# Mathura Vrindavan Development Authority v. M/s Agarwal Construction Company

- **Citation:** (2023) 12 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Act 1996 Defective No. 591 of 2023
- **Bench:** Salil Kumar Rai, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mathura-vrindavan-development-authority-v-m-s-agarwal-construction-company-49589
- **Pages:** 6

## Headnote

Limitation Act, 1963 - Arbitration and
Conciliation Act, 1996 - Sections 34 & 37 -
Commercial Courts Act, 2015 - Section
13(1-A) - Limitation for filing appeal
under Section 37 of the Arbitration and
Conciliation Act, 1996 - Legal Issue:
Whether the period of limitation for filing
an appeal under Section 37 of the
Arbitration and Conciliation Act, 1996
against the order passed under Section 34
of the Act, 1996 shall be 60 days as
provided under the Commercial Courts
Act, 2015, or 90 days. Held: Considering
the pronouncement of the Hon'ble Apex
Court in Borse Brothers (Para 33), it was
held that the bulk of appeals u/s 37 of the
Arbitration Act are governed by Section 13
of the Commercial Courts Act. Sub-section
(1-A) of Section 13 provides the forum for
appeals
and
prescribes
a
period
of
limitation of 60 days uniformly for all
appeals u/s 37. Section 13 being a special
law, overrides the Limitation Act, 1963, as
per Section 29(2) of the Limitation Act.
Section
5
of
the
Limitation
Act
is
applicable to appeals filed against the
order passed by the Commercial Court,
and the total period of limitation shall not
exceed 120 days as provided under
Section 34(3) of the Arbitration Act. A
litigant
is
not
responsible
for
the
negligence of counsel unless there is
remissness on his part. Appellant, Mathura
Vrindavan Development Authority, filed an
appeal u/s 37 of the Arbitration and
Conciliation Act, 1996 against the order
passed u/s 34 by the Commercial Court.
Appeal was filed with a delay of 29 days
due to wrong advice given by the
appellant's counsel regarding the period
of limitation. Delay of 29 days in filing the
appeal was condoned, and the benefit of
Section 5 of the Limitation Act was
granted to the appellant. Appeal allowed.
(Paras 12, 13, 14, 20)

Allowed. (E-5)

## Text

40 INDIAN LAW REPORTS ALLAHABAD SERIES

5. There is no presumption that
delay is occasioned deliberately, or on
account of culpable negligence, or on
account of mala fides. A litigant does not
stand to benefit by resorting to delay. In
fact he runs a serious risk.

6. It must be grasped that
judiciary is respected not on account of its
power to legalize injustice on technical
grounds but because it is capable of
removing injustice and is expected to do so.

16. In light of the aforesaid
pronouncements of the Hon'ble Apex
Court, it is conspicuous that Section 5 of
Limitation Act is applicable to the
appeals filed under Section 37 of the Act
of 1996.

17. The applicant/appellant has
averred that his counsel has advised that
the period of limitation for filing an
appeal against the order passed under the
Act of 1996 is 90 days as it was earlier
held by the Hon'ble Apex Court in N.V.
International Vs. State of Aassam &
Anr reported in (2020)2 SCC 109, the
applicant's counsel had no knowledge
that
the
aforesaid
case
has
been
overruled by Hon'ble Apex Court vide
its judgment and order passed in Borse
Brothers (supra).

18. The delay caused in filing the
appeal is due to wrong advice give by the
applicant's counsel regarding period of
limitation for filing the appeal. Thus, there
was no negligence on the part of the
applicant in filing the appeal after a lapse
of 29 days of the limitation period, the
delay was caused due to wrong advice
given by his counsel about the limitation
period in filing the appeal against the
impugned order.

19. In the case of Oil and Natural
Gas Commission Vs. Tridib Nath Sanyal
& Ors. AIR 1983 Cal 124; the Culcutta
High Court has held that;

"A litigant would not be responsible
for negligence of his counsel unless there has
been some remissness on the part of the litigant."

20. Apart from this, considering the facts
and circumstances of the case and period of
delay in filing the appeal, we are of the
considered view that there is sufficient cause
that the delay in filing appeal should be
condoned under Section 5 of the Limitation
Act. The applicant/appellant is granted benefit
of Section 5 of the Limitation Act and the
delay of 29 days in filing the appeal is
condoned accordingly.

