National Highways Authority Of ... vs Smt Meerashivalingaiah
2023 Latest Caselaw 4975 Kant

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28   TH
                                    DAY OF JULY, 2023
                                                            R
                          BEFORE
           THE HON'BLE MR. JUSTICE H.P. SANDESH
                  M.F.A. NO.1402/2023 (AA)
BETWEEN:

1.     NATIONAL HIGHWAYS AUTHORITY OF INDIA
       PROJECT IMPLEMENTATION UNIT-RAMANAGARA,
       NEAR BASAVANAPURA
       (RAMADEVARAPADA)
       RAMANAGARA-562 128.
       REP. BY ITS THE PROJECT
       DIRECTOR B.T.SRIDHARA.

2.     SPECIAL LAND ACQUISITION OFFICER
       AND COMPETENT AUTHORITY, NH-275,
       BANGALORE MYSORE DIVISION, MANDYA
       (THE APPELLANT IS NECESSARY PARTY A
       ND HENCE ARRAYED AS APPELLANT)
                                                 ... APPELLANTS
          (BY SRI PRAKASHA ANGADI B.V., ADVOCATE)
AND:

1.     SMT. MEERASHIVALINGAIAH
       D/O S.T. NAGALAKSHMI
       W/O B. SHIVALINGAIAH,
       R/AT TAVEREGERE, MANDYA CITY.

2.     THE ARBITRATOR AND
       DEPUTY COMMISSIONER
       MANDYA DISTRICT,
       MANDYA.                                 ... RESPONDENTS

       (BY SRI P.V.CHANDRASHEKAR, ADVOCATE FOR R1;
         MRS.LEENA C. SHIVAPURMATH, HCGP FOR R2)
                                2




     THIS M.F.A. IS FILED UNDER SECTION 37(1)(C) OF THE
ARBITRATION AND CONCILIATION ACT, AGAINST THE ORDER
DATED 30.03.2021 PASSED IN A.S.NO.1/2019 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANDYA,
DISMISSING THE PETITION FILED UNDER SECTION 34 OF THE
ARBITRATION AND CONCILIATION ACT READ WITH ORDER VII
RULE 1 OF CPC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    12.07.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:


                        JUDGMENT

The appellants have filed an application under Section 5 of

the Limitation Act to condone the delay of 270 days in filing the

above appeal and in support of an application, an affidavit is

sworn to that, the judgment passed by the Hon'ble District

Judge, Mandya, is against the provisions of law and the

judgment was passed on 30.3.2021 and a copy of the judgment

was sent for obtaining the legal opinion. After receipt of the

opinion, it is observed that the impugned judgment passed was

erroneous and it requires to be challenged and hence decided to

challenge the impugned order by filing the above appeal.

2. It is sworn to that, on account of the procedure involved

in finalizing the papers and processing the same, there is a bit

delay in filing the above appeal and with an abundant caution,

the above application is filed for seeking condonation of delay.

3. This application is resisted by filing the statement of

objections by the respondents contending that the very

application is not maintainable. In the statement of objections it

is contended that admittedly the appeal is filed after the delay of

605 days and no cogent reason is forthcoming for the said undue

delay. The only reason forthcoming is that matter was sent for

legal opinion and the file could not be found and could not be

traced, are not the cogent reasons. In fact, the reason assigned

is, delay and latches on the part of the appellants. It is

contended that execution petition was filed in No.118/2022

before the Principal District and Sessions Judge, Mandya and the

appellants have filed objections on 2.6.2022 stating that

execution petition was not maintainable because of non

furnishing the conversion order and layout plan. Hence, it is

clear that the appellants have accepted the judgment and decree

of the District Judge and appellants had no plan to file the appeal

and the present appeal is an after thought.

4. It is also contended that the learned District Judge

dismissed the arbitration suit incidentally relying upon the

decision of this Court in (H.M. SHANKARAMURTHY Vs.

NATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in

2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in

the case of M.P. Power Generation Co. Ltd. Vs. Anraldo

Energia SPA and another reported in SCC Online SC 385 as

well as Associate Builders Vs. Delhi Development Authority

reported in AIR 2015 SC 620, and hence not made out any

ground to condone the delay and having the knowledge about

the execution, appeared and filed objection statement on

2.6.2022 itself. The present appeal is filed in the year 2023, that

too in the month of February and no explanation for the delay

and hence delay cannot be condoned.

