Union Of India vs M/S. D.K. Construction
2022 Latest Caselaw 1301 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ARBA No.8 of 2017
                               (Through hybrid mode)

            Union of India                         ....           Appellant

                                                    Mr. P. K. Parhi, ASG
                                                      Mr. J.Nayak, CGC
                                            Mr. S.S.Mohapatra, Advocate

                                      -versus-

            M/s. D.K. Construction                 ....         Respondent

                                                   Mr. G.M.Rath, Advocate
                                                  Mr. B.Mohanty, Advocate


                     CORAM: JUSTICE ARINDAM SINHA
                                      ORDER

14.02.2022

ARBA No.8 of 2017 & Order No. Misc. Case No.18 of 2017.

06. 1. Mr. Mohapatra, learned advocate appears on behalf of

appellant and submits Misc. Case no.18 of 2017 is application for

condonation of delay. The delay in filing the appeal was 126 days. He

submits, explanation for the delay is given in paragraph 3 of the

application. Departmental requirements caused the delay.

2. Mr. Rath, learned advocate appears on behalf of respondent

and relies on judgment of Supreme Court in Government of

Maharashtra (Water Resources Department) v. Borse Brothers

// 2 //

Engineers and Contractors Pvt. Ltd. reported in (2021) 6 SCC 460

paragraph 65. He submits, almost exactly same explanation for

condonation of delay of 75 days was considered to be without

sufficient cause and, inter alia, condonation granted by the High Court

was set aside. He submits further, there was delay in executing the

contract. Penalty was imposed by the railway. In the reference, there

was award for refund of penalty amount deducted from his client's

bills. The tribunal consisted of arbitrator nominated by appellant.

Factual findings regarding cause for time overrun in execution of the

contract was found to be with appellant.

3. It appears from Borse Brothers (supra) that the Supreme Court

first dealt with merits of the appeal. The appeal was allowed on both

grounds, including challenge to condonation of delay granted by the

High Court. In the circumstances, merits of the matter was also looked

at by this Court.

4. The District Court was not satisfied that any ground under

section 34 of Arbitration and Conciliation Act, 1996 was made out

regarding challenge to the award. Appellant also could not

demonstrate erroneous application by the District Judge.

5. The application for condonation of delay is allowed. The

arbitration appeal is dismissed. Mr. Mohapatra submits, his client be

// 3 //

given a month's time to take appropriate steps, for which the execution

launched by respondent, be pended.

6. The appeal stands dismissed. Appellant must pray for stay of

execution before the executing Court.

(Arindam Sinha) Judge Prasant