# Nirankar Dutt Tyagi & Anr. Defendants/ v. N.H.I. Unit Dehradun & Anr

- **Citation:** (2024) 5 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Vs The Special Dy. Collr. S.L.P. (Civil) No. 31248 of 2018
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirankar-dutt-tyagi-anr-defendants-v-n-h-i-unit-dehradun-anr-51946
- **Pages:** 6

## Headnote

A. Arbitration and Conciliation Act, 1996Section 37-the appeal was filed with a
delay of 393 days-the discretionary
power is only to be exercised when
sufficient
cause
is
made
out
and
compelling reasons are provided for
condonation of delay-counsel for the
appellants was suffering from serious
illness, the appeal could not be filed
within time, this explanation is not
sufficient-the issue with regard to filing
an appeal u/s 37 of the Act is no longer
res integra as the same has been settled
by
the
Supreme
Court
in
various
judgment.(Para 1 to 12)

B. The expression "sufficient cause"
under section 5 of the Limitation Act is
not elastic enough to cover long delays
and merely because sufficient cause
has been made out, there is no right to
have such delay condoned. The Apex
court held that only short delays, can
be condoned only by way of an
exception and not by the way of rule,
and that too only when the party acted
in
a
bonafide
manner
and
not
negligently.(Para 7)

The application is rejected. (E-6)

List of Cases cited:

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES
Arbitration and Conciliation Act, 1996.]. This
objective has found expression in Section 5 of the
Act which prescribes the extent of judicial
intervention in no uncertain terms:

'5. Extent of judicial intervention.--
Notwithstanding anything contained in any other
law for the time being in force, in matters
governed by this Part, no judicial authority shall
intervene except where so provided in this Part.'
***

16. This is a significant departure from
the provisions of the Arbitration Act, 1940. Under
the 1940 Act, after the time to set aside the award
expired, the court was required to "proceed to
pronounce judgment according to the award, and
upon the judgment so pronounced a decree shall
follow" (Section 17). Now the consequence of the
time expiring under Section 34 of the 1996 Act is
that the award becomes immediately enforceable
without any further act of the court. If there were
any residual doubt on the interpretation of the
language used in Section 34, the scheme of the
1996 Act would resolve the issue in favour of
curtailment of the court's powers by the exclusion
of the operation of Section 5 of the Limitation Act.'

8. While I express my sympathy
towards the petitioner, my judicial hands are
curtailed by the law, as mentioned above. There
is no runway of merit for the present application
to land on. The present application has been filed
forty-two days after the prescribed period of
limitation under the Act, and given that the court
has the power to condone a delay of only up to
thirty days, the present application fails and is
bound to be sacrificed at the altar of limitation."

12. From the above factual matrix, it is clear
that the appellants have had a lackadaisical and
nonchalant approach to the entire affair and even
after giving the benefit of Section 14 of the
Limitation Act, Section 34 application would
have remained time barred.

13. Before I part with this judgement, it
is essential to underscore the importance of
adhering to statutory timelines especially
within the context of arbitration. Unlike
traditional litigation, where cases may
languish in the court system for years,
arbitration offers parties a streamlined and
expeditious mechanism for resolving disputes.
Central to the efficacy of arbitration is the
timely administration of proceedings, which
necessitates adherence to prescribed timelines
at every stage of the arbitral process. Delay in
challenging arbitral awards can prejudice the
rights for the parties involved, particularly the
party seeking to enforce the award. When
disputes are resolved expeditiously, parties
can obtain closure and move forward with
their lives, rather than being mired in
prolonged legal battles. Moreover, timely
resolution reduces the burden on the court
system, allowing courts to focus their
resources on cases that require judicial
intervention.

14. In light of the aforesaid, I find no
reason to interfere with the order passed by the
learned Additional District Judge under
Section 34 of the Act dismissing the
application as time barred.

15. Accordingly, the instant appeal is
dismissed.
----------
(2024) 5 ILRA 680
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Appeal U/S 37 of Arbitration & Conciliation Act
1996 Defective No. 593 of 2023

Nirankar Dutt Tyagi & Anr.
 ...Defendants/Appellants
Versus
N.H.I. Unit Dehradun & Anr.
5 All. Nirankar Dutt Tyagi & Anr. Vs. N.H.I. Unit Dehradun & Anr.
681
 ...Plaintiffs/Respondents

