GOVERNMENT OF MAHARASHTRA (WATER RESOURCES DEPARTMENT) REPRESENTED BY EXECUTIVE ENGINEER versus M/S BORSE BROTHERS ENGINEERS & CONTRACTORS PVT. LTD.
[2021] 3 S.C.R. 193, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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   [2021] 3 S.C.R. 193
193
GOVERNMENT OF MAHARASHTRA (WATER RESOURCES
DEPARTMENT) REPRESENTED BY EXECUTIVE ENGINEER
v.
M/S BORSE BROTHERS ENGINEERS & CONTRACTORS
PVT. LTD.
(Civil Appeal No. 995 of 2021)
MARCH 19, 2021
[R. F. NARIMAN, B. R. GAVAI AND HRISHIKESH ROY, JJ.]
Arbitration and Conciliation Act, 1996:s. 37 – Commercial
Courts Act, 2015 – Appealable orders – Limitation period for filing
appeal – Condonation of delay in filing appeal u/s. 37 – Held:
Object of speedy disposal is sought to be achieved both under the
Arbitration Act and the CC Act, for appeals filed u/s. 37 of the
1996 Act that are governed by Arts, 116 and 117 of the Limitation
Act or s. 13(1A) of the CC Act – s. 13(1A) of the CC Act lays down
a period of limitation of 60 days uniformly for all appeals that are
preferred u/s.37 of the Act – 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 acted bona fide
and not in a negligent manner, a short delay can be condoned –
Expression “sufficient cause” is not elastic enough to cover long
delays beyond the period provided by the appeal provision itself –
Limitation Act, 1963 – Arts. 116 and 117.
Limitation Act, 1963: s. 5 – Application of s. 5, to appeals u/
s. 37 of the 1996 Act and to s. 13(1A) of the CC Act – Held: s. 37
when read with s. 43 thereof, makes it clear that the provisions of
the Limitation Act would apply to appeals filed
u/s. 37 – Appeal u/
s. 37 where specified value within the meaning of the CC Act is
below 3 lakhs, are governed by Arts. 116 and 117 – Arts. 116 and
117 of the Limitation Act provide for a limitation period of 90 days
and 30 days, for appeal to a High Court or an intra-High Court
appeal – Thus, s. 5 of the Limitation Act would apply to the said
appeals, both by virtue of s. 43 of the 1996 Act and s. 29(2) of the
Limitation Act – Arts. 116, 117, s. 29(2) – Commercial Courts Act,
2015.
s. 5 – Application of, to appeals u/s. 13(1A) of the CC Act
providing a uniform 60-day period of limitation – Held: A middle
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course to be adopted between the N.V. International’s case which
does not allow condonation of delay beyond 30 days, and an open-
ended provision in which any amount of delay can be condoned,
provided sufficient cause is shown – Maxim ut res magis valeat quam
pereat-liberal construction should be put upon written instruments,
to be followed – Commercial Courts Act, 2015.
Constitution of India – Art. 141 – Binding precedent – N.V.
International v. State of Assam’s case applied the provisions of s. 5
of the Limitation Act and held that no condonation of delay could
take place beyond 120 days – Whether the hard and fast rule applied
by this Court in N.V. International’s case, is correct in law – Held:
N.V. International’s case while determining limitation period for filing
appeal u/s. 37 did not notice the provisions of the CC Act at all and
can be said to be per incuriam on this count - Period of 90 days
plus 30 days and not thereafter mentioned in s. 34(3) of the 1996
Act cannot now apply, the limitation period for filing of appeals
under the CC Act being 60 days and not 90 days – Thus, N.V.
International’s case has been wrongly decided and is overruled –
Arbitration and Conciliation Act, 1996 – ss. 37 and 34(3) –
Commercial Courts Act, 2015.
Disposing of the appeals, the Court
HELD: 1.1 The requirement of an arbitral procedure which
is efficient and the minimising of the supervisory role of courts in
arbitral process
would certainly show that one of the main
objectives of the Arbitration and Conciliation Act 1996is the
speedy disposal of disputes through the arbitral process. Section
5 of the Arbitration Act is important. Section 37 of the Arbitration
Act, when read with section 43 thereof, makes it clear that the
provisions of the Limitation Act would apply to appeals that are
filed under section 37. Articles 116 and 117 of the Limitation Act
provide for a limitation period of 90 days and 30 days, depending
upon whether the appeal is from any other court to a High Court
or an intra-High Court appeal. There can be no doubt whatsoever
that section 5 of the Limitation Act would apply to the said appeals,
both by virtue of section 43 of the Arbitration Act and by virtue of
section 29(2) of the Limitation Act. [Para 15, 23][210-D-E; 222-
C-E]
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Consolidated Engg. Enterprises v. Irrigation Deptt.
(2008) 7 SCC 169 : [2008] 5 SCR 1108 – relied on.
1.2 When the Commercial Courts Act, 2015 is applied to
the said appeals, given the definition of “specified value” and
the provisions contained in sections 10 and 13 thereof, it is clear
that it is only when the specified value is for a sum less than
three lakh rupees that the appellate provision contained in section
37 of the Arbitration Act would be governed, for the purposes of
limitation, by Articles 116 and 117 of the Limitation Act. The
submission that depending upon which court decides a matter, a
limitation period of either 30 or 90 days is provided, which leads
to arbitrary results, and that, therefore, the uniform period
provided by Article 137 of the Limitation Act should govern
appeals as well, is rejected. It is settled that periods of limitation
must always to some extent be arbitrary and may result in some
hardship, but this is no reason as to why they should not be strictly
followed. The submission that since no period of limitation has
been provided in section 37 of the Arbitration Act, as a result of
which the neat division contained in the Limitation Act of different
matters contained in suits, appeals and applications will somehow
have to be destroyed, the word “appeals” has to be read into
“applications” so that Article 137 of the Limitation Act could
apply, is also rejected. [Para 24, 25][224-E-G; 225-D-E]
Boota Mal v. Union of India
[1963] 1 SCR 70 –
referred to.
1.3 Even in the rare situation in which an appeal under
section 37 of the Arbitration Act would be of a specified value
less than three lakh rupees, resulting in Article 116 or 117 of the
Limitation Act applying, the main object of the Arbitration Act
requiring speedy resolution of disputes would be the most
important principle to be applied when applications under section
5 of the Limitation Act are filed to condone delay beyond 90 days
and/or 30 days depending upon whether Article 116(a) or 116(b)
or 117 applies. As a matter of fact, given the timelines contained
in sections 8, 9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5)
and 34(3) of the Arbitration Act, the object of speedy resolution
of disputes would govern appeals covered by Articles 116 and
117 of the Limitation Act. Thus, from the scheme of the Arbitration
GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.
ENGR. v.  M/S BORSE BROS. ENGR. & CONTR (P) LTD.
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Act, and the judgments given, condonation of delay under section
5 of the Limitation Act has to be seen in the context of the object
of speedy resolution of disputes. [Para 26, 31][225-E-G; 228-C]
Union of India v. Popular Construction Co. (2001) 8
SCC 470 : [2001] 3 Suppl.  SCR  619; State of Goa v.
Western Builders (2006) 6 SCC 239; Kandla Export
Corpn. v. OCI Corpn. (2018) 14 SCC 715 : [2018] 1
SCR 915; ICOMM Tele Ltd. v. Punjab State Water
Supply and Sewerage Board (2019) 4 SCC 401 – relied
on.
1.4 The bulk of appeals, however, to the appellate court
under section 37 of the Arbitration Act, are governed by section
13 of the Commercial Courts Act. Sub-section (1A) of section 13
of the Commercial Courts Act provides the forum for appeals as
well as the limitation period to be followed, section 13 of the
Commercial Courts Act being a special law as compared with the
Limitation Act which is a general law, which follows from a reading
of section 29(2) of the Limitation Act. Section 13(1A) of the
Commercial Courts Act lays down a period of limitation of 60
days uniformly for all appeals that are preferred under section 37
of the Arbitration Act. [Para 32][228-D-E]
BGS SGS SOMA JV v. NHPC (2020) 4 SCC 234 –
referred to.
1.5 Section 13(1A) of the Commercial Courts Act does not
contain any provision akin to section 34(3) of the Arbitration Act.
Section 13(1A) of the Commercial Courts Act only provides for a
limitation
period of 60 days from the date of the judgment or
order appealed against, without further going into whether delay
beyond this period can or cannot be condoned. Though the object
of expeditious disposal of appeals is laid down in section 14 of
the Commercial Courts Act, the language of section 14 makes it
clear that the period of six months spoken of is directory and not
mandatory. By way of contrast, section 16 of the Commercial
Courts Act read with the Schedule thereof and the amendment
made to Order VIII Rule 1 of the CPC, would make it clear that
the defendant in a suit is given 30 days to file a written statement,
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which period cannot be extended beyond 120 days from the date
of service of the summons; and on expiry of the said period, the
defendant forfeits the right to file the written statement and the
court cannot allow the written statement to be taken on record.
By way of contrast, there is no such provision contained in section
13 of the Commercial Courts Act. [Para 33, 34, 36][228-F-G; 229-
A-B; 232-C]
1.6 There are no other provisions in the Commercial Courts
Act which provide for a period of limitation coupled with a
condonation of delay provision which is either open-ended or
capped. Also, the period of 180 days provided was one indicia
which led the Court to exclude the application of section 5 of the
Limitation Act, as it was double and triple the period provided
for appeals under the other provisions of the same Act. Section
13(1A) of the Commercial Courts Act, by way of contrast, applies
an intermediate period of 60 days for filing an appeal, that is, a
period that is halfway between 30 days and 90 days provided by
Articles 116 and 117 of the Limitation Act. [Para 38][234-B-C]
CCE & Customs v. Hongo India (P) Ltd. (2009) 5 SCC
791; Suryachakra Power Corpn. Ltd. v. Electricity
Deptt. (2016) 16 SCC 152 : [2016] 8 SCR 108; ONGC
v. Gujarat Energy Transmission Corpn. Ltd. (2017) 5
SCC 42 : [2017] 2 SCR 922 – distinguished.
Salem Advocate Bar Assn. (II) v. Union of India (2005)
6 SCC 344; SCG Contracts (India) (P) Ltd. v. K.S.
Chamankar Infrastructure (P)
Ltd. (2019) 12 SCC 210
: [2019] 3 SCR 1050 – referred to.
1.7 Section 21 of the Commercial Courts Act was pressed
into service stating that the non-obstante clause contained in the
CC Act would override other Acts, including the Limitation Act,
as a result of which, the applicability of section 5 thereof would
be excluded. Thus, the submission that the application of section
5 of the Limitation Act is excluded given the scheme of
Commercial Courts Act, is rejected. [Para 40, 41][234-E-F; 235-
D-E]
B.K. Educational Services (P) Ltd. v. Parag Gupta &
Associates (2019) 11 SCC 633 : [2018] 12 SCR 794 –
referred to.
GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.
ENGR. v.  M/S BORSE BROS. ENGR. & CONTR (P) LTD.
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1.8 It was submitted as to whether the hard and fast rule
applied by this Court in N.V. International’s case is correct in law.
N.V. International’s case does not notice the provisions of the
Commercial Courts Act at all and can be said to be per incuriam
on this count. Secondly, it is also correct to note that the period
of 90 days plus 30 days and not thereafter mentioned in s. 34(3)
of the Arbitration Act cannot now apply, the limitation period for
filing of appeals under the Commercial Courts Act being 60 days
and not 90 days. Thirdly, the submission that absent of a provision
curtailing the condonation of delay beyond the period provided
in s. 13 of the Commercial Courts Act would also make it clear
that any such bodily lifting of the last part of section 34(3) into
section 37 of the Arbitration Act would also be unwarranted. It
cannot be said that this is a mere casus omissus which can be
filled in by the Court. [Para 42][235-E-H]
1.9 The difference between interpretation and legislation
is sometimes a fine one, as the judges do not merely interpret
the law but also create law. [Para 43][236-A]
Eera v. State (NCT of Delhi) (2017) 15 SCC 133 : [2017]
7 SCR 924 – referred to.
1.10 It is a littledifficult to appreciate how a cap can be
judicially engrafted onto astatutory provision which then bars
condonation of delay by even one day beyond the cap so
engrafted.[Para 47][238-A]
1.11 The submission that the
limitation of power on a civil
court at the initial stage can be read as a limitation onto the
appellate court, cannot be accepted. [Para 49][239-D-E]
Chandi Prasad v. Jagdish Prasad (2004) 8 SCC 724 :
[2004] 4 Suppl. SCR 942; D. Purushotama Reddy v. K.
Sateesh (2008) 8 SCC 505 : [2008] 11 SCR 738 –
referred to.
1.12 Reliance upon P. Radha Bai’s case on the doctrine of
unbreakability when applied tos. 34(3) of the Arbitration Act, also
does not carry the matter much further, as the question is whether
this doctrine can be bodily lifted and engrafted onto an appeal
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provision that has no cut-off point beyond which delay cannot be
condoned. Thus, N.V. International’s case has been wrongly
decided and is overruled. [Para 50][239-G-H; 240-A-B]
N.V. International v. State of Assam (2020) 2 SCC 109
– overruled.
P. Radha Bai v. P. Ashok Kumar (2019) 13 SCC 445 :
[2018] 12 SCR 143 – referred to.
1.13 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, there is N.V.
International’s case which does not allow condonation of delay
beyond 30 days, and at the other extreme, there is 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
this Court have to steer a middle course. One judicial tool to
steer this course is contained in the latin maxim ut res magis
valeat quam pereat- liberal construction should be put upon
written instruments. [Para 51, 52] [240-B-E]
CIT v. Hindustan Bulk Carriers (2003) 3 SCC 57 :
[2002] 5 Suppl.  SCR 387 – referred to.
