# The Project Director, Uphsdp, Lko. & Ors v. Commercial Court No. 1 Lko. & Ors

- **Citation:** (2025) 5 ILRA 1165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-07
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-project-director-uphsdp-lko-ors-v-commercial-court-no-1-lko-ors-53439
- **Pages:** 15

## Headnote

(A) Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 34(3), 37 & 43 -
Commercial Courts Act, 2015 - Sections
13, 13(1A) & 29(2) - Limitation Act,1963
- Sections 5 & 12 - Article 116, 117 -
Appeal under Section 37 of the Arbitration Act
r/w Section 13 of the Commercial Courts Act,
2015 - challenging the judgment passed by the
Commercial Court - Arbitration Case - Arbitral
Award - Application filed under Section 34 of the
Arbitration Act, to set aside the Arbitral Award -
dismissed on the ground of limitation - current
appeal - Practice and Procedure - the Court
observed that - before considering the delay
condonation application, strongly deprecated
the growing practice of impleading Civil Courts,
Tribunals, or Arbitrators as party-respondents in
appeals or writs challenging their judicial orders
- such adjudicating bodies, acting in a judicial
capacity, are immune from personal prosecution
unless specific and serious allegations of
misconduct are made - held - neither the
Commercial Court nor the Arbitrator in the
present case had any personal stake or
allegations against them, and thus directed their
removal from the memo of parties - to uphold
judicial independence and procedural propriety,
the Court issued a binding practice direction -
litigants must not implead Courts, Tribunals, or
Arbitrators in appeals under Sections 34 or 37 of
the Arbitration and Conciliation Act, 1996,
unless there are substantiated claims of
misfeasance or misconduct. (Para - 4, 8, 9)

(B) Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 34(3), 37 & 43 -
Commercial Courts Act, 2015 - Sections
13, 13(1A) & 29(2) - Limitation Act,1963
- Sections 5 & 12 - Article 116, 117 -
Appeal u/s Section 37 of the Arbitration r/w
Section 13(1A) of the Commercial Courts Act -
challenge to the impugned Commercial Court's
order of dismissal of an application under
Section 34 of the Arbitration Act - Contract -
disputes
arose
over
unpaid
bills
and
compensation - Arbitration proceedings - Arbitral
Award - Application filed under Section 34 of the
Arbitration Act, to set aside the Arbitral Award -
dismissed on the ground of limitation - present
appeal - law of Limitation - court finds that,
appeal was initially filed beyond the statutory
60-day period prescribed u/s 13(1A), delayed by
77 days and subsequently, refiled with a total
delay of 93 days - appellant sought condonation
under Section 5 of the Limitation Act citing
administrative approvals, legal consultations,
and document collation - Court held such
reasons insufficient, attributing the delay to
bureaucratic inefficiency and lack of diligence -
reiterated that the scope of "sufficient cause"
under Section 5 is not elastic enough to
accommodate prolonged delays in commercial
litigation, especially in light of the legislative
mandate
for
expeditious
resolution
-
consequently, delay condonation application
rejected and the Appeal is dismissed as timebarred. (Para - 28, 29, 30, 31, 32)

Application Dismissed. (E-11)

List of Cases cited:
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,918 of 52,226. This is a partial read: ask again with offset=39918 for what follows._

5 All. The Project Director, Uphsdp, Lko. & Ors. Vs. Commercial Court No. 1 Lko. & Ors.
1165

161. The reference is answered
accordingly.

162. The matter shall now be placed
before the Court concerned for its decisions
on merits.
----------
(2025) 5 ILRA 1165
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 Defective No. 9 of 2025

The Project Director, Uphsdp, Lko. & Ors.
 ...Appellants
Versus
Commercial Court No. 1 Lko. & Ors.
 ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Abhinav Bhattacharya