Counsel for the Appellants:
Sri Pankaj Dubey, Sri Santosh Kumar
Srivastava

Counsel for the Respondents:
Sri Pranjal Mehrotra

A. Arbitration and Conciliation Act, 1996Section 37-the appeal was filed with a
delay of 393 days-the discretionary
power is only to be exercised when
sufficient
cause
is
made
out
and
compelling reasons are provided for
condonation of delay-counsel for the
appellants was suffering from serious
illness, the appeal could not be filed
within time, this explanation is not
sufficient-the issue with regard to filing
an appeal u/s 37 of the Act is no longer
res integra as the same has been settled
by
the
Supreme
Court
in
various
judgment.(Para 1 to 12)

B. The expression "sufficient cause"
under section 5 of the Limitation Act is
not elastic enough to cover long delays
and merely because sufficient cause
has been made out, there is no right to
have such delay condoned. The Apex
court held that only short delays, can
be condoned only by way of an
exception and not by the way of rule,
and that too only when the party acted
in
a
bonafide
manner
and
not
negligently.(Para 7)

The application is rejected. (E-6)

List of Cases cited:

1. M/s N.V. International Vs St. of Asam & ors.
(2020) 2 SCC 109

2. Govt. of Mah. (Water Res. Deptt) Rtd by Ex.
Eng. Vs M/s Borse Brothers Engs. & Cons. Pvt.
Ltd (2021) 6 SCC 460

3. NHAI Vs Smt. Sampata Devi & ors. (2023) 12
ADJ 787
4. Pathapati Subba Reddy (Died) By LRs & ors.
Vs The Special Dy. Collr. S.L.P. (Civil) No. 31248
of 2018

(Delivered by Hon'ble Shekhar B. Saraf, J.)

Civil
Misc.
Delay
Condonation
Application No.1 of 2024

1. Heard counsel appearing on behalf
of the applicants/appellants and Mr. Pranjal
Mehrotra with Mr. Ashish Kumar Gupta,
counsel appearing on behalf of the
respondent.

2. This is an appeal under Section 37
of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the 'Act')
arising out of an order passed under Section
34 of the Act.

3. There is an inordinate delay of 393
days in filing this appeal under Section 37 of
the Act.

4. In M/s N.V. International v. State
of Asam and others reported in 2020 (2)
SCC 109 [Coram:- Rohinton Fali Nariman
and S. Ravindra Bhat, JJ.] and Government
of
Maharashtra
(Water
Resources
Department) Represented by Executive
Engineer
v.
M/s
Borse
Brothers
Engineers & Contractors Pvt. Ltd.
reported in (2021) 6 SCC 460 [Coram :-
Rohinton Fali Nariman, B.R. Gavai and
Hrishikesh Roy, JJ.], the Supreme Court has
stated that such a delay in filing an appeal
under Section 37 of the Act cannot be
allowed.

5. The issue with regard to filing an
appeal under Section 37 of the Act is no
longer res integra as the same has been
settled by the Supreme Court. One may rely
on the judgement in M/s N.V. International
682 INDIAN LAW REPORTS ALLAHABAD SERIES
(Supra), the relevant paragraph thereof is
delineated below :-

"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 Section 37 of the Arbitration Act, a
grace period of 30 days under Section 5 of
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."

6. Furthermore, paragraph 61 of the
judgement
in
Government
of
Maharashtra
(Water
Resources
Department) Represented by Executive
Engineer (Supra) is required to be looked
into. The said paragraph is delineated
below:-

"61. Given the aforesaid and the
object of speedy disposal sought to be
achieved both under the Arbitration Act and
the Commercial Courts Act, for appeals
filed under section 37 of the Arbitration Act
that are governed by Articles 116 and 117 of
the Limitation Act or section 13(1A) of the
Commercial Courts Act, a delay beyond 90
days, 30 days or 60 days, respectively, is to
be condoned by way of exception and not by
way of rule. In a fit case in which a party has
otherwise acted bona fide and not in a
negligent manner, a short delay beyond such
period can, in the discretion of the court, be
condoned, always bearing in mind that the
other side of the picture is that the opposite
party may have acquired both in equity and
justice, what may now be lost by the first
party's inaction, negligence or laches."

7. A coordinate Bench of this Court in
National Highway Authority of India Vs.
Smt. Sampata Devi and others reported in
2023 (12) ADJ 787 [Coram:- Om Prakash
Shukla,
J.],
in
similar
facts
and
circumstances, discussed in great detail a
catena of judgements of the Supreme Court
and has come to the following conclusion:-

"(44) In view of the authoritative
Judgments of the Apex Court in M/s Borse
Brothers Engineers & Contractors (supra),
it must be held that an appeal under Section
37 of the Arbitration and Conciliation Act,
1996 should be filed within 60 days from the
date of the order as per Section 13(1A) of
the Commercial Courts Act, 2015. 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 would be
governed by Articles 116 and 117 of the
Schedule of the Limitation Act, as the case
may be.