1.14 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(1A) of the Commercial Courts Act,
the object and context provided by the said 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 said 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. The expression “sufficient cause” contained in
section 5 of the Limitation Act is elastic enough to yield different
results depending upon the object and context of a statute.
[Para 53, 54] [242-B-D]
Ajmer Kaur v. State of Punjab (2004) 7 SCC 381 : [2004] 2
Suppl.  SCR 601; Brahampal v. National Insurance Company
2020 SCC OnLine SC 1053 – referred to.
GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.
ENG.R v.  M/S BORSE BROS. ENGR. & CONTR (P) LTD.
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1.15 Given the object sought to be achieved under both
the Arbitration Act and the Commercial Courts Act, that is, the
speedy resolution of disputes, the expression “sufficient cause”
is not elastic enough to cover long delays beyond the period
provided by the appeal provision itself. Besides, the expression
“sufficient cause” is not itself a loose panacea for the ill of pressing
negligent and stale claims. Likewise, merely because the
government is involved, a different yardstick for condonation of
delay cannot be laid down. Also, merely because sufficient cause
has been made out, there is no right in the appellant to have
delay condoned.[Para 56, 57, 60][246-B-C; 249-B; 251-F]
Basawaraj v. Land Acquisition Officer (2013) 14 SCC
81: [2013] 8  SCR 227; Postmaster General v. Living
Media India Ltd. (2012) 3 SCC 563 : [2012] 1 SCR
1045; State of Rajasthan v. Bal Kishan Mathur (2014)
1 SCC 592 : [2013] 10 SCR 137; State of U.P. v. Amar
Nath Yadav (2014) 2 SCC 422; State of T.N. v. N. Suresh
Rajan (2014) 11 SCC 709 : [2014] 1  SCR 135; State
of M.P. v. Bherulal (2020) 10 SCC 654; State of M.P. v.
Chaitram Maywade (2020) 10 SCC 667; Ramlal v. Rewa
Coalfields Ltd. (1962) 2 SCR 762 – referred to.
1.16 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. [Para 61][252-E-F]
1.17 In the Civil Appeal arising out of SLP (C) No. 665 of
2021, the impugned judgment of the High Court, the Govt of
Maharashtra had not approached the court bona fide. Apart from
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this, there is a long delay of 131 days beyond the 60- day period
provided for filing an appeal under section 13(1A) of the
Commercial Courts Act. There is no explanation worth the name
contained in the condonation of delay application, beyond the
usual file-pushing and administrative exigency. [Para 62, 63][252-
G; 253-C-D]
1.18 In the Civil Appeal arising out of SLP (C) No. 15278 of
2020, the impugned judgment of the High Court relied upon
Consolidated Engg.’s case and thereby stated that the judgment
of this Court in N.V. International’s case would not apply. The
judgment of the High Court is wholly incorrect inasmuch as
Consolidated Engg.’s case was a judgment which applied the
provisions of section 14 of the Limitation Act and had nothing to
do with the application of section 5 of the Limitation Act. N.V.
International’s case was a direct judgment which applied the
provisions of section 5 of the Limitation Act and then held that
no condonation of delay could take place beyond 120 days. The
High Court was bound to follow N.V. International’s case, as on
the date of the judgment of the High Court, N.V. International’s
case was a judgment of two judges of the Supreme Court binding
upon the High Court by virtue of Article 141 of the Constitution.
On this score, the impugned judgment of the High Court is set
aside. That apart, on the facts of this appeal, there is a long delay
of 75 days beyond the period of 60 days provided by the
Commercial Courts Act.
Despite the fact that a certified copy of
the District Court’s judgment was obtained by the respondent
on 27.04.2019, the appeal was filed only on 09.09.2019. This
explanation for delay falls woefully short of making out any
sufficient cause. The condonation of delay is set aside on this
score also. [Para 64-66][253-D-H; 254-A-E]
1.19 In the Civil Appeal arising out of SLP (C) Diary No.
18079 of 2020, there is a huge delay of 227 days in filing the
appeal, and a 200-day delay in refiling. The facts of the case also
show that there was no sufficient cause whatsoever to condone
such a long delay. The judgment of the High Court cannot be
faulted on this score. [Para 67][254-E-F]
Union of India v. Varindera Constructions Ltd. (2020)
2 SCC 111 – referred to.
GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.
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Case Law Reference
(2020) 2 SCC 111
referred to
Para 2
[2008] 5 SCR 1108
relied on
Para 23
[1963] 1 SCR 70
referred to
Para 24
[2001] 3 Suppl. SCR 619
relied on
Para 27
(2006) 6 SCC 239
relied on
Para 28
[2018] 1 SCR 915
relied on
Para 29
(2019) 4 SCC 401
relied on
Para 30
(2020) 4 SCC 234
referred to
Para 32
(2005) 6 SCC 344
referred to
Para 34
[2019] 3 SCR 1050
referred to
Para 35
(2009) 5 SCC 791
distinguished
Para 36
[2016] 8 SCR 108
distinguished
Para 39
[2017] 2 SCR 922
distinguished
Para 39
[2018] 12 SCR 794
referred to
Para 40
[2017] 7 SCR 924
referred to
Para 43
[2004] 4 Suppl. SCR 942
referred to
Para 48
[2008] 11 SCR 738
referred to
Para 48
(2020) 2 SCC 109
overruled
Para 50
[2018] 12 SCR 143
referred to
Para 50
[2002] 5 Suppl. SCR 387
referred to
Para 52
[2004] 2 Suppl. SCR 601
referred to
Para 54
[2013] 8 SCR 227
referred to
Para 56
[2012] 1 SCR 1045
referred to
Para 57
[2013] 10 SCR 137
referred to
Para 58
(2014) 2 SCC 422
referred to
Para 58
[2014] 1 SCR 135
referred to
Para 58
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(2020) 10 SCC 654
referred to
Para 58
(2020) 10 SCC 667
referred to
Para 59
(1962) 2 SCR 762
referred to
Para 60
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 995 of
2021.
From the Judgment and Order dated 17.12.2020 passed by the
High Court of Judicature at Bombay Bench at Aurangabad in Civil
Application No. 421 of 2020 in Arbitration Petition (Stamp) no. 36068 of
2019.
Ms. Aishwarya Bhati, ASG, Vinay Navare, Sr. Adv. Sandeep
Sudhakar Deshmukh, Pravir Kumar Jain, Ameyavikrama Thanvi, Akshay
Amritanshu, Ms. Ruchi Kohli, Prashant Singh, Arvind Kumar Sharma,
Shashibhushan P. Adgaonkar, Vijay Patil, Ravibhushan P Adgaonkar,
Gagandeep Sharma, Rana Sandeep Bussa, Amalpushp Shroti, Dr. Amit
George, Arunabha Ganguli, Guntur Pramod Kumar, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted. Delay condoned in SLP (C) Diary No.18079 of
2020.
2. The substantial question of law which arises in these appeals is
as to whether the judgment of a Division Bench of this Court in N.V.
International v. State of Assam, (2020) 2 SCC 109 [“N.V.
International”] lays down the law correctly. This Court followed its
earlier judgment in Union of India v. Varindera Constructions Ltd.,
(2020) 2 SCC 111 [“Varindera Constructions”] and held as follows:
“3. Having heard the learned counsel for both sides, we may
observe that the matter is no longer res integra. In Union of India
v. Varindera Constructions Ltd. [Union of India
v. Varindera
Constructions Ltd., (2020) 2 SCC 111] , this Court, by its judgment
and order dated 17-9-2018 [Union of India v. Varindera
Constructions Ltd., (2020) 2 SCC 111] held thus: (SCC p. 112,
paras 1-5)
“1. Heard the learned counsel appearing for the parties.
GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.
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2. By a judgment dated 19-4-2018 in Union of India v.
Varindera Constructions Ltd. [Union of India v. Varindera
Constructions Ltd., (2018) 7 SCC 794], this Court has in near
identical facts and circumstances allowed the appeal of the
Union of India in a proceeding arising from an arbitral award.
3. Ordinarily, we would have applied the said judgment to this
case as well. However, we find that the impugned Division
Bench judgment dated 10-4-2013 [Union of India v. Varindera
Constructions Ltd., 2013 SCC OnLine Del 6511] has dismissed
the appeal filed by the Union of India on the ground of delay.
The delay was found to be 142 days in filing the appeal and
103 days in refiling the appeal. One of the important points
made by the Division Bench is that, apart from the fact that
there is no sufficient cause made out in the grounds of delay,
since a Section 34 application has to be filed within a maximum
period of 120 days including the grace period of 30 days, an
appeal filed from the selfsame proceeding under Section 37
should be covered by the same drill.
4. Given the fact that an appellate proceeding is a continuation
of the original proceeding, as has been held in Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri [Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 SCC
OnLine FC 10 : AIR 1941 FC 5] , and repeatedly followed by
our judgments, we feel that any delay beyond 120 days in the
filing of an appeal under
Section 37 from an application being
either dismissed or allowed under Section 34 of the Arbitration
and Conciliation Act, 1996 should not be allowed as it will defeat
the overall statutory purpose of arbitration proceedings being
decided with utmost despatch.
5. In this view of the matter, since even the original appeal
was filed with a delay period of 142 days, we are not inclined
to entertain these special leave petitions on the facts of this
particular case. The special leave petitions stand disposed of
accordingly.
Pending applications, if any, also stand disposed of.”
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
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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 [Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 SCC OnLine
FC 10 : AIR 1941 FC 5] , 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.”
3. In two of the three appeals before us, i.e., Civil Appeal arising
out of SLP (C) No. 665 of 2021 and Civil Appeal arising out of SLP (C)
Diary No.18079 of 2020, the High Courts of Bombay and Delhi vide
judgments dated 17.12.2020 and 15.10.2019 respectively, dismissed the
appeals filed by the Government of Maharashtra and by the Union of
India respectively, refusing to condone the delay in the filing of the appeal
under section 37 of the Arbitration and Conciliation Act, 1996
[“Arbitration Act”] beyond 120 days. So far as the Civil Appeal arising
out of SLP (C) No.15278 of 2020 is concerned, the High Court of Madhya
Pradesh refused to follow the judgment of this Court in N.V.
International (supra) stating that there is a conflict between this judgment
and the judgment of a larger Bench of this Court reported in
Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC
169
[“Consolidated Engg.”]. It was, therefore, held that it was open
for the High Court to condone the delay applying section 5 of the Limitation
Act, 1963 [“Limitation Act”] and, as a matter of fact, a delay of what
was stated to be 57 days was condoned.
4. Shri Sandeep Sudhakar Deshmukh, learned counsel appearing
on behalf of the Government of Maharashtra (Water Resources
Department) [“Govt of Maharashtra”], the appellant in Civil Appeal
arising out of SLP (C) No. 665 of 2021, submitted that the Arbitration
Act in its original avatar did not include the concept or idea of expeditious
resolution of disputes. At best, the Arbitration Act can be treated as a
mechanism providing for alternate dispute resolution. This original
objective is continued by the Arbitration and Conciliation (Amendment)
Act, 2015 [“2015 Amendment”] which provides a time limit for arbitral
awards and for fast track procedure contained in sections 29A and 29B
of the Arbitration Act. This being the case, the very foundation of N.V.
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International (supra) is erroneous in law. Shri Deshmukh also argued
that section 37 of the Arbitration Act provides for appeals from several
orders, including orders made under sections 8, 9, 16 and 17, apart from
orders that may be made under section 34 of the Arbitration Act.
According to him, the rationale or logic contained in N.V. International
(supra) would perhaps apply only to appeals from section 34 orders, but
not to orders that are passed under any of the other aforesaid sections,
as there is no hard and fast application of a 120-day limitation period
when it comes to applications that have been filed under any of these
sections.
5. Shri Deshmukh also argued that section 33 of the Arbitration
Act contemplates correction and interpretation of an award, the arbitral
tribunal being clothed with the power to extend time without there being
any outer limit. He also stated that vide section 29(2) of the Limitation
Act, the period of limitation for filing applications under the Arbitration
Act would be governed by Article 137 of the Limitation Act, providing
for a much longer limitation period of three years. He further argued
that Articles 116 and 117 of the Limitation Act provide different periods
of limitation, being 90 days and 30 days respectively. Since these different
prescribed periods lead to arbitrary results, the concept of an “appeal”
would have to be read into the definition of the term “application”
so that
the “appeal” provision under section 37 of the Arbitration Act is uniformly
governed by Article 137 of the Limitation Act, which would lead to a
uniform limitation period of three years. He also argued that to read the
period of limitation contemplated under section 34(3) for an appeal filed
under section 37 of the Arbitration Act, would amount to judicial legislation
due to the absence of any period of limitation provided in section 37. He
placed reliance on a large number of judgments citing cases where the
Limitation Act had been held to be applicable to arbitration proceedings
and others in which it had not so been held. He also cited a large number
of judgments on section 29(2) of the Limitation Act, relating to the
meaning of “express exclusion” under the said section. He then cited
judgments on the applicability of Article 137 of the Limitation Act and a
judgment which eschews judicial legislation.
6. Ms. Aishwarya Bhati, learned Additional Solicitor General
appearing on behalf of the Union of India, the appellant in the Civil Appeal
arising out of SLP (C) Diary No. 18079 of 2020, read in detail the
provisions of the Commercial Courts Act, 2015 [“Commercial Courts
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Act”] and referred to the two Law Commission Reports which led to its
enactment, namely the 188th Law Commission Report and the 253rd
Law Commission Report. She then referred to this Court’s judgments in
Kandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 [“Kandla
Export Corpn”] and BGS SGS SOMA JV v. NHPC, (2020) 4 SCC
234, dealing with the interplay between section 13 of the Commercial
Courts Act and section 37 of the Arbitration Act. She argued that a
limitation period of 60 days was laid down by section 13(1A) of the
Commercial Courts Act, and though section 14 thereof commands that
an expeditious disposal of appeals take place within a period of six months
from the date of filing such appeal, neither of the two provisions bound
appellate courts not to apply section 5 of the Limitation Act to relax the
period of limitation in deserving cases. She also relied upon section 12A
of the Commercial Courts Act, which speaks of the Limitation Act in the
context of the Commercial Courts Act. She then referred to section 16
of the Commercial Courts Act read with the Schedule, and, in particular,
the amendment made to Order VIII Rule 1 of the Code of Civil
Procedure, 1908 [“CPC”] which closes the right of defence after a
certain period of limitation is over, which is to be contrasted with section
13 of the Commercial Courts Act, which contains no such provision.