5. The counsel in support of his argument relied upon the

judgment reported in (2021) 6 SCC 460 and referring this

judgment the counsel would vehemently contend that Section 5

of the Limitation Act is not maintainable in an appeal filed under

Section 37 of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as the 'Act' for short). The counsel also

relied upon the judgment of this Court dated 23.2.2022 passed

in M.F.A.No.201018/2018 (AA), wherein also this Court held that

maximum delay period is only 120 days and thereafter they

cannot file an application to condone the delay and Section 5 of

the Limitation Act cannot be invoked. The counsel also

vehemently contend that the judgment of this Court in

Bhimashankar Sahakari Sakkare Karkhane Niyamita

passed in M.F.A.No.201018/2018 also affirmed by the Apex

Court in Civil Appeal No.6810/2022 vide order dated 10.4.2023

and the Apex Court also comes to the conclusion that High Court

has not committed any error in rejecting the condonation of

delay application and hence the very application filed under

Section 5 of the Limitation Act is not maintainable.

6. In reply to the arguments of the respondents counsel

vehemently contend that Arbitration and Conciliation Act, 1996

is clear with respect to an appeal under Section 37, no specific

limitation is mentioned and those judgments arising out of a suit

is filed under 34 of the Act and in order to file an application for

setting aside the arbitral award under Section 34, specific

limitation is provided in Section itself and the same is not

applicable to an appeal filed under Section 37 of the Act, Counsel

also brought to notice of this Court Section 43 of the Limitation

Act, wherein Section 43 of the Limitation Act shall apply to

arbitration as it applies to proceedings in Court and Section

43(3) is very clear that notwithstanding that the time so fixed

has expired, may on such terms, if any, as the justice of the

case may require, extend the time of such period, as it things

proper. The counsel also would submit that the judgment of the

Apex Court in (2021)6 SCC 460 discussed with regard to the

application of Section 5 of the Limitation Act is applicable for

condonation of delay in filing the appeal under Section 37 of the

Act, and Limitation Act is applicable. Hence, the very contention

of the counsel for the respondents that the appellants cannot

invoke Section 5 of the Limitation Act, cannot be accepted.

7. Having heard the appellants' counsel and also the

counsel appearing for the respondents and also the grounds

urged in the application and the statement of objections, the

points that would arise for consideration of this Court are:

i) Whether Section 5 of the Limitation Act can be invoked in an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 to condone the delay?

ii) Whether the appellants have made out the ground and sufficient cause to condone the delay?

iii) What order?

Point No.1: Having heard the respective counsel, the

main contention of the respondents counsel that the maximum

period of limitation is 90 days and additional 30 days, in all 120

days is provided under the Act itself to file an appeal.

8. Admittedly, this appeal is filed against the dismissal of

the suit filed under Section 34 of the Act confirming the award of

the Arbitrator and hence, the present appeal is filed under

Section 37 of the Act.

9. No doubt, the judgments of this Court and the Apex

Court in the case of Bhimashankar Sahakari Sakkare

Karkhane Niyamita arising out of dismissing the suit filed

under Section 34 of the Act on the ground of Condonation of

delay and Apex Court also comes to the conclusion that High

Court has not committed any error in dismissing the appeal in

coming to the conclusion that the maximum period allowed to

file the appeal is within 120 days. Having perused Section 34 of

the Act, when an application for setting aside of arbitral award, it

is clear that recourse to a Court under an arbitral award may be

made only by an application for setting aside such award, in

accordance with sub-sections (2) and (3) of Section 34 of the

Act. The grounds also set out to challenge the same and the

proviso under Section 34(3) of the Act is very clear that 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 and further

proviso is made 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.

10. Reading of sub-clause (3) of Section 34 of the Act and

also further proviso, the maximum period is 120 days and the

very statue itself makes clear that it could be challenged within

three months and thereafter also after 30 days, in total 120 days

and no dispute with regard to the fact that the principles laid

down in the judgment of this Court as well as the Apex Court

referred supra, the maximum period is 120 days, wherein the

appeal was not entertained, since an application was filed before

the District Court under Section 34 of the Act, since there was a

delay of more than 120 days and hence, the same is dismissed.

11. But in the case on hand, application filed under Section

34 of the Act was considered and decided the same on merits

and dismissed, thereafter an appeal is filed under Section 37 of

the Act. This Court would like to extract Section 37 of the Act as

below:

37. Appealable orders.-(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the Court authorizes bylaw to hear appeals from original decrees of the Court passing the order, namely:-

(a) refusing to refer the parties to arbitration under Section 8;

(b) granting or refusing to grant any measure under section 9;

(c) setting aside or refusing to set aside an arbitral award under section 34.

(2) An appeal shall also lie to a Court from an order of the arbitral-

(a) accepting the plea referred to in sub- section(2) or sub-section(3) of Section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

and also this Court would like to extract Section 43 of the Act

with regard to the limitation as below:-

43. Limitation.- (1) The Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in Court.

(2) For the purposes of this section and the Limitation Act, 1963, an arbitration shall be deemed to have commenced on the date referred in Section

21. (3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed Having heard the respective counsel and also on perusal of the material available on record, expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4) where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act,

1963, for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted."