(45) Further, 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 to section
34(3) of the Arbitration 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.

(46)
Further,
the
expression
'sufficient cause' under Section 5 of the
Limitation Act is not elastic enough to cover
long delays and merely because sufficient
cause has been made out, there is no right to
have such delay condoned. The Apex Court
5 All. Nirankar Dutt Tyagi & Anr. Vs. N.H.I. Unit Dehradun & Anr.
683
further held that only short delays, can be
condoned only 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.

(47) Since, in the present bunch of
appeals, the impugned order passed by the
Additional District Judge, Barabanki under
Section 34 of the Act, 1996 has been sought
to be challenged by NHAI by filing a belated
appeal under Section 37 of the Act, 1996
beyond the permissible 60 days without any
"sufficient cause", the above-captioned
appeals are held to be time barred."

8. The Supreme Court very recently in
Special Leave Petition (Civil) No.31248 of
2018 titled as Pathapati Subba Reddy
(Died) By L.Rs. and others v. The Special
Deputy Collector (LA) [Coram:- Bela M.
Trivedi and Pankaj Mithal, JJ.] decided on
April 8, 2024, has dealt extensively with the
law of limitation and after considering
various judgements of the Supreme Court,
has laid down certain principles to be
followed while applying the law of
limitation. The relevant paragraph is
delineated below:-

"26.
On
a
harmonious
consideration of the provisions of the law, as
aforesaid, and the law laid down by this
Court, it is evident that:

(i) Law of limitation is based upon
public policy that there should be an end to
litigation by forfeiting the right to remedy
rather than the right itself;

(ii) A right or the remedy that has
not been exercised or availed of for a long
time must come to an end or cease to exist
after a fixed period of time;

(iii)
The
provisions
of
the
Limitation Act have to be construed
differently, such as Section 3 has to be
construed in a strict sense whereas Section
5 has to be construed liberally;

(iv)
In
order
to
advance
substantial justice, though liberal approach,
justice-oriented approach or cause of
substantial justice may be kept in mind but
the same cannot be used to defeat the
substantial law of limitation contained in
Section 3 of the Limitation Act;

(v) Courts are empowered to
exercise discretion to condone the delay if
sufficient cause had been explained, but that
exercise of power is discretionary in nature
and may not be exercised even if sufficient
cause is established for various factors such
as, where there is inordinate delay,
negligence and want of due diligence;

(vi) Merely some persons obtained
relief in similar matter, it does not mean that
others are also entitled to the same benefit if
the court is not satisfied with the cause
shown for the delay in filing the appeal;

(vii) Merits of the case are not
required to be considered in condoning the
delay; and

(viii)
Delay
condonation
application has to be decided on the
parameters laid down for condoning the
delay and condoning the delay for the
reason that the conditions have been
imposed, tantamounts to disregarding the
statutory provision."

9. In fact, the Supreme Court while
upholding the judgement of the High Court
went on to say that just because other
persons have been granted relief in other
matters that by itself would not be a ground
for condoning the delay. The Supreme Court
has deprecated the practice of taking lenient
view and stated that just because the Courts,
on earlier occasions, had taken lenient view
would not entitle the appellants as a matter
of right to be entitled to condonation of
delay where no proper explanation was
684 INDIAN LAW REPORTS ALLAHABAD SERIES
provided by the them. The relevant
paragraphs are delineated below:-

"30. The aforesaid decisions
would not cut any ice as imposition of
conditions
are
not
warranted
when
sufficient cause has not been shown for
condoning the delay. Secondly, delay is not
liable to be condoned merely because some
persons have been granted relief on the facts
of their own case. Condonation of delay in
such circumstances is in violation of the
legislative intent or the express provision of
the statute. Condoning of the delay merely
for the reason that the claimants have been
deprived of the interest for the delay without
holding that they had made out a case for
condoning the delay is not a correct
approach, particularly when both the above
decisions have been rendered in ignorance
of the earlier pronouncement in the case of
Basawaraj (supra).

31. Learned counsel for the
petitioners next submitted on the basis of
additional documents that in connection
with the land acquisition in some other
Special
Leave
Petitions,
delay
was
condoned taking a lenient view and the
compensation was enhanced with the rider
that the claimants shall not be entitled for
statutory benefits for the period of delay in
approaching this Court or the High Court.
The said orders do not clearly spell out the
facts and the reasons explaining the delay in
filing the appeal(s) but the fact remains that
the delay was condoned by taking too liberal
an approach and putting conditions which
have not been approved of by this Court
itself. In the absence of the facts for getting
the delay condoned in the referred cases,
vis-a-vis, the facts of this case, it cannot be
said that the facts or the reasons of getting
the delay condoned are identical or similar.
Therefore, we are unable to exercise our
discretionary power of condoning the delay
in filing the appeal on parity with the above
order(s)."

