ON

12.07.2023

THIS

DAY,

THE

COURT

PRONOUNCED THE FOLLOWING:

J U D G M E N T

The appellants have filed an application under Section 5 of

the Limitation Act to condone the delay of 270 days in filing the

above appeal and in support of an application, an affidavit is

sworn to that, the judgment passed by the Hon’ble District

Judge, Mandya, is against the provisions of law and the

judgment was passed on 30.3.2021 and a copy of the judgment

was sent for obtaining the legal opinion. After receipt of the

opinion, it is observed that the impugned judgment passed was

erroneous and it requires to be challenged and hence decided to

challenge the impugned order by filing the above appeal.

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2. It is sworn to that, on account of the procedure involved

in finalizing the papers and processing the same, there is a bit

delay in filing the above appeal and with an abundant caution,

the above application is filed for seeking condonation of delay.

3. This application is resisted by filing the statement of

objections by the respondents contending that the very

application is not maintainable. In the statement of objections it

is contended that admittedly the appeal is filed after the delay of

605 days and no cogent reason is forthcoming for the said undue

delay. The only reason forthcoming is that matter was sent for

legal opinion and the file could not be found and could not be

traced, are not the cogent reasons. In fact, the reason assigned

is, delay and latches on the part of the appellants. It is

contended that execution petition was filed in No.118/2022

before the Principal District and Sessions Judge, Mandya and the

appellants have filed objections on 2.6.2022 stating that

execution petition was not maintainable because of non

furnishing the conversion order and layout plan. Hence, it is

clear that the appellants have accepted the judgment and decree

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of the District Judge and appellants had no plan to file the appeal

and the present appeal is an after thought.

4. It is also contended that the learned District Judge

dismissed the arbitration suit incidentally relying upon the

decision of this Court in (H.M. SHANKARAMURTHY Vs.

NATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in

2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in

the case of M.P. Power Generation Co. Ltd. Vs. Anraldo

Energia SPA and another reported in SCC Online SC 385 as

well as Associate Builders Vs. Delhi Development Authority

reported in AIR 2015 SC 620, and hence not made out any

ground to condone the delay and having the knowledge about

the execution, appeared and filed objection statement on

2.6.2022 itself. The present appeal is filed in the year 2023, that

too in the month of February and no explanation for the delay

and hence delay cannot be condoned.

5. The counsel in support of his argument relied upon the

judgment reported in (2021) 6 SCC 460 and referring this

judgment the counsel would vehemently contend that Section 5

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of the Limitation Act is not maintainable in an appeal filed under

Section 37 of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as the ‘Act’ for short). The counsel also

relied upon the judgment of this Court dated 23.2.2022 passed

in M.F.A.No.201018/2018 (AA), wherein also this Court held that

maximum delay period is only 120 days and thereafter they

cannot file an application to condone the delay and Section 5 of

the Limitation Act cannot be invoked. The counsel also

vehemently contend that the judgment of this Court in

Bhimashankar

Sahakari

Sakkare

Karkhane

Niyamita

passed in M.F.A.No.201018/2018 also affirmed by the Apex

Court in Civil Appeal No.6810/2022 vide order dated 10.4.2023

and the Apex Court also comes to the conclusion that High Court

has not committed any error in rejecting the condonation of

delay application and hence the very application filed under

Section 5 of the Limitation Act is not maintainable.

6. In reply to the arguments of the respondents counsel

vehemently contend that Arbitration and