(A) Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 34(3), 37 & 43 -
Commercial Courts Act, 2015 - Sections
13, 13(1A) & 29(2) - Limitation Act,1963
- Sections 5 & 12 - Article 116, 117 -
Appeal under Section 37 of the Arbitration Act
r/w Section 13 of the Commercial Courts Act,
2015 - challenging the judgment passed by the
Commercial Court - Arbitration Case - Arbitral
Award - Application filed under Section 34 of the
Arbitration Act, to set aside the Arbitral Award -
dismissed on the ground of limitation - current
appeal - Practice and Procedure - the Court
observed that - before considering the delay
condonation application, strongly deprecated
the growing practice of impleading Civil Courts,
Tribunals, or Arbitrators as party-respondents in
appeals or writs challenging their judicial orders
- such adjudicating bodies, acting in a judicial
capacity, are immune from personal prosecution
unless specific and serious allegations of
misconduct are made - held - neither the
Commercial Court nor the Arbitrator in the
present case had any personal stake or
allegations against them, and thus directed their
removal from the memo of parties - to uphold
judicial independence and procedural propriety,
the Court issued a binding practice direction -
litigants must not implead Courts, Tribunals, or
Arbitrators in appeals under Sections 34 or 37 of
the Arbitration and Conciliation Act, 1996,
unless there are substantiated claims of
misfeasance or misconduct. (Para - 4, 8, 9)

(B) Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 34(3), 37 & 43 -
Commercial Courts Act, 2015 - Sections
13, 13(1A) & 29(2) - Limitation Act,1963
- Sections 5 & 12 - Article 116, 117 -
Appeal u/s Section 37 of the Arbitration r/w
Section 13(1A) of the Commercial Courts Act -
challenge to the impugned Commercial Court's
order of dismissal of an application under
Section 34 of the Arbitration Act - Contract -
disputes
arose
over
unpaid
bills
and
compensation - Arbitration proceedings - Arbitral
Award - Application filed under Section 34 of the
Arbitration Act, to set aside the Arbitral Award -
dismissed on the ground of limitation - present
appeal - law of Limitation - court finds that,
appeal was initially filed beyond the statutory
60-day period prescribed u/s 13(1A), delayed by
77 days and subsequently, refiled with a total
delay of 93 days - appellant sought condonation
under Section 5 of the Limitation Act citing
administrative approvals, legal consultations,
and document collation - Court held such
reasons insufficient, attributing the delay to
bureaucratic inefficiency and lack of diligence -
reiterated that the scope of "sufficient cause"
under Section 5 is not elastic enough to
accommodate prolonged delays in commercial
litigation, especially in light of the legislative
mandate
for
expeditious
resolution
-
consequently, delay condonation application
rejected and the Appeal is dismissed as timebarred. (Para - 28, 29, 30, 31, 32)

Application Dismissed. (E-11)

List of Cases cited:
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Savitri Devi Vs District Judge, Gorakhpur &
ors.- AIR 1999 SC 976,

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

3. U.O.I. Vs Varindera Constructions Ltd.:
(2020) 2 SCC 111,

4. M/s N. VS International Vs the St. of Assam &
ors.: (2020) 2 SCC 109,

5. Government of Mah. Vs M/s Borse Brothers
Engineers & Contractors Pvt. Ltd. : 2021 SCC
OnLine SC 233,

6. VS Nagarajan Vs SKS Ispat & Power Ltd. &
ors.: (2022) 2 SCC 244.

7. Savitri Devi Vs District Judge, Gorakhpur &
ors.: AIR 1999 SC 976,

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

Order
on
C.M.
Application
No.IA/1/2025
:
Application
for
Condonation of Delay

(1) Heard Shri Tushar Verma, learned
Additional Chief Standing Counsel for the
appellants and Mr. Abhinav Bhattacharya,
learned Counsel for the respondents on the
present application for condonation of
delay in filing the appeal,

Introduction

(2) The present appeal has been filed
by the appellants under Section 37 of the
Arbitration and Conciliation Act, 1996 read
with Section 13 of the Commercial Courts
Act, 2015, interdicting the judgment and
order dated 07.09.2024 passed by the
learned Presiding Officer, Commercial
Court No.1, Lucknow in Arbitration Case
No. 08 of 2023 : The Project Director,
UPHSDP, Lucknow & Ors. Vs. M/s Maruti
Construction) as well as Arbitral Award
dated 31.01.2021 passed by the learned
Arbitrator.

(3) The application under section 34
of the Arbitration and Conciliation Act,
1996 against the Arbitral Award dated
31.01.2021, has been dismissed on the
grounds of limitation.