12. Having considered Section 37-1(c) of the Act, it is clear

that, setting aside or refusing to set aside the arbitral award

under Section 34 of the Act and an appeal lies where an order is

passed under Section 34. But no any exclusion of Section 5 of

the Limitation Act, but in Section 34 it is very clear that the

maximum period provided is 90 + 30 days, in all 120 days, but

no specific limitation is made provided under Section 37 of the

Act while filing an appeal.

13. Having read Section 43 of the Act, it is very clear that

Limitation Act, 1963 shall apply to arbitrations as it applies to

proceedings in Court and further sub-clause (3) is very clear

that, where an arbitration agreement to submit future disputes

to arbitration provides that any claim to which the agreement

applies shall be barred unless some step to commence arbitral

proceedings is taken within a time fixed by the agreement, and a

dispute arises to which the agreement applies, the Court, if it is

of opinion that in the circumstances of the case undue hardship

would otherwise be caused, and notwithstanding that the time so

fixed has expired, may on such terms, if any, as the justice of

the case may require, extend the time for such period as it

thinks proper.

Sub-clause (4) is also very clear that where the Court

orders that an arbitral award be set aside, the period between

commencement of the arbitration and the date of the order of

the Court shall be excluded in computing the time prescribed by

the Limitation Act, 1963, for the commencement of the

proceedings (including arbitration) with respect to the dispute so

submitted. Hence it is clear that, Limitation Act, 1963 shall

apply to arbitration as it applies to proceedings in the Court.

14. The Apex Court also in the judgment referred by the

respondents' counsel himself in the case of Government of

Maharashtra (Water Resources Department) represented

by Executive Engineer Vs. Borse Brothers Engineers and

Contractors Private Limited with regard to Section 37,

limitation period for filing appeal under Section 37 of the Act,

both in respect of cases falling under Commercial Courts Act as

well as the Arbitration and Conciliation Act, 1996, in respect of

cases not falling under Commercial Courts Act, formulated the

point with regard to Section 5 of the Limitation Act. Since issues

involved in the appeal, whether limitation period for filing an

appeal under Section 37 of the Act, would governed by limitation

period provided under Section 34 of the Act, or limitation period

prescribed under Article 137 of the Limitation Act or limitation

period prescribed under Articles 116 and 117 of the Limitation

Act or limitation period prescribed under Section 131-A of the

Commercial Courts Act, 2015.

15. The third issue was framed whether delay in filing the

appeal under Section 37 of the Act, can be condoned and if so,

to what extent and whether application under Section 5 of the

Limitation Act to condone the delay in filing the appeal under

Section 37 of the Act, is excluded by the scheme of the

Commercial Court's Act. The Apex Court having considered these

issues held that Section 37 of the Act, when read with Section 43

thereof, makes it clear that the provisions of the Limitation Act

will apply to appeals that are filed under Section 37 of the Act.

This takes us to Articles 116 and 117 of the Limitation Act, which

provides for a limitation period of 90+30 days, depending upon

whether the appeal is from any other Court to a High Court or a

intra-High Court Appeal, there can be no doubt whatsoever that

Section 5 of the Limitation Act will apply to the aforesaid

appeals, both by virtue of Section 43 of the Act and by virtue of

Section 29(2) of the Limitation Act and the same is also

reiterated in paragraph 23. Paragraph 23 of the judgment

referred supra is extracted here below:

"23. Section 37 of the Arbitration Act, when read with Section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37. This takes us to Articles 116 and 117 of the Limitation Act, which provide for a limitation period of 90 days and 30 days depending upon whether the appeal is from any other court to a High Court or an intra-High Court appeal. There can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virrtue of Section 43 of the Arbitration Act and by virtue of Section 29(2) of the Limitation Act."

16. Having read Section 37 of the Act, no limitation is

prescribed to file an appeal as in case of an application to be

filed under Section 34 of the Act, wherein specific limitation is

provided for three months + 30 days, total 120 days. But no

such specific limitation is provided in Section 37 of the Act for

filing an appeal and also Section 43 of the Act, which I have

extracted above, is also very clear that the provisions of the

Limitation Act will apply to appeals that are filed under Section

37 of the Act. Hence, the judgments which have been relied

upon by the counsel for the respondents, Bhimashankar

Sahakari Sakkare Karkhane Niyamita, wherein challenge was

made only with regard to Section 34 of the Act and limitation as

provided in the very Section itself, but not in an appeal and

Section 43 of the Act makes it clear that the provisions of the

Limitation Act will apply to appeals that are filed under Section

37 of the Act and Apex Court having discussed the same and

even framing the issues involved between the parties in the said

appeal also, in paragraph 23 which has been extracted is very

clear that there can be no doubt whatsoever that Section 5 of

the Limitation Act will apply to the aforesaid appeals, both by

virtue of Section 43 of the Arbitration Act and by virtue of

Section 29(2) of the Limitation Act and hence, I do not find any

force in the contention of the respondents' counsel that Section

5 of the Limitation Act cannot be invoked and hence, I held that

Section 5 of the Limitation Act could be invoked while filing an

appeal under Section 37 of the Act and hence, I answer the point

No.1 as affirmative.

