R.F. Nariman, J.

1. Leave granted. Delay condoned in SLP (C) Diary No.18079 of 2020. Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2021.03.19 17:17:37 IST Reason:

2. The substantial question of law which arises in these appeals is as to 1 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:

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 statute for filing of appeals under 3 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 4 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. 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 5 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 6 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 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 7 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 8 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 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 9 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 10 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 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 brahmāstra and panacea for all ills, to do justice in individual cases.

12. Dr. Amit George, learned counsel appearing for M/s Associated 11 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.

13. The arguments that have been made in these appeals and the 12 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:

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 :

16. The other relevant provisions of the Arbitration Act provide as follows:

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” 15 “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 16 (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; 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 :

(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: 17

17. So far as the Limitation Act is concerned, sections 5 and 29(2) read as follows:

18. Further, the relevant Articles of the Schedule provide as follows:

19. The Commercial Courts Act states, in its Statement of Objects and Reasons, the following:

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:

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, 25 section 10 is important and states as follows:

22. The other relevant provisions of the Commercial Courts Act are set out as follows:

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 27 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 (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 28 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:

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 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 31 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:

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 33 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:

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:

Ltd. [Union of India v. U.P. State Bridge Corpn. Ltd. , (2015) 2 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 37 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 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 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).

38 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:

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]

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 42 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:

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:

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 47 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.

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:

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:

(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:

46. Ultimately, the judgment concluded:

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.

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:

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 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. 54

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 :

16. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may 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].) 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). 55

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 56 Parliament had given with one hand what it took away with the other.

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: 57

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)

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:

The Court while coming to the aforesaid conclusion, reasoned as under:

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:

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:

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 65 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 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:

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 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:

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:

Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC 68 (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:

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 70 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:

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 72 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 was obtained by the respondent on 27.04.2019, the appeal was filed only on 09.09.2019, the explanation for delay being:

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.

…………………..………………J. (R. F. Nariman) ……………..……………………J. (B.R. Gavai) ……………..……………………J. (Hrishikesh Roy) New Delhi.

March 19, 2021.