Uttarakhand High Court
AO/11/2022 on 5 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 5TH DAY OF MARCH, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ K. TIWARI
Delay Condonation Application No. 1 of 2022
IN
APPEAL FROM ORDER No. 9 of 2022
BETWEEN:
Jishan Ali ... Appellant
AND:
Arbitrator NHAI/Collector ... Respondents
Petitioners
(By Mr. Siddhartha Singh and Mr. P.S. Bisht, Advocates)
Respondents
(By Mr. Raunak Pant, Advocate holding brief of Mr.
Naresh Pant, Advocate)
With
Delay Condonation Application No. 1 of 2022
In
Appeal From Order No. 10 of 2022
With
Delay Condonation Application No. 1 of 2022
In
Appeal From Order No. 11 of 2022
With
Delay Condonation Application No. 1 of 2022
In
Appeal From Order No. 12 of 2022
With
Delay Condonation Application No. 1 of 2022
In
Appeal From Order No. 15 of 2022
With
Delay Condonation Application No. 1 of 2022
In
Appeal From Order No. 16 of 2022
With
Delay Condonation Application No. 1 of 2022
In
Appeal From Order No. 18 of 2022
2
JUDGMENT
1. These appeals have been filed under Section
37 of Arbitration and Conciliation Act, 1996, challenging
the orders passed by learned District Judge, Haridwar.
By the impugned orders, objection filed by appellants
under Section 34 of the said Act were decided, in terms
of settlement entered into between the parties. There
is considerable delay in filing these appeals and
condonation of delay has been sought in all the
appeals. The extent of delay in these appeals, as per
office report, is as under:-
(i) A.O. No. 09 of 2022 Delay-551 days
(ii) A.O. No. 10 of 2022 Delay-1317 days.
(iii) A.O. No. 11 of 2022 Delay -1261 days
(iv) A.O. No. 12 of 2022 Delay-658 days
(v) AO No. 15 of 2022 Delay-1223 days
(vi) A.O. No. 16 of 2022 Delay-658 days
(vii) A.O. No. 18 of 2022 Delay-1303 days
2. Since the explanation for delay given in the
delay condonation applications filed in all these appeals
is the same, therefore, the applications filed under
Section 5 of Limitation Act in these appeals are heard
and decided together. However, for the sake of brevity,
facts of A.O. No. 09 of 2022 alone are being considered,
in which there is least delay of 551 days.
3. In this appeal, challenge is to final order
dated 14.09.2018 passed by learned District Judge,
Haridwar in Misc. Application No. 40 of 2012. By the
said order, appellants' objection under Section 34 of
Arbitration and Conciliation Act, 1996 was decided,
based on a compromise between the parties.
4. Learned counsel appearing for the appellants
submitted that appellants were entitled to solatium and
interest, in terms of judgment rendered in the case of
Union of India and another v. Tarsem Singh and others,
reported in (2019) 9 SCC 304, in which Hon'ble
Supreme Court declared that provisions of the Land
Acquisition Act, relating to solatium and interest
contained under Section 23(1A) and (2) and interest
payable in terms of section 28 proviso, will apply to
acquisitions made under the National Highways Act.
Thus, according to him, learned District Judge erred in
not granting solatium and interest to the appellants.
5. Perusal of the record reveals that Competent
Authority, Land Acquisition, vide order dated
04.12.2010 had made a determination that appellant is
entitled to compensation at the rate of `558/- per
square meter. The Arbitrator enhanced rate of
compensation to `980.97/- per square meter.
6. Before learned District Judge in proceedings
under Section 34 of Arbitration and Conciliation Act, an
application was made on behalf of appellants that they
have entered into a settlement with opposite party
pursuant to which they are ready to accept
compensation at the rate of `1,450/- per square meter,
which will be in addition to other benefits mentioned in
the compromise deed.
7. In his deposition before learned District
Judge, appellant no. 1 stated that appellants have
arrived at a settlement with National Highways
Authority of India, therefore, their objection under
Section 34 of the aforesaid Act can be decided in terms
of the settlement. Accordingly, learned District Judge
decided the objection filed by appellants, in terms of
settlement, vide order dated 14.09.2018.