She then referred to judgments under different statutes such as the
Insolvency and Bankruptcy Code,
2016 [“IBC”] and the Electricity Act,
2003 in which section 5 of the Limitation Act becomes inapplicable by
virtue of either the scheme of the statute in question or by virtue of an
“express exclusion” spoken of in section 29(2) of the Limitation Act.
7. Shri Amalpushp Shroti, learned counsel appearing for the
respondents in the Civil Appeal arising out of SLP (C) No. 15278 of
2020, broadly supported the arguments of Shri Deshmukh and Ms. Bhati,
while citing certain other judgments to buttress the same submissions.
8. Shri Vinay Navare, learned Senior Advocate appearing for M/
s Borse Brothers Engineers and Contractors Pvt. Ltd [“Borse Bros.”],
the respondent in the Civil Appeal arising out of SLP (C) No. 665 of
2021, was at pains to point out the conduct of the Govt of Maharashtra
and added that if a period of 60 days is to be reckoned under the
Commercial Courts Act, the appeal filed by the Govt of Maharashtra
would be delayed by a period of 131 days for which there is no explanation
worthy of the name. He relied heavily on the impugned judgment of the
High Court of Bombay which had also stated that though the certified
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copy of the judgment was applied for and was ready by 27.05.2019, the
Govt of Maharashtra wrongly mentioned that it received such copy only
on 24.07.2019, as a result of which the Govt of Maharashtra had not
appeared before the High Court with clean hands.
9. Further, Shri Navare sought to answer Shri Deshmukh’s
submission that the rationale of N.V. International (supra) can and
should apply to an appeal filed against a section 34 order, as several
different appeal provisions were all bunched together in one section and
could have been the subject matter of different appellate provisions
contained in the very original proceeding that was sought to be appealed
against. He, therefore, argued that the scheme contained in the Arbitration
Act, insofar as appeals from section 8 applications are concerned, is
that it is only if a section 8 application is refused that an appeal lies and
not otherwise, contrasting it with an appeal against a section 34 order,
which lies whether or not the court allows the section 34 application.
Hence, according to the learned Senior Advocate, each appellate provision
would have its own rationale, appeals in the cases of section 8, 9, 16 and
17 of the Arbitration Act allowing for sufficient cause to be shown beyond
the period of 30 days, as opposed to appeals filed under section 34,
which ought to allow for sufficient cause being shown upto a period of
30 days, or else the whole object of
section 34 would be destroyed. He
referred to the Statement of Objects and Reasons of the Arbitration Act
and judgments to show that Shri Deshmukh’s submission that the
Arbitration Act provided only alternate dispute resolution and not speedy
disposal was wholly incorrect. He also pointed out that specific timelines
are contained in several sections of the Arbitration Act such as sections
9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5) and 34(3), to indicate
that the object of speedy disposal was at the heart of the Arbitration
Act.
10. Shri Navare then relied upon the Commercial Courts Act and
in particular, on sections 13(1A) and 14, to show that the whole object of
speedy disposal of appeals contained in the Commercial Courts Act would
be given a go-bye if long periods of delay beyond 30 days are to be
condoned, since the appeal itself has to be decided within a period of six
months. He also cited a number of judgments and supported the judgment
of this Court in N.V. International (supra) by arguing that a judge is not
helpless when faced with a provision which, when literally read, would
result in arbitrary and unjust orders being passed. He also referred to
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judgments where a casus omissus could be supplied, which is what was
done in N.V. International (supra).
11. Shri Manoj Chouhan, learned counsel appearing on behalf of
M/s Swastik Wires, the appellant in Civil Appeal arising out of SLP (C)
No.15278 of 2020, supported the impugned judgment dated 27.01.2020
of the High Court of Madhya Pradesh and argued that this Court’s
judgment in Consolidated Engg. (supra), being a judgment of three
learned judges, would prevail over the judgment of this Court in N.V.
International (supra), which is only delivered by two learned judges
and, therefore, delay can be condoned. He also added that once section
5 of the Limitation Act applies, the Court cannot impose any limits on the
expression “sufficient cause” and even if there are long delays and
sufficient cause is made out, such delays can be condoned. Further, he
argued that this Court could use Article 142 of the Constitution, which is
a veritable brahmâstra and panacea for all ills, to do justice in individual
cases.
12. Dr. Amit George, learned counsel appearing for M/s Associated
Construction Co., the respondent in the Civil Appeal arising out of SLP
(C) Diary No. 18079 of 2020, argued that section 13 of the Commercial
Courts Act, having regard to the object of speedy disposal sought to be
achieved, excludes the application of section 5 of the Limitation Act
altogether. For this purpose, he relied heavily upon the judgment of this
Court in Kandla Export Corpn
(supra) and the judgment of this Court
in CCE & Customs v. Hongo India (P) Ltd., (2009) 5 SCC 791
[“Hongo”] which dealt with section 35-H(1) of the Central Excise Act,
1944 [“Central Excise Act”]. He also relied upon other judgments
which interpreted section 29(2) of the Limitation Act to state that the
scheme of a particular statute may make it clear that there is an “express
exclusion” of section 5 of the Limitation Act, which is the case under the
Commercial Courts Act. He then relied strongly upon the judgment in
N.V. International (supra) by supporting its logic and citing judgments
which would show that other sections of the Limitation Act were excluded
in the context of section 34(3) of the Arbitration Act – such as sections
4 and 17 of the Limitation Act. In any case, he argued that on facts
sufficient cause had not been made out, and that the judgment of the
High Court of Delhi dated 15.10.2019 ought to be set aside on this ground
also.
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13. The arguments that have been made in these appeals and the
case law cited have gone way beyond the narrow question which arises
before us. However, in dealing with these arguments, it is necessary to
first set out the relevant statutory provisions contained in the three statutes
that have been strongly relied upon by either side in these appeals.
14. First and foremost, the Arbitration Act has, in its Statement of
Objects and Reasons, the following:
“4. The main objectives of the Bill are as under:-
xxx xxx xxx
(ii) to make provision for an arbitral procedure which is fair,
efficient and capable of meeting the needs of the specific
arbitration;
xxx xxx xxx
(v) to minimise the supervisory role of courts in the arbitral process”
15. As has correctly been pointed out by Shri Navare, the
requirement of an arbitral procedure which is efficient and the minimising
of the supervisory role of courts in arbitral process would certainly show
that one of the main objectives of the Arbitration Act is the speedy disposal
of disputes through the arbitral process. Section 5 of the Arbitration Act
is important and states :
“5. Extent of judicial intervention.—Notwithstanding anything
contained in any other law for the time being in force, in matters
governed by this Part, no judicial authority shall intervene except
where so provided in this Part.”
16. The other relevant provisions of the Arbitration Act provide
as follows:
“8.
Power to refer parties to arbitration where there is an
arbitration agreement.—
(1) A judicial authority, before which an action is brought in a
matter which is the subject of an arbitration agreement shall, if a
party to the arbitration agreement or any person claiming through
or under him, so applies not later than the date of submitting his
first statement on the substance of the dispute, then,
notwithstanding any judgment, decree or order of the Supreme
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Court or any Court, refer the parties to arbitration unless it finds
that prima facie no valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be
entertained unless it is accompanied by the original arbitration
agreement or a duly certified copy thereof: 2 [Provided that where
the original arbitration agreement or a certified copy thereof is
not available with the party applying for reference to arbitration
under sub-section (1), and the said agreement or certified copy is
retained by the other party to that agreement, then, the party so
applying shall file such application along with a copy of the
arbitration agreement and a petition praying the Court to call upon
the other party to produce the original arbitration agreement or its
duly certified copy before that Court.
(3) Notwithstanding that an application has been made under sub-
section (1) and that the issue is pending before the judicial authority,
an arbitration may be commenced or continued and an arbitral
award made.”
“9. Interim measures, etc., by Court.—
xxx xxx xxx
(2) Where, before the commencement of the arbitral proceedings,
a Court passes an order for any interim measure of protection
under sub-section (1), the arbitral proceedings shall be commenced
within a period of ninety days from the date of such order or
within such further time as the Court may determine.”
“11. Appointment of arbitrators.—
xxx xxx xxx
(4) If the appointment procedure in
sub-section (3) applies and—
(a) a party fails to appoint an arbitrator within thirty days
from the receipt of a request to do so from the other party; or
(b) the two appointed arbitrators fail to agree on the third
arbitrator within thirty days from the date of their appointment,
the appointment shall be made, upon request of a party, by the
Supreme Court or, as the case may be, the High Court or any
person or institution designated by such Court;
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xxx xxx xxx
(13) An application made under this section for appointment of an
arbitrator or arbitrators shall be disposed of by the Supreme Court
or the High Court or the person or institution designated by such
Court, as the case maybe, as expeditiously as possible and an
endeavour shall be made to dispose of the matter within a period
of sixty days from the date of service of notice on the opposite
party”
“13. Challenge procedure.—
(1) Subject to sub-section (4), the parties are free to agree on a
procedure for challenging an arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party
who intends to challenge an arbitrator shall, within fifteen days
after becoming aware of the constitution of the arbitral tribunal or
after becoming aware of any circumstances referred to in sub-
section(3) of section 12, send a written statement of the reasons
for the challenge to the arbitral tribunal.
(3) Unless the arbitrator challenged under sub-section (2)
withdraws from his office or the other party agrees to the challenge,
the arbitral tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed upon by the parties
or under the procedure under subsection (2) is not successful, the
arbitral tribunal shall continue the arbitral proceedings and make
an arbitral award.
(5) Where an arbitral award is made under sub-section (4), the
party challenging the arbitrator may make an application
for setting
aside such an arbitral award in accordance with section 34.
(6) Where an arbitral award is set aside on an application made
under sub-section (5), the Court may decide as to whether the
arbitrator who is challenged is entitled to any fees.”
“16. Competence of arbitral tribunal to rule on its
jurisdiction.—
xxx xxx xxx
(2) A plea that the arbitral tribunal does not have jurisdiction shall
be raised not later than the submission of the statement of defence;
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however, a party shall not be precluded from raising such a plea
merely because that he has appointed, or participated in the
appointment of, an arbitrator.”
“29A. Time limit for arbitral award.—
(1)The award in matters other than international commercial
arbitration shall be made by the arbitral tribunal within a period of
twelve months from the date of completion of pleadings under
sub-section (4) of section 23:
Provided that the award in the matter of international commercial
arbitration may be made as expeditiously as possible and endeavor
may be made to dispose of the matter within a period of twelve
months from the date of completion of pleadings under sub-section
(4) of section 23.
(2) If the award is made within a period of six months from the
date the arbitral tribunal enters upon the reference, the arbitral
tribunal shall be entitled to receive such amount of additional fees
as the parties may agree.
(3) The parties may, by consent, extend the period specified in
sub-section (1) for making award for a further period not exceeding
six months.
(4) If the award is not made within the period specified in sub-
section (1) or the extended period specified under sub-section
(3), the mandate of the arbitrator(s) shall terminate unless the
Court has, either prior to or after the expiry of the period so
specified, extended the period:
Provided that while extending the period under this sub-section, if
the Court finds that the proceedings have been delayed
for the
reasons attributable to the arbitral tribunal, then, it may order
reduction of fees of arbitrator(s) by not exceeding five per cent.
for each month of such delay.
Provided further that where an application under sub-section (5)
is pending, the mandate of the arbitrator shall continue till the
disposal of the said application:
Provided also that the arbitrator shall be given an opportunity of
being heard before the fees is reduced.
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(5) The extension of period referred to in sub-section (4) may be
on the application of any of the parties and may be granted only
for sufficient cause and on such terms and conditions as may be
imposed by the Court.
(6) While extending the period referred to in sub-section (4), it
shall be open to the Court to substitute one or all of the arbitrators
and if one or all of the arbitrators are substituted, the arbitral
proceedings shall continue from the stage already reached and on
the basis of the evidence and material already on record, and the
arbitrator(s)appointed under this section shall be deemed to have
received the said evidence and material.
(7) In the event of arbitrator(s) being appointed under this section,
the arbitral tribunal thus reconstituted shall be deemed to be in
continuation of the previously appointed arbitral tribunal.
(8) It shall be open to the Court to impose actual or exemplary
costs upon any of the parties under this section.
(9) An application filed under sub-section (5) shall be disposed of
by the Court as expeditiously as possible and endeavour shall be
made to dispose of the matter within a period of sixty days from
the date of service of notice on the opposite party”
“29B. Fast track procedure.—
(1) Notwithstanding anything contained in this Act, the parties to
an arbitration agreement, may, at any stage either before or at the
time of appointment of the arbitral tribunal, agree in
writing to
have their dispute resolved by fast track procedure specified in
sub-section (3).
(2) The parties to the arbitration agreement, while agreeing for
resolution of dispute by fast track procedure, may agree that the
arbitral tribunal shall consist of a sole arbitrator who shall be chosen
by the parties.
(3) The arbitral tribunal shall follow the following procedure while
conducting arbitration proceedings under sub-section (1):—
(a) The arbitral tribunal shall decide the dispute on the basis
of written pleadings, documents and submissions filed by the parties
without any oral hearing;
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(b) The arbitral tribunal shall have power to call for any
further information or clarification from the parties in addition to
the pleadings and documents filed by them;
(c) An oral hearing may be held only, if, all the parties make
a request or if the arbitral tribunal considers it necessary to have
oral hearing for clarifying certain issues;
(d) The arbitral tribunal may dispense with any technical
formalities, if an oral hearing is held, and adopt such procedure as
deemed appropriate for expeditious disposal of the case.
