# NHAI v. Smt. Sampata Devi & Ors

- **Citation:** (2023) 10 ILRA 520
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-31
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nhai-v-smt-sampata-devi-ors-49472
- **Pages:** 16

## Headnote

Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 37 & 43 -
Commercial Courts Act, 2015 - Section
13(1A) - Limitation Act, 1963 - Sections
5, -Articles 116, 117 - National Highways
Act, 1956 - Sections 3A, 3C, 3D, 3G - 3H -
Condonation of Delay - Appeal Against Arbitral
Award - Limitation Period - The National
Highways Authority of India (NHAI) filed appeals
under Section 37 of the Arbitration and
Conciliation Act, 1996, challenging the
dismissal of their Section 34 applications by
the Additional District & Sessions Judge,
Barabanki, against an arbitral award dated
20.05.2015 concerning compensation for
land acquired for National Highway No. 28.
The appeals were filed with delays ranging
from 115 to 318 days, accompanied by
applications for condonation of delay. Held:
(1) The applications for condonation of
delay were rejected, and the appeals were
dismissed as time-barred. (2) Under Section
13(1A) of the Commercial Courts Act, 2015,
the limitation period for filing an appeal
under Section 37 is 60 days for commercial
disputes with a specified value of INR
3,00,000 or more. (3) Section 5 of the
Limitation Act applies to Section 37 appeals,
allowing condonation of delay for sufficient
cause, but only short delays can be
condoned as an exception, not as a rule,
per Government of Maharashtra Vs Borse
Brothers Engineers & Contractors Pvt. Ltd.
(2021 SCC OnLine SC 233). (4) NHAI failed
to provide sufficient cause for the delays,
particularly for the six-month gap after
approval to file appeals was granted on
10.01.2023, with appeals filed in July 2023.
(5) The Supreme Court's rulings in U.O.I. Vs
Varindera Const. Ltd. (2020) 2 SCC 111 and
M/s N.VS International Vs St. of Assam
(Civil Appeal No. 9244 of 2019) were
overruled by Borse Brothers to the extent
they
imposed
a
120-day
cap
on
condonation, as neither the Arbitration Act
nor the Commercial Courts Act imposes
such a limit. (6) No special treatment is
afforded
to
government
bodies
for
condonation
of
delay,
per
Postmaster
General Vs Living Media India Ltd. (2012) 3
SCC 563. (7) The court emphasized the
Arbitration Act's objective of speedy dispute
resolution, rejecting NHAI's claims of procedural
delays and counsel's ailment as insufficient. (8)
The appeals were dismissed without costs.
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
521
Case Law Cited:

## Text

_Characters 0–39,816 of 53,996. This is a partial read: ask again with offset=39816 for what follows._

520 INDIAN LAW REPORTS ALLAHABAD SERIES
is quashed and summoning order dated
29.03.2022
passed
by
the
learned
Magistrate is upheld.

17- The instant application under
Section 482 Cr.P.C. stands allowed.

18- The opposite party nos. 2, 3 and 4
shall immediately surrender before the
concerned Court below, failing which the
coercive measure shall be adopted against
them in order to secure their presence. The
concerned Court below shall proceed with
the matter pursuant to summoning order
dated 29.03.2022 in accordance with law.

19- Registrar General of this Court is
directed to place a copy of this order before
the
Hon'ble
Administrative
Judge,
Bulandshahr for information.
----------
(2023) 10 ILRA 520
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.10.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Appeal U/S 37 of Arbitration & Conciliation Act
1996 Defective No. 53 of 2023
with
other connected cases