Point No.2: Now the question before this Court is with

regard to, whether sufficient cause has been shown by the

appellants to condone the delay?

17. The Apex Court also in the judgment referred supra in

Government of Maharashtra case also discussed the same with

regard to sufficient cause,, wherein held that Government is

involved a different yardstick for condonation of delay cannot be

laid down and hence it is clear that the Court cannot show any

lenience even if Government is involved in the litigation and also

held that it was open for the High Court to condone the delay

applying Section 5 of the Limitation Act, 1963 and whether the

appellants have made out the ground to condone the delay and

then this Court has to consider the reason assigned in the

application and reason assigned in the application is that when

the judgment was passed on 30.3.2021 and after receiving the

judgment and decree passed by the Court and the same was

sent for obtaining legal opinion and after receipt of the opinion, it

was opined that judgment passed was erroneous and appeal

requires to be challenged and for finalizing the same in taking

opinion, delay was occurred and it is stated that there is a bit

delay in filing the above appeal. In the case on hand, there was

a delay of 605 days as contended by the respondents and it is

also the contention that no cogent reason is forthcoming for the

said undue delay. But records reveals that judgment was passed

on 30.3.2021 and by that time S.O.P. was prevailing in view of

the Covid-19, but it is calculated as delay of 270 days. But

reason assigned in the application is that while getting the

opinion there was a delay and affidavit is not specific, when the

copy was obtained and also when the papers were sent for legal

opinion and on what date opinion was received, but affidavit is

very vague and nothing is mentioned in the application and also

it is important to note that in the objection statement

respondents took the specific contention that when the award

was not satisfied, they have filed execution petition which was

numbered as 118/2022 before the Hon'ble District and Sessions

Judge, Mandya and also it has to be noted that the appellants

have filed objections on 2.6.2022 stating that execution petition

was not maintainable because of not furnishing the conversion

order and layout plan and hence it is clear that appellants were

also having knowledge of filing of the execution petition and they

have filed statement of objections on 2.6.2022 itself and even

then they have not filed any appeal immediately and the present

appeal is filed on 23.2.2023, almost after eight months of filing

of statement of objections in the execution petition by the

appellants themselves and having perused the order, the

arbitration award was confirmed by the District Court. When the

appellants participated in the arbitration proceedings initiated

under Section 34 of Arbitration and Conciliation Act and order

was passed on 30.3.2021, almost one year 11 months was taken

to file the appeal and reason was not assigned except stating

that there was a delay in getting the opinion. The Apex Court in

the judgment referred supra itself held with regard to the

sufficient cause is concerned, merely because the Government is

involved, a different yardstick for condonation of delay cannot be

laid down. In the case on hand, no doubt the appeal is filed by

National Highway Authority and there was no need to take

opinion for a period of two years and apart from that even

appellants had the knowledge about filing of execution petition

and in the said execution petition participated and filed

statement of objections on 2.6.2022 itself and even immediately

after filing statement of objections appeal was not filed.

18. Having perused the certified copy of the order it is

clear that though the judgment was passed on 30.3.2021,

certified copy was obtained on 2.3.2023 and no material is

placed on what date earlier certified copy was taken and sent to

the Department for opinion and nothing is stated in the affidavit

and affidavit is very bald except stating that when the file was

sent to opinion and opinion was given that order was not correct

and it requires challenge and when that opinion was given is also

not stated in the affidavit, only bald affidavit is filed in paragraph

No.4 narrating the same that file was sent for opinion, after

receipt of the opinion decided to file an appeal and no sufficient

cause is shown to condone the delay and hence, I do not find

any reason to condone the delay and application deserves to be

dismissed. Hence, I answer point No.2 as negative.

19. In view of the discussions made above, I pass the

following

ORDER

I.A.No.1/2023 is dismissed, since no sufficient cause is

shown. However, made it clear that Section 5 of the Limitation

Act could be invoked in an appeal filed under Section 37 of the

Arbitration and Conciliation Act.

Consequently, appeal is also dismissed.

Sd/-

JUDGE

AP