(4) The award under this section shall be made within a period of
six months from the date the arbitral tribunal enters upon the
reference.
(5) If the award is not made within the period specified in sub-
section (4), the provisions of subsections (3) to (9) of section 29A
shall apply to the proceedings.
(6) The fees payable to the arbitrator and the manner of payment
of the fees shall be such as may be agreed between the arbitrator
and the parties.”
“33. Correction and interpretation of award; additional
award.—
xxx xxx xxx
(3) The arbitral tribunal may correct any error of the type referred
to in clause (a) of sub-section (1), on its own initiative, within
thirty days from the date of the arbitral award.
(4) Unless otherwise agreed by the parties, a party with notice to
the other party, may request, within thirty days from the receipt of
the arbitral award, the arbitral tribunal to make an additional arbitral
award as to claims
presented in the arbitral proceedings but omitted
from the arbitral award.
(5) If the arbitral tribunal considers the request made under sub-
section (4) to be justified, it shall make the additional arbitral award
within sixty days from the receipt of such request.”
“34. Application for setting aside arbitral award.—
xxx xxx xxx
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(3) An application for setting aside may not be made after three
months have elapsed from the date on which the party making
that application had received the arbitral award or, if a request
had been made under section 33, from the date on which that
request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was
prevented by sufficient cause from making the application within
the said period of three months it may entertain the application
within a further period of thirty days, but not thereafter.”
“37. Appealable orders.—
(1) Notwithstanding anything contained in any other law for the
time being in force, an appeal shall lie from the following orders
(and from no others) to the Court authorised by law to hear appeals
from original decrees of the Court passing the order, namely:—
(a) refusing to refer the parties to arbitration under section 8;
(b) granting or refusing to grant any measure under section 9;
(c) setting aside or refusing to set aside an arbitral award under
section 34.
(2) Appeal shall also lie to a court from an order of the arbitral
tribunal—
(a) accepting the plea referred to in sub-section (2) or sub-
section (3) of section 16; or
(b) granting or refusing to grant an interim measure under
section 17.
(3) No second appeal shall lie from an order passed in appeal
under this section, but nothing in this section shall affect or
takeaway any right
to appeal to the Supreme Court.”
“43. Limitations.—
(1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations
as it applies to proceedings in court.
(2) For the purposes of this section and the Limitation Act, 1963
(36 of 1963),an arbitration shall be deemed to have commenced
on the date referred to in section 21.
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(3) Where an arbitration agreement to submit future disputes to
arbitration provides that any claim to which the agreement applies
shall be barred unless some step to commence arbitral proceedings
is taken within a time fixed by the agreement, and a dispute arises
to which the agreement applies, the Court, if it is of opinion that in
the circumstances of the case undue hardship would otherwise
be caused, and notwithstanding that the time so fixed has expired,
may on such terms, if any, as the justice of the case may require,
extend the time for such period as it thinks proper.
(4) Where the Court orders that an arbitral award be set aside,
the period between the commencement of the arbitration and the
date of the order of the Court shall be excluded in computing the
time prescribed by the Limitation Act, 1963 (36 of 1963),for the
commencement of the proceedings (including arbitration) with
respect to the dispute so submitted.”
17. So far as the Limitation Act is concerned, sections 5 and 29(2)
read as follows:
“5. Extension of prescribed period in certain cases.—Any
appeal or any application, other than an application under any of
the provisions of Order XXI of the Code of Civil Procedure, 1908
(5 of 1908), may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had sufficient
cause for not preferring the appeal or making the application within
such period. Explanation.—The fact that the appellant or the
applicant was missed by any order, practice or judgment of the
High Court in ascertaining or computing the prescribed period
may be sufficient cause within the meaning of this section.”
“29. Savings.—
xxx xxx xxx
(2) Where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period
prescribed by the Schedule, the provisions of section 3 shall apply
as if such period were the period prescribed by the Schedule and
for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
provisions contained in sections 4 to 24 (inclusive) shall apply only
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in so far as, and to the extent to which, they are not expressly
excluded by such special or local law.”
18. Further, the relevant Articles of the Schedule provide as follows:
“THE SCHEDULE
(PERIODS OF LIMITATION)
xxx xxx xxx
19. The Commercial Courts Act states, in its Statement of Objects
and Reasons, the following:
“STATEMENT OF OBJECTS AND REASONS
The proposal to provide for speedy disposal of high value
commercial disputes has been under consideration of the
Government for quite some time. The high vlaue commercial
disputes involve complex facts and question of law. Therefore,
there is a need to provide for an independent mechanism for their
early resolution. Early resolution of commercial disputes shall
create a positive image to the investor world about the independent
and responsive Indian legal system.”
“6. It is proposed to introduced the Commercial Courts,
Commercial Division and Commercial Appellate Division of High
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Courts Bill, 2015 to replace the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts
Ordinance, 2015 which inter alia, provides for the following
namely:—
xxx xxx xxx
(v) to amend the Code of Civil Procedure, 1908 as applicable
to the Commercial Courts and Commercial Divisions which shall
prevail over the existing High Courts Rules and other provisions
of the Code of Civil Procedure, 1908 so as to improve the
efficiency and reduce delays in disposal of commercial cases.
7. The proposed Bill shall accelerate economic growth, improve
the international image of the Indian Justice delivery system, and
the faith of the investor world in the legal culture of the nation.”
20. Section 2(1)(i) of the Commercial Courts Act defines “specified
value” as follows:
“2. Definitions.—(1) In this Act, unless the context otherwise
requires,––
xxx xxx xxx
(i) “Specified Value”, in relation to a commercial dispute, shall
mean the value of the subject-matter in respect of a suit as
determined in accordance with section 12 which shall not be less
than three lakh rupees or such higher value, as may be notified by
the Central Government.”
21. Chapter II of the Commercial Courts Act sets up commercial
courts, commercial appellate courts, commercial divisions and commercial
appellate divisions. So far as arbitration is concerned, section 10 is
important and states as follows:
“10. Jurisdiction in respect of arbitration matters.—Where
the
subject-matter of an arbitration is a commercial dispute of a
Specified Value and––
(1) If such arbitration is an international commercial arbitration,
all applications or appeals arising out of such arbitration under the
provisions of the Arbitration and Conciliation Act, 1996 (26 of
1996) that have been filed in a High Court, shall be heard and
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disposed of by the Commercial Division where such Commercial
Division has been constituted in such High Court.
(2) If such arbitration is other than an international commercial
arbitration, all applications or appeals arising out of such arbitration
under the provisions of the Arbitration and Conciliation Act, 1996
(26 of 1996) that have been filed on the original side of the High
Court, shall be heard and disposed of by the Commercial Division
where such Commercial Division has been constituted in such
High Court.
(3) If such arbitration is other than an international commercial
arbitration, all applications or appeals arising out of such arbitration
under the provisions of the Arbitration and Conciliation Act, 1996
(26 of 1996) that would ordinarily lie before any principal civil
court of original jurisdiction in a district (not being a High Court)
shall be filed in, and heard and disposed of by the Commercial
Court exercising territorial jurisdiction over such arbitration where
such Commercial Court has been constituted.
22. The other relevant provisions of the Commercial Courts Act
are set out as follows:
“13. Appeals from decrees of Commercial Courts and
Commercial Divisions.—
(1) Any person aggrieved by the judgment or order of a
Commercial Court below the level of a District Judge may appeal
to the Commercial Appellate Court within a period of sixty days
from the date of judgment or order.
(1A) Any person
aggrieved by the judgment or order of a
Commercial Court at the level of District Judge exercising original
civil jurisdiction or, as the case may be, Commercial Division of a
High Court may appeal to the Commercial Appellate Division of
that High Court within a period of sixty days from the date of the
judgment or order:
Provided that an appeal shall lie from such orders passed by a
Commercial Division or a Commercial Court that are specifically
enumerated under Order XLIII of the Code of Civil Procedure,
1908 (5 of 1908) as amended by this Act and section 37 of the
Arbitration and Conciliation Act, 1996 (26 of 1996).
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(2) Notwithstanding anything contained in any other law for the
time being in force or Letters Patent of a High Court, no appeal
shall lie from any order or decree of a Commercial Division or
Commercial Court otherwise than in accordance with the
provisions of this Act.
14. Expeditious disposal of appeals.—The Commercial
Appellate Court and the Commercial Appellate Division shall
endeavour to dispose of appeals filed before it within a period of
six months from the date of filing of such appeal.”
“16. Amendments to the Code of Civil Procedure, 1908 in
its application to commercial disputes.—
(1) The provisions of the Code of Civil Procedure, 1908 (5 of
1908) shall, in their application to any suit in respect of a commercial
dispute of a Specified Value, stand amended in the manner as
specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow
the provisions of the Code of Civil Procedure, 1908 (5 of 1908),
as amended by this Act, in the trial of a suit in respect of a
commercial dispute of a Specified Value.
(3) Where any provision of any Rule of the jurisdictional High
Court or any amendment to the Code of Civil Procedure, 1908 (5
of 1908), by the State Government is in conflict with the provisions
of the Code of Civil Procedure, 1908 (5 of 1908), as amended by
this Act, the provisions of the Code of Civil Procedure as amended
by this Act shall prevail.”
“21. Act to have overriding effect.—Save as otherwise
provided, the
provisions of this Act shall have effect,
notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or in any instrument having
effect by virtue of any law for the time being in force other than
this Act.”
“SCHEDULE
4. Amendment of First Schedule.—In the First Schedule to
the Code,––
xxx xxx xxx
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(D) in Order VIII,–– (i) in Rule 1, for the proviso, the following
proviso shall be substituted, namely:––
“Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be allowed
to file the written statement on such other day, as may be specified
by the Court, for reasons to be recorded in writing and on payment
of such costs as the Court deems fit, but which shall not be later
than one hundred twenty days from the date of service of summons
and on expiry of one hundred twenty days from the date of service
of summons, the defendant shall forfeit the right to file the written
statement and the Court shall not allow the written statement to
be taken on record.”;”
23. Section 37 of the Arbitration Act, when read with section 43
thereof, makes it clear that the provisions of the Limitation Act will apply
to appeals that are filed under section 37. This takes us to Articles 116
and 117 of the Limitation Act, which provide for a limitation period of 90
days and 30 days, depending upon whether the appeal is from any other
court to a High Court or an intra-High Court appeal. There can be no
doubt whatsoever that section 5 of the Limitation Act will apply to the
aforesaid appeals, both by virtue of section 43 of the Arbitration Act and
by virtue of section 29(2) of the Limitation Act. This aspect of the matter
has been set out in the concurring judgment of Raveendran,
J. in
Consolidated Engg. (supra), as follows:
“40. Let me next refer to the relevant provisions of the Limitation
Act. Section 3 of the Limitation Act provides for the bar of
limitation. It provides that subject to the provisions contained in
Sections 4 to 24 (inclusive), every suit instituted, appeal preferred,
and application made after the prescribed period shall be
dismissed although limitation has not been set up as a defence.
“Prescribed period” means that period of limitation computed
in accordance with the provisions of the Limitation Act. “Period
of limitation” means the period of limitation prescribed for any
suit, appeal or application by the Schedule to the Limitation Act
[vide Section 2(j) of the said Act]. Section 29 of the Limitation
Act relates to savings. Sub-section (2) thereof which is relevant
is extracted below:
“29. (2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from the
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period prescribed by the Schedule, the provisions of Section 3
shall apply as if such period were the period prescribed by the
Schedule and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by any
special or local law, the provisions contained in Sections 4 to
24 (inclusive) shall apply only insofar as, and to the extent to
which, they are not expressly excluded by such special or local
law.”
41. Article 116 of the Schedule prescribes the period of limitation
for appeals to the High Court (90 days) and appeals to any other
court (30 days) under the Code of Civil Procedure, 1908. It is
now well settled that the words “appeals under the Code of Civil
Procedure, 1908” occurring in Article 116 refer not only to appeals
preferred under the Code of Civil Procedure, 1908, but also to
appeals, where the procedure for filing of such appeals and powers
of the court for dealing with such appeals are governed by the
Code of Civil Procedure. (See decision of the Constitution Bench
in Vidyacharan Shukla v. Khubchand Baghel [AIR 1964 SC
1099] .) Article 119(b) of the Schedule prescribes the period of
limitation for filing an application (under the Arbitration Act, 1940),
for setting aside an award, as thirty days from the date of service
of notice of filing of the award.
42. The AC Act is no doubt, a special law, consolidating and
amending the law relating to arbitration and matters connected
therewith or incidental
thereto. The AC Act does not prescribe
the period of limitation, for various proceedings under that Act,
except where it intends to prescribe a period different from what
is prescribed in the Limitation Act. On the other hand, Section 43
makes the provisions of the Limitation Act, 1963 applicable to
proceedings—both in court and in arbitration—under the AC Act.
There is also no express exclusion of application of any provision
of the Limitation Act to proceedings under the AC Act, but there
are some specific departures from the general provisions of the
Limitation Act, as for example, the proviso to Section 34(3) and
sub-sections (2) to (4) of Section 43 of the AC Act.
