JUDGMENT :

Vikas Suri, J. -

CM-117-FCARB-2023

2. Prayer in this application under Section 5 of the Limitation Act, 1963, is for condoning the delay of 130 days in filing the accompanying First Appeal from Order (FAO).

3. Upon notice of the application, the respondents have put in appearance through counsel and opposed the same.

4. Learned counsel for the applicant-appellant submits that the applicant-appellant-corporation had preferred objections under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, 'Arbitration Act') against the award dated 02.04.2017 passed by the learned Arbitrator, whereby the appellant was ordered to pay a sum of Rs.60,74,075/- to the claimant-respondent within three months, failing which the awarded amount was to carry interest @ 10% per annum from the date of the award. The application/objections filed under Section 34 of the Arbitration Act, were dismissed by the learned Additional District Judge-cum-Presiding Officer, Commercial Court, Chandigarh, vide judgment dated 20.01.2023.

5. Aggrieved by the said judgment, the applicant-appellant-corporation has moved the present appeal along with the instant application seeking condonation of delay of 130 days in filing the appeal.

6. It is pleaded that upon receipt of intimation by the appellant-applicant from its counsel before the learned Commercial Court, about the passing of the impugned judgment dated 23.01.2023, request for applying for a certified copy thereof, was made. The application for obtaining the certified copy was moved on 08.02.2023, which was delivered on 15.04.2023. Thereafter, on retrieving the entire record from the counsel who had conducted the matter before the learned Commercial Court, Chandigarh, an opinion had to be sought from the concerned officials regarding suitability for preferring an appeal before the High Court. It is further pleaded that the applicant-corporation is a Government organization, with a pedantic system having many formalities that involve hierarchical structure, which resulted in taking some time for appointment of counsel to prefer the appeal. It is further pleaded that there is no intentional delay on the part of the applicant in filing the appeal, but for the circumstances beyond its control.

7. Learned counsel for the applicant has submitted that initially the appeal was filed under Section 37 of the Arbitration Act for which the period of limitation is 90 days, provided under Article 116 of the Limitation Act, 1973. Thus, the delay, in fact, is only of 100 days. It is further submitted that on certain objections having been raised by the Registry of this Court, whereafter, the matter was refiled after removing the said objections and upon refiling, the Registry has treated the present appeal as First Appeal from Order (Commercial Arbitration) under the provision of Section 13(1A) of the Commercial Courts Act, 2015. The period of limitation for preferring an appeal under the said provision has been reckoned to be 60 days and thus, delay of 130 days in filing the appeal has been calculated.

8. Per contra, learned counsel for the respondents has opposed the present application and defended the impugned order passed by the learned Commercial Court, Chandigarh. It is contended on behalf of the respondents that in view of the provision of Section 37 of the Arbitration Act, delay beyond a period of 120 days in filing the appeal cannot be condoned. It is further submitted that the provision of Section 5 of the Limitation Act would not apply to an appeal preferred under Section 13 of the Commercial Courts Act, 2015. Reliance has been placed on N.V. International vs. State of Assam and others, (2020) 2 SCC 109, which followed and applied the ratio in Union of India vs. Varindera Constructions Ltd., (2020) 2 SCC 111.

9. Heard learned counsel for the parties and with their able assistance perused the record.

10. Learned counsel for the applicant-appellant refuting the contentions of learned counsel for the re