Point of Law: Arbitration Application – Grant if interim relief - Court exercising appellate jurisdiction against an order in a Section 9 application, do not even have jurisdiction

JUDGMENT :

RAJIV SAHAI ENDLAW, J.

1. The short question for adjudication in this appeal is, whether Section 9 of the Arbitration and Conciliation Act, 1996 empowers the Court to grant to an applicant, a relief, not in the nature of interim measure of protection, but in the nature of a final relief, even if a case for urgent need thereof is made out and merely by expressing the same to have been granted on a prima facie view of the matter and by making it subject to the arbitral award and by securing the respondent, against whom the relief is so granted, for restitution.

2. Though the pure question of law aforesaid is short, but the narrative of facts and history of this litigation is long.

3. This appeal, under Section 37(1)(b) of the Arbitration Act read with Section 13 of the Commercial Courts Act, 2015, impugns the judgment/order dated 25th November, 2019 allowing OMP(I)(COMM.) No.218/2019 under Section 9 of the Arbitration Act, filed by the respondent Bhubaneswar Expressway Private Limited (BEPL) and directing the appellant National Highways Authority of India (NHAI) to, subject to the respondent BEPL furnishing an unconditional and irrevocable bank guarantee in favour of the appellant NHAI and further subject to final award of the Arbitral Tribunal, deposit in an escrow account, a sum of Rs.337,73,19,434.10 paise, found due from NHAI to BEPL towards termination payment under the Concession Agreement between NHAI and BEPL.

4. The appeal, accompanied with an application for interim stay came up first before this Court on 26th May, 2020, when the senior counsel for BEPL appearing on advance notice contended that the last date for preferring the appeal was 1st February, 2020 but the appeal was filed on 26th February, 2020 and was barred by time and no application even for condonation of delay in filing the appeal, had been filed. The senior counsel for NHAI, anticipating this objection, during the hearing on 26th May, 2020, circulated N.V. International Vs. State of Assam (2020) 2 SCC 109, though holding that the condonation of delay in preferring an appeal under Section 37 of the Arbitration Act can be of maximum 30 days and not more, but on the basis thereof contended that the limitation for preferring an appeal under Section 37 is 90 days and not 60 days, on the basis whereof the senior counsel for BEPL was computing the last date for filing the appeal as 1st February, 2020. It was thus argued that there was no delay in filing the appeal on 26th February, 2020 and the appeal was within time. However the said contention of NHAI was rejected vide order dated 26th May, 2020, reasoning and directing as under:

"10. We are unable to agree that the limitation for preferring a intra-court appeal under Section 37 of the Arbitration & Conciliation Act is of 90 days. Supreme Court in N.V. International (supra) was concerned with an appeal from an order of the District Judge to the High Court and the limitation wherefor provided under the Limitation Act, 1963 is of 90 days. However, the limitation provided for in the Limitation Act for preferring an intra-court appeal is of 30 days and which by virtue of Section 13(1A) of the Commercial Courts Act has been increased to 60 days.

11. It thus appears that the appeal filed on 26th February, 2020 is within the extendable period of 30 days. We have thus enquired from the senior counsel for the respondent, whether the respondent is contesting the aspect of limitation.

12. The senior counsel for the respondent has replied in the affirmative.

13. The senior counsel for the appellant states that the application for condonation of delay, though ready, remained to be filed, and will be filed today itself, with advance copy to the opposite side.

14. Reply be filed by day after tomorrow."

5. On the next date of hearing i.e. 29th May, 2020, the following order was passed:

"4. During the hearing, it has transpired that the appellant had originally filed an appeal on 26th February, 2020 vide Diary No.303871/2020