43. Where the Schedule to the Limitation Act prescribes a period
of limitation for appeals or applications to any court, and the special
or local law provides for filing of appeals and applications to the
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court, but does not prescribe any period of limitation in regard to
such appeals or applications, the period of limitation prescribed in
the Schedule to the Limitation Act will apply to such appeals or
applications and consequently, the provisions of Sections 4 to 24
will also apply. Where the special or local law prescribes for any
appeal or application, a period of limitation different from the period
prescribed by the Schedule to the Limitation Act, then the provisions
of Section 29(2) will be attracted. In that event, the provisions of
Section 3 of the Limitation Act will apply, as if the period of
limitation prescribed under the special law was the period
prescribed by the Schedule to the Limitation Act, and for the
purpose of determining any period of limitation prescribed for the
appeal or application by the special law, the provisions contained
in Sections 4 to 24 will apply to the extent to which they are not
expressly excluded by such special law. The object of Section
29(2) is to ensure that the principles contained in Sections 4 to 24
of the Limitation Act apply to suits, appeals and applications filed
in a court under special or local laws also, even if it prescribes a
period of limitation different from what is prescribed in the
Limitation Act, except to the extent of express exclusion of the
application of any or all of those provisions.”
24. When the Commercial Courts Act is applied to the aforesaid
appeals, given the definition of “specified value” and the provisions
contained in sections 10 and 13 thereof, it is clear that it is only when the
specified value is for a sum less than three lakh rupees that the appellate
provision contained in section 37 of the Arbitration Act will be governed,
for the purposes of limitation, by Articles 116 and 117 of the Limitation
Act. Shri Deshmukh’s argument that depending upon which court decides
a matter, a limitation period of either 30 or 90 days is provided, which
leads to arbitrary results, and that, therefore, the uniform period provided
by Article 137 of the Limitation Act should govern appeals as well, is
rejected. It is settled that periods of limitation must always to some extent
be arbitrary and may result in some hardship, but this is no reason as to
why they should not be strictly followed. In Boota Mal v. Union of
India, (1963) 1 SCR 70, this Court referred to this aspect of the case,
as follows:
“Ordinarily, the words of a statute have to be given their strict
grammatical meaning and equitable considerations are out of place,
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particularly in provisions of law limiting the period of limitation for
filing suits or legal proceedings. This was laid down by the Privy
Council in two decisions in Nagendranath v. Suresh [AIR(1932)
PC 165] and General Accident Fire and Life Assurance
Corporation Limited v. Janmahomed Abdul Rahim [AIR (1941)
PC 6] . In the first case the Privy Council observed that “the
fixation of periods of limitation must always be to some extent
arbitrary and may frequently result in hardship. But in construing
such provisions equitable considerations are out of place, and the
strict grammatical meaning of the words is the only safe guide”.
In the latter case it was observed that “a limitation Act ought to
receive such a construction as the language in its plain meaning
imports … Great hardship may occasionally be caused by statutes
of limitation in cases of poverty, distress and ignorance of rights,
yet the statutory rules must be enforced according to their ordinary
meaning in these and in other like cases”.”
(pages 74-75)
25. Shri Deshmukh’s other argument that since no period of
limitation has been provided in section 37 of the Arbitration Act, as a
result of which the neat division contained in the Limitation Act of different
matters contained in suits, appeals and applications will somehow have
to be destroyed, the word “appeals” has to be read into “applications” so
that Article 137 of the Limitation Act could apply, is also rejected.
26. Even in the rare
situation in which an appeal under section 37
of the Arbitration Act would be of a specified value less than three lakh
rupees, resulting in Article 116 or 117 of the Limitation Act applying, the
main object of the Arbitration Act requiring speedy resolution of disputes
would be the most important principle to be applied when applications
under section 5 of the Limitation Act are filed to condone delay beyond
90 days and/or 30 days depending upon whether Article 116(a) or 116(b)
or 117 applies. As a matter of fact, given the timelines contained in
sections 8, 9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5) and 34(3)
of the Arbitration Act, and the observations made in some of this Court’s
judgments, the object of speedy resolution of disputes would govern
appeals covered by Articles 116 and 117 of the Limitation Act.
27. This Court in Union of India v. Popular Construction Co.,
(2001) 8 SCC 470, put it thus:
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“14. Here the history and scheme of the 1996 Act support the
conclusion that the time-limit prescribed under Section 34 to
challenge an award is absolute and unextendible by court under
Section 5 of the Limitation Act. The Arbitration and Conciliation
Bill, 1995 which preceded the 1996 Act stated as one of its main
objectives the need “to minimise the supervisory role of courts in
the arbitral process” [ Para 4(v) of the Statement of Objects and
Reasons of the Arbitration and Conciliation Act, 1996] . This
objective has found expression in Section 5 of the Act which
prescribes the extent of judicial intervention in no uncertain terms:
“5. Extent of judicial intervention.— Notwithstanding
anything contained in any other law for the time being in force,
in matters governed by this Part, no judicial authority shall
intervene except where so provided in this Part.”
15. The “Part” referred to in Section 5 is Part I of the 1996 Act
which deals with domestic arbitrations. Section 34 is contained in
Part I and is therefore subject to the sweep of the prohibition
contained in Section 5 of the 1996 Act.”
28. Likewise, in State of Goa v. Western Builders, (2006) 6
SCC 239, this Court, while stating that the provisions of section 14 of
the Limitation Act would apply to applications filed under section 34 of
the Arbitration Act, held:
“25. … It is true that the Arbitration and Conciliation Act, 1996
intended to expedite commercial
issues expeditiously. It is also
clear in the Statement of Objects and Reasons that in order to
recognise economic reforms the settlement of both domestic and
international commercial disputes should be disposed of quickly
so that the country’s economic progress be expedited…”
29. The judgment in Kandla Export Corpn (supra) also observed:
“27. The matter can be looked at from a slightly different angle.
Given the objects of both the statutes, it is clear that arbitration
itself is meant to be a speedy resolution of disputes between parties.
Equally, enforcement of foreign awards should take place as soon
as possible if India is to remain as an equal partner, commercially
speaking, in the international community. In point of fact, the raison
d’être for the enactment of the Commercial Courts Act is that
commercial disputes involving high amounts of money should be
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speedily decided. Given the objects of both the enactments, if we
were to provide an additional appeal, when Section 50 does away
with an appeal so as to speedily enforce foreign awards, we would
be turning the Arbitration Act and the Commercial Courts Act on
their heads. Admittedly, if the amount contained in a foreign award
to be enforced in India were less than Rs 1 crore, and a Single
Judge of a High Court were to enforce such award, no appeal
would lie, in keeping with the object of speedy enforcement of
foreign awards. However, if, in the same fact circumstance, a
foreign award were to be for Rs 1 crore or more, if the appellants
are correct, enforcement of such award would be further delayed
by providing an appeal under Section 13(1) of the Commercial
Courts Act. Any such interpretation would lead to absurdity, and
would be directly contrary to the object sought to be achieved by
the Commercial Courts Act viz. speedy resolution of disputes of a
commercial nature involving a sum of Rs 1 crore and over. For
this reason also, we feel that Section 13(1) of the Commercial
Courts Act must be construed in accordance with the object sought
to be achieved by the Act. Any construction of Section 13 of the
Commercial Courts Act, which would lead to further delay, instead
of an expeditious enforcement of a foreign award must, therefore,
be eschewed. Even on applying the doctrine of harmonious
construction of both statutes, it is clear that they are best
harmonised by giving effect to the special statute i.e. the Arbitration
Act, vis-à-vis the more general statute, namely, the Commercial
Courts Act, being left to operate in spheres other than arbitration.”
30. A recent judgment of this Court in ICOMM Tele Ltd. v.
Punjab State Water Supply and Sewerage Board, (2019) 4 SCC
401, states:
25. Several judgments of this Court have also reiterated that the
primary object of arbitration is to reach a final disposal of disputes
in a speedy, effective, inexpensive and expeditious manner. Thus,
in Centrotrade Minerals & Metal Inc. v. Hindustan Copper
Ltd. [Centrotrade Minerals & Metal Inc. v. Hindustan Copper
Ltd., (2017) 2 SCC 228 : (2017) 1 SCC (Civ) 593] , this Court
held: (SCC p. 250, para 39)
“39. In Union of India v. U.P. State Bridge Corpn. Ltd.
[Union of India v. U.P. State Bridge Corpn. Ltd., (2015) 2
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SCC 52 : (2015) 1 SCC (Civ) 732] this Court accepted the
view [ Indu Malhotra, O.P. Malhotra on the Law and Practice
of Arbitration and Conciliation (3rd Edn., Thomson Reuters,
2014).] that the A&C Act has four foundational pillars and
then observed in para 16 of the Report that: (SCC p. 64)
‘16. First and paramount principle of the first pillar is ‘fair,
speedy and inexpensive trial by an Arbitral Tribunal’.
Unnecessary delay or expense would frustrate the very
purpose of arbitration.””
31. Thus, from the scheme of the Arbitration Act as well as the
aforesaid judgments, condonation of delay under section 5 of the
Limitation Act has to be seen in the context of the object of speedy
resolution of disputes.
32. The bulk of appeals, however, to the appellate court under
section 37 of the Arbitration Act, are governed by section 13 of the
Commercial Courts Act. Sub-section (1A) of section 13 of the
Commercial Courts Act provides the forum for appeals as well as the
limitation period to be followed, section 13 of the Commercial Courts
Act being a special law as compared with the Limitation Act which is a
general law, which follows from a reading of section 29(2) of the
Limitation Act. Section 13(1A) of the Commercial Courts Act lays down
a period of limitation of 60 days uniformly for all appeals that are preferred
under section 37 of the Arbitration Act.1
33. The vexed question which faces us is whether, first and
foremost, the application of section 5 of the Limitation Act is excluded
by the scheme of the Commercial Courts Act, as has been argued by
Dr. George. The first important thing to note is that section 13(1A) of
the Commercial Courts Act does not contain any provision akin to section
34(3) of the Arbitration Act. Section 13(1A) of the Commercial Courts
Act only provides for a limitation period of 60 days from the date of the
judgment or order appealed against, without further going into whether
delay beyond this period can or cannot be condoned.
34. It may also be pointed out that though the object of expeditious
disposal of appeals is laid down in section 14 of the Commercial Courts
1 As held in BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, whereas section 37 of
the Arbitration Act provides the substantive right to appeal, section 13 of the Commercial
Courts Act provides the forum and procedure governing the appeal (see paragraph 13).
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Act, the language of section 14 makes it clear that the period of six
months spoken of is directory and not mandatory. By way of contrast,
section 16 of the Commercial Courts Act read with the Schedule thereof
and the amendment made to Order VIII Rule 1 of the CPC, would
make it clear that the defendant in a suit is given 30 days to file a written
statement, which period cannot be extended beyond 120 days from the
date of service of the summons; and on expiry of the said period, the
defendant forfeits the right to file the written statement and the court
cannot allow the written statement to be taken on record. This provision
was enacted as a result of the judgment of this Court in Salem Advocate
Bar Assn. (II) v. Union of India, (2005) 6 SCC 344.
35. In a recent judgment of this Court namely, SCG Contracts
(India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019)
12 SCC 210, a Division Bench of this Court referred to the aforesaid
amendment and its hard and fast nature as follows:
“8. The Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015 came into force on
23-10-2015 bringing in their wake certain amendments to the Code
of Civil Procedure. In Order 5 Rule 1, sub-rule (1), for the second
proviso, the following proviso was substituted:
“Provided further that where the defendant fails to file the
written statement within the said period of thirty days, he shall
be allowed to file the written statement
on such other day, as
may be specified by the court, for reasons to be recorded in
writing and on payment of such costs as the court deems fit,
but which shall not be later than one hundred twenty days
from the date of service of summons and on expiry of one
hundred and twenty days from the date of service of summons,
the defendant shall forfeit the right to file the written statement
and the court shall not allow the written statement to be taken
on record.”
Equally, in Order 8 Rule 1, a new proviso was substituted as
follows:
“Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be
allowed to file the written statement on such other day, as may
be specified by the court, for reasons to be recorded in writing
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and on payment of such costs as the court deems fit, but which
shall not be later than one hundred and twenty days from the
date of service of summons and on expiry of one hundred and
twenty days from the date of service of summons, the defendant
shall forfeit the right to file the written statement and the court
shall not allow the written statement to be taken on record.”
This was re-emphasised by re-inserting yet another proviso in
Order 8 Rule 10 CPC, which reads as under:
“10. Procedure when party fails to present written statement
called for by court.—Where any party from whom a written
statement is required under Rule 1 or Rule 9 fails to present
the same within the time permitted or fixed by the court, as the
case may be, the court shall pronounce judgment against him,
or make such order in relation to the suit as it thinks fit and on
the pronouncement of such judgment a decree shall be drawn
up:
Provided further that no court shall make an order to extend
the time provided under Rule 1 of this Order for filing of the
written statement.”
A perusal of these provisions would show that ordinarily a written
statement is to be filed within a period of 30 days. However, grace
period of a further 90 days is granted which the Court may employ
for reasons to be recorded in writing and payment of such costs
as it deems fit to allow such written statement to come on record.
What is of great importance is the fact that
beyond 120 days from
the date of service of summons, the defendant shall forfeit the
right to file the written statement and the Court shall not allow the
written statement to be taken on record. This is further buttressed
by the proviso in Order 8 Rule 10 also adding that the court has no
further power to extend the time beyond this period of 120 days.
9. In Bihar Rajya Bhumi Vikas Bank Samiti [State of Bihar v.
Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 :
(2018) 4 SCC (Civ) 387] , a question was raised as to whether
Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted
by Amending Act 3 of 2016 is mandatory or directory. In para 11
of the said judgment, this Court referred to Kailash v. Nanhku
[Kailash v. Nanhku, (2005) 4 SCC 480] , referring to the text of
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Order 8 Rule 1 as it stood pre the amendment made by the
Commercial Courts Act. It also referred (in para 12) to Salem
Advocate Bar Assn. (2) v. Union of India [Salem Advocate
Bar Assn. (2) v. Union of India, (2005) 6 SCC 344] , which, like
the Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] judgment,
held that the mere expression “shall” in Order 8 Rule 1 would not
make the provision mandatory. This Court then went on to discuss
in para 17 of State v. N.S. Gnaneswaran [State v. N.S.