NHAI ...Appellant
Versus
Smt. Sampata Devi & Ors. ...Respondents

Counsel for the Appellant:
Madhukar Ojha

Counsel for the Respondent:
--

Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 37 & 43 -
Commercial Courts Act, 2015 - Section
13(1A) - Limitation Act, 1963 - Sections
5, -Articles 116, 117 - National Highways
Act, 1956 - Sections 3A, 3C, 3D, 3G - 3H -
Condonation of Delay - Appeal Against Arbitral
Award - Limitation Period - The National
Highways Authority of India (NHAI) filed appeals
under Section 37 of the Arbitration and
Conciliation Act, 1996, challenging the
dismissal of their Section 34 applications by
the Additional District & Sessions Judge,
Barabanki, against an arbitral award dated
20.05.2015 concerning compensation for
land acquired for National Highway No. 28.
The appeals were filed with delays ranging
from 115 to 318 days, accompanied by
applications for condonation of delay. Held:
(1) The applications for condonation of
delay were rejected, and the appeals were
dismissed as time-barred. (2) Under Section
13(1A) of the Commercial Courts Act, 2015,
the limitation period for filing an appeal
under Section 37 is 60 days for commercial
disputes with a specified value of INR
3,00,000 or more. (3) Section 5 of the
Limitation Act applies to Section 37 appeals,
allowing condonation of delay for sufficient
cause, but only short delays can be
condoned as an exception, not as a rule,
per Government of Maharashtra Vs Borse
Brothers Engineers & Contractors Pvt. Ltd.
(2021 SCC OnLine SC 233). (4) NHAI failed
to provide sufficient cause for the delays,
particularly for the six-month gap after
approval to file appeals was granted on
10.01.2023, with appeals filed in July 2023.
(5) The Supreme Court's rulings in U.O.I. Vs
Varindera Const. Ltd. (2020) 2 SCC 111 and
M/s N.VS International Vs St. of Assam
(Civil Appeal No. 9244 of 2019) were
overruled by Borse Brothers to the extent
they
imposed
a
120-day
cap
on
condonation, as neither the Arbitration Act
nor the Commercial Courts Act imposes
such a limit. (6) No special treatment is
afforded
to
government
bodies
for
condonation
of
delay,
per
Postmaster
General Vs Living Media India Ltd. (2012) 3
SCC 563. (7) The court emphasized the
Arbitration Act's objective of speedy dispute
resolution, rejecting NHAI's claims of procedural
delays and counsel's ailment as insufficient. (8)
The appeals were dismissed without costs.
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
521
Case Law Cited:

1. Government of Maharashtra Vs Borse
Brothers Engineers & Contractors Pvt. Ltd., 2021
SCC OnLine SC 233;

2. Consolidated Engineering Enterprises Vs
Irrigation Department, (2008) 7 SCC 169;

3. U.O.I. Vs Varindera Const. Ltd., (2020) 2 SCC
111;

4. M/s N.VS International Vs St. of Assam, Civil
Appeal No. 9244 of 2019;

5. Postmaster General Vs Living Media India
Ltd., (2012) 3 SCC 563;

6. Nusli Neville Wadia Vs Ivory Properties,
(2020) 6 SCC 557;

7. Ramlal Vs Rewa Coalfields Ltd., (1962) 2 SCR
762; N. Balakrishnan Vs M. Krishnamurthy,
(1998) 7 SCC 123;

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(APPLICATION
FOR
CONDONATION OF DELAY)

INRODUCTION

(1) The above-captioned appeals
under Section 37 of the Arbitration and
Conciliation Act, 1996 have been filed by
the appellant, National Highway Authority
of India, beyond time by 290 days, 232
days, 318 days, 183 days, 269 days, 231
days, 184 days, 246 days, 178 days, 115
days, 231 days, 238 days, 238 days, 210
days, 289 days, 209 days, 213 days, 241
days, 271 days, 239 days and 257 days,
respectively.

(2) Through the above-captioned
appeals, the National Highway Authority of
India (hereinafter referred to as 'NHAI'),
which is a statutory body constituted under
the provisions of the National Highways
Act, 1956 (hereinafter referred to as 'Act,
1956'), has questioned the legality of the
judgment and order passed by the learned
Additional District & Sessions Judge,
Barabanki on an application preferred by
NHAI under Section 34 of the Arbitration
and Conciliation Act, 1996 against the
award
dated
20.05.2015
relating
to
compensation granted for the construction
of National Highway No. 28 from
Kilometre 9 to Kilometre 360.57 (Lucknow
to U.P Bihar Border) to the various landowners including respondent.

(3) Since the above-captioned appeals
arise out of the award dated 20.05.2015
relating to compensation granted for the
construction of National Highway No. 28
from Kilometre 9 to Kilometre 360.57
(Lucknow, U.P. to Bihar Border) to the
various land-owners, whose land were
acquired by NHAI due to the aforesaid
project, therefore, with the consent of the
learned Counsel for the parties, all the
appeals have been collectively heard
together are being decided vide the present
common order.

FACTUAL MATRIX

(4) The appellant- NHAI is a statutory
body constituted under the provisions of
"the
National
Highways Act,
1956"
(hereinafter referred to as 'Act, 1956'). The
provisions contained in the Act, 1956 deals
with the acquisition and determination of
compensation for the land being acquired
for
the
purpose
of
widening
and
construction of road in public interest and
in access to public transport.

