The State Of Tripura vs Sri Subhash Chandra Datta
2023 Latest Caselaw 659 Tri

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HIGH COURT OF TRIPURA
AGARTALA

LA. No.03/2023 in Arb.A. No.03/2023
Arb.A. No.04/2023

1. The State of Tripura, represented by the Secretary, Public Works Department
(R&B), New Secretariat Complex, Agartala, West Tripura.

2. The Executive Engineer, PWD (R&B), Teliamara Division, P.O. & PS.
Teliamura, Districu-Khowai Tripura. .
wi. Applicant/Appellant(s).
VERSUS
Sri Subhash Chandra Datta, Contractor, $/O. Late Manindra Chandra Datta,

Resident of Ramnagar Road No.4, P.O.:-Ramnagar, West Tripura, 799002.
vs. Contractor-Respondent{s}.

Mr. Karnajit De, Addl. G.A.

For Respondent(s) : Mr. A. Sengupta, Advocate.

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH HON' BLE MR. JUSTICE ARINDAM LODH

Order

22/08/2023

Heard Mr. Debalay Bhattacharya, learned Government Advocate assisted by Mr. Karnajit De, learned Additional Government Advocate appearing for the applicants-State and Mr. A. Sengupta, learned counsel for the respondent, on the prayer for condonation of delay of 151 days in preferring the instant memo of appeal under Sections 13(1A) of the Commercial Courts Act, 20!

Section 37(1)(c) of the Arbitration and Conciliation Act. 1

S read with 96 against the judgment and order dated 12.09.2022 passed in Civil Mise. (Arbitration) No.0 of 2021 by the learned District Commercial Court, Khowa of the Act of 1996 as amended.

1, Tripura under Section 34

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> Phe State of Tripura, ie, the present appellant, preterred a Section 34 application before the leamed Commercial Court Khowai, 'Tripara being agarieved by the award dated 15.09,2015 passed by the leamed Sole Arbitrator in

eding No.OU/ARB/AB/2008 aris} / : V2 arising out of agreement No.33/8-1-C/SE-H/BR/* TLM/2001-02 The vrcouto

connection with Arbitration proce

contract related to execution

Page 2 of $

of Meonstruction af RCC Bridge over river Khowal near Kalyanpur™ for a value of Rs3,.08.06.578/. and the time fimit for completion of the wark was 30 months. The work was stipulated to he completed by 18.10.2003. Since the agency failed to complete the work within the stipulated period, time was extended up to 34.12.2006, Only 38% work in terms of the value and 35% in terms of quantity of work were completed hy that extended date. The contract was rescinded on 18.12.2006. Thereafter, the respondent-agency invoked Arbitration proceedings. The dispute was decided in favour of the contractor by the learned Arbitrator. The State of Tripura approached the learned Commercial Court, Khowai, Tripura under Section 34 of the Act of 1996, inter alia, raising a number of grounds. The learned Court after consideration of the. pleadings and. the submissions of the parties did nat find any scope to interfere in the findings of the learned Arbitrator. The

application was accordingly dismissed.

3. The present appeal has. been preferred after a delay of 151 days beyond the period of 60 days as. prescribed under Section 13(1A} of the Commercial Courts Act, 2015. The legal position as regards the running of limitation in an appeal against an order passed' under Section 34 of the Arbitration and Conciliation Act, 1996, Le. under Section 37(1 (ce) of the Act of 1996 is now well settled in view of the decision rendered by the Apex Court in the case of Gavernment of Maharashtra. (Water Resources Department) represented by Executive Engineer vrs. Berse Brothers Engineers and Contractors Private Limited reported in (2021) 6 SCC 460.

4. The appellants have sought to explain the delay in the Interlocutery

application in the following manner:

12.09.2022: Judgment and order was passed in Civil Mise. (Avhitration) No.UL of 2021 by the District Commercial Court, Khowai, Tripura upholding the arbiral Awacd.