Gnaneswaran, (2013) 3 SCC 594 : (2013) 3 SCC (Cri) 235 :
(2013) 1 SCC (L&S) 688] , in which Section 154(2) of the Code
of Criminal Procedure was held to be directory inasmuch as no
consequence was provided if the section was breached. In para
22 by way of contrast to Section 34, Section 29-A of the Arbitration
Act was set out. This Court then noted in para 23 as under: (Bihar
Rajya Bhumi Vikas Bank Samiti case [State of Bihar v. Bihar
Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 : (2018) 4
SCC (Civ) 387] , SCC p. 489)
“23. It will be seen from this provision that, unlike Sections
34(5) and (6), if an award is made beyond the stipulated or
extended period contained in the section, the consequence of
the mandate of the arbitrator being terminated is expressly
provided. This provision is in stark contrast to Sections 34(5)
and (6) where, as has been stated hereinabove, if the period
for deciding the application under Section 34 has elapsed, no
consequence is provided. This is
one more indicator that the
same Amendment Act, when it provided time periods in
different situations, did so intending different consequences.”
10. Several High Court judgments on the amended Order 8 Rule
1 have now held that given the consequence of non-filing of written
statement, the amended provisions of the CPC will have to be
held to be mandatory. See Oku Tech (P) Ltd. v. Sangeet Agarwal
[Oku Tech (P) Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del
6601] by a learned Single Judge of the Delhi High Court dated 11-
8-2016 in CS (OS) No. 3390 of 2015 as followed by several other
judgments including a judgment of the Delhi High Court in Maja
Cosmetics v. Oasis Commercial (P) Ltd. [Maja Cosmetics v.
Oasis Commercial (P) Ltd., 2018 SCC OnLine Del 6698]
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11. We are of the view that the view taken by the Delhi High
Court in these judgments is correct in view of the fact that the
consequence of forfeiting a right to file the written statement;
non-extension of any further time; and the fact that the Court
shall not allow the written statement to be taken on record all
points to the fact that the earlier law on Order 8 Rule 1 on the
filing of written statement under Order 8 Rule 1 has now been set
at naught.”
36. By way of contrast, there is no such provision contained in
section 13 of the Commercial Courts Act. The judgment in Hongo
(supra), strongly relied upon by Dr. George, is clearly distinguishable. In
Hongo (supra), section 35-H of the Central Excise Act provided for a
period of 180 days for filing a reference application to the High Court.
The scheme of the Central Excise Act was adverted to in paragraph 15
of the judgment, which reads as follows:
“15. We have already pointed out that in the case of appeal to the
Commissioner, Section 35 provides 60 days’ time and in addition
to the same, the Commissioner has power to condone the delay
up to 30 days, if sufficient cause is shown. Likewise, Section 35-
B provides 90 days’ time for filing appeal to the Appellate Tribunal
and sub-section (5) therein enables the Appellate Tribunal to
condone the delay irrespective of the number of days, if sufficient
cause is shown. Likewise, Section 35-EE which provides 90 days’
time for filing revision by the Central Government and, proviso to
the same enables the revisional authority to condone the delay for
a further period of 90 days, if sufficient cause is shown, whereas
in the case of appeal to the High Court under Section 35-G and
reference to the High Court under Section 35-H of the Act, total
period of 180 days has been provided for availing the remedy of
appeal and the reference. However, there is no further clause
empowering the High Court to condone the delay after the period
of 180 days.”
37. The Court then went on to observe:
“33. Even otherwise, for filing an appeal to the Commissioner,
and to the Appellate Tribunal as well as revision to the Central
Government, the legislature has provided 60 days and 90 days
respectively, on the other hand, for filing an appeal and reference
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to the High Court larger period of 180 days has been provided
with to enable the Commissioner and the other party to avail the
same. We are of the view that the legislature provided sufficient
time, namely, 180 days for filing reference to the High Court which
is more than the period prescribed for an appeal and revision.
34. Though, an argument was raised based on Section 29 of the
Limitation Act, even assuming that Section 29(2) would be
attracted, what we have to determine is whether the provisions of
this section are expressly excluded in the case of reference to the
High Court.
35. It was contended before us that the words “expressly
excluded” would mean that there must be an express reference
made in the special or local law to the specific provisions of the
Limitation Act of which the operation is to be excluded. In this
regard, we have to see the scheme of the special law which here
in this case is the Central Excise Act. The nature of the remedy
provided therein is such that the legislature intended it to be a
complete code by itself which alone should govern the several
matters provided by it. If, on an examination of the relevant
provisions, it is clear that the provisions of the Limitation Act are
necessarily excluded, then the benefits conferred therein cannot
be called in aid to supplement the provisions of the Act. In our
considered view, that even in a case where the special law does
not exclude the provisions of Sections 4 to 24 of the
Limitation
Act by an express reference, it would nonetheless be open to the
court to examine whether and to what extent, the nature of those
provisions or the nature of the subject-matter and scheme of the
special law exclude their operation. In other words, the applicability
of the provisions of the Limitation Act, therefore, is to be judged
not from the terms of the Limitation Act but by the provisions of
the Central Excise Act relating to filing of reference application
to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the
conclusion that the time-limit prescribed under Section 35-H(1) to
make a reference to the High Court is absolute and unextendable
by a court under Section 5 of the Limitation Act. It is well-settled
law that it is the duty of the court to respect the legislative intent
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and by giving liberal interpretation, limitation cannot be extended
by invoking the provisions of Section 5 of the Limitation Act.”
38. Unlike the scheme of the Central Excise Act relied upon in
Hongo (supra), there are no other provisions in the Commercial Courts
Act which provide for a period of limitation coupled with a condonation
of delay provision which is either open-ended or capped. Also, the period
of 180 days provided was one indicia which led the Court to exclude
the application of section 5 of the Limitation Act, as it was double and
triple the period provided for appeals under the other provisions of the
same Act. Section 13(1A) of the Commercial Courts Act, by way of
contrast, applies an intermediate period of 60 days for filing an appeal,
that is, a period that is halfway between 30 days and 90 days provided
by Articles 116 and 117 of the Limitation Act.
39. The other judgments relied upon by Dr. George are all
distinguishable in that they are judgments which deal with provisions
that provide for a period of limitation and a period of condonation of
delay beyond which delay cannot be condoned, such as section 125 of
the Electricity Act. (See Suryachakra Power Corpn. Ltd. v.
Electricity Deptt., (2016) 16 SCC 152 at paragraph 10; ONGC v.
Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 at
paragraphs 5-10).
40. Section 21 of the Commercial Courts Act was also pressed
into service stating that the
non-obstante clause contained in the
Commercial Courts Act would override other Acts, including the
Limitation Act, as a result of which, the applicability of section 5 thereof
would be excluded. This argument has been addressed in the context of
the IBC in B.K. Educational Services (P) Ltd. v. Parag Gupta &
Associates, (2019) 11 SCC 633, as follows:
“41. Shri Dholakia argued that the Code being complete in itself,
an intruder such as the Limitation Act must be shut out also by
application of Section 238 of the Code which provides that,
“notwithstanding anything inconsistent therewith contained in any
other law for the time being in force”, the provisions of the Code
would override such laws. In fact, Section 60(6) of the Code
specifically states as follows:
“60. Adjudicating authority for corporate persons.—(1)-
(5)   *   *   *
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(6) Notwithstanding anything contained in the Limitation Act,
1963 (36 of 1963) or in any other law for the time being in
force, in computing the period of limitation specified for any
suit or application by or against a corporate debtor for which
an order of moratorium has been made under this Part, the
period during which such moratorium is in place shall be
excluded.”
This provision would have been wholly unnecessary if the
Limitation Act was otherwise excluded either by reason of the
Code being complete in itself or by virtue of Section 238 of the
Code. Both, Section 433 of the Companies Act as well as Section
238-A of the Code, apply the provisions of the Limitation Act “as
far as may be”. Obviously, therefore, where periods of limitation
have been laid down in the Code, these periods will apply
notwithstanding anything to the contrary contained in the Limitation
Act. From this, it does not follow that the baby must be thrown
out with the bathwater. This argument, therefore, must also be
rejected.”
41. For all these reasons we reject the argument made by Shri
George that the application of section 5 of the Limitation Act is excluded
given the scheme of Commercial Courts Act.
42. The next important argument that needs to be addressed is as
to whether the hard and fast rule applied by this Court in N.V.
International (supra) is correct in law. Firstly, as has correctly been
argued by Shri Shroti, N.V. International (supra) does not notice the
provisions of the Commercial Courts Act at all and can be said to be per
incuriam on this count. Secondly, it is also correct to note that the
period of 90 days plus 30 days and not thereafter mentioned in section
34(3) of the Arbitration Act cannot now apply, the limitation period for
filing of appeals under the Commercial Courts Act being 60 days and
not 90 days. Thirdly, the argument that absent a provision curtailing the
condonation of delay beyond the period provided in section 13 of the
Commercial Courts Act would also make it clear that any such bodily
lifting of the last part of section 34(3) into section 37 of the Arbitration
Act would also be unwarranted. We cannot accept Shri Navare’s
argument that this is a mere casus omissus which can be filled in by the
Court.
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43. The difference between interpretation and legislation is
sometimes a fine one, as it has repeatedly been held that judges do not
merely interpret the law but also create law. In Eera v. State (NCT of
Delhi), (2017) 15 SCC 133, this Court was faced with the
interpretation of section 2(1)(d) of the Protection of Children from Sexual
Offences Act, 2012. This provision reads as follows:
“(2)(1)(d) “child” means any person below the age of eighteen
years;”
44. The argument made before the Court was that the age of 18
years did not only refer to physical age, but could also refer to the mental
age of the “child” as defined. This Court was therefore faced with the
difficulty between interpreting the law as it stands, and legislating. The
concurring judgment of Nariman, J. put it thus:
“103. Having read the erudite judgment of my learned Brother,
and agreeing fully with him on the conclusion reached, given the
importance of the Montesquiean separation of powers doctrine
where the judiciary should not transgress from the field of judicial
law-making into the field of legislative law-making, I have felt it
necessary to add a few words of my own.
104. Mr Sanjay R. Hegde, the learned Amicus Curiae, has argued
before us that the interpretation of Section 2(1)(d) of the Protection
of Children from Sexual Offences Act, 2012 cannot include
“mental” age as such an interpretation would be beyond the
“Lakshman Rekha” — that is, it
is no part of this Court’s function
to add to or amend the law as it stands. This Court’s function is
limited to interpreting the law as it stands, and this being the
case, he has exhorted us not to go against the plain literal meaning
of the statute.
105. Since Mr Hegde’s argument raises the constitutional spectre
of separation of powers, let it first be admitted that under our
constitutional scheme, Judges only declare the law; it is for the
legislatures to make the law. This much at least is clear on a
conjoint reading of Articles 141 and 245 of the Constitution of
India, which are set out hereinbelow:
“141. Law declared by Supreme Court to be binding on all
courts.—The law declared by the Supreme Court shall be
binding on all courts within the territory of India.
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***
245. Extent of laws made by Parliament and by the
legislatures of States.—(1) Subject to the provisions of this
Constitution, Parliament may make laws for the whole or any
part of the territory of India, and the legislature of a State may
make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid
on the ground that it would have extra-territorial operation.”
(emphasis supplied)
106. That the legislature cannot “declare” law is embedded in
Anglo-Saxon jurisprudence. Bills of attainder, which used to be
passed by Parliament in England, have never been passed from
the 18th century onwards. A legislative judgment is anathema. As
early as 1789, the US Constitution expressly outlawed bills of
attainder vide Article I Section 9(3). This being the case with the
legislature, the counter-argument is that the Judiciary equally cannot
“make” but can only “declare” law. While declaring the law, can
Judges make law as well?...”
45. The concurring judgment went on to state:
“127. It is thus clear on a reading of English, US, Australian and
our own Supreme Court judgments that the “Lakshman Rekha”
has in fact been extended to move away from the strictly literal
rule of interpretation back to the rule of the old English case of
Heydon [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] , where
the Court must have recourse to the purpose, object, text and
context of a particular provision before arriving at a judicial
result.
In fact, the wheel has turned full circle. It started out by the rule
as stated in 1584 in Heydon case [Heydon case, (1584) 3 Co
Rep 7a : 76 ER 637] , which was then waylaid by the literal
interpretation rule laid down by the Privy Council and the House
of Lords in the mid-1800s, and has come back to restate the rule
somewhat in terms of what was most felicitously put over 400
years ago in Heydon case [Heydon case, (1584) 3 Co Rep 7a :
76 ER 637] .”
“139. A reading of the Act as a whole in the light of the Statement
of Objects and Reasons thus makes it clear that the intention of
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the legislator was to focus on children, as commonly understood
i.e. persons who are physically under the age of 18 years. The
golden rule in determining whether the judiciary has crossed the
Lakshman Rekha in the guise of interpreting a statute is really
whether a Judge has only ironed out the creases that he found in
a statute in the light of its object, or whether he has altered the
material of which the Act is woven. In short, the difference is the
well-known philosophical difference between “is” and “ought”.
Does the Judge put himself in the place of the legislator and ask
himself whether the legislator intended a certain result, or does he
state that this must have been the intent of the legislator and infuse
what he thinks should have been done had he been the legislator.
If the latter, it is clear that the Judge then would add something
more than what there is in the statute by way of a supposed intention
of the legislator and would go beyond creative interpretation of
legislation to legislating itself. It is at this point that the Judge crosses
the Lakshman Rekha and becomes a legislator, stating what the
law ought to be instead of what the law is.”
46. Ultimately, the judgment concluded:
“146. A reading of the Objects and Reasons of the aforesaid Act
together with the provisions contained therein would show that
whatever is the physical age of the person affected, such person
would be a “person with
disability” who would be governed by
the provisions of the said Act. Conspicuous by its absence is the
reference to any age when it comes to protecting persons with
disabilities under the said Act.
