Madras High Court

Plot No.3 vs R.Muniasamy on 25 September, 2024

                                                                  C.M.P.(MD) No.3127 of 2023


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED : 25.09.2024

                                                    CORAM

                                  THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                         C.M.P.(MD) No.3127 of 2023
                                                     in
                                       C.M.A. (MD) SR.No.16458 of 2023

                    The Project Director,
                    National Highways No.7,
                    National Highways Authority of India
                    83/1, SBI First Colony Extension,
                    (Near Gowri Krishna Hotel)
                    Bye Pass Road, Madurai - 625 016.

                    Now at:

                    Plot No.3, Surya Towers,
                    2nd Floor, 1st East Street,
                    K.K.Nagar, Madurai - 625 020.             ... Petitioner/Appellant

                                                     Vs.

                    1.R.Muniasamy
                      S/o.Ramaiah Konar

                    2.The District Revenue Officer /
                      Competent Authority for Land Acquisition,
                      (National Highways – 7),
                      Collectorate Buildings,
                      Madurai - 625 020.                       ... Respondents/Respondents




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                    Page No. 1 of 8
                                                                           C.M.P.(MD) No.3127 of 2023

                    Prayer in C.M.P.(MD) No.3127 of 2023: Civil Miscellaneous Petition
                    filed under Section 5 of the Limitation Act, 1963, to condone the delay of
                    629 days in filing the above C.M.A.(MD) SR.No.16458 of 2023.


                    Prayer in C.M.A.(MD) SR.No.16458 of 2023: Civil Miscellaneous
                    Appeal filed under Section 37(1) & (2) of the Arbitration and Conciliation
                    Act, 1996, to call for the records and set aside the order made in
                    Arbitration O.P.No.11 of 2015 dated 01.04.2019 on the file of the
                    Principal District Court, Madurai.


                              For Petitioner/Appellant : Mr.P.Karthick

                              For R1/R1                 : Mr.R.Govindaraj

                              For R2/R2                 : Mr.M.Muthumanikkam
                                                          Government Advocate

                                                        ORDER

This petition has been filed to condone the delay of 629 days in

filing the above appeal.

2. In the affidavit filed in support of this petition, the petitioner has

primarily stated that the learned Principal District Judge had modified the

award passed by the learned arbitrator by reappraising the evidence,

which is impermissible under Section 34 of the Arbitration and

Conciliation Act, 1996; that they have a fair chance of success in the

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appeal; that the delay was due to administrative reasons related to

obtaining approval from higher authorities and securing concurrence

regarding the court fees from National Highways Authority of India, New

Delhi; that they are managing over 200 cases concerning identical issues

that are pending before both the District Courts and this Court; and that

therefore, sufficient cause was shown for condonation of delay.

3. The first respondent filed a counter opposing the petition, stating

that the petitioner has not given sufficient cause for the delay. The learned

counsel for the first respondent submitted that the Hon'ble Supreme Court

in Government of Maharashtra (Water Resources Department)

represented by Executive Engineer Vs. Borse Brothers Engineers and

Contractors Private Limited, reported in (2021) 6 SCC 460, held that the

objective of the Act is for speedy disposal of the case, and therefore, the

time limit prescribed under the Act has to be strictly complied with, and

that the delay can be condoned only in exceptional circumstances; and

that this Court, by an order dated 27.08.2024, dismissed C.M.P.(MD) No.

11260 of 2023 in C.M.A.(MD) SR.No.25399 of 2023 filed by the

appellant to condone the delay of 950 days caused due to the

administrative delay.

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4. This Court has given its anxious consideration to the pleading

and the submissions made by the learned counsel on either side.

5. This petition for condonation of delay has been filed primarily on

the ground that the order passed by the learned Principal District Judge is

illegal inasmuch as the learned Judge has reappraised the evidence and

modified the award, which is contrary to the settled position of law. The

other reasons given by the petitioner are found in paragraph 3 of the

affidavit, which reads as follows:

“3. It is submitted that thereafter, after due discussions with higher officials and counsel for NHAI, the order was sent for legal opinion and same was obtained on 15.12.2022. On studying the legal opinion along with the copy of the order and its financial implications, a report was sent to the Regional Officer, National Highways Authority of India, Madurai Region on 12.12.2022 seeking approval for preferring appeal. The Regional Officer had accorded his approval for preferring appeal vide communication dated: 04.01.2023. Accordingly, financial concurrence regarding Court fee was sought for from the National Highways Authority of India and the same was received only on 10.02.2023. Moreover, it is respectively submitted that more than 200 cases pertaining to identical issue is pending before the District Courts as well as more than 90 cases in which orders passed were also pending

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before this Hon'ble Court. For examination of each case and for collecting connected records from the Competent Authority for Land Acquisition has taken considerable time. Similar appeals filed by National Highways Authority of India were allowed by this Hon'ble Court.”

6. The question in the instant petition is not whether the order

passed by the learned Principal District Judge, Madurai, impugned in the

above C.M.A is illegal. The question is whether the petitioner has shown

sufficient cause for filing the above appeal with a huge delay of 629 days.

7. The Hon'ble Supreme Court in Borse Brothers Engineers and

Contractors Private Limited case, referred to supra, held as follows:

“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.”

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8. From the above observations, it is clear that the delay in filing an

appeal under Section 37 of the Arbitration and Conciliation Act, 1996 can

be condoned only by way of an exception and not by way of rule. This

Court is of the view that the reason given by the petitioner for the delay,

which is extracted above in the paragraph 5 of this order, does not come

under the exceptional circumstances warranting the condonation of delay.

In any case, it is well settled that the administrative delay cannot be a

ground for condonation of delay.

9. The learned counsel on either side cited Judgments of the

Division Bench of this Court, wherein, in some cases, the delays were

condoned and, in others, the delay petitions were dismissed. This Court, in

the order dated 27.08.2024 passed in C.M.P.(MD) No.11260 of 2023 in