Order on Practise Directions

(4) Before proceeding to adjudicate
the application for condonation of delay in
filing the present appeal, it is pertinent to
note the growing trend of impleading the
Civil Court and/or the Tribunals as a
respondent in an appeal or writs, wherein
the order passed by the said Civil Court or
the Tribunal is impugned therewith. While
the said issue seems to have been decided
25 years ago by the Hon'ble Apex Court,
however, the recent spurt in arraying the
Civil Court or the Tribunal, as the case may
be, through its Presiding Officer, enjoins
upon this Court a bounden duty to reiterate
the settled law. Having said so, it must be
understood that Courts/Tribunals, in this
country when act in judicial capacity enjoy
certain kind of immunity from being
prosecuted and sued as a Court in their
individual or personal capacity, with
exceptions like allegations of mala fide,
partiality, bias etc. against that particular
Presiding Officer of the Court/Tribunal,
which needs to meet a higher degree of
threshold, before the same are alleged. We
find that these Civil Courts/Tribunals
cannot be made a party in any proceeding
wherein they have decided the matter, as
these decisions are subject to rectification
by the appellate or revisional Court in a
judicial proceeding. This view of ours is
supported by the judgment of the Apex
Court rendered in Savitri Devi v. District
Judge, Gorakhpur and others : AIR 1999
5 All. The Project Director, Uphsdp, Lko. & Ors. Vs. Commercial Court No. 1 Lko. & Ors.
1167
SC 976, which still holds the ground and
reads in the conclusion part as follows :-

"Before parting with this case it
is necessary for us to point out one aspect
of the matter which is rather disturbing. In
the writ petition filed in the High Court as
well as the Special Leave Petition filed in
this Court, the District Judge, Gorakhpur
and the 4th Additional Civil Judge (Junior
Division)
Gorakhpur
are
shown
as
respondents and in the Special Leave
Petition they are shown as contesting
respondents. There was no necessity for
impleading the judicial officers who
disposed of
the
matter
in
a
civil
proceeding when the writ petition was
filed in the High Court; nor is there any
justification for impleading them as
parties in the Special Leave Petition and
describing
them
as
contesting
respondents. We do not approve of the
course adopted by the petitioner which
would cause unnecessary disturbance to
the functions of the concerned judicial
officers. They cannot be in any way
equated to the officials of the Government.
It is high time that the practice of
impleading judicial officers disposing of
civil proceedings as parties to writ
petitions
under Article
226
of
the
Constitution of India or Special Leave
Petitions under Article 136 of the
Constitution of India was stopped. We are
strongly deprecating such a practice.'

(emphasis supplied)

(5) It has to be understood that neither
the Court or the Tribunal or the Presiding
Officer(s) of the Court/Tribunal for that
matter is required to defend its order before
the superior Court. If the High Court, in
exercise of its appellate or revisional
jurisdiction, as the case may be, calls for
the records, the same can always be called
for by the High Court without the Court or
the Presiding Officer being necessarily
impleaded as a party. These Courts or
Tribunals merely adjudicate the issue
between the parties and have no personal
interest and have nothing to do with the
issues raised or adjudicated by them and, as
such, are not required to defend their
order(s) in any manner. Since, they are not
required to defend their order, no useful
purpose would be served in making them a
party before the appellate forum or
revisional Court, as the case may be, rather
being
juxtaposed,
it
would
mean
embarrassment, dejection and create a
hurdle in independence of the Judiciary.
The Apex Court resonating the aforesaid
understanding
has
observed
in
Jogendrasinghji Vikaysinhji Vs. State of
Gujrat : (2015) 9 SCC 1 as under :-