(5) For the purpose of construction of
National Highway No. 28 from Kilometre 9
522 INDIAN LAW REPORTS ALLAHABAD SERIES
to Kilometre 360.57 (Lucknow, U.P. to
Bihar Border), NHAI had issued a
notification under Section 3A of the Act,
1956 on 26.05.2004, which was published
in two daily newspapers, namely, Rashtriya
Ekta Lahar and Dainik waris-E Awadh on
08.08.2004 and 07.08.2004, respectively.

(6) Apparently, after disposing of the
objection under Section 3C of the Act,
1956, a notification under section 3(D)(1)
of the Act, 1956 was issued on 24.03.2005.
Thereafter, objections were invited with
regard to determination of the said
compensation in two daily newspapers i.e.,
"Dainik Hindustan" and "Dainik Jagran"
on 21.04.2005.

(7) Vide award dated 07.12.2005, the
Prescribed
Authority
proceeded
to
determine the compensation as per Section
3(g)(7) of the Act, 1956. Records reveal
that the Prescribed Authority (Special Land
Acquisition Officer, Barabanki) has called
upon the sale deeds from the Office of the
Sub-Registrar, Nawabganj, Barabanki of
preceding three years from the date of
notification issued under Section 3A of the
Act, 1956. The Prescribed Authority,
thereafter, has noted that prior to the date of
notification i.e., three years, total numbers
of sale deeds were 28 in numbers, which
was certified by the Acquisition Amin. Spot
inspection was also conducted and in terms
of the spot inspection, sale deed nos. 5, 6,
7, 10, 15, 16, 19, 21, 25, 26 and 27 were
found to be far away from the acquired
area, and as such, it was found to be not an
example for determining the compensation.
Further, sale value of the sale deed nos. 1,
2, 3, 4, 9, 11, 12, 13, 17, 18, 22, 23 and 28
were very less and as such, it was also not
treated as representative sale deeds for
determination of the compensation. Sale
Deed No. 20 was found to be more than
market value and sale deed nos. 8 and 24
include the case, and as such it cannot be
the representative of determination of the
compensation. The Prescribed Authority,
thus, has observed that the sale deed No. 14
was adjacent to the acquired land and it
was executed on 02.09.2005 by one Lal Ji,
son of Ramphal, Sri Rajesh Singh. The
status of the land was similar to the
acquired land, and as such, it cannot be
selected
as
representative
for
the
determination of the compensation as it
represent the real market value of the land.
The Prescribed Authority has further gone
into the circle rate and has carefully
absorbed the different types of land and its
circle rates and, accordingly, after dealing
with the entire issue with regard to
determination of the compensation, has
determined the compensation in reference
to market value/ potential value of the land.
The Prescribed Authority has also included
the structures over the acquired land and
the trees after obtaining valuation of the
expert valuers and has included in the final
determination of the award.

(8) After the award dated 07.12.2005
was
passed
by
the
Prescribed
Authority/competent authority in exercise
of powers conferred under Section 3D of
the Act, 1956, the entire amount as awarded
by the competent authority was deposited
with the said authority by NHAI under
Section 3H of the Act, 1956. Further, all the
owners including the respondents have
accepted
the
award
passed
by
the
Prescribed Authority/competent authority
and has received their compensation
without any protest and has enjoyed the
compensation for five years without putting
any objection.

(9)

Against
the
award
dated
07.12.2005,
the
respondent
filed
an
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
523
arbitration
application
under
Section
3(g)(5) of the Act, 1956 on 23.06.2010 i.e.,
after a lapse of about more than 5 years
only on the ground that the land is of
commercial use and as such compensation
may be enhanced. NHAI filed an objection
to the said arbitration application, taking
specific
ground
that
the
arbitration
application under Section 3(g)(5) of the
Act, 1956 is highly belated and the
determination of compensation by the
Prescribed Authority/competent Authority
was in accordance with law, treating its
nature of land as existing on the date of
notification under Section 3A of the Act,
1956
and
as
such,
the
Prescribed
Authority/competent authority has not
committed any irregularity.

(10)

However,
the
learned
Arbitrator/the District Magistrate appointed
by the Central Government, decided the
objection filed on behalf of the NHAI
against them and has passed the award
dated 20.05.2015.

(11) Against the aforesaid award
dated 20.05.2015, the NHAI had filed an
application under Section 34 of the
Arbitration and Conciliation Act, 1996 by
stating that the arbitral award dated
20.05.2015
was
contrary
to
the
fundamental policy of Indian law and is
patently illegal.

