The State Of Tripura vs Jain Irrigation System Ltd.
2023 Latest Caselaw 706 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                      IA 03 OF 2023 IN ARB. A 01 OF 2023
1.The State of Tripura, represented by the Secretary Public Works
Department, PN Complex, Gurkhabasti, Agartala, West Tripura.

2.The Executive Engineer, Resource Division, Panchamukh,
A.D. Nagar, Agartala-799003, West Tripura.
                                                ....Applicant-Appellants.
                        Vrs.

Jain Irrigation System Ltd., Contractor, Jain Plastic Park,
PO Box No.72, NH No.6, Bambhori, Jalgaon,
Maharastra, PIN-425001.
                                                                ....Respondent.
 Present:
 For the applicant-             : Mr. D. Bhattacharya, G.A.
 appellants                       Mr. Karnajit De, Addl. G.A.

 For the respondent             : Mrs. S. Deb (Gupta), Advocate.
                                  Ms. Rumpa Dey, Advocate.

 Date of hearing                : 03.08.2023

 Date of delivery of            : 29.08.2023
 judgment & order

 Whether fit for reporting      : Yes

     HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
             HON'BLE MR.JUSTICE ARINDAM LODH
                             JUDGMENT & ORDER
[ Arindam Lodh, J.]


                This is an application under Section 5 of the Limitation Act,1996

for condoning the delay of 74 days in preferring the Commercial Appeal under

Section 13(1A) of the Commercial Courts Act,2015 against the judgment

dated 19.11.2022, passed by the learned District Commercial Court, West

Tripura, Tripura in Civil Misc (Arbitration) 08 of 2020.


2.              Facts

of the case of the applicant/appellants (here-in-after

referred to as the applicants) in a nutshell, are that the respondent-contractor

had entered into a contract with the Executive Engineer, Resource Division,

Panchamukh, Agartala for the purpose of procurement of UPVC pipes of

different diameter and pressure for PHE and MI Scheme in Tripura during the

year 2002-2003. The respondent being the lowest bidder of the Notice Inviting

Tender dated 17.06.2002, supply orders were issued to execute the said

contract. Accordingly, the respondent in course of execution of the said supply

order had engaged one transport contractor to carry those materials as per

supply order by truck vehicle, but the transporter carried the same by rail from

Jalgaon to Guwahati instead of truck vehicle which caused a delay of two days

and on that ground the applicants herein reduced the agreed rate between 9.82

to 10.5 per cent in all categories and thereby made less payment of Rs.23.01

lakhs. Thereafter, an Arbitrator was appointed to decide the dispute by the

order of this High Court and accordingly, learned Arbitrator has decided the

case with the following terms:

"In the result, it is decided and/or held that the petitioner is entitled to an amount of Rs.13,82,575/- with 9% simple interest thereon with effect from 04.07.2007. The respondent shall pay the amount to the petitioner with interest within 45(forty five) days of the date of award failing which, it shall carry penal interest @ 12% P.A. with quarterly rests, w.e.f. 04.07.2007.

The respondent shall further pay to the petitioner costs of arbitration including that of petitioner‟s part of Arbitrator‟s fees i.e. total Rs.1,46,449/-. That payment also shall be made within 45 days from the date of award failing which, it shall also carry interest @ 12% P.A. with effect from the date of award.

Further, the petitioner since paid the respondent‟s part of Arbitrator‟s fees of Rs.1,21,449/- on 17.03.2020, the respondent shall pay back the amount to the petitioner with 12% interest with quarterly rests w.e.f. 17.03.2020 till the amount is paid. If the respondent fails to make the payment within 30 days from the date of award, the petitioner will be at liberty to realize/recover the amount from the respondent with 18% interest w.e.f. 17.03.2020 in accordance with law. The interest part shall be the personal liability of the concerned Chief Engineer, PWD(WR) and the authority of the respondent shall realize the amount (interest part) from the salary etc. of the concerned Chief Engineer, PWD(WR) in due course."

3. Being aggrieved, the applicants herein, had preferred an appeal

against the said Arbitral award before the learned Commercial Court, West

Tripura, Agartala under Section 34 of the Arbitration and Conciliation Act

whereby, the learned Commercial Court set aside the Arbitral award partly

and upheld the remaining part of the award.

4. Having dissatisfied with the order of learned Commercial Court,

the applicants herein, preferred the instant condonation application with a

prayer for condoning delay of 74 days in preferring the connected appeal.