21. The delay condonation application
is allowed accordingly.

22. Office to allot regular number to the
appeal, if there is no other legal impediment.

23. Put up as fresh on 21stDecember,
2023 for admission of appeal.
----------
(2023) 12 ILRA 40
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Appeal U/S 37 OF Arbitration And Conciliation
Act 1996 Defective No. 591 of 2023

Mathura
Vrindavan
Development
Authority ...Appellant
Versus
M/s Agarwal Construction Company
 ...Respondent
12 All. Mathura Vrindavan Development Authority Vs. M/s Agarwal Construction Company
41
Counsel for the Appellant:
Sri Krishna Mohan Asthana

Counsel for the Respondent:
Sri Praveen Kumar Singh

Limitation Act, 1963 - Arbitration and
Conciliation Act, 1996 - Sections 34 & 37 -
Commercial Courts Act, 2015 - Section
13(1-A) - Limitation for filing appeal
under Section 37 of the Arbitration and
Conciliation Act, 1996 - Legal Issue:
Whether the period of limitation for filing
an appeal under Section 37 of the
Arbitration and Conciliation Act, 1996
against the order passed under Section 34
of the Act, 1996 shall be 60 days as
provided under the Commercial Courts
Act, 2015, or 90 days. Held: Considering
the pronouncement of the Hon'ble Apex
Court in Borse Brothers (Para 33), it was
held that the bulk of appeals u/s 37 of the
Arbitration Act are governed by Section 13
of the Commercial Courts Act. Sub-section
(1-A) of Section 13 provides the forum for
appeals
and
prescribes
a
period
of
limitation of 60 days uniformly for all
appeals u/s 37. Section 13 being a special
law, overrides the Limitation Act, 1963, as
per Section 29(2) of the Limitation Act.
Section
5
of
the
Limitation
Act
is
applicable to appeals filed against the
order passed by the Commercial Court,
and the total period of limitation shall not
exceed 120 days as provided under
Section 34(3) of the Arbitration Act. A
litigant
is
not
responsible
for
the
negligence of counsel unless there is
remissness on his part. Appellant, Mathura
Vrindavan Development Authority, filed an
appeal u/s 37 of the Arbitration and
Conciliation Act, 1996 against the order
passed u/s 34 by the Commercial Court.
Appeal was filed with a delay of 29 days
due to wrong advice given by the
appellant's counsel regarding the period
of limitation. Delay of 29 days in filing the
appeal was condoned, and the benefit of
Section 5 of the Limitation Act was
granted to the appellant. Appeal allowed.
(Paras 12, 13, 14, 20)

Allowed. (E-5)

(Delivered by Hon'ble Surendra Singh-I, J.)

Order on Civil Misc. Delay Condonation
Application No. 01 of 2023

1. Heard Sri Krishna Mohan Asthana,
learned counsel for the appellant/plaintiff
and Sri Praveen Kumar Singh, learned
counsel for the respondent/defendant on the
delay condonation application filed along
with arbitration appeal.

2. The arguments on the delay
condonation application have been heard
without calling for a counter affidavit to the
delay condonation application in view of
the fact that the counsel for the defendant
had agreed to argue the delay condonation
application without a counter affidavit as
only a question of law was involved as to
whether the limitation for filing the
arbitration appeal would be counted as
provided under the Commercial Courts
Act, 2015 or as provided under the
Arbitration and Conciliation Act, 1996 and
whether this Court in either case has the
power to condone the delay in filing the
appeal.

3. The applicant- appellant has
preferred this appeal against judgment and
order dated 11.7.2023, formal order dated
14.7.2021 passed in Case No. 16 of 2021
(Mathura
Vrindavan
Development
Authority through its Vice Chairman Vs.
M/s Agrawal Construction) filed under
Section
34
of
the
Arbitration
and
Conciliation Act,1996.

4. It has been submitted by counsel
for
the
applicant/petitioner
that
the
applicant/petitioner
had
preferred
an
application under Section 34 of Arbitration
42 INDIAN LAW REPORTS ALLAHABAD SERIES
and Conciliation Act,1996 (hereinafter
referred to as the "Act of 1996") for setting
aside the arbitral award within limitation
period of 90 days prescribed under Section
34 (3) of the Act of 1996. Since the
valuation of the arbitral award was more
than Rs. 3,00,000/- the said application of
the petitioner/applicant for setting aside the
arbitral award was transferred to the
Commercial Court No.1 Agra hearing
jurisdiction in accordance with Section 10
(3) of Commercial Courts Act, 2015
(hereinafter referred to as the " Act of
2015"). The application was rejected vide
order dated 14.7.2023 of the aforesaid
Commercial
Court,
thereafter,
applicant/petitioner preferred Arbitration
Appeal under Section 37 of the Act of 1996
challenging the judgment and order dated
14.7.2023 passed under Section 34 of the
Act of 1996.