(12) Apparently, the learned Additional
District Judge heard the contention of
NHAI as well as the respondent and
recorded that the learned Arbitrator, while
passing the award dated 20.05.2015, has
returned a finding of fact that the land in
question was adjacent to the Highway and,
therefore, payments should have been made
at the rate fixed for commercial or
industrial land and not as agricultural land.
The learned Additional District Judge has
also observed that the learned Arbitrator
considering various factors like location of
the acquired land being adjacent to the
National Highway and that too, being
within a radius of 100 meters of the
Highway has reached to the conclusion that
it should be valued at the rate fixed for nonagricultural
land.
Thus,
the
learned
Additional District Judge did not find any
fault in the finding of the learned Arbitrator
as well his calculation of appropriate
development cost at the rate of nonagricultural land at the rate of Rs. 700/- per
square meter with 30 per cent deduction
and the final rate having arrived to Rs.
490/- per square meter and further, over
and above the rate so determined in
accordance with the provisions under
Section 3H (5) of the Act, 1956, interest
rate of 9% having been granted from the
date of acquisition to the date of award.
The learned Additional District Judge also
negated the argument of NHAI relating to
limitation. Thus, the objection filed by
NHAI under Section 34 came to be
dismissed by the Additional District Judge,
Barabanki, which has been sought to be
challenged by NHAI under Section 37 of
the Arbitration & Conciliation Act, 1996 in
the above-captioned appeals.

C. SUBMISSIONS

(13) Heard Shri Ashok Kumar Pandey
and Shri Madhukar Ojha, learned Counsel
representing the appellants and Shri Vijay
Kumar
Tewari,
learned
Counsel
representing
the
respondent
on
the
application for condonation of delay in
filing the above-captioned appeals.

(14) Learned Counsel representing the
appellant drawing attention to Sections 34
and 37 of the Arbitration and Conciliation
524 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1996 (hereinafter referred to as "Act,
1996"), has submitted that a perusal of
Section 37 of the Act, 1996 reveals that no
limitation is provided under Section 37 of
the Act, 1996, however, Section 34 of the
Act, 1996 mandates that Indian Limitation
Act, 1963 shall apply to the arbitration as it
applies to the proceedings in the Court. He
submits that on receipt of the order passed
by the learned Additional District &
Sessions Judge, Barabanki under Section
34 of the Act, 1996, permission/guidance
was sought by the Project Director of
NHAI from the Regional Office, NHAI,
Lucknow for filing the arbitration appeal
under Section 37 of the Act, 1996 on
obtaining opinion from its counsel. The
Regional Office of NHAI, Lucknow had
accorded his concurrence/approval for
filing of the appeal under Section 37 of the
Act, 1996 on 25.11.2022 and the same was
communicated to the Project Director vide
letter dated 10.01.2023 and immediately
thereafter the above-captioned appeals have
been filed. The submission of the learned
Counsel is that there is no deliberate latches
or delay on the part of the appellant in
filing the appeals before this Court under
Section 37 of Act, 1996.

(15) Placing reliance upon the judgments
of the Apex Court in N. Balakrishnan Vs.
M. Krishnamurthy : (1998) 7 SCC 123,
Esha
Bhattacharjee
Vs.
Managing
Committee
of
Raghunathpur
Nafar
Academy and others : JT 2013 (2) SC
450, State of Haryana Vs. Chandra Mani
and others : (1996) 3 SCC 132, Collector,
Land Acquisition, Anantnag and another
Vs. Mst. Katiji and others : AIR 1987 SC
1353, learned Counsel for the appellant has
submitted that when substantial justice and
technical considerations are pitted against
each other, then, the 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. In the instant case, it is an
admitted position that pursuant to the
award
passed
by
the
Prescribed
Authority/competent authority, respondent
had initially accepted the amount of
compensation without any protest and had
also enjoyed the fruits of compensation
provided to the respondent for about five
years, but after five years, the respondent
had filed an application under Section 3 (g)
(5) of the Act, 1956, which was decided in
favour of the respondent by the learned
Arbitrator vide award dated 20.05.2015
without considering the fact that, there was
delay in filing the application under Section
3(g)(5) of the Act, 1956. The submission of
the learned Counsel is that, on one hand,
the respondent had agitated the belated
claim after five years and on the other, the
respondent in the instant appeals has raised
the issue that the appeals are time-barred.
Thus, the learned. Counsel prayed that
since the delay in filing the appeals is not
deliberate, hence the same is liable to be
condoned.