Section 13(1A) of the Commercial Courts Act, 2015 prescribes a limitation of

60(sixty) days for preferring an appeal from the date of judgment or order. It

also provides that an appeal shall lie from such orders passed by a

Commercial Division or a Commercial Court that are specifically enumerated

under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as

amended by this Act and Section 37 of the Arbitration and Conciliation

Act,1996 (26 of 1996).

5. In the instant application, the applicants have explained the

reasons for causing delay in preferring the connected appeal stating inter alia

that the impugned judgment was passed on 19.11.2022 and after passing of the

said judgment, they applied for certified copy on 23.11.2022, which was

delivered on 30.01.2023. On receipt of the certified copy, learned Addl. Govt.

Pleader on 14.02.2023 had sent the file to the Executive Engineer Resource

Division with opinion to prefer an appeal. Thereafter, the Executive Engineer,

Resource Division sent the file to the office of the Chief Engineer PWD(WR)

on 22.02.2023 for getting opinion of the Law Department. Thereafter,

22.02.2023, the file was sent to the Nodal Officer, Legal Cell for further

course of action. On 24.02.2023, the Nodal Officer again sent the file to the

Chief Engineer, PWD(WR) for sending the file to the Law Department for

getting opinion and accordingly, on 26.02.2023, the Secretary PWD sent the

file to the Law Department. On 03.03.2023, the file was sent to the Secretary

PWD from the Law Department with opinion. Thereafter, on 07.03.2023, the

file was sent to the Nodal Officer for further course of action. The Nodal

Officer on 13.03.2023, sent the file to the learned Government Advocate and

on 17.03.2023 marked the file to Addl. Government Advocate for preferring

appeal. On 20.03.2023, after drafting of the Arbitration Appeal the file was

sent to the Nodal Officer for getting the Arbitration Appeal vetted from the

Law Department and on that day itself, the Nodal Officer sent the file to the

Chief Engineer PWD(WR) for further course of action and accordingly, the

Chief Engineer PWD(WR) sent the file to the Secretary PWD on 20.03.2023

for sending the same to the Law Department. On 24.03.2023 after vetting the

file was sent to the Secretary PWD for further course of action. Thereafter, on

28.03.2023, the Chief Engineer PWD (WR) sent the file to the Addl.

Government Advocate for filing of the appeal which was received by the

office of learned Government Advocate on 29.03.2023.

6. The applicants contended that the connecting appeal ought to

have been filed on or before 18.01.2023, but, due to inter departmental

movement of the file, 74 days delay had been occurred and hence, the

statutory period of filing the appeal was expired. It is further urged that the

said delay was beyond the control and was not intentional.

7. Mr. D. Bhattacharya, learned Government Advocate assisted by

Mr. K. De, learned Addl. G.A. appearing for the applicants at the time of

hearing submitted that there were no deliberate laches on the part of the

applicants in preferring the appeal and the delay of 74 days has been caused

due to the bonafide reasons. Mr. Bhattacharya, learned G.A. further submitted

that unless the delay is condoned, the applicants shall suffer irreparable loss.

So, the delay should be condoned for fair ends of justice.

8. Mrs. S. Deb(Gupta), learned counsel appearing for the

respondent-contractor opposing the submission of learned G.A. contended that

the learned District Commercial Court passed the impugned judgment and

order on 19.11.2022 which was undoubtedly within the full knowledge of the

learned counsel of the applicants. She further submitted that the learned

counsel for the applicants had applied for the certified copy of the impugned

judgment on 23.11.2022 and on 30.01.2023, the certified copy of the

impugned judgment was received by the learned counsel of the applicants.

Mrs. Deb (Gupta), learned counsel again strongly argued that from the note of

the Copying Department, it was revealed that the learned counsel for the

applicants had provided the requisite stamps and folios before the Copying

Department on 08.12.2022 and consequently on 09.12.2022 the certified copy

was ready for delivery. Accordingly, she stressed upon her submission that

there is no explanation from 09.12.2022 to 30.01.2023 i.e. for 51 days delay.

According to learned counsel, the applicants have not acted with due diligence

pursuing the appeal and the application for condonation of delay does not

assign satisfactory explanation to condone such delay and as such, the same

should be dismissed.

9. We have heard learned counsel for the parties and meticulously

gone through reasons assigned in the application for condonation of delay and

the written objection filed the respondent. It is apparent from the contention

raised by the applicants in the application that the impugned judgment and

order was passed on 19.11.2022 and they had applied for obtaining certified

copy of that judgment on 23.11.2022. But, they collected the certified copy of

the impugned judgment on 30.01.2023, though, at the time of argument, Mrs.