01.12.2022: Leamed Government Pleader sent the file

to the Executive Engineer to profice appeal before the Hon'ble High Court.

09.12.2022; The Executive Engineer, Teliamura Division, PWD (R&R) sont the fle te the Superintending Engineer, Second Cirle, PWD (RAR Netaji Complex, Agartata for examinasion.

Theresfler, Darga Paja vacation started.

28.10.2022: Application was rade for obtaining

& vertitied copy of the impugned judgment,

40.11.2022: The certified copy was teady for delivery.

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$.12,2022: Saperivionding Engineer sont the fe to the Chiet Ragineer, PWD (RAB) for sonshlerition and

Necessary decigion, Uin the same dav it was sent te the Nadal Offtere Legal) for thether course of action.

S5.12.2022: Nodal Officer (Legal) placed the file before the Chief Engineer, PW (R&B)

for seading itt the Law Department for opinian.

26.12.2022) Chief Cngincer placed the file before the Secretary, PWD, Goverment of

Tripura for seading iCio the Law Department for petting views.

OTOLI023: Law Department sent the file to the Secretary, PWD, for further course of action.

10.01.2023 Nodal Officer sent the file to the Executive Engineer, Teliamura bi

PWD (R&B) for preferring appeal.

13.01.2023: Executive Engineer sent the file to the learned Government' Advocate for preferring appeal.

17,01,2023: File was endorsed to learned Add!. Government Advocate for drafting the appeal and for filing the same.

29.01.2023: Drafi Arbitration Appeal was placed in the file for vetting from the Law Department,

Nodal Officer sent the file to the Chief Engineer, PWD (R&B) for sending it to the Law Department.

Chief Engineer sent the file to the Secretary, PWD for sending it to Law Department.

10.02.2023: Secretary, PWD sent the file to the Law Secretary for vetting of the deatt Arbitration Appeal.

13.02.2023: Arbitration Appeal was vetted and the Secretary, PWD sent it to Nod

Officer for further course of action.

-§2.2023: File was sent to the learned Addl. Government Advocate which was received by the office of G.A, on 14.02,2023.

After vetting necessary correction was done and file was sent ta the Nadai

Officer, PWD (R&B) for filing of the sarne.

06.03.2023: The Nodal Officer sent the file to the office of the Government Adeoeate for necessary cormection.

10.03.2023: The file was again sent tu the Nadal Officer, PWD (R&B) with note of flag the same inimediately, 22.03.2023: The Nodal Officer, PWD (Rad) again sent the Mle to the Law Deparknent for vetting of the appeal snd the condensation petition, 29.03.2023: The file was again sent te the office of GA by the Nodal Officer for filing the same. Learned Addl. G.A. was suffering fom eye infection and, therefare. could not

attend the file and as sash, few mote days elapsed.

eo

a

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LLOS2023° The appeal wus Gled afer a delay of 151 days beyond the stahitory pened of

8 dave for preferring an appeal that is stafed to have expired on 105 1.2022 ftaelf.

>. Leamed counsel for the State submits that the delay is not

intentional. It has occurred only on account of the movement of the file in the department and in drafting and vetting of the appeal by the learned connsel representing the State. At no stage. the file has been withheld at any level for unnecessary period. As per the rules of the Executive business, the decision to prefer any such appeal has to be taken at the level of the competent authority through the hierarchy of the officials at different levels. Since the issue involved huge financial implications upon the State, the matter had tobe given due weightage and, therefore, legal épinion was obtained from the Law Department also. A Nodal Officer has been appointed to facilitate the expeditious processing of the files at different levels. The movement of the files, therefore, do not indicate that the department was taking undue time in arriving at a decision. Since the draft memo of appeal required further corrections, it was returned to the department and after certain corrections and modifications and vetting by the Law Department, it was returned to the State Counsel for filing an.appeal on 29.03.2023. Thereafter, the appeal has been filed on 11.04.2023. The appellants have, therefore, been able to show sufficient cause for condonation of the delay. If the delay is not condoned, the appellants-State would suffer irreparably since not only the award and the impugned order passed by the learned Commercial Court, Khowai, Tripura under Section 34 of the Arbitration and Conciliation Act, 1996 suffers from serous errors but it also imposes huge financial burden upon the State. The agency was at fault for the delay in execution of the work. The appellant has goods grounds to succeed in the appeal. Therefore, the delay may be condoned in the interest of