(16)

Per
contra,
learned
Counsel
representing the respondent has vehemently
opposed the aforesaid submissions of the
learned Counsel for the appellant and has
argued that unlike Section 34 Act, 1996,
Section 37 of the Act, 1996, does not
include Section 5 of the Limitation Act, as
a consequence of which even if the 90 days
period is over and if a condonation
application is made under Section 5 of the
Limitation Act, it should be considered on
its own merits notwithstanding, the length
of delay.

(17) Learned Counsel for the
respondent, while supporting the impugned
judgment under appeals, has invited
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
525
attention towards Annexure No.A and
Annexure No.B to the affidavit filed in
support of application for condonation of
delay and argued that heading of the
aforesaid Annexure Nos. A and B transpires
that Office of Project Director, NHAI, who
sought permission to file an appeal under
Section 37 of the Act, 1996 before this
Court and the Office of Regional Officer
(U.P.-East), NHAI, Lucknow, from whom
the Project Director, NHAI had sought
permission to file an appeal under Section
37 of the Act, 1996, are in the same
building. It is an admitted position that the
Regional Office of NHAI, Lucknow had
accorded permission to file the appeals
under Section 37 of the Act, 1996 on
15.11.2022,
however,
the
same
was
communicated to the Project Director on
10.01.2023. But, even then, the appeals
have been filed by the appellant with
inordinate delay. Thus, the delay in filing
the appeals are deliberate on the part of the
appellant
and
since
no
reasonable
explanation/sufficient cause has been made
in the affidavit filed in support of the
application for condonation of delay,
therefore, the learned Counsel prays that all
the appeals are liable to be dismissed on
ground of latches in filing the appeals.

(18) In support of his submission, learned
Counsel for the respondent has placed
reliance upon the judgment of the Apex
Court in M/s N.V. International Vs. the
State of Assam & others (Civil Appeal No.
9244 of 2019 arsing out of SLP (C) No.
23808 of 2019, decided on 06.12.2019) and
has argued that in M/s N.V. International
(supra), the Apex Court had placed reliance
upon the decision dated 17.09.2018 passed
in SLP (C) No. 23155 of 2013 : Union of
India Vs. Varindera Const. Ltd., and 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
Apex Court dismissed the appeal on the
ground that it has been filed beyond 120
days. The submission of the learned
Counsel is that, in the instant case, all the
appeals have been filed over and above 120
days, therefore, in view of the law laid
down by the Apex Court in M/s N.V.
International (supra), the appeals are also
liable to be dismissed on the ground of
latches.

ANALYSIS & FINDINGS

(19) Having regard to the submissions
advanced by the learned Counsels for the
parties on the application for condonation
of delay and going through the record
available before this Court in the abovecaptioned appeals, it is required to be noted
herein that in Nusli Neville Wadia v. Ivory
Properties : (2020) 6 SCC 557, the issue
before the Apex Court was whether the
issue of limitation can be determined as a
preliminary issue under Order XIV Rule 2
of the Code of Civil Procedure or not. The
three-judge Bench of the Apex Court
observed that if the issue of limitation is
based on an admitted fact, it can be decided
as a preliminary issue under Order XIV
Rule (2) (b) of the Code of Civil Procedure
and if the facts surrounding the issue of
limitation are disputed, it cannot be decided
as a preliminary issue. This Court finds that
the facts surrounding the issue of limitation
is not disputed.

(20) As an abundant precaution, both
the parties were, as such, directed to
address their arguments on the point of
limitation
and
file
their
respective
pleadings to that effect. As far as the
respondents are concerned, they have filed
526 INDIAN LAW REPORTS ALLAHABAD SERIES
civil
miscellaneous
application
dated
12.09.2023 and have pointed out that the
present appeals have been filed with
inordinate delay (referred hereinabove in
paragraph-1). The learned. Counsel for
respondent has submitted that NHAI had
been negligent in filing the appeals and the
entire affidavit in support of application for
condonation of delay does not show any
reasonable or satisfactory or sufficient
cause which prevented them from filing the
appeals within limitation period. In any
case, they have submitted that, in case, the
explanation of NHAI is taken to be truth,
there is still no explanation for six month
delay, as allegedly, the permission was
granted to them for filing the appeals on
25.11.2022
and
the
same
was
communicated to the Project Director of
NHAI vide letter dated 10.01.2023 and the
appeals came to be filed only sometimes in
the month of July, 2023. According to the
learned
Counsel
for
respondent,
interestingly, NHAI has tried to misguide
this Court by quoting wrong Sections,
Articles and Act of the Arbitration &
Conciliation Act, 1996 as well as the
Limitation Act, which this Court proposes
to deal independently.

