Omkar Singh vs Project Director National ...
2022 Latest Caselaw 1261 UK

   HIGH COURT OF UTTARAKHAND AT NAINITAL
          Appeal from Order No. 61 of 2022

Omkar Singh                                                  .....Appellant.

                                      Versus
Project Director National Highway Authority of India and
others                                     .... Respondents
                            With
            Appeal from Order No. 62 of 2022

Ramesh Kumari                                                .....Appellant.

                                      Versus
Project Director National Highway Authority of India and
others                                     .... Respondents
                            With
            Appeal from Order No. 63 of 2022

Divya Singh and another                                      .....Appellants.

                                      Versus
Project Director National Highway Authority of India and
others                                     .... Respondents

Present :
Mr. Prabhakar Narayan, Advocate, for the appellants.
Mr. Naresh Pant, Advocate, for the respondents.

                                                       Dated: 21st April, 2022

                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The appellants, herein, had preferred these three connected Appeal from Orders, by invoking the provisions contained under Section 37 of the Arbitration and Conciliation Act, 1986, by putting a challenge to the orders, which had been passed under Section 34 of the Arbitration

Act, by the learned District Judge, in Arbitration Case Nos. 104 of 2018, 103 of 2018 and 100 of 2018 respectively, whereby, the objection preferred by the appellants under Section 34 of the Act of 1996, was rejected by the judgement of 27.07.2019.

2. The Appeal from Orders under Section 37 of the Act, were preferred by the appellants on 22nd February, 2022. The Appeal from Orders were supported with Delay Condonation Application No. 1 of 2022, seeking a condonation of 140 days delay, which has been respectively chanced in each of the Appeal from Orders in filing the Appeals under Section 37 of the Act and primarily, the background, which has been taken therein for seeking condonation of the delay by the applicant/appellant, and on which, primarily, the appellant has addressed the Court, is that as contained in para 4, 6 and 8 of the affidavit filed in support of the respective Delay Condonation Applications, which is extracted hereunder :-

"4. That since the appellant is residing at Ghaziabad and therefore, it took her some time to collect the relevant documents as required to file the instant appeal.

6. That thereafter the husband of the appellant got stuck in his work and was able to come to Nainital on 12/22-10-2019, but thereafter the Hon'ble High Court was closed due to the Deepawali vacation from 23.10.2019 to 30.10.2019.

8. That thereafter due to the outbreak of COVID-19 pandemic in the beginning of year 2020 along with the whole word the family of the appellant was also under shock and severe financial crisis. The impact of COVID-19 over an individual was such severe that the health and lifestyle of each and every individual was uprooted and the pandemic results in severe financial breakdown to the appellant."

3. Let us deal with each of the grounds taken in the respective paragraphs extracted above, as to what genuineness could be attached to the pleadings raised for the purposes of condonation of delay. In para 4, the appellant has submitted that there was some time, which was taken by the appellant to collect the relevant documents required to file the instant Appeals. This particular paragraph has been pleaded on the basis of the personal knowledge, but if the certified, which has been filed with the Appeal from Orders, is taken into consideration, the certified copy of the same was applied by the appellant on 1st August, 2019, the same was pasted on the notice board on 7th August, 2019, and it was issued to the appellant on 7th August 2019.

4. Hence, the ground taken, that it took some time for the appellant to get certified copy of the order is absolutely belied from the folio of the certified copy of the impugned judgement itself.

5. Faced with the situation, the learned counsel for the appellant tried to carve out an exception, to his own

detriment, that he had earlier applied for the certified copy, which got lost and due to which, the subsequent application was filed on 1st August, 2019.

6. There are two reasons for not to accept the said argument, firstly, it is not the basic ground, which has been pleaded by the appellant at the first available opportunity, in the Delay Condonation Application, which was available to the appellant at the time, when he filed the Delay Condonation Application on 22/02/2022. Hence, he cannot be permitted to take the liberty to argue beyond the pleadings, of the delay condonation application.

7. Hence, this contention that it took some time for him to procure the other documents to file the Appeals is yet again an argument which is not acceptable by this Court for the reason being, that the collection of the other document for filing of an Appeal from Order under Section 37 of the Act, would not be relevant for the reason being, that the Appeal itself, when it was instituted, it was a simplicitor Memorandum of Appeal without any Stay application, which could have been still filed within the prescribed limitation period, even without the alleged documents.

