The court held that adequate and sufficient cause must be shown for condoning delays beyond the statutory period of 60 days in appeals under the Commercial Courts Act and that administrative delays do not satisfy this requirement.

JUDGMENT

Najmi Wazri, J. (ORAL)

The hearing has been conducted through hybrid mode (physical and virtual hearing).

CM APPL. 31424/2022 (For condonation of delay)

1. This application seeks condonation of a delay of 34 days in the filing of the accompanying appeal under section 37 of the Arbitration and Conciliation Act, 1996, against the order of the District Judge dismissing its petition under section 34 of the Act. The appeal has also been filed under section 13 (1A) of the Commercial Courts Act, 2015. The latter provision reads inter alia as under:

" Section 13. Appeals from decrees of Commercial Courts and Commercial Divisions. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order: Provided 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).]"

2. An order of a Commercial Court at the level of District Judge can be impugned before the Commercial Division of this court only within a period of 60 days. Admittedly, the present appeal was filed on 01.07.2022 i.e. after 122 days of the impugned order dated 28.02.2022. In the circumstances, condonation of delay should have been sought for 62 days and not mere 34 days. The period of 60 days, from the date of the impugned order, expired on 29.04.2022. This court closed for the Summer Vacations on 03.06.2022. Effectively before the vacations, the appellant had at least 35 days to file the section 37 appeal, along with an application for condonation of such delay as may have been occasioned due to "sufficient cause". The appellant did not do so. Instead it filed the appeal on 01.07.2022.

3. In State of Maharashtra (Water Resources Department) vs. Borse Brothers Engineers and Contractors Pvt. Ltd. (2021) 6 SCC 460 it was held that preferring a petition under section 34 of the Arbitration and Conciliation Act, 1996, the period of 120 days on the outer side is fixed and not extendable, especially because of the proviso to section 34(3) of the Act which reads as under:

"Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."

(emphasis supplied)

4. In other words, the statute has put a cap of 3 months plus 30 days. The said judgment further held:

" 43. The next important argument that needs to be addressed is as to whether the hard-and-fast rule applied by this Court in N.V. International [N.V. International v. State of Assam, (2020) 2 SCC 109: (2020) 1 SCC (Civ) 275] is correct in law. Firstly, as has correctly been argued by Shri Shroti, N.V. International [N.V. International v. State of Assam, (2020) 2 SCC 109: (2020) 1 SCC (Civ) 275] does not notice the provisions of the Commercial Courts Act at all and can be said to be per incuriam on this count. Secondly, it is also correct to note that the period of 90 days plus 30 days and not thereafter mentioned in Section 34(3) of the Arbitration Act cannot now apply, the limitation period for filing of appeals under the Commercial Courts Act being 60 days and not 90 days. Thirdly, the argument that absent a provision curtailing the condonation