Delay in filing an appeal must meet stringent requirements; insufficient explanations lead to dismissal.

(PER: HON'BLE MR. VIBHU BAKHRU,CHIEF JUSTICE)

1. None appears for the appellant.

2. The above-captioned appeal has been filed under Section 37 (1)(c) of the Arbitration and Conciliation Act, 1996 ,[A&C Act] impugning a judgment dated 29.03.2023 passed by the learned Commercial Court [LXXXII Addl. City Civil & Sessions Judge, Bengaluru] in Com.A.P.No. 93 of 2022, captioned 'M/s. Add Value vs. M/s. Team Designs & Another" .

3. The said petition was filed by the respondent under Section 34 of the A&C Act, impugning an arbitral award dated 23.08.2022 [impugned award]. The learned Commercial Court had examined the said application and found that the impugned award was vitiated by patent illegality.

4. We note that the present appeal has been filed, after an inordinate delay of 641 days. The appellant has also filed an application I.A.No.1/2025, for seeking condonation of delay. The reasons for the delay are set out in paragraph no. 7 of the said application. The same is reproduced below:

"7. I submit that, I had travelled to USA on

26.05.2022. The case judgment was pronounced during my stay there. When I returned back to India, I could not meet my Advocate due to my health issues and instruct him file the appeal. Since I lost his phone number I could not talk to him as well. I met my Advocate in the April month 2024, he has informed me about filing of the appeal, if I have to challenge the order. Accordingly, I have filed the MFA No.2912/2024 before this Hon'ble High Court of Karnataka. Since my health condition got little sensitive, I had not followed-up case thinking if any update would be informed by Advocate. Before ten days I met Advocate regarding taking updates on the case then, he informed the provision was wrongly mentioned in the Arbitration appeal as per the notification we should prefer the appeal in the commercial, as he also informed that, he have taken liberty to file the case. Hence, there is a delay in filing the case."

5. The appellant has not provided any specific dates other than stating that he had travelled to USA on 26.05.2022. The explanation that he could not meet his Advocate on his return on account of health issues and that he had lost his phone number, are clearly not credible explanations that can be accepted for condoning an inordinate delay of 641 days.

6. InGovernment of Maharashtra v. M/s. Borse Brothers Engineers & Contractors Pvt. Ltd. : (2021) 6 SCC 460, the Supreme Court overruled its earlier decision inNV International v. State of Assam : (2020) 2 SCC 109, whereby the Court had held that the power of the Courts to condone the delay in filing an appeal under Section 37 of the Act, was restricted to the proviso to Section 34 (3) of the A&C Act. However, the court also explained as under:

"53. However, the matter does not end here. The question still arises as to the application of Section 5 of the Limitation Act to appeals which are governed by a uniform 60-day period of limitation. At one extreme, we have the judgment in N.V. International [ N.V. International v. State of Assam , (2020) 2 SCC 109 : (2020) 1 SCC (Civ) 275] which does not allow condonation of delay beyond 30 days, and at the other extreme, we have an open-ended provision in which any amount of delay can be condoned, provided sufficient cause is shown. It is between these two extremes that we have to steer a middle course.

54. One judicial tool with which to steer this course is contained in the Latin maxim ut res magis valeat quam pereat. This maxim was fleshed out in CIT v. Hindustan Bulk Carriers [ CIT v. Hindustan Bulk Carriers , (2003) 3 SCC 57] as follows : [ Followed in the separate opinion delivered by Pasayat, J. in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35 (see paras 333-34).] (SCC pp.

73-74, paras 14-21)

“14