Jharkhand High Court
M/S. Hindustan Steel Works ... vs Bharat Construction Company on 17 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Commercial Appellate Jurisdiction)
Commercial Appeal No. 15 of 2019
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M/s. Hindustan Steel Works Construction Limited & Ors.
... Appellants
Versus
Bharat Construction Company ...Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mrs. J. Mazumdar, Advocate
Mr. Parambir Singh Bajaj, Advocate
For the Respondent : Mr. A. K. Das, Advocate
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Order No. 9/Dated: 17th March 2023
I.A No. 452 of 2021
This application has been filed under section 5 of the
Limitation Act for condoning the delay of 65 days which initially
occurred at the time of filing of the appeal labelled as First Appeal
No. 352 of 2018 - appeal was filed on 7th September 2018.
It appears that the application under section 5 of the
Limitation Act was filed on 21st January 2021.
In the application under section 5 of the Limitation Act,
the appellant has stated as under:
"6. That it is humbly stated that for filing of the appeal permission
had to be taken from the management.
7. That it is humbly stated that the file was moved in the office
but since there was a reshuffling of the management so there was
some delay in the filing of the said appeal.
8. That it is humbly stated that infact the new management who
has taken over the charge of NBCC (India Ltd.) had to pursue the
documents of the said case as it relates to company case and due to
which there has been a delay in filing of the said appeal.
9. That it is humbly stated that due to the reshuffling of the
management and matter relates to company case and the new
management has taken opinion from their law department and this
was also one of the reasons for the delay.
10. That it is humbly stated that infact the delay of 65 days is due
to reshuffling of the management and it is a company matter and
the company has to abide by its terms and could not file the said
appeal in time.
11. That the appellants state that the council after drafting and
finalizing the commercial appeal same was filed by 07.09.2018."
Mr. A. K. Das, the learned counsel for the sole
respondent has submitted that delay beyond period of 60 days
normally should not be condoned in the matters arising out of the
2 Commercial Appeal No. 15 of 2019
Commercial Courts Act, 2015.
The learned counsel for the respondent refers to the
judgment in "Government of Maharashtra (Water Resources
Department) Represented by Executive Engineer v. Borse Brothers
Engineers and Contractors Private Limited" (2021) 6 SCC 460 to lay
support to the aforesaid submission that I.A No. 452 of 2021 is
liable to be dismissed.
In "Borse Brothers Engineers and Contractors Private
Limited" the Hon'ble Supreme Court has held 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.
67. That apart, on the facts of this appeal, there is a long delay
of 75 days beyond the period of 60 days provided by the
Commercial Courts Act. Despite the fact that a certified copy of the
District Court's judgment was obtained by the respondent on
27-4-2019, the appeal was filed only on 9-9-2019, the explanation
for delay being:
"2. That, the certified copy of the order dated 1-4-2013 was
received by the appellant on 27-4-2019. Thereafter the matter
was placed before the CGM purchase MPPKVVCL for the
compliance of the order. The same was then sent to the law
officer, MPPKVVCL for opinion.
3. That after taking opinion for appeal, and approval of the
authorities concerned, the officer-in-charge was appointed vide
order dated 23-7-2019.
4. That, thereafter due to bulky records of the case and for
procurement of the necessary documents some delay has been
caused however, the appeal has been prepared and filed
pursuant to the same and further delay.
5. That due to the aforesaid procedural approval and since the
appellant is a public entity formed under the Energy Department
of the State Government, the delay caused in filing the appeal is
bona fide and which deserve[s] to be condoned."
It appears that in Commercial (Money Suit) Case No. 52
of 2008 the claim of the respondent has been allowed to the
extent of Rs. 58,43,761/-. The appellant-company is a Central
Government Undertaking which in the last few years has faced
serious difficulties and turbulence in its working.
In view of "M. K. Prasad v. P. Arumugam (2001) 6 SCC
176 it is now well-settled proposition in law that while examining
3 Commercial Appeal No. 15 of 2019
the application under section 5 of the Limitation Act, the Court
may look into the probable loss which may be caused to the
aggrieved party and, therefore, delay occurred in filing the
petition/appeal may be condoned by imposing appropriate cost.
Having regard to the aforesaid facts and circumstances
in the case, we have formed a decision to grant an opportunity to
the appellant to contest the matter on merits. Therefore, the delay
occurred in preferring this commercial appeal needs to be
condoned, by imposing cost of Rs.55000/- which shall be paid to
the sole respondent within a period of four weeks.
I.A No. 452 of 2021 is allowed in the aforesaid terms.
Commercial Appeal No. 15 of 2019
Post this matter on 20th April 2023 to be listed under
the heading "Final Disposal".
Before the next date of hearing both parties shall file
written submissions and produce compilation of judgments, if any.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Amit/