147. Thus, it is clear that viewed with the lens of the legislator,
we would be doing violence both to the intent and the language of
Parliament if we were to read the word “mental” into Section
2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal
legislation, we as Judges can extend it only as far as Parliament
intended and no further. I am in agreement, therefore, with the
judgment of my learned Brother, including the directions given by
him.”
47. Given the ‘lakshman rekha’ laid down in this judgment, it is a
little difficult to appreciate how a cap can be judicially engrafted onto a
statutory provision which then bars condonation of delay by even one
day beyond the cap so engrafted.
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48. Shri George, however, relied upon the judgments of this Court
in Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 (at paragraph
22) and D. Purushotama Reddy v. K. Sateesh, (2008) 8 SCC 505
(at paragraph 11), to support the reasoning contained in Varindera
Constructions (supra) and N.V. International (supra). He relied
strongly upon paragraph 11 of the judgment in D. Purushotama Reddy
v. K. Sateesh, (2008) 8 SCC 505, which reads as follows:
“11. We have noticed hereinbefore that whereas the judgment of
conviction and sentence was passed on 15-12-2005, the suit was
decreed by the civil court on 23-1-2006. Deposit of a sum of Rs
2,00,000 by the appellants in favour of the respondent herein, was
directed by the criminal court. Such an order should have been
taken into consideration by the trial court. An appeal from a decree,
furthermore, is a continuation of suit. The limitation of power on a
civil court should also be borne in mind by the appellate court.
Was any duty cast upon the civil court to consider the amount of
compensation deposited in terms of Section 357 of the Code is
the question.”
49. From this paragraph, what was sought to be argued was that
the limitation of power on a civil court at the initial stage can be read as
a limitation onto the appellate court, as was done in the aforesaid
judgments. We are afraid that we are unable to agree. This sentence
was in the context of a decree passed in a civil suit for a sum of rupees
3.09 lakh with
interest, without taking into consideration the fact that an
amount of rupees 2.10 lakh had already been deposited by the appellant
in criminal proceedings. The Court relied upon section 357(5) of the
Code of Criminal Procedure, 1973 to hold that “the court” shall take into
account any sum paid or recovered as compensation at the time of
awarding compensation in any subsequent civil suit relating to the same
matter. “The court” would obviously include an appellate court as well.
It was only in this context that the aforesaid observation of limitation of
power on a civil court being “borne in mind” by the appellate court, was
made.
50. Shri George’s reliance upon the judgment of this Court in P.
Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 (at paragraphs
36.2-36.3) on the doctrine of unbreakability when applied to section 34(3)
of the Arbitration Act, also does not carry the matter much further, as
the question is whether this doctrine can be bodily lifted and engrafted
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onto an appeal provision that has no cut-off point beyond which delay
cannot be condoned.
For all these reasons, given the illuminating arguments made in
these appeals, we are of the view that N.V. International (supra) has
been wrongly decided and is therefore overruled.
51. 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 (supra) 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.
52. 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, (2003) 3 SCC 57 as
follows:2
“14. A construction which reduces the statute to a futility has to
be avoided. A statute or any enacting provision therein must be so
construed as to make it effective and operative on the principle
expressed in the maxim ut res magis valeat quam pereat i.e. a
liberal construction should be put upon written instruments, so as
to uphold them, if possible, and carry into effect the intention of
the parties. [See Broom’s
Legal Maxims (10th Edn.), p. 361,
Craies on Statutes (7th Edn.), p. 95 and Maxwell on Statutes
(11th Edn.), p. 221.]
15. A statute is designed to be workable and the interpretation
thereof by a court should be to secure that object unless crucial
omission or clear direction makes that end unattainable. (See
Whitney v. IRC [1926 AC 37 : 10 Tax Cas 88 : 95 LJKB 165 : 134
LT 98 (HL)] , AC at p. 52 referred to in CIT v. S. Teja Singh
[AIR 1959 SC 352 : (1959) 35 ITR 408] and Gursahai Saigal v.
CIT [AIR 1963 SC 1062 : (1963) 48 ITR 1] .)
16. The courts will have to reject that construction which will
defeat the plain intention of the legislature even though there may
2 Followed in the separate opinion delivered by Pasayat, J. in Ashoka Kumar Thakur
v. Union of India, (2008) 6 SCC 1 (see paragraphs 333-334).
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be some inexactitude in the language used. (See Salmon v.
Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)]
AC at p. 634, Curtis v. Stovin [(1889) 22 QBD 513 : 58 LJQB
174 : 60 LT 772 (CA)] referred to in S. Teja Singh case [AIR
1959 SC 352 : (1959) 35 ITR 408].)
17. If the choice is between two interpretations, the narrower of
which would fail to achieve the manifest purpose of the legislation,
we should avoid a construction which would reduce the legislation
to futility, and should rather accept the bolder construction, based
on the view that Parliament would legislate only for the purpose
of bringing about an effective result. (See Nokes v. Doncaster
Amalgamated Collieries [(1940) 3 All ER 549 : 1940 AC 1014 :
109 LJKB 865 : 163 LT 343 (HL)] referred to in Pye v. Minister
for Lands for NSW [(1954) 3 All ER 514 : (1954) 1 WLR 1410
(PC)] .) The principles indicated in the said cases were reiterated
by this Court in Mohan Kumar Singhania v. Union of India
[1992 Supp (1) SCC 594 : 1992 SCC (L&S) 455 : (1992) 19 ATC
881 : AIR 1992 SC 1] .
18. The statute must be read as a whole and one provision of the
Act should be construed with reference to other provisions in the
same Act so as to make a consistent enactment of the whole
statute.
19. The court must ascertain the intention of the legislature by
directing its attention not merely to the clauses to be construed
but to the entire statute; it must compare the clause with other
parts of the law and
the setting in which the clause to be interpreted
occurs. (See R.S. Raghunath v. State of Karnataka [(1992) 1
SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507 : AIR 1992
SC 81] .) Such a construction has the merit of avoiding any
inconsistency or repugnancy either within a section or between
two different sections or provisions of the same statute. It is the
duty of the court to avoid a head-on clash between two sections
of the same Act. (See Sultana Begum v. Prem Chand Jain
[(1997) 1 SCC 373 : AIR 1997 SC 1006] .)
20. Whenever it is possible to do so, it must be done to construe
the provisions which appear to conflict so that they harmonise. It
should not be lightly assumed that Parliament had given with one
hand what it took away with the other.
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21. The provisions of one section of the statute cannot be used to
defeat those of another unless it is impossible to effect
reconciliation between them. Thus a construction that reduces
one of the provisions to a “useless lumber” or “dead letter” is not
a harmonised construction. To harmonise is not to destroy.”
53. 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(1A) 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.
54. The expression “sufficient cause” contained in section 5 of
the Limitation Act is elastic enough to yield different results depending
upon the object and context of a statute. Thus, in Ajmer Kaur v. State
of Punjab, (2004) 7 SCC 381, this Court, in the context of section
11(5) of the Punjab Land Reforms Act, 1972, held as follows:
“10.Permitting an application under Section 11(5) to be moved at
any time would have disastrous consequences. The State
Government in which
the land vests on being declared as surplus,
will not be able to utilise the same. The State Government cannot
be made to wait indefinitely before putting the land to use. Where
the land is utilised by the State Government, a consequence of the
order passed subsequently could be of divesting it of the land.
Taking the facts of the present case by way of an illustration, it
would mean that the land which stood mutated in the State
Government in 1982 and which was allotted by the State
Government to third parties in 1983, would as a result of reopening
the settled position, lead to third parties being asked to restore
back the land to the State Government and the State Government
in turn would have to be divested of the land. The land will in turn
be restored to the landowner. This will be the result of the land
being declared by the Collector as not surplus with the landowner.
The effect of permitting such a situation will be that the land will
remain in a situation of flux. There will be no finality. The very
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purpose of the legislation will be defeated. The allottee will not be
able to utilise the land for fear of being divested in the event of
deaths and births in the family of the landowners. Deaths and
births are events which are bound to occur. Therefore, it is
reasonable to read a time-limit in sub-section (5) of Section 11.
The concept of reasonable time in the given facts would be most
appropriate. An application must be moved within a reasonable
time. The facts of the present case demonstrate that
redetermination under sub-section (5) of Section 11 almost 5 years
after the death of Kartar Kaur and more than 6 years after the
order of the Collector declaring the land as surplus had become
final, has resulted in grave injustice besides defeating the object
of the legislation which was envisaged as a socially beneficial
piece of legislation. Thus we hold that the application for
redetermination filed by Daya Singh under sub-section (5) of
Section 11 of the Act on 21-6-1985 was liable to be dismissed on
the ground of inordinate delay and the Collector was wrong in
reopening the issue declaring the land as not surplus in the hands
of Daya Singh and Kartar Kaur.
11. The above reasoning is in consonance with the provision in
sub-section (7) of Section 11 of the Act. Sub-section (7) uses the
words “where succession has opened after the surplus area or
any part thereof has been determined by the Collector …”. The
words “determined by the Collector” would mean
that the order
of the Collector has attained finality. The provisions regarding
appeals, etc. contained in Sections 80-82 of the Punjab Tenancy
Act, 1887, as made applicable to proceedings under the Punjab
Land Reforms Act, 1972, show that the maximum period of
limitation in case of appeal or review is ninety days. The appeal
against the final order of the Collector dated 30-9-1976 whereby
3.12 hectares of land had been declared as surplus was dismissed
on 27-3-1979. The order was allowed to become final as it was
not challenged any further. Thus the determination by the Collector
became final on 27-3-1979. The same could not be reopened after
a lapse of more than 6 years by order dated 23-7-1985. The
subsequent proceedings before the Revenue Authorities did not
lie. The order dated 23-7-1985 is non est. All the subsequent
proceedings therefore fall through. The issue could not have been
reopened.”
(emphasis supplied)
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55. Nearer home, in Brahampal v. National Insurance
Company, 2020 SCC OnLine SC 1053, this Court specifically referred
to the difference between a delay in filing commercial claims under the
Arbitration Act or the Commercial Courts Act and claims under the
Motor Vehicles Act, 1988, as follows:
“16. This Court has firstly held that purpose of conferment of
such power must be examined for the determination of the scope
of such discretion conferred upon the court. [refer to Bhaiya
Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad,
AIR 1963 SC 120; Shri Prakash Chand Agarwal v. Hindustan
Steel Ltd., (1970) 2 SCC 806]. Our analysis of the purpose of the
Act suggests that such discretionary power is conferred upon the
Courts, to enforce the rights of the victims and their dependents.
The legislature intended that Courts must have such power so as
to ensure that substantive justice is not trumped by technicalities.
(emphasis supplied)
“22.Therefore, the aforesaid provision being a beneficial legislation,
must be given liberal interpretation to serve its object. Keeping in
view the substantive rights of the parties, undue emphasis should
not be given to technicalities. In such cases delay in filing and
refiling cannot be viewed strictly, as compared to commercial claims
under the Arbitration and Concilliation Act, 1996 or the Commercial
Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13
SCC 445, wherein this
Court while interpreting Section 34 of the
Arbitration Act, held that the right to object to an award itself is
substantively bound with the limitation period prescribed therein
and the same cannot merely a procedural prescription. In effect
the Court held that a complete petition, has to be filed within the
time prescribed under Section 34 of the Arbitration Act and ‘not
thereafter’. The Court while coming to the aforesaid conclusion,
reasoned as under:
“36.1 First, the purpose of the Arbitration Act was to provide
for a speedy dispute resolution process. The Statement of
Objects and Reasons reveal that the legislative intent of
enacting the Arbitration Act was to provide parties with an
efficient alternative dispute resolution system which gives
litigants an expedited resolution of disputes while reducing the
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burden on the courts. Article 34(3) reflects this intent when it
defines the commencement and concluding period for
challenging an award. This Court in Popular Construction
case [Union of India v. Popular Construction Co., (2001) 8
SCC 470] highlighted the importance of the fixed periods
under the Arbitration Act. We may also add that the
finality is a fundamental principle enshrined under the
Arbitration Act and a definitive time-limit for challenging
an award is necessary for ensuring finality. If Section 17
were to be applied, an award can be challenged even after
120 days. This would defeat the Arbitration Act’s objective of
speedy resolution of disputes. The finality of award would also
be in a limbo as a party can challenge an award even after the
120 day period.”
(emphasis in original)
“23.Coming back to the Motor Vehicles Act, the legislative intent
is to provide appropriate compensation for the victims and to protect
their substantive rights, in pursuit of the same, the interpretation
should not be as strict as commercial claims as elucidated above.
24. Undoubtedly, the statute has granted the Courts with
discretionary powers to condone the delay, however at the same
time it also places an obligation upon the party to justify that he
was prevented from abiding by the same due to the existence of
“sufficient cause”. Although there exists no strait jacket formula
for the Courts to condone delay, but the Courts must not only take
into consideration
the entire facts and circumstances of case but
also the conduct of the parties. The concept of reasonableness
dictates that, the Courts even while taking a liberal approach must
weigh in the rights and obligations of both the parties. When a
right has accrued in favour of one party due to gross negligence
and lackadaisical attitude of the other, this Court shall refrain from
exercising the aforesaid discretionary relief.
25. Taking into consideration the facts and circumstances of the
present case, we are of the opinion that the delay of 45 days has
been properly explained by the appellants, which was on account
of illness of the wife of Appellant No. 1. It was not appropriate on
the part of the High Court to dismiss the appeal merely on the
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ground of delay of short duration, particularly in matters involving
death in motor accident claims. Moreover, in the present case no
mala fide can be imputable against the appellants for filing the
appeal after the expiry of ninety days. Therefore, we are of the
opinion that the strict approach taken in the impugned order is
hyper-technical and cannot be sustained in the eyes of law.”