(21) Per contra, the learned Counsel for
the appellant has also filed a civil
miscellaneous application on 06.10.2023
modulated as a reply to the aforesaid
application of the respondent. Essentially,
the application in reply filed by NHAI is
reiteration of the appeal, which they have
filed and additionally they have also
referred to the judgment of Apex Court in
the case of BSNL & Another Vs M/s
Nortel Networks India Pvt. Ltd. : (2021)
5 SCC 738 to agitate that the period of
limitation for filing an application under
Section
11
of
the
Arbitration
&
Conciliation Act, 1996 is three years. The
learned Counsel for appellant also placed
reliance upon the judgment of the Apex
Court in State of West Bengal and others
Vs Somdeb Bandyopadhyaya and others
: AIR 2009 SC 1989 and Ashwani Kumar
Dhingra Vs State of Punjab : , [AIR 1992
SC 974].

(22) There is no quarrel about the
aforesaid proposition of law, however, as
far as the issue being decided in the present
matter is related to limitation for preferring
an appeal under Section 37 of the Act,
1996, the said judgment does not help
NHAI in this regard.

(23) Similarly, so far as Somdeb
Bandyopadhyaya (supra) is concerned, it
supports the case of the respondent in as
much as, it says that the present appeal
should not be heard on merits without first
deciding the application for condonation of
delay. The mention of judgment passed by
the Apex Court in Ashwani Kumar
Dhingra (supra) is all on merits.

(24) As far as the limitation for filing
the present appeals are concerned, there
had been no endeavour by NHAI to explain
the cause of delay and only a cryptic
application has been sought to be filed,
which is neither satisfactory nor comes
within the periphery of sufficient cause as
has been propounded by the Apex Court in
a catena of judgment.

(25) At the end, the learned Counsel
has made a futile attempt by submitting that
although the permission has been granted
to file an appeal as early as on 22.01.2023,
however, the appeal could not be filed
within six months on account of serious
ailment of the counsel to whom the matter
was nominated. Again, no document nor
any specific averment has been made to
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
527
explain such delay. The learned Counsel for
NHAI has referred to various judgment on
condonation of delay like Balakrsishnan
Vs. M Krishnamurty (supra), Esha
Bhattacharjee V/s managing Committee
of
Raghunathpur
Nafar
Academy
(supra), Haryana Vs. Chandra Mani &
Others
(supra),
Collector,
Land
Acquisition and Anantnag and another
Vs. Mst. Katijli and Others (supra),
however, none of the judgments can come
to the rescue of the appellant.

(26) At this juncture, it would be apt
to mention that Section 37 of Act, 1996
provides for a general provision for appeal
under the said Act. The said provision also
mentions that an appeal lie against order
passed under section 34 of the Act, 1996.
The said Section inter-alia provides as
follows :-

"(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
take away any right to appeal to the
Supreme Court."

(27) Apparently, the Act does not
provide any specific limitation for filing
such appeals, however, Section 43 of the
Act, 1996 provides that the Limitation Act,
1963 ('Limitation Act') shall apply to
arbitrations as it applies to proceedings in
Court.

(28) This Court may not go into the
definition of Court as mentioned under the
Act, 1996 lest, it wanders away from the
core issue of limitation engaging attention
in the present bunch of matters. Suffice to
say, that Articles 116 and 117 of the
Schedule of the Limitation Act provide for
a limitation period of 90 days for filing an
appeal from any other Court to a High
Court and a period of 30 days for filing an
intra-Court appeal, i.e., order passed by a
Single Bench to the Division Bench,
provided the law provides for such an
Appeal before the Division Bench. Having
quoted and mentioned Article 116 and 117
of the Schedule of the Limitation Act,
applicable ordinarily for the aforesaid
nature of appeals, it goes without saying,
that in case of any delay in preferring any
such appeals, Section 5 of the Limitation
Act
provides
for
extension
of
the
prescribed limitation period, provided the
applicant satisfies the Court that there was
a 'sufficient cause' for such delay.

