IMPORTANT POINT
The court established that delays in filing appeals can be condoned if sufficient cause is shown, particularly when the delay is not due to negligence or mala fides, and emphasized the importance of addressing serious issues regarding the composition of the arbitral tribunal.

JUDGMENT/ORDER

MANGESH S.PATIL, J. - Civil application no. 651 of 2023 is filed by the Public Works Department of the State of Maharashtra (hereinafter referred to as "Department") seeking condonation of delay calculated as 187 days in filing appeal under Sec. 37 of the Arbitration and Conciliation Act, 1996 ("Arbitration Act") read with Sec. 13 of the Commercial Courts Act, 2015 ("Commercial Courts Act"), against the judgment and order passed by the learned District Judge-2 & Commercial Court, Beed in a proceeding bearing Civil Miscellaneous Application no. 87 of 2018 dtd. 6/5/2022 dismissing the department's application preferred under Sec. 34 of the Arbitration Act.

2. The learned Additional Government Pleader by referring to the application and the additional affidavit filed by the department submitted that the facts and circumstances leading to the filing of the appeal are peculiar. The department manned by the personnel has been made to suffer the award because of the misdeeds of its officers and apart from the cause which the department is required to satisfy for condonation of delay, all the happenings throughout this proceeding right from the appointment of the arbitrator, are relevant factors for this Court to exercise its discretion.

3. As regards the cause for the delay, Mr. P.K. Lakhotiya, learned AGP would submit that though the department is not entitled to claim any exception and the law of limitation has to be applied equally even against it, there are sufficient circumstances which prevented it from preferring the appeal in time. He would submit that some time was lost to complete the administrative formalities and in seeking instructions and documents. The delay is neither deliberate nor is it intentional. The department was not to gain anything by causing the delay particularly when it is intending to challenge the award which is passed by the sole arbitrator in spite of a stipulation in the clause 3/4/17(iii)(a) that the arbitral tribunal would comprise of three arbitrators; one to be appointed by each of the sides and the third by the two such arbitrators of the parties.

4. The learned AGP would submit that according to the Bombay High Court Rules, this being an arbitration cum commercial appeal, it is supposed to be filed online. An attempt was made to submit it on 14/12/2022 but for want of bill of costs, the system was not accepting the registration and some time was lost therein till it was finally registered on 11/1/2023. The application under Sec. 34 of the Arbitration Act was decided on 6/5/2022 and the appeal under sec. 37 has been filed on 19/11/2022. The limitation for filing appeal is 60 days. Five (5) days were required for obtaining certified copies from the date of application till its receipt and there is 132 days delay.

5. Mr. Lakhotiya, the learned AGP would then refer to the decision of the Supreme Court in the matter of Government of Maharashtrta (Water Resources Department) represented by Executive Engineer Vs. Borse Brothers Engineers and Contractors Pvt. Limited; (2021) 6 SCC 460. He would submit that the department is entitled to take benefit of this decision since the delay has occurred bona fide and not in a negligent manner.

6. The learned advocate Mr. Singh for the claimant would strongly oppose the application by referring to the affidavit in reply. He would submit that there is no sufficient cause demonstrated by the department for this Court to exercise the discretion. Even the application for certified copy was not filed soon after pronouncement of the judgment and order by the learned District Judge on 6/5/2022. The calculation of delay is also incorrect. There is delay of 253 days. He would submit that the department is under an obligation to demonstrate sufficient cause and any reference to the merits of the appeal is irrelevant. He would also place reliance in the judgment of Borse Brothers (supra). The delay is enormous and the right which by lapse of time has vested in the c