JUDGMENT :

MANOJ KUMAR GUPTA, JAYANT BANERJI, JJ.

1. Heard Shri Manoj Kumar Singh, counsel for the appellant and Shri Sujeet Kumar, counsel for the respondents.

2. The instant appeal under Section 37 of the Arbitration and Conciliation Act, 1996[Act of 1996] has been filed challenging the order dated 23.11.2021 passed by the Presiding Officer, Commercial Court, Moradabad, dismissing an application under Section 34 of the Act of 1996 in Arbitration Case No. 3 of 2021 (Union of India Vs. M/S Bharat Construction and another). The appeal is reported to be beyond time by 258 days. The appeal has been filed along with a delay condonation application supported by an affidavit, which application is first being taken up for consideration.

Delay Condonation Application No. 1 of 2022

3. When the matter was listed on 20.10.2022, learned counsel for the respondent relied upon a judgment of the Supreme Court in the case of N.V. International Vs. State of Assam and others, (2020) 2 SCC 109 to contend that the delay in filing the aforesaid appeal cannot be condoned. He contended that the present appellate proceeding is in continuation of the original proceeding and the delay in filing this appeal would defeat the overall statutory purpose of arbitration proceedings which require that the proceedings be decided expeditiously. Learned counsel appearing for the appellant sought time to ascertain whether the aforesaid judgment of the Supreme Court still holds the field or not.

4. Today, learned counsel for the appellant has relied upon a judgment of the Supreme Court in the case of Government of Maharashtra Vs. M/s Borse Brothers Engineers and Contractors Private Limited, (2021) 6 SCC 460 to contend that the aforesaid judgment in N.V. International has been overruled. Learned counsel has referred to paragraph no. 52 of the judgment in Borse Brothers in support of his contention.

5. A perusal of judgment in Borse Brothers reveals that though the judgment of the Supreme Court in N.V. International was held to have been wrongly decided and therefore, overruled, the question further posed by the Supreme Court related to the application of Section 5 of the Limitation Act to appeals which are governed by a uniform 60-day period of limitation. The Supreme Court observed that it would have to steer a middle course between the two extremes; one being the judgment in N.V. International which does not allow condonation of delay beyond 30 days, and, the other, being an open-ended provision in which any amount of time can be condoned, provided sufficient cause is shown. While referring to its judgment in CIT Vs. Hindustan Bulk Carriers, (2003) 3 SCC 57 regarding harmonious construction of statutes, the Supreme Court, while reading Section 37 of the Act of 1996 with either Article 116 or 117 of the Limitation Act, or Section 13 (1A) of the Commercial Courts Act, observed that the object and context provided by the aforesaid statutes, read as a whole, is the speedy disposal of appeals filed under Section 37 of the Act of 1996. The Supreme Court observed as follows:

"55. Reading the Arbitration Act and the Commercial Courts Act as a whole, it is clear that when Section 37 of the Arbitration Act is read with either Article 116 or 117 of the Limitation Act or Section 13(1-A) of the Commercial Courts Act, the object and context provided by the aforesaid statutes, read as a whole, is the speedy disposal of appeals filed under Section 37 of the Arbitration Act. To read Section 5 of the Limitation Act consistently with the aforesaid object, it is necessary to discover as to what the expression “sufficient cause” means in the context of condoning delay in filing appeals under Section 37 of the Arbitration Act."

6. The Supreme Court further referred to the judgment in Ajmer Kaur Vs. State of Punjab, (2004) 7 SCC 381 and Brahampal Vs. National Insurance Company, (2021) 6 SCC 512 and observed as follows:

"58. Given the object sought to be achieved under both the Arbitration Act an