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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PARTHIVJYOTI SAIKIA, J.
Union Of India - Appellant
Versus
M/s Tenzing Construction Main Market, Dirang, West Kameng, Arunachal Pradesh 790101 – Respondent
Arb.A.5 of 2019
Decided on : 18-01-2022
Arbitration and Conciliation Act, 1996 – Section 34,34(3) and 37 - Condonation of delay - Appeal - Arbitral award - Statutory time limit for filing appeal against the award had expired and appeal was filed - Learned trial court held that appellant could not show proper and cogent reasons for not preferring appeal within time stipulated by law- Court below held that prayer of appellant under Section 34 (3) Arbitration and Conciliation Act, 1996 (Amendment) Act, 2015 to entertain appeal under Section 34 of said Act is not maintainable - Court below dismissed appeal on that ground - Whether he would pursue remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.
Finding of the Court:
Law is already settled that law of limitation undoubtedly binds everybody, including Government - In a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, but the Government Department cannot take advantage of various earlier decisions at least in this age of electronic communication - Claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of modern technologies being used and available - In the case in hand, court have decided to agree with the view taken by the court below that appellant has failed to explain reasons for delay in a satisfactory manner - Learned trial court has rightly held that since the date of filing of appeal was to be calculated and prayer for condonation of delay should have been filed - Trial court has correctly appreciated legal provisions and arrived at a correct finding.
Result: Appeal dismissed
JUDGMENT :
Heard Mr. H. Gupta, learned counsel appearing for the appellant as well as Mr. U. K. Nair, learned senior counsel representing the respondent.
2. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (Amendment) Act, 2015.
3. The arbitral award was passed on 02.05.2018. The statutory time limit for filing appeal against the award had expired and the appeal was filed on 01.09.2018. The learned trial court held that the appellant could not show proper and cogent reasons for not preferring the appeal within time stipulated by law. Therefore, the court below held that the prayer of the appellant under Section 34 (3) Arbitration and Conciliation Act, 1996 (Amendment) Act, 2015 to entertain the appeal under Section 34 of the said Act is not maintainable. The Court below dismissed the appeal on that ground.
4. Mr. Gupta has submitted the chronology of events whereby the delay occurred. The list submitted by Mr. Gupta reads as under:
CRITICAL DATES IN R/O CA NO. 27 & 28 OF 2009-10
| Date | Activity/Incident took place | Remarks |
| 02.May 2018 | Hon’ble Sole Arbitrator Shri Raaj Wardhan Agarwal, published award signed on 02 May, 2018. An amount of Rs. 2,10,86,850/- (Rupees Two Crores, Ten Lacs Eight Six Thousands, Eight Hundred and Fifty only) awarded in favour of the Contractor (petitioner) the impugned Award was received by this HQ on 11 May, 2018 |
|
| 11 May, 2018 | Award was received by this HQ on 11 May, 2018. |
|
| 16 May, 2018 | This HQ instructed HQ 42 BRTF vide letter No. 80941/Arb/Web/E8 dated 16 May 2018 for submission of following documents : |
|
|
| (a) Parawise comments on Award. (b) Detailed SoC supported with annexure for Contesting the Award. (c) Liaison with RLC (E) for obtaining legal opinion On Award. (d) Recommendation of Commander TF. |
|
| 15 June. 2018 | The SOC, Parawise comments on impugned-Award Recommendation of Commander were received By this HQ on 15 June, 2018. |
|
| 25 June 2018 | This HQ vide letter No. 80941/Arb/88/E8 dated 25 June approached HQ ADGBR(E) for seeking Legal Opinion of ASGI |
|
| 29 June, 2018 | Legal Opinion of ASGI Shri Subhash Chandra Kayal, Advocate, received by this HQ on 29 June 2018. |
|
| 30 June 2018 | Notice served by the Contractor for filing Money Execution Case. |
|
| 02 July, 2018 | Case forwarded to HQs ADGBR(East) for challenging the impugned Award and requested for further advice on all the records submitted before him |
|
| 16 July, 2018 | In the mean time HQ 42 BRTF vide their letter No.8001/725/Arb/106/E8 dated 12 July, 2018 forwarded the case for contesting the Award, which was received by this HQ on 16 July, 2018. |
|
| 20 July, 2018 | Case forwarded to HQ ADGBR (East) vide this HQ letter No.80941/Arb/101/E8 dated 20 July, 2018 for legal opinion of LA (Def), which is required for contesting or implementing the Award. |
|
| 24 July, 2018 | This HQ approached Advo9cate Shri Surendar Mishra, Govt. Pleader to defend Money Execution Case in Hon’ble District Court Sonitpur at Tezpur |
|
| 30 July, 2018 | Case forwarded to HQ DGBR by HQ ADGBR (East) |
|
| 31 July, 2018 | Money Execution Case 03/2018 filed by the Contractor in Hon’ble District Court Sonitpur at Tezpur. |
|
| 16 Aug. 2018 | HQ ADGBR (East) suggested to file case to safe guard Govt. Dues vide their letter No. 80002/ADG(E)/---/ARB/28/E8. |
|
| 23 Aug, 2018 | This HQ approached Advocate Shri Surendar Mishra, Govt. Pleader to File the Petition to set aside Award for safe Guard of Govt. Dues. |
|
| 04 Sept, 2018 | Petition No. 05/2018 filed by the department to set aside Arbitration Award |
|
5. The submission of Mr. Gupta is primarily based on the fact that the appellant is a part of the Union of India having its headquarters outside
Appeal – Statutory time limit to file Appeal – Claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technol....
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The court reinforced that strict compliance with limitation periods under the Arbitration and Conciliation Act is mandatory, and delays beyond the prescribed time cannot be condoned without adequate ....
Timely filing of appeals under the Arbitration and Conciliation Act is crucial; bureaucratic delays are inadequate reasons for condoning significant delays.
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Condonation of delay under the Limitation Act requires substantial justification, and the State is treated no differently than private litigants in these matters.
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