8. The requirement of the other document would needed only for the purposes of getting a stay order, but not for the purposes of incapacitating the appellant to file Appeal, which could have been filed with the certified copy of the impugned judgment.

9. The second ground, which has been taken by appellant is, that as contained in para 6 of the affidavit, filed in support to the Delay Condonation Application, that he got stuck up in his work and was unable to come to Nainital on 21st and 22nd October, 2019, due to Deepawali vacation, he could not approach the Court.

10. This court is apprehensive to accept that argument, for the reason being that after procurement of the certified copy of the order from the office of the Court on 7th August, 2019, it was even much before the Court went on vacations for deepawali holidays, the period of limitation stood expired and not even that under the High Court Rules, even if a limitation is expiring during an intervening holiday, then too, nothing precludes the appellant to file an Appeal before the Registry of this Court, even if the registry is closed and the said provisions of the High Court Rules, is extended to an extent that even in the midnight of the day, when the limitation is expiring, the Appeal could be filed in the residence of the Registrar General too. The same was not availed by the appellant. Hence, this ground too is not sustainable.

11. Lastly, the reason given in para 8 of the delay condonation application is that on account of Covid-19 and due to the imposition of lockdown by the directives of the Government of India, he has been unable to approach the Court, this Court is of the view, that the effect of declaration of lockdown, as an impact of Covid-19, would only be

available in those cases, where the limitation expires, after the imposition of lockdown. It will not be applicable to the cases, where limitation had expired even much prior in time, to the directives issued by the Government of India of imposition of lockdown, and particularly, in this case, when the limitation has expired way back in 2019 itself, after the of the certified copy of the order was obtained on 07/08/2019.

12. The learned counsel for the appellant has submitted that though earlier the Hon'ble Apex Court, in a judgement reported in (2020) 2 SCC 109, N.V. International Vs. State of Assam and others, in a proceeding which were held under Section 37 of the Arbitration and Conciliation Act, to be read with Section 34 of the Act, was considering an aspect of preference of an Appeal beyond the prescribed period of 120 days, it has observed that in the light of the implications of Article 116 of the Limitation Act, the delay would not be condonable beyond the aforesaid period of 120 days. This was a judgement rendered by two-Judges Bench of the Hon'ble Apex Court.

13. In yet another judgement rendered by the Hon'ble Apex Court in Civil Appeal No. 995 of 2021, Government of Maharashtra Vs M/s Borse Brothers Engineers and Contractors Pvt. Ltd., which had been rendered by three- Judges Bench, headed by the Hon'ble Judge, who has rendered the earlier judgement in N.V. International (Supra), had laid down an exception, which has been carved out therein, in the judgement that the issue of limitation has

had to be considered with a vision provided in para 61 of the judgement, which is extracted hereunder :-

"61. 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 (1A) 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."

14. In answer to the argument extended by the learned counsel for the appellant based on the judgement of N.V. International (Supra), the learned counsel for the respondents had submitted that the Co-ordinate Bench of this Court was dealing with an identical issue in an Appeal preferred under Section 37 of the Arbitration and Conciliation Act, and the Appeal was dismissed on the ground of limitation, and particularly, in view of the observations made in para 14 and 15 of the judgement of the Coordinate Bench, which had while considering the impact

of the judgement of Borse Brothers (Supra), where the impact of interpretation of Article 116 had been diluted to be considered has declined to extend the limitation period due to the insufficiency of the cause given in the Delay Condonation Application.

15. In fact, for the reasons already considered above, the cause, which has been given in the affidavit filed in support of delay condonation do not at all entail an attraction para 61 of the judgment of Borse Brothers (Supra) to dilute the implications of Article 116 of the Constitution of India and the impact of expiry of the limitation period beyond 120 days and, hence, for the reasons aforesaid, this Court is not inclined to condone the delay of 140 days, which has chanced in preferring the Appeal from Orders.

16. Hence, the Delay Condonation Applications are rejected.

17. Accordingly, the objections taken by the respondents too would stand disposed of.

18. The Appeal from Orders, as a consequence of the rejection of the Delay Condonation Applications, too would stand dismissed.

(Sharad Kumar Sharma, J.) 21.04.2022 Shiv