".........Civil
courts,
which
decide matters, are courts in the strictest
sense of the term. Neither the court nor the
Presiding Officer defends the order before
the superior court it does not contest. If the
High Court, in exercise of its writ
jurisdiction or revisional jurisdiction, as the
case may be, calls for the records, the same
can always be called for by the High court
without the Court or the Presiding Officer
being impleaded as a party. Similarly, with
the passage of time there have been many a
tribunal which only adjudicate and they
have nothing to do with the lis. We may
cite few examples; the tribunals constituted
under the Administrative Tribunals Act,
1985, the Custom, Excise & Service Tax
Appellate
Tribunal,
the
Income
Tax
Appellate Tribunals, the Sales Tax Tribunal
and
such
others.
Every
adjudicating
authority may be nomenclatured as a
tribunal but the said authority(ies) are
different that pure and simple adjudicating
authorities and that is why they are called
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
the
authorities.
An
Income
Tax
Commissioner, whatever rank he may be
holding, when he adjudicates, he has to be
made a party, for he can defend his order.
He is entitled to contest. There are many
authorities under many a statute. Therefore,
the proposition that can safely be culled out
is that the authorities or the tribunals, who
in law are entitled to defend the orders
passed by them, are necessary parties and if
they are not arrayed as parties, the writ
petition
can
be
treated
to
be
not
maintainable or the court may grant liberty
to implead them as parties in exercise of its
discretion. There are tribunals which are
not at all required to defend their own
order, and in that case such tribunals need
not be arrayed as parties. To give another
example:- in certain enactments, the
District
Judges
function
as
Election
Tribunals from whose orders a revision or a
writ may lie depending upon the provisions
in the Act. In such a situation, the superior
court, that is the High Court, even if
required to call for the records, the District
Judge need not be a party. Thus, in essence,
when a tribunal or authority is required to
defend its own order, it is to be made a
party failing which the proceeding before
the High Court would be regarded as not
maintainable."

(6) Thus, we are of the view that the
respondent No.1 herein (the Commercial
Court-1, Lucknow, through its Presiding
Officer) is not to be made a party in the
present appeal filed against an order passed
by the said Court in its judicial capacity. In
any case, it also does not satisfy the
requirement of being a necessary or a
proper party, so as to be made a party to the
present appeal. This Court in respectful
agreement with a view expressed by the
Apex
Court
in
Savitri
Devi's
case
deprecates the practice of making 'the
Commercial Court-1, Lucknow, through
Presiding Officer,' as a party-respondent in
the present appeal and, as such, directs the
Office to delete the "Presiding Officer,
Commercial Court-1, Lucknow, through its
Presiding Officer," as respondent No.1
from memo of parties of the present appeal.

(7) Similarly, as far as impleading an
Arbitrator as a party in a petition under
Section 34 or 37 of the Arbitration and
Conciliation Act, 1996 in a Commercial
Court is concerned, this Court drawing an
analogy applicable to the Commercial
Courts or the Civil Courts, also holds that
learned Arbitrator
ought
not
to
be
impleaded as a party-respondent in any
proceedings under Section 34 or 37 of the
Arbitration and Conciliation Act, 1996. It
has to be understood that the provisions of
the Act provide for various grounds for
challenging an award under Section 34 of
the Act, 1996 and also provides for a right
to appeal under section 37 of the said Act,
1996. In both the cases, it is the award,
which is the subject matter of adjudication
before the Courts and, as such, there is no
point in impleading the learned Arbitrator
as a party-respondent as the Arbitrator is
neither required to be a person defending
the award nor he ought to be personally
interested in the subject-matter of the
dispute. This Court cannot be oblivious to
the
fact
that
often,
Arbitrators
are
embarrassed upon receipt of notice by this
Court, which put them into unnecessary
burden and in almost all cases, they go
unrepresented. Thus, they cannot be termed
as contesting respondent. Just as in case of
a revision or an appeal the lower forum or
the Judge manning the lower forum is not
impleaded as a party, in proceedings under
Section 34 or 37 of the Arbitration and
Conciliation Act, 1996, the Arbitrator or the
members of the Arbitral Tribunal are utterly
5 All. The Project Director, Uphsdp, Lko. & Ors. Vs. Commercial Court No. 1 Lko. & Ors.
1169
unnecessary parties unless specific personal
allegations are levelled against them. It is
only in a rare case when a personal
allegation is made against an Arbitrator, he
would be required to answer the specific
allegations made against him and in those
rare cases, such an arbitrator may be
impleaded. Further, there are various
provisions
in
the
Arbitration
and
Conciliation
Act
itself,
wherein
the
Arbitrator
may
be
made
a
PartyRespondent, however, in all cases, wherein
the Award has been delivered and primarily
when the Arbitrator has become functusofficio, ordinarily there is no requirement