the officials below him were directed to remove the objections. On 28.05.2024, Chief Engineer (Ram Ganga) Irrigation and Water Resource Department, U.P. Kanpur forwarded the file to Chief Engineer (Central) Level-1, Irrigation and Water Resources Department, Lucknow. On 14.06.2024, request was made to under Secretary, Irrigation and Water Resources Department to grant permission to file appeal. On 14.06.2024, the department sought information as regards names of the officials who were responsible for delay.
6. Even at this stage, the matter kept moving at snail's pace. The State Government vide letter dated 18.09.2024, requested Principal Engineer and Head of Department to obtain legal advise and provide the same to his office. Concededly, at the very initial stage itself, legal opinion of the DGC was duly obtained but once again, the State Government vide letter dated 18.09.2024 directed the office of Principal Engineer and Head of Department to obtain legal advise, this time from the State Law Officer. The Chief Engineer directed the Superintending Engineer vide letter dated 22.10.2024 to obtain legal opinion of State Law Officer. Thereafter, Superintending Engineer vide letter dated 23.10.2024 directed the Executive Engineer to obtain legal advise and ultimately the legal opinion was again obtained and it was forwarded to the Nodal Officer and Principal Engineer (Legal Coordination Cell), Irrigation and Water Resources Department, Lucknow. Office of the Principal Engineer forwarded the same to the under Secretary, Irrigation and Water Resources Department vide letter dated 05.11.2024.
7. Admittedly, the objections under Section 34 have been rejected on the ground that the same were filed beyond statutory period prescribed under Section 34(3) of the Act, 1996 but regretfully the appellants instead of acting with utmost expedition in filing the appeal once again acted in a most casual manner resulting in delay of more than four years.
8. The most interesting feature is that the State Government was conscious of the fact that there had been delay of four years and it would not be possible to explain the same. It, therefore, vide its letter dated 11.12.2024 addressed to the Chief Engineer/Head of Department, Irrigation and Water Resources, Government of U.P., permitted filing of appeal by the department at its own risk. The appeal was ultimately filed on 07.03.2025.
9. Although, the Department has mentioned about letters dated 06.01.2024 and 09.01.2025, whereby, information was sought regarding name of the officials responsible for delay in filing the appeal, it is clear from the fact narrated above that at every stage, the officers of the department acted in a most irresponsible manner. Despite information about filing of execution proceedings, no urgency was shown except movement of the file from one officer to other.
10. We are conscious of the fact that in governments departments it takes more time to obtain necessary approvals in view of the procedural requirements but as noted above, the instant case is a case of gross negligence and callous approach and would not fall within exception carved out by the Supreme Court in various judgments in relation to the appeals under Section 37 of the Act, 1996.
11. We may note the few judgments of the Supreme Court on the point. In Government of Maharashtra (Water Resources Department) Represented by Executive Engineer vs. Borse Brothers Engineers and Contractors Private Limited1, the Supreme Court held that although Section 5 of the Limitation Act will apply to the appeals filed under Section 37 of the Act, 1996, however, the expression 'sufficient cause' under Section 5 of the Limitation Act, having regard to the objective of the Act i.e. speedy disposal of disputes, would not cover long delays in cases of deliberate inaction and negligence. The usual explanation that the file was kept pending for several months due to procedural red tape cannot be accepted as a sufficient ground for condoning the delay. The delay can be condoned only by way of exception and not as a rule. The relevant observations in paragraph-63 of the judgment are as under:
"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."
12. In State of Uttar Pradesh & Others Vs. M/s. Satish Chandra Shivhare & Brothers2, which also arose out of rejection of the appeal under Section 37 of the Act, 1996 on ground of delay in filing it, it has been observed as follows:
"17. The explanation as given in the affidavit in support of the application for condonation of delay filed by the petitioners in the High Court does not make out sufficient cause for condonation of the inordinate delay of 337 days in filing the appeal under Section 37 of the Arbitration and Conciliation Act. The law of limitation binds everybody including the Government. The usual explanation of red tapism, pushing of files and the rigmarole of procedures cannot be accepted as sufficient cause. The Government Departments are under an obligation to exercise due diligence to ensure that their right to initiate legal proceedings is not extinguished by operation of the law of limitation. A different yardstick for condonation of delay cannot be laid down because the government is involved.
21. The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant.
22. When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is glimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning."
13. In Postmaster General v. Living Media (India) Ltd.3, it has been held that a different yardstick for condonation of delay cannot be applied to the Government. Thus, similar explanation, as submitted in the present case, relating to methodology of making notes and moving of file through different channels, was not accepted. The relevant observations are as follows:
"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."
14. Having regard to the principles of law laid down in the above judgments, we are of the opinion that there is absolutely no cause much less any sufficient cause to accept the explanation for delay in filing the appeal. Accordingly, the delay condonation application is rejected.
15. In the result, the appeal also stands dismissed.
Order Date :- 21.3.2025
Mukesh Kr.
(Anish Kumar Gupta,J.) (Manoj Kumar Gupta,J.)