justice,

6. Learned counsel for the respondent has strongly appased the prayer. Respondent has also filed an objection petition, inter alia, stating that, trom the averments made in the condonation application, it is found that the Executive Engineer, Superintending Engineer and the Secretary of the Department are very much reluctant to file the appeal in time and the time taken by the various Officers of the department for giving their opinion clearly reflects that there is sheer negligence and laches from the side of the Officers of the departme

nt in preferring the appeal in time.

That, the statements made in paragraphs 17 and 18 of the application for condonation of delay submitted by the applicants that there was no deliberate laches on the part of the appetlanis in preferring the appeal and/or delay of 151 days has caused in filing the appeal due to bonafide reasons and/or the delay was

caused unintentionally, are not true, hence denied and disputed by the respondent- contractor,

Therefore, the appellants have not been able to show sufficient cause 'for condoning the delay'. Learned counsel for the respondent has relied upon 2 recent decision of the Apex Court rendered in the case of State of Uttar Pradesh & athers-ves. M/S Satish Chand Shivhare and Brothers [SLP(Civil) No.5301 of 2622} in Support of his contention that the delay is not sufficiently explained and,

therefore, should not be liberally condoned even if the appellant 1s the State.

7. We have considered the submissions of learned counsel for the parties and given anxious consideration to the explanation furnished by the

applicants/appellants for condonation of delay of 151 days in preferring the appeal.

8. The interplay of the provisions of Section 13(1 A) of the Commercial Courts Act, 2015 and the relevant provisions such as, Section 37(1) of the Arbitration and Conciliation Act, 1996 in the matter of the period of limitation to be reckoned has been settled by the Apex Court in the case of Borse Brothers (supra). Since the appeal arises out of an order passed under Section 34 of the Arbitration and Conciliation Act, 1996, as amended, by the Commercial Court under the Commercial Courts Act, 2015, therefore the period of Hintation prescribed under the Act of 2015 would be 60 days from the date of the judgement. The Hon'ble Apex Court has in the case of Barse Brothers (supra) very clearly observed that:

"63. Given the aforesaid and the object of speedy dispasal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, Sire appeals filed under Section 37 of the Arbitration Act that are governed by Anisdes 116 and 117 of the Lintiation Act or Seetian facl-A) at the Commercial Cours Act, a delay beyond 90 days, 30 days ar 60) days. respectively, is ta be condoned by way uf exception and net by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a neglipent manner, a short, delay "a eas St XN, aie he siscestion al {abe cut be condoned, aly ihe. ee) now be lest by ty

9. The respondent has also relied upon a recent decision of the Apex

Court in the case of Satish Chand Shivhare and Brothers (supra). The said case also arises out of an order passed under Section 34 of the Arbitration and Conciliation Act, 1996. There was a delay of 337 days in filing the appeal under Section 37 of the Arbitration and Conciliation Act, 1996. The appeal was preferred by the aggrieved State of Uttar Pradesh. The exposition of the law laid down by the Apex Court in paragraphs-17, 20, 21, 22, 23, 25 and 26 are profitably extracted hereunder as they provide illuminating guidance to this Court in matters relating to condonation of delay and that too, under the Commercial Courts Act, 2015:

"17. The explanation as given in the affidavit in support of the application for condonation of delay filed by the Petitioners in the High Court does not make out sufficient cause for condonation of the inordinate delay of 337 days in filing the appeal under Section 37 of the Arbitration and Conciliation Act. The law of limitation binds everybody including the Government. The usual explanation of red tapism, pushing of files and the rigmarole of procedures cannot be accepted as sufficient cause. The Government Departments are under_an obligation to exercise due diligence to ensure that their right to initiate_legal proceedings is not extinguished by operation of the law of limitation. A different yardstick for condonation of delay cannot be laid down because the government is involved.