(29) Further, the aforesaid view gets
fortified by the judgment of the Hon'ble
Supreme Court in the case of Consolidated
Engineering Enterprises v. Irrigation
Department : (2008) 7 SCC 169], wherein
it was held that where the Limitation Act
prescribes a period of limitation for appeals
or applications to any Court, and the
special Act does not prescribe any period of
528 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation, then the limitation prescribed in
the Limitation Act will be applicable along
with Sections 4 to 24 thereof, unless they
are expressly excluded by the special Act.
Thus, by necessary implication, the period
for preferring an Appeal under Section 37
of the Act, 1996 ought to be 90 days as per
Article 116 of the Schedule of the
Limitation Act.

(30) However, with the advent of the
Commercial
Courts
Act,
2015
('Commercial Courts Act'), the limitation
period for preferring an Appeal under
Section
37
of
the
Arbitration
&
Conciliation Act also changed. Apparently,
Section 10 of the Commercial Courts Act
provides that Commercial Courts shall
decide all applications and appeals which
arise
out
of
arbitrations
other
than
international
commercial
arbitrations,
where the subject matter is a commercial
dispute of the specified value. Thus, all
arbitration matters are construed to be
decided
and
adjudicated
under
the
jurisdiction of the commercial court,
provided the commercial dispute being
agitated is more than the specified value. If
we look into the definition of 'specified
value' as could be found in Section 2(1)(i)
of the commercial Act, the same says :-

"(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."

(31) Thus, as per the aforesaid
definition, specified value cannot be
less than INR 3,00,000.00 and as such,
it can be safely construed that all those
Arbitration, which has a commercial
dispute of more than INR 3,00,000.00
are
to
be
adjudicated
under
the
provisions of Commercial Court Act,
2015.

(32)

Further,
with
the
promulgation of the Commercial Court
Act, a new regime of limitation for
filing of the Appeals came to fore.
Section 13 of the said Act inter-alia
states:

"Section 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).]

(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
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
529
decree of a Commercial Division or
Commercial Court otherwise than in
accordance with the provisions of this Act."

(33) Having said so, it would be
safely concluded that the proviso to Section
13(1A) specifically provides that an appeal
under Section 37 of the Act would lie
before the Commercial Court and such
appeal must be filed within 60 days.

(34)

Thus,
the
limitation
for
preferring of an Appeal under section 37 of
the Arbitration & Conciliation Act, in view
of the Commercial Court Act, is 60 days
only. However, there is a caveat, in as much
as the Hon'ble Supreme Court when faced
with a similar issue of limitation for filing
of an appeal under Section 37 of the Act,
1996 did not take into account both the
provisions of Commercial Courts Act and
the decision in Consolidated Engg in the
case of Union of India v. Virendera
Constructions Ltd (2020) 2 SCC 111,
wherein
the
Apex
Court
judicially
engrafted a limitation period of 120 days
from the date of passing of the order and
held that any further delay beyond 120 days
cannot be allowed. The Hon'ble Supreme
Court noted that since a Section 34
application has to be filed within a
maximum period of 120 days including a
grace period of 30 days, therefore, an
appeal filed from the same should also be
covered by the same drill, in the following
words:

"Ordinarily, we would have applied
the said judgment to this case as well.
However, we find that the impugned
Division Bench judgment dated 10.04.2013
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 self-same proceeding under
Section 37 should be covered by the same
drill. Given the fact that an appellate
proceeding is a continuation of the
original proceeding, as has been held in
Lachmeshwar Prasad Shukul and Others
vs. Keshwar Lal Chaudhuri and Others,
AIR 1941 Federal Court 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 underSection 34of the Arbitration
andConciliation Act, 1996 should not be
allowed as it will defeat the overall
statutory
purpose
of
arbitration
proceedings being decided with utmost
despatch."

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."

(35) The Hon'ble Apex Court did not
condone the delay of 142 days in the filing
of appeal under section 37 of the Act, 1996
in the aforesaid Virendra Construction
Ltd. (supra). To the same effect was
another judgment of the Apex court in M/s
N. V. International v. the State of Assam
and Ors. (supra), wherein the Apex Court
reiterated the position as stated in Virendra
Constructions Ltd. (supra) and refused to
condone a delay of 189 days from the 90
days in filing an appeal under section 37 of
the Act. The Supreme Court in the said
judgment also placed emphasis upon the
530 INDIAN LAW REPORTS ALLAHABAD SERIES
main object of the Act, i.e., speedy disposal
of arbitral disputes and held that, any delay
beyond 120 days cannot be condoned in the
following terms:

"5) 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
underSection 37of the Arbitration Act, a
grace period of 30 days underSection 5of
the
Limitation
Act
by
following
Lachmeshwar Prasad Shukul and Others
(supra), 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."

