Shekhar B. Saraf,J.

Civil Misc. Delay Condonation Application No.1 of 2024

1. Heard counsel appearing on behalf of the applicants/appellants and Mr. Pranjal Mehrotra with Mr. Ashish Kumar Gupta, counsel appearing on behalf of the respondent.

2. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') arising out of an order passed under Section 34 of the Act.

3. There is an inordinate delay of 393 days in filing this appeal under Section 37 of the Act.

4. In M/s N.V. International v. State of Asam and others reported in 2020 (2) SCC 109 [Coram:- Rohinton Fali Nariman and S. Ravindra Bhat, JJ.] and Government of Maharashtra (Water Resources Department) Represented by Executive Engineer v. M/s Borse Brothers Engineers & Contractors Pvt. Ltd. reported in (2021) 6 SCC 460 [Coram :- Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy, JJ.], the Supreme Court has stated that such a delay in filing an appeal under Section 37 of the Act cannot be allowed.

5. The issue with regard to filing an appeal under Section 37 of the Act is no longer res integra as the same has been settled by the Supreme Court. One may rely on the judgement in M/s N.V. International (Supra), the relevant paragraph thereof is delineated below :-

"4. We may only add that what we have done in the aforesaid judgment is to add to the period of 90 days, which is provided by statute for filing of appeals under Section 37 of the Arbitration Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul and Others (supra), as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 Act, and which has been strengthened from time to time by amendments made thereto. The present delay being beyond 120 days is not liable, therefore, to be condoned."

6. Furthermore, paragraph 61 of the judgement in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer (Supra) is required to be looked into. The said paragraph is delineated below:-

"61. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches."

7. A coordinate Bench of this Court in National Highway Authority of India Vs. Smt. Sampata Devi and others reported in 2023 (12) ADJ 787 [Coram:- Om Prakash Shukla, J.], in similar facts and circumstances, discussed in great detail a catena of judgements of the Supreme Court and has come to the following conclusion:-

"(44) In view of the authoritative Judgments of the Apex Court in M/s Borse Brothers Engineers & Contractors (supra), it must be held that an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 should be filed within 60 days from the date of the order as per Section 13(1A) of the Commercial Courts Act, 2015. However, in those rare cases where the specified value is for a sum less than INR 3,00,000.00 then the appeal under Section 37 would be governed by Articles 116 and 117 of the Schedule of the Limitation Act, as the case may be.

(45) Further, Section 5 of the Limitation Act will apply to the appeals filed under Section 37 of the Act, 1996 and in holding the said applicability, the Apex Court noted with affir