20. The Petitioners have, in this Special Leave Petition, raised the following questions of law:

"A. Whether a good case on merits involving huge public money can be dismissed on the grounds of delay alone, without even discussing the merts of the entire case?

B. Whether Court isnot obliged, while exercising jurisdiction u/s § of Limitation Act, to also consider/discuss the merits of the case?

C, Whether procedural formalities (which are sine gua non in Government Departments) should not be given any due consideration while deciding the fate of rights and liabilities of the parties?

D. Whether dismissing the Appeal of a Government body on delay does not amount to unjust enrichment of the Claimant as the merits of the case have not been discussed by the Appellate Court?

21. The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right. subiect to the laws of limitation. 'The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found te be barred by limitation, there can be no question of any oblipation of the Court to consider the merits of the case of the Appellant.

22, When consideration of an appeal on merits is pitted rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay, The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this ease, the Petitioners failed to make oul a strong prima facie ease for appeal Furthermore, a liberal approach, may adopted when same plausible cate for delay is shown, Liberal approach does not mean that a appeal shovid be allowed even if the cause for delay shown is glimsy, The Cour walve Hmmitation for all practical purposes by eondenine inn ;

aR hb euused by aiandy lackudslaical neglioem manner of fanctioning SASS +

against the

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23. i jy true that the High Court has rejected the appeal on the misconceived ground that delay in filng an appeal under Sectian 37 af the Arbitration and Coneiiatinn Act is not candonable bevend 120 days by relying upon a two Judge Bench judgment of this Court in N.V. international x. State of Assam and Ors. [(2020) 2 SCC 109], which has since been overruled by a three Judge Bench of this Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer v. Rorse Brothers Engineers and Contractors Private Limited {2921} 6 SCC 460},

Kak wee RKD wk

25, This Cowt is, however, not inclined to entertain this Special Leave

Petition since the Petitioners have failed to show sufficient cause for the

condonation of the inordinaie delay of 337 days in filing the Appeal in the

High Court. Moreover, there are no grounds for inferfererice with the arbitral

award impugned.

26. In the facts and circumstances of this case, we are not inclined to

interfere with the impugned judgment and order of the High Court, dismissing

the Appeal filed by the Petitioners."

10. The applicants/appellants have in their application for condonation of delay narrated the chronology of dates and events after passing of the judgment by the learned Commercial Court on 12.09.2022 in Civil Misc. (Arbitration) No.O1 of 2021. The sequence of dates and events are not being repeated but a perusal thereof would show that the officials were completely oblivious of the striet timeline prescribed under Section 13( 1A) of the Act of 2015. In the case of Borse Brothers (Supra), the Apex Court had clearly held that a short delay beyond the 90 days, 30 days or 60 days as the case may be could be condoned in the discretion of the Court but always bearing. in mind that the opposite party may have acquired valuable right both in justice and equity which may be lost by the first party inaction, negligence or laches. A different yardstick for condonation of delay cannot be adopted because the Government is involved, It appears that the certified copy of the judgment dated 12.09.2022 was apphed for on 28.10.2072 and was ready for delivery on 30.11.2022. The date on which it was obtained perhaps is deliberately not indicated. However, thereafter the movement of the files, as explained from paragraph-4 onwards, started from 14.12.2022 and reached the Law Department on 26.12.2022. The Law Department gave its opinion and retumed the file to the Secretary, PWD on 07,01,2023. Thereafter, an 10.01.2023 the file moved from the Nodal Officer to the Executive Engineer, Teliamura Division and it was sent to the learned Government Advocate on 13.01,2023 far preferring appeal, The appeal was drafled and sent back for vetting to the Law De ape ce BP ' pit > a Phearasfiar * ow sae Department on 29.01.2023. Therealler, the fle moved through the official

icrarchy at different levels wi any xanse of

hierarchy at different levels without any sense of urgency and reached the Law

Depariment on 102.2023, H was vetted on 13.02.2023 and sent to the Secret , 18 ) RECTORY