8. Learned counsel for the appellants submits
that appellants had given their acceptance for higher
rate of compensation, but their signatures/thumb
impressions were fraudulently obtained by mentioning
much less amount in the compromise deed. Thus,
according to him, the order passed by learned District
Judge deserves to be set-aside, as it is based on a
compromise, which was fraudulently obtained from the
appellants. He further submits that appellants are
entitled to solatium and interest, which has been denied
to them. He further submits that appellants' claim was
alive on 28.03.2008, which is the cut-off date indicated
by Hon'ble Supreme Court in the case of Sunita Mehra
v. Union of India, reported in (2019) 17 SCC 642.
9. At this stage, this Court is considering delay
condonation applications only and the contentions
raised by learned counsel for the appellants are
concerning merits of the case, therefore, these
submissions have no relevance for decision on
applications under Section 5 of Limitation Act filed by
appellants.
10. As per office report, in this appeal there is
delay of 551 days, excluding the period between
15.03.2020 to 02.10.2021 in terms of order passed by
Hon'ble Supreme Court in Suo Moto W.P. (Civil) No. 03
of 2020.
11. In the affidavit filed in support of delay
condonation application, it is contended that since no
limitation period has been prescribed in Arbitration and
Conciliation Act, 1996 for appeal under Section 37 of
the Act, therefore, by virtue of Article 137 of Indian
Limitation Act, the appeal would be in time upto 3
years, i.e., 13.09.2021. It is further stated that the
appellants are rustic persons, who are not familiar with
limitation aspect and the fraud played upon them was
unearthed recently, thus, question of delay/laches does
not arise, as fraud vitiates all solemn proceedings. It is
further stated that in November, 2019, worldwide news
of spread of COVID-19 Pandemic was there and in the
meantime, this Court closed on account of Dusshera &
Deepawali holidays and thereafter Court was closed due
to winter vacation and after re-opening of the Court,
appellant no. 1 tried to seek advice from local lawyers
of Haridwar regarding judgment rendered in the case of
Union of India & another v. Tarsem Singh & others, but
satisfactory advice was not given to him. It is further
stated that in the meantime, COVID-19 hit the country
and due to lockdown imposed by the Government,
movement became restricted. It is further stated that,
after consulting High Court lawyer at Nainital, appellant
no. 1 returned to Haridwar and on 23.10.2021, he
applied for certified copy of compromise and the order
passed by learned District Judge, which were supplied
to him, on 27.10.2021.
12. The explanation given in the delay
condonation application does not appear to be
plausible. The order impugned in this appeal was
passed on 14.09.2018. Lockdown was imposed in the
third week of March, 2020 and there is no explanation
regarding the steps taken by appellants, between
14.09.2018 till imposition of lockdown. Steps taken
after lifting of lockdown have also not been indicated.
What they did after 27.10.2021, when certified copies
were delivered to them is also not indicated. For filing
appeal after expiry of limitation period, appellants are
required to give day-to-day explanation for the delay
caused in the matter and only then delay in filing
appeal can be condoned. Having regard to the
explanation given by the appellants, it cannot be
termed as 'satisfactory'. At any rate, it cannot be
treated as sufficient cause for condoning the delay
caused in filing the appeal.
13. In the case of Government of Maharashtra
(Water Resources Department) represented by
Executive Engineer v. Borse Brothers Engineers and
Contractors Private Limited, reported in (2021) 6 SCC
460, Hon'ble Supreme Court has held that for appeals
filed under Section 37 of the Arbitration 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 and in SLP (C) No. 15278 of 2020 decided by the
said judgment, condonation of delay of 75 days by High
Court was set-aside by holding that explanation offered
for delay falls woefully short of making out any
sufficient cause. Para no. 63 of the aforesaid judgment
is reproduced below:-
"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(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. Learned counsel for the appellants submits
that while considering delay condonation application, a
liberal and justice oriented approach should be adopted.
The said submission may be valid in respect of other
proceedings, however, in view of the law of the land
laid down in the case of Government of Maharashtra
(Water Resources Department) represented by
Executive Engineer v. Borse Brothers Engineers and
Contractors Private Limited, the said contention cannot
be accepted in respect of proceedings under Arbitration
& Conciliation Act, 1996.
15. Since there is no sufficient cause given for
condoning delay of 551 days, therefore, the delay
condonation application filed in A.O. No. 09 of 2021 is
rejected.
16. Since in other appeals also, same explanation
has been given for condoning delay in filing the
appeals, consequently, the delay condonation
applications filed in other appeals are also rejected.
17 Consequently, all the appeal stand dismissed.
(Manoj Kumar Tiwari, J.)
Aswal