Deb (Gupta), learned counsel for the respondent in conformity with the

statement made in the the counter affidavit candidly submitted that from the

note of the Copying Department, it was revealed that on 08.12.2022, learned

counsel for the applicants had provided the requisite stamps and folios before

the Copying Department and on 09.12.2022 the certified copy was ready for

delivery. It is clear that there is no cogent reason as to why they could not

collect the certified copy of the impugned judgment during the period from

09.12.2022 to 30.01.2023 i.e. within 51 days. There is no explanation what

prevented the applicants for not collecting the certified copy within the said 51

days. So, we do not find any justified reasons to allow the petition for

condonation of delay even on merit, since the grounds stated for condonation

of delay can in no way be termed as „sufficient cause‟ and at least such reason

for the delay in pushing the file from one office to other office cannot be

regarded as „sufficient cause‟ to convince the Court for the purpose of

condoning the delay. In that context, the applicants, in our considered opinion,

were grossly negligent for inaction on their part which suffers from lack of

bona fides and the reason for the delay assigned in the application cannot be

said to be a cogent reason or "sufficient reason" in filing the appeal in time.

This can be said in one sense a deliberate negligence on the part of the counsel

or litigant which has taken note of by this court. We may unhesitantly hold

that the applicants had enough lackadaisical attitude to pursue the appeal.

10. A Division Bench of this court comprising both of us has dealt

with and decided similar issue in IA No.02/2022 in Commercial App. No.1 of

2023, titled as Hindustan Steelworks Construction Ltd. Vrs. The State of

Tripura & Ors.

11. Added to it, what have been observed here-in-above, the

objectives of the establishment of Commercial Courts are required to be

fulfilled by the beneficiaries of the Act. The Act is to provide for speedy

disposal of high value commercial disputes involving complex facts and

questions of law. It was aimed at early resolution of commercial disputes

which would definitely create a positive image to the investors across the

world as regards the independent and responsive Indian legal system. In the

Statement of Objects and Reasons of Amendment Act 28 of 2018, it is clearly

stated that the global economic environment has since become increasingly

competitive and to attract business at international level, India needs to further

improve its ranking in the World Bank „Doing Business Report‟ which, inter

alia, considers the dispute resolution environment in the country as one of the

parameters for doing business. It was further observed by the legislature that

the tremendous economic development had ushered in enormous commercial

activities in the country including foreign direct investments, public private

partnership, etc., which had prompted initiating legislative measures for

speedy settlement on commercial disputes, widen the scope of the courts to

deal with commercial disputes and facilitate ease of doing business.

12. To fulfill and achieve the objects, the parties approaching the

Commercial Courts to resolve their disputes arising out of business/trade, etc.,

transactions, must adhere to the procedures laid down as embodied in the Act.

Keeping in view of the objectives of the Commercial Courts Act,

the provision prescribing limitations has marked a distinction to that of the

provisions laid down in the Limitation Act,1963.

13. In view of this, the litigants participating in commercial disputes

under the Commercial Courts Act must be vigilant to the procedures

mentioned in the Act itself. We may recollect that the law of limitation gets its

root in two Latin maxims, one of which is „Vigilantibus et Non- Dormientibus

Jura Subvenieunt‟ which means that the law will assist only those who are

vigilant about their rights and not those who sleep over them. The above

maxims are clearly applicable to consider the prayer for condonation filed by

any of the parties to the disputes under the Commercial Courts Act. So,

according to us, an application for condonation of delay under Section 5 of the

Limitation Act in filing appeals arising out of commercial suits must be

considered in the context of the object of speedy resolution of disputes. In

other words, considering the object, the legislature wanted to achieve, i.e. for

speedy disposal of commercial suits, 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, may be condoned by way of exception

and not by way of rule. It is also to be kept in mind that Commercial Courts

Act, 1015 is a special law and the Limitation Act is a general law.

14. In view of the above factual and legal positions, we are of the

opinion that the applicants have failed to explain the sufficient cause for

condonation of delay of 74 (seventy four) days in preferring the appeal after

expiry of statutory period. The period of delay of 74 (seventy four) days in

preferring the appeal is not found to be reasonable and thus, cannot be said to be a

short delay.

15. Accordingly, the instant condonation application (IA

No.03/2023) stands dismissed. Consequently, the Arbitration Appeal 01/2023

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

dismissed.

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




                          Digitally signed by SANJAY
 SANJAY GHOSH             GHOSH
                          Date: 2023.08.31 17:10:16 +05'30'