Rage & af 9

rea xg aol a 7 sp. are PAWD. dt reached the office af Government Advars

<

ean 1h &

YEtHAR BAL NetghS APE Ae pee die * etme and necessary correction, the {He was sent hack to the Nodal (8 Riser whe HE ALE SEES

og 06.03 2023 seni ito the Givernment Advocate for necessary correction.

the file was sent on TO.G5.2023 to the Naral ¢

i8 days Urne was consumed in fhe process of vetiiiy and refarrang

Government Advoeate for fing it. Le. a 28.03.2023. Thereafter, if {oox

* cps yeu opeetnns Lp 3 a Nae soy ~ NR ' 13 days to actually file the appeal on PLO 2023, The movernent of fue, tie

does not show that the applicants had any sense of argeney or preeep Hud

the Srict preseciption of law for prefeering an appeal ander the Contaeres

Yt. The Apex Court in the case of Satish Chand Shivhare and Brothers fsupra} has at paragraph-17 of the judgment castigated the approach of the

Sovernment departments who come forward with the usual explanation af red

tapism, pushing of files and the rigmarole of procedures and observed ihat Woo pat be accepted as sufficient cause. it hag been held that the Governaicn

deparuments are under an obligation to exercise due diligence to ensure that cher right to initiate legal proceedings is not extinguished by operation of the law of imitation. A different yardstick for condonation of delay cannat be lank down heeause the government Is involved. The Apex Coart also took inte considera the gaestions of law framed by the petitioners as to whether a good case on MEPHS invelving huge pablic money can he dismissed on the grounds af delay alone,

without even discussing the merits of the entire case. The Apex Court in thet

regard observed thal when consideration of an appeal on merits is pitted : the rejection of a meritorious claim on the technical ground af dye bar of Rmtation, the Courts lsan towards consideration on merits by adopting a iserai approach towards 'sufficient cause' to condor the delay. The Court consileriig ar

application ander Section § af the Liniltatian Act pay also look inte the : %

facie merits of an appeal, However, in the facts of the said ease, the Coun sup convinced that the potiioner had failed to make out a Strong erivc faces case for appeal. The Court observed that a liberal approach may be adopted when sonic nleusible cause fer delay is shown. Liberal approach dees not mean that an anya!

ould be sliowed even if the cause for delay shown i aliovew. The Chaat shoul! got waive fimiation for all sso purposes by caadaming inedinaie dehy

eased by & bridy lackadaisical neglige Harner oof fineness EMUAC > andy lackadasival acgligent fpumer oof hinehanme.

Applicants/appellants have, however, in the present case not been able to show that there are good grounds on merit to lean in favour of the appellants and condone such an inordinate delay of 151 days in preferring an appeal under Section 13(1A) of the Commercial Courts Act, 2015, in the fight of the legal

position settled by the Apex Court in the case of Borse Brothers (supra).

12. Therefore, having given anxious consideration to the rival pleas and the explanation arged on behalf of the applicants/appellants, we are of the opinion that the applicants/appellants have failed to show sufficient cause for condonation of an inordinate delay of 151 days in preferring the instant appeal which arises out of an order passed by the Commercial Court, Khowai, Tripura under Section 34 of the Arbitration and Conciliation Act, 1996.

Accordingly, LA. No.03 of 2023 is dismissed. Consequently, Arb.A. No.03 of 2023 also stands dismissed.

Pending application(s), if any, also stands dismissed.

(ARINDAM LODH), J (APARESH KUMAR SINGH), CJ

Palak

PULAK BAN K Date: 2023.08.24

S'18:29:11 +05'30'