5. It has also been submitted that no
limitation period has been provided for
filing an appeal under Section 37 of the Act
of 1996 whereas, office has reported a
delay of 29-30 days in filing the Arbitration
Appeal in reference to Section 13 (1) (A) of
the Act of 2015. It has further been
submitted
that
the
applicant/petitioner
preferred the appeal on the basis of the
judgment of Hon'ble Apex Court in N.V.
International Vs. State of Aassam & Anr
reported in (2020)2 SCC 109, in which
the Hon'ble Apex Court held that limitation
period for preferring an appeal under
Section 37 of the Act 1996 to the High
Court is 90 days as Article 116-117 of the
Schedule
of
the
Limitation
Act
is
applicable in filing the appeal. It has been
submitted
that
the
applicant/petitioner
preferred the appeal on the basis of
bonafide and legal advice of his Counsel
and there was no negligence, inaction or
lack of bonafide on his part in filing the
appeal after limitation period, therefore, the
applicant/petitioner may be granted benefit
of Section 5 of the Limitation Act.

6. No written objection has been filed
by the opposite parties/respondents.

7. It has been submitted by counsel
for the respondents that since the valuation
of the arbitral award was more than Rs.
3,00,000/- therefore, it was sent to the
Commercial Court, Agra for disposal, thus,
the provisions of the Commercial Courts
Act, 2015 is applicable in deciding the
period of limitation for preferring an appeal
under Section 37 of the Act of 1996. Under
Section 13 (1) of the Act of 2015, the
period of limitation in preferring such
appeal before the High Court against the
order of Commercial Court is 60 days from
the date of the judgment and order as the
purpose
of
Commercial
Court
is
expeditious
disposal
of
commercial
disputes between the parties. In the case of
Government
of
Maharastra
(Water
Resources Department) Represented by
Executive Engineer Vs. M/s Borse
Brothers Engineers and Contractors
Private Limited, 2021 6 SCC 460, the
Hon'ble
Apex
Court
held
that
the
condonation of delay, although allowed
cannot be seen in complete isolation of
main objective of the Act i.e. speedy
resolution of disputes. In the light of the
same, the Hon'ble Apex Court has
observed that expression of "sufficient
cause" under Section 5 of Limitation Act is
not elastic enough to cover the delay and
merely because sufficient cause has been
made out, there is no right to have such
delay condoned. The delay beyond 60 days
in filing the appeal is to be condoned by
way of exception not by way of Rule. It has
been submitted that delay due to ignorance
of law of the party cannot be condoned.
12 All. Mathura Vrindavan Development Authority Vs. M/s Agarwal Construction Company
43

8. On the basis of statutory provisions
provided in Limitation Act, Arbitration and
Conciliation Act and Commercial Courts
Act and in light of the judgments of
Hon'ble Apex Court it has to be decided
whether the period of limitation for filing
the appeal under Section 37 of the Act of
1996 against the order passed under
Section 34 of the Act of 1996 shall be 60
days as provided under Commercial Courts
Act and 90 days under Arbitration and
Conciliation Act1996.

9. The statutory provisions regarding
filing of appeals of commercial courts is
provided
under
Section
13
of
the
Commercial Courts Act, 2015, which is 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 District Judge may
appeal to the Commercial Appellate Court
within a period of sixty days from the date
of judgment or order.

(1-A) 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."

10. The present appeal has been filed
against the impugned order dated 14.7.2023
passed by the Commercial Court, Agra
under Section 34 of the Act of 1996. Thus,
under Section 13 (1-A) of the Commercial
Courts Act shall lie of the Commercial
Appellate Division of the High Court
within the period of 60 days from the date
of the judgment and order.

11. It has been argued on behalf of the
applicant/appellant that the appeal has been
filed under Section 37 of the Act of 1996
against the order passed by the commercial
court under Section 34 of the Act of 1996,
since no period of limitation has been
provided in the Act for filing appeal
therefore, Article 116 (a) of the Schedule of
Limitation Act shall be applicable. Under
Article 116 (a) of the Act, the period of
limitation for filing the appeal to the High
Court from any decree or order of the
District Courts is 90 days, therefore, appeal
has been filed within the period of
limitation.

12. Per contra, learned counsel for the
opposite party has argued that the appeal
has been filed against the impugned order
dated 14.7.2023 passed by the Commercial
Court Agra, the Commercial Courts Act is
a Special Act, therefore, the period of filing
an appeal shall be 60 days as provided
under Section 13 (1-A) of the Commercial
Courts Act as has been settled by the
Hon'ble Apex Court by it's pronouncement
in Borse Brothers (supra), in Paragraph
No.33 the Hon'ble Apex Court has held
that;

"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
(1-A) 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
44 INDIAN LAW REPORTS ALLAHABAD SERIES
Act. Section 13(1-A) 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."