(36) Notably, the Hon'ble Supreme
Court in both the aforesaid Judgments held
that an appeal under Section 37 of the Act,
1996 cannot be filed after 120 days from
the decision of the Court under Section 34
of the Act, 1996 and no condonation of
delay is permissible beyond this 120 day
period.
However,
neither
Virendra
Constructions Ltd. (supra) nor M/s N.V.
International (Supra), referred to the
provisions of Commercial Courts Act
which deal with the limitation period for
filing of appeals under Section 37 of the
Act, 1996. It must also be noted that neither
the Act, 1996 nor the Commercial Courts
Act, provide for this cap of 120 days or
limit the period up to which an application
for condonation of delay can be allowed.

(37) The correctness of the law laid
down in Virendra Constructions Ltd.
(supra) and M/s N.V. International (supra)
has come under a cloud before a threeJudge Bench of the Apex Court in
Government of Maharashtra V/s M/s
Borse Brothers Engineers & Contractors
Pvt. Ltd. : 2021 SCC OnLine SC 233,
wherein
the Apex
Court
noted
the
conflicting position. The Apex Court relied
on Consolidated Engineering Ltd (supra)
and held that, if the specified value of the
subject matter is INR 3,00,000.00 or more,
then an appeal under Section 37 of the Act
must be filed within 60 days from the date
of the order as per Section 13(1A) of the
Commercial Courts Act. However, in those
rare cases, where the specified value is for
a sum less than INR 3,00,000.00 then the
appeal under Section 37 of the Act, 1996
would be governed by Articles 116 and 117
of the Schedule of the Limitation Act, as
the case may be.

(38) Regarding the applicability of the
Limitation Act, the Apex Court overruled
its decision in M/s N. V. International
(supra) and held that Section 37 of the Act,
1996 when read with Section 43 of the Act,
1996 and Section 29(2) of the Limitation
Act, makes it clear that Section 5 of the
Limitation Act will apply to the appeals
filed under Section 37 of the Act, 1996 and
in holding the said applicability, the Apex
Court noted with affirmative that Section
13(1A) of the Commercial Courts Act does
not contain any provision akin tosection
34(3)of the Act, 1996 and merely provides
for a limitation period of 60 days from the
date of the judgment or order appealed
against, without going into whether delay
beyond this period can or cannot be
condoned. However, the Apex Court also
noted that condonation of delay, although
allowed, cannot be seen in complete
isolation of the main objective of the Act,
i.e. speedy disposal of disputes. In the light
of the same, the Apex Court observed that
the expression 'sufficient cause' under
10 All. NHAI Vs. Smt. Sampata Devi & Ors.
531
Section 5 of the Limitation Act is not
elastic enough to cover long delay and
merely because sufficient cause has been
made out, there is no right to have such
delay condoned. The Apex Court further
held that only short delay can be condoned
by way of an exception and not by the way
of rule, and that too, only when the party
acted in a bona fide manner and not
negligently. The Apex Court has inter alia
held as follows:

"61. Given the aforesaid and the
object of speedy disposal sought to be
achieved both under theArbitration Actand
the Commercial Courts Act, for appeals
filed undersection 37of the Arbitration Act
that are governed by Articles 116 and 117
of theLimitation Actor 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."

(39) The Apex Court has not only
provided the much-needed clarification on
an important point of law but has also reemphasized the main objective of speedy
disposal of disputes under the Arbitration &
Conciliation Act, 1996. In the said facts of
a connected case arose from the High Court
of Madhya Pradesh, the Apex Court also
refused to condone the delay of 75 days
beyond the period of 60 days provided by
the Commercial Courts Act. Further, the
Apex Court went a step ahead and also
observed that be it a private party or a
public sector company, the same yardstick
will be applicable for condonation of delay,
and no special treatment can be afforded
merely
because
the
government
is
involved.

(40) Coming to the facts of the
present case, this Court finds that there is
delay (referred in paragraph-1 hereinabove)
in filing the appeals beyond 60 days time
period as provided under section 13(1A) of
the Commercial Court Act, 2015. The
condonation
delay
application
and
supporting affidavit filed by NHAI makes
for an interesting reading and this Court
finds its appropriate to quote the relevant
part of the affidavit which inter-alia also
would show as to whether any "sufficient
cause" has been made out by the appellant
to condone the long delay in filing the
appeals or not. The affidavit for delay
condonation inter-alia states :-

"3.