10. Upon a perusal of the above
judgements, it is clear that the Arbitration
Act being a legislation for speedy redressal,
the delay in filing the appeal can only be
allowed if the appellants make out a very
strong case and explains the reasons for
delay. In the present case, the reasons
provided for condonation of delay are
without assigning any specific reasons for
the delay. No documents have been
provided for the reasons given in the said
affidavit. Furthermore, the only ground that
has been taken for condonation of delay is
that as the counsel for the appellants was
suffering from serious illness, the appeal
could not be filed within time. This
explanation does not cut any ice whatsoever
as the law of limitation as explained in the
judgments above and elaborated in the
judgment in Pathapati Subba Reddy
(Died) By L.Rs. and others (supra) penned
by Hon'ble Pankaj Mithal, J. is that the
discretionary power is only to be exercised
when sufficient cause is made out and
compelling reasons are provided for
condonation of delay. In the present case,
one does not find any such reason provided
which would enable this Court to condone
the delay. In fact, it is crystal clear that the
appellants have acted in a lackadaisical
manner. It is clear that this appeal has been
filed with a delay of 393 days. The filing of
this appeal is a mere attempt to cloak the
laissez faire attitude taken by the appellants.

11. In the light of the above, the delay
condonation application is rejected.

Appeal

12. Since the delay condonation
application has been rejected, consequently,
5 All. Rajeshwar Singh Vs. State of U.P. & Ors.
685
the appeal is dismissed as barred by
limitation.
----------
(2024) 5 ILRA 685
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Writ Petition No. 5637 of 2006

Rajeshwar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajiv Lochan Shukla, Sri Anil Kumar
Shukla, Sri Devesh Vikram, Sri Shailendra K.
Singh, Sri Shivakant

Counsel for the Respondents:
G.A., Sri Abhishek Kumar Chaubey, Sri
Pradeep Pandey, Sri S.N. Verma, Sri S.S.
Pandey

A. Criminal Lawr-Constitution of India,
1950-Article 226-Criminal Procedure Code,
1973-Section 145-The grandfather of the
petitioner instituted a proceeding u/s 145
Crpc against his own real son before SDM
Chunar
whereby
a
preliminary
order
attaching property was passed-the dispute
which
may
cause
breach
of
peach
continued but the SDM dropped the
proceeding-the property was handed over
to a Supurdgar and he died before the first
round of litigation -it was the duty of the
SDM to appoint any other person in place
of deceased supurdgar but that step was
never
taken,
instead,
the
heirs
of
supurdgar kept taking care of the property
and this is too glaring and gross negligence
on the part of the SDM concerned-The
rights and duties of supurdgar cannot
devolve upon the heirs of a supurdgarHence, impugned orders are set aside and
the court concerned is directed to open the
proceeding u/s 145 CrPC and direct for
substitution of legal representative.(Para 1
to 15)

B. Where a piquant situation arises, in
matters where a party has died during the
pendency of proceeding u/s 145 Crpc and
a serious dispute arises as to who is the
legal heir, the Magistrate concerned cannot
refuse to exercise its jurisdiction, just
because he has no power to decide as to
who is the 'heir' of the deceased or just
because the matter of inheritance is
fiercely fought in a civil court. The purpose
of the proceedings which may be pending
between the parties in a civil court or a
revenue court. Definitely, the SDM is not
empowered to decide the question of
inheritance however, he can always be
implead a legal representative to continue
the proceedings with a larger interest of
the parties and the society in mind.(Para
11)

The petition is disposed of. (E-6)

List of Cases cited:

1. Ram Sumer Puri Mahant Vs St. of U.P.

2. Amresh Tiwari Vs Lata Prasad Dubey

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Ram Lakhan Deobanshi
and Sri Shailendra Kumar Singh, learned
counsels for the petitioner, Sri Anil Kumar
Mishra,
learned
counsel
for
private
respondent no.4 and Sri R.K. Gupta, learned
A.G.A. for the State.

2. Written submissions/arguments
filed on behalf of the petitioner and the
private respondent no.4, are taken on record.

3. This criminal miscellaneous writ
petition has been filed by petitioner
Rajeshwar Singh against respondent no.4