13.

After
considering
various
decisions, the Hon'ble Apex Court has
concluded in Borse Brothers case (supra)
that Section 5 of the Limitation Act shall be
applicable to the appeals filed against the
order passed by the commercial court, the
Hon'ble Apex Court has also held that a
total period of limitation for filing such
appeal should not exceed the period of
limitation provided under Section 34 (3) of
the Act of 1996 i.e. 120 days.

14. In paragraph no. 61 the Hon'ble
Apex Court further held;

"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(1-A) 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."

15. In Collector (L.A.) Vs. Katiji,
(1987) 2 SCC107, the Supreme Court laid
down the following principles, while
dealing with an appeal or application not
preferred within the period of limitation:-

1. Ordinarily a litigant does not
stand to benefit by lodging an appeal late.

2. Refusing to condone delay can
result in a meritorious matter being
thrown out at the very threshold and cause
of justice being defeated. As against this
when delay is con- doned the highest that
can happen is that a cause would be
decided on merits after hearing the
parties.

3. "Every day's delay must be
explained" does not mean that a pedantic
approach should be made. Why not every
hour's delay, every second's delay? The
doctrine must be applied in a rational
common sense pragmatic manner.

4. When substantial justice and
technical considerations are pitted against
each other, cause of substantial justice
deserves to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a nondeliberate delay.

5. There is no presumption that
delay is occasioned deliberately, or on
account of culpable negligence, or on
account of mala fides. A litigant does not
stand to benefit by resorting to delay. In
fact he runs a serious risk.

6. It must be grasped that
judiciary is respected not on account of its
power to legalize injustice on technical
grounds but because it is capable of
removing injustice and is expected to do
so.

16. In light of the aforesaid
pronouncements of the Hon'ble Apex
Court, it is conspicuous that Section 5 of
Limitation Act is applicable to the appeals
filed under Section 37 of the Act of 1996.
12 All. N.H.A.I. Vs. Parimal Bajpai & Ors.
45

17. The applicant/appellant has
averred that his counsel has advised that
the period of limitation for filing an
appeal against the order passed under the
Act of 1996 is 90 days as it was earlier
held by the Hon'ble Apex Court in N.V.
International Vs. State of Aassam &
Anr reported in (2020)2 SCC 109, the
applicant's counsel had no knowledge
that
the
aforesaid
case
has
been
overruled by Hon'ble Apex Court vide
its judgment and order passed in Borse
Brothers (supra).

18. The delay caused in filing the
appeal is due to wrong advice give by the
applicant's counsel regarding period of
limitation for filing the appeal. Thus, there
was no negligence on the part of the
applicant in filing the appeal after a lapse
of 29 days of the limitation period, the
delay was caused due to wrong advice
given by his counsel about the limitation
period in filing the appeal against the
impugned order.

19. In the case of Oil and Natural
Gas Commission Vs. Tridib Nath Sanyal
& Ors. AIR 1983 Cal 124; the Culcutta
High Court has held that;

"A
litigant
would
not
be
responsible for negligence of his counsel
unless there has been some remissness on
the part of the litigant."

20. Apart from this, considering the
facts and circumstances of the case and
period of delay in filing the appeal, we are
of the considered view that there is
sufficient cause that the delay in filing
appeal should be condoned under Section 5
of
the
Limitation
Act.
The
applicant/appellant is granted benefit of
Section 5 of the Limitation Act and the
delay of 29 days in filing the appeal is
condoned accordingly.

21. The delay condonation application
is allowed accordingly.

22. Office to allot regular number to
the appeal, if there is no other legal
impediment.

23. Put up as fresh on 21st December,
2023 for admission of appeal.
----------
(2023) 12 ILRA 45
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Appeal U/S 37 OF Arbitration And Conciliation
Act 1996 No. 901 of 2023

N.H.A.I. ...Appellant
Versus
Parimal Bajpai & Ors. ...Respondents

Counsel for the Appellant:
Sri Aloke Kumar

Counsel for the Respondents:
Sri Suresh Chandra Verma, Sri Saumitra
Dwivedi, Sri Shashank Shekhar Mishra, Sri
Devesh Kumar Verma

National Highways Authority of India Act,
1988 - Section 3-G(5) - Arbitration and
Conciliation Act, 1996 - Section 34(4) -
Arbitral award - Challenge - Application
for setting aside arbitral award - Section
34(4) of the Arbitration and Conciliation
Act,
1996
contemplates
a
second
opportunity to the arbitral tribunal to
revive arbitration proceedings to cure the
defects in the award. The prerequisites of
exercise of powers u/s 34(4) are twofold:
(i) the Court in proceedings u/s 34 has to