(emphasis supplied)
56. Given the object sought to be achieved under both the
Arbitration Act and the Commercial Courts Act, that is, the speedy
resolution of disputes, the expression “sufficient cause” is not elastic
enough to cover long delays beyond the period provided by the appeal
provision itself. Besides, the expression “sufficient cause” is not itself a
loose panacea for the ill of pressing negligent and stale claims. This
Court, in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC
81, has held:
“9. Sufficient cause is the cause for which the defendant could
not be blamed for his absence. The meaning of the word
“sufficient” is “adequate” or “enough”, inasmuch as may be
necessary to answer the purpose intended. Therefore, the word
“sufficient” embraces no more than that which provides a platitude,
which when the act done suffices to accomplish the purpose
intended in the facts and circumstances existing in a case, duly
examined from the viewpoint of a reasonable standard of a
cautious man. In this context, “sufficient cause”
means that the
party should not have acted in a negligent manner or there was a
want of bona fide on its part in view of the facts and circumstances
of a case or it cannot be alleged that the party has “not acted
diligently” or “remained inactive”. However, the facts and
circumstances of each case must afford sufficient ground to enable
the court concerned to exercise discretion for the reason that
whenever the court exercises discretion, it has to be exercised
judiciously. The applicant must satisfy the court that he was
prevented by any “sufficient cause” from prosecuting his case,
and unless a satisfactory explanation is furnished, the court should
not allow the application for condonation of delay. The court has
to examine whether the mistake is bona fide or was merely a
device to cover an ulterior purpose. (See Manindra Land and
Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336],
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Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC
1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ)
1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. Municipal
Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC
(Civ) 24 : AIR 2012 SC 1629] .)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this
Court explained the difference between a “good cause” and a
“sufficient cause” and observed that every “sufficient cause” is a
good cause and vice versa. However, if any difference exists it
can only be that the requirement of good cause is complied with
on a lesser degree of proof than that of “sufficient cause”.
11. The expression “sufficient cause” should be given a liberal
interpretation to ensure that substantial justice is done, but only so
long as negligence, inaction or lack of bona fides cannot be
imputed to the party concerned, whether or not sufficient cause
has been furnished, can be decided on the facts of a particular
case and no straitjacket formula is possible. (Vide Madanlal v.
Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath
Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201].)
12. It is a settled legal proposition that law of limitation may harshly
affect a particular party but it has to be applied with all its rigour
when the statute so prescribes. The court has no power to extend
the period of limitation on equitable grounds. “A result flowing
from a statutory provision is never an evil. A court
has no power
to ignore that provision to relieve what it considers a distress
resulting from its operation.” The statutory provision may cause
hardship or inconvenience to a particular party but the court has
no choice but to enforce it giving full effect to the same. The legal
maxim dura lex sed lex which means “the law is hard but it is the
law”, stands attracted in such a situation. It has consistently been
held that, “inconvenience is not” a decisive factor to be considered
while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim
being to secure peace in the community, to suppress fraud and
perjury, to quicken diligence and to prevent oppression. It seeks
to bury all acts of the past which have not been agitated
unexplainably and have from lapse of time become stale. According
to Halsbury’s Laws of England, Vol. 28, p. 266:
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“605. Policy of the Limitation Acts.—The courts have
expressed at least three differing reasons supporting the
existence of statutes of limitations namely, (1) that long dormant
claims have more of cruelty than justice in them, (2) that a
defendant might have lost the evidence to disprove a stale claim,
and (3) that persons with good causes of actions should pursue
them with reasonable diligence.”
An unlimited limitation would lead to a sense of insecurity and
uncertainty, and therefore, limitation prevents disturbance or
deprivation of what may have been acquired in equity and justice
by long enjoyment or what may have been lost by a party’s own
inaction, negligence or laches. (See Popat and Kotecha Property
v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa
Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik
Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448 :
(2009) 5 SCC (Civ) 907] .)
14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4
SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] this Court
held that judicially engrafting principles of limitation amounts to
legislating and would fly in the face of law laid down by the
Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak
[(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701] .
15. The law on the issue can be summarised to the effect that
where a case has been presented in the court beyond limitation,
the applicant has to
explain the court as to what was the “sufficient
cause” which means an adequate and enough reason which
prevented him to approach the court within limitation. In case a
party is found to be negligent, or for want of bona fide on his part
in the facts and circumstances of the case, or found to have not
acted diligently or remained inactive, there cannot be a justified
ground to condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any condition
whatsoever. The application is to be decided only within the
parameters laid down by this Court in regard to the condonation
of delay. In case there was no sufficient cause to prevent a litigant
to approach the court on time condoning the delay without any
justification, putting any condition whatsoever, amounts to passing
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an order in violation of the statutory provisions and it tantamounts
to showing utter disregard to the legislature.”
(emphasis supplied)
57. Likewise, merely because the government is involved, a
different yardstick for condonation of delay cannot be laid down. This
was felicitously stated in Postmaster General v. Living Media India
Ltd., (2012) 3 SCC 563 [“Postmaster General”], as follows:
“27. It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the
prescribed period of limitation for taking up the matter by way of
filing a special leave petition in this Court. They cannot claim that
they have a separate period of limitation when the Department
was possessed with competent persons familiar with court
proceedings. In the absence of plausible and acceptable
explanation, we are posing a question why the delay is to be
condoned mechanically merely because the Government or a wing
of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of
condonation of delay when there was no gross negligence or
deliberate inaction or lack of bona fides, a liberal concession has
to be adopted to advance substantial justice, we are of the view
that in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology of
making several notes cannot be accepted in
view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bona fide effort, there is no need to accept the usual explanation
that the file was kept pending for several months/years due to
considerable degree of procedural red tape in the process. The
government departments are under a special obligation to ensure
that they perform their duties with diligence and commitment.
Condonation of delay is an exception and should not be used as
an anticipated benefit for the government departments. The law
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shelters everyone under the same light and should not be swirled
for the benefit of a few.”
58. The decision in Postmaster General (supra) has been
followed in the following subsequent judgments of this Court:
i)
State of Rajasthan v. Bal Kishan Mathur, (2014) 1 SCC
592 at paragraphs 8-8.2;
ii)
State of U.P. v. Amar Nath Yadav, (2014) 2 SCC 422 at
paragraphs 2-3;
iii)
State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709
at paragraphs 11-13; and
iv)
State of M.P. v. Bherulal, (2020) 10 SCC 654 at
paragraphs 3-4.
59. In a recent judgment, namely, State of M.P. v. Chaitram
Maywade, (2020) 10 SCC 667, this Court referred to Postmaster
General (supra), and held as follows:
“1. The State of Madhya Pradesh continues to do the same thing
again and again and the conduct seems to be incorrigible. The
special leave petition has been filed after a delay of 588 days. We
had an occasion to deal with such inordinately delayed filing of
the appeal by the State of Madhya Pradesh in State of M.P. v.
Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in terms
of our order dated 15-10-2020.
2. We have penned down a detailed order in that case and we see
no purpose in repeating the same reasoning again except to record
what are stated to be the facts on which the delay is sought to be
condoned. On 5-1-2019, it is stated that the Government Advocate
was approached in respect of the judgment delivered on 13-11-
2018 [Chaitram Maywade v.
State of M.P., 2018 SCC OnLine
HP 1632] and the Law Department permitted filing of the SLP
against the impugned order on 26-5-2020. Thus, the Law
Department took almost about 17 months’ time to decide whether
the SLP had to be filed or not. What greater certificate of
incompetence would there be for the Legal Department!
3. We consider it appropriate to direct the Chief Secretary of the
State of Madhya Pradesh to look into the aspect of revamping the
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Legal Department as it appears that the Department is unable to
file appeals within any reasonable period of time much less within
limitation. These kinds of excuses, as already recorded in the
aforesaid order, are no more admissible in view of the judgment in
Postmaster General v. Living Media (India) Ltd. [Postmaster
General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012)
2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S)
649]
4. We have also expressed our concern that these kinds of the
cases are only “certificate cases” to obtain a certificate of dismissal
from the Supreme Court to put a quietus to the issue. The object
is to save the skin of officers who may be in default. We have
also recorded the irony of the situation where no action is taken
against the officers who sit on these files and do nothing.
5. Looking to the period of delay and the casual manner in which
the application has been worded, the wastage of judicial time
involved, we impose costs on the petitioner State of Rs 35,000 to
be deposited with the Mediation and Conciliation Project
Committee. The amount be deposited within four weeks. The
amount be recovered from the officer(s) responsible for the delay
in filing and sitting on the files and certificate of recovery of the
said amount be also filed in this Court within the said period of
time. We have put to Deputy Advocate General to caution that
for any successive matters of this kind the costs will keep on
going
up.”
60. Also, it must be remembered that merely because sufficient
cause has been made out in the facts of a given case, there is no right in
the appellant to have delay condoned. This was felicitously put in Ramlal
v. Rewa Coalfields Ltd., (1962) 2 SCR 762 as follows:
“It is, however, necessary to emphasise that even after sufficient
cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient
cause is a condition precedent for the exercise of the discretionary
jurisdiction vested in the court by s. 5. If sufficient cause is not
proved nothing further has to be done; the application for condoning
delay has to be dismissed on that ground alone. If sufficient cause
is shown then the Court has to enquire whether in its discretion it
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should condone the delay. This aspect of the matter naturally
introduces the consideration of all relevant facts and it is at this
stage that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally
be limited only to such facts as the Court may regard as relevant.
It cannot justify an enquiry as to why the party was sitting idle
during all the time available to it. In this connection we may point
out that considerations of bona fides or due diligence are always
material and relevant when the Court is dealing with applications
made under s. 14 of the Limitation Act. In dealing with such
applications the Court is called upon to consider the effect of the
combined provisions of ss. 5 and 14. Therefore, in our opinion,
considerations which have been expressly made material and
relevant by the provisions of s. 14 cannot to the same extent and
in the same manner be invoked in dealing with applications which
fall to be decided only under s. 5 without reference to s. 14.”
(page 771)
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.
62. Coming to the facts of the appeals before us, in the Civil
Appeal arising out of SLP (C) No. 665 of 2021, the impugned judgment
of the High Court of Bombay, dated 17.12.2020, has found that the Govt
of Maharashtra had not approached the court bona fide, as follows:
“7. I have carefully gone through the papers. There can be no
doubt in view of the documentary evidence in the form of copy of
the application tendered by the Advocate representing the applicant
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for obtaining a certified copy (Exhibit-R1) that in fact, after
pronouncement of the judgment and order in the proceeding under
Section 34 of the Act, the concerned Advocate had applied for
certified copy on 14.05.2019. The endorsement further reads that
it was to be handed over to Mr. A.D. Patil of the Irrigation
Department, Dhule, who is a staff from the office of the applicant.
The further endorsements also clearly show that the certified copy
was ready and was to be delivered on 27.05.2019. [In spite] of
such a stand and document, the applicant has not controverted
this or has not come up with any other stand touching this aspect.
It is therefore apparent that the applicant is not coming to the
Court with clean hands even while seeking the discretionary relief
of condonation of delay”
63. Apart from this, there is a long delay of 131 days beyond the
60-day period provided for filing an appeal under section 13(1A) of the
Commercial Courts Act. There is no explanation worth the name
contained in the condonation of delay application, beyond the usual file-
pushing and administrative exigency. This appeal is therefore dismissed.
64. In the Civil Appeal arising out of SLP (C) No. 15278 of 2020,
the impugned judgment of the High Court of Madhya Pradesh dated
27.01.2020 relies upon Consolidated Engg. (supra)and thereby states
that the judgment of this Court in N.V. International (supra) would not
apply. The judgment of the High Court is wholly incorrect
inasmuch as
Consolidated Engg. (supra) was a judgment which applied the
provisions of section 14 of the Limitation Act and had nothing to do with
the application of section 5 of the Limitation Act. N.V. International
(supra) was a direct judgment which applied the provisions of section 5
of the Limitation Act and then held that no condonation of delay could
take place beyond 120 days. The High Court was bound to follow N.V.
International (supra), as on the date of the judgment of the High Court,
N.V. International (supra) was a judgment of two learned judges of
the Supreme Court binding upon the High Court by virtue of Article 141
of the Constitution. On this score, the impugned judgment of the High
Court deserves to be set aside.
65. That apart, on the facts of this appeal, there is a long delay of
75 days beyond the period of 60 days provided by the Commercial Courts
Act. Despite the fact that a certified copy of the District Court’s judgment
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was obtained by the respondent on 27.04.2019, the appeal was filed only
on 09.09.2019, the explanation for delay being:
“2. That, the certified copy of the order dated 01/04/2013 was
received by the appellant on 27/04/2019. Thereafter the matter
was placed before the CGM purchase MPPKVVCL for the
compliance of the order. The same was then sent to the law officer,
MPPKVVCL for opinion.
3. That after taking opinion for appeal, and approval of the
concerned authorities, the officer-in-charge was appointed vide
order dated 23/07/2019.
4. That, thereafter due to bulky records of the case and for
procurement of the necessary documents some delay has been
caused however, the appeal has been prepared and filed to pursuant
to the same and further delay.
5. That due to the aforesaid procedural approval and since the
appellant is a public entity formed under the Energy department
of the State Government, the delay caused in filing the appeal is
bonafide and which deserve[s] to be condoned.”
66. This explanation falls woefully short of making out any sufficient
cause. This appeal is therefore allowed and the condonation of delay is
set aside on this score also.
67. In the Civil Appeal arising out of SLP (C) Diary No. 18079 of
2020, there is a huge delay of 227 days in filing the appeal, and a 200-
day delay in refiling. The facts of this case also show that there was no
sufficient cause whatsoever to condone such a long delay.
The impugned
judgment of the High Court of Delhi dated 15.10.2019 cannot be faulted
on this score and this appeal is consequently dismissed.
68. Appeals disposed of accordingly.
Nidhi Jain
Appeals disposed of.