Calcutta High Court
Hindustan Aeronautics Ltd vs Civcon Construction Pvt. Ltd on 21 August, 2024
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OCD-20
ORDER SHEET
APOT/75/2024
IA NO: GA-COM/1/2024, GA-COM/2/2024
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
COMMERCIAL DIVISION
HINDUSTAN AERONAUTICS LTD.
VS
CIVCON CONSTRUCTION PVT. LTD.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date: 21st August, 2024.
Appearance:
Ms. Nilanjana Adhya, Adv.
Mr. Dipankar Das, Adv.
...for the appellant
Mr. Debraj Sahu, Adv.
...for the respondent
The Court: The present application, being GA-COM/1/2024, has been
filed for condonation of delay in filing an appeal under Section 37 of the
Arbitration and Conciliation Act, 1996.
In the various paragraphs of the petition which are placed by learned
counsel for the petitioner, the primary ground taken for the delay is differences
of opinion between learned advocates advising the petitioner and somewhat
procedural wrangles in the matter of moving for administrative approvals
between intra-departmental authorities.
Learned counsel for the respondent opposes the prayer for condonation
and submits that, counting the limitation to be 60 days as in commercial
matters, there is a delay of about 71 days in preferring the present challenge.
Learned counsel for the respondent places strong reliance on the
judgment of Government of Maharashtra (Water Resources Department)
Represented by Executive Engineer vs. Borse Brothers Engineers and
Contractors Private Limited reported at (2021)6 SCC 460 in support of the
contention that in commercial disputes, the limitation period is 60 days.
Learned counsel further places reliance on the said judgment in support
of the proposition that to read Section 5 of the Limitation Act consistently with
the object of the Arbitration and Conciliation Act, 1996 and the Commercial
Courts Act, it is necessary to discover as to what the expression "sufficient
cause" means in the context of condoning delays in filing appeals under
Section 37 of the said Act. The Supreme Court observed that given the object of
speedy disposal sought to be achieved by both the said statutes, for appeals
filed under Section 37 of the 1996 Act that are governed by Articles 116 and
117 of the Limitation Act or under 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 had
otherwise acted bona fide and not in a negligent manner, a short delay beyond
such period can, according to the Supreme Court, 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 equity and justice, which
may now be lost by the first party's inaction, negligence or laches.
The Supreme Court further observed that 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. Given the
object sought to be achieved by the 1996 Act and the Commercial Courts Act,
that is, speedy resolution of disputes, the said expression is not elastic enough
to cover long delays beyond the period provided by the provision itself.
The Supreme Court further observed that merely because the
government is involved, a different yardstick for condonation of delay cannot be
laid down.
Hence, it is argued that the present application ought to be dismissed.
The parameters of consideration of an application for condonation of
delay in commercial matters involving government entities has been succinctly
laid down in the Borse Brothers matter, cited by the respondent. The
reasons/causes given in the present application are to be looked into through
such lens. The present appellant/petitioner has stated that it was required to
obtain necessary administrative approvals from various authorities which led
to unavoidable delay in processing of approval of the proposal for appointing an
alternative advocate. It has also been stated that the said change of advocates
was necessitated due to varying legal opinion as to the requirement and
plausibility of preferring the present appeal.
In the different paragraphs of the application, extensive details have been
given as regards the dates when the papers were handed over by the erstwhile
advocate to the current learned advocate for the petitioner i.e., on or about
January 29, 2024, and when the present advocate decided to prefer an appeal
against the impugned order dated October 13, 2023.
Upon a comprehensive perusal of the different paragraphs of the
application, I am of the opinion that sufficient cause has been shown by the
petitioner, by giving elaborate details of each step of the delay. Even without
giving any additional edge to the petitioner in the capacity of a government
entity, seen from an egalitarian perspective as well, the petitioner, as an
ordinary litigant also, has explained the cause sufficiently for the purpose of
condonation of delay. Just as governmental agencies are not favoured litigants,
unnecessary bias ought not to operate against such entities as well.
As such, GA-COM/1/2024 is allowed, thereby condoning the delay in
filing the appeal under Section 37 of the 1996 Act, bearing APOT/75/2024.
Accordingly, the said appeal is taken on record.
Learned counsel for the respondent, at this juncture, seeks an
adjournment regarding the hearing of the appeal under Section 37 with the
connected stay application.
Accordingly, let the matter stand adjourned for the day.
(SABYASACHI BHATTACHARYYA, J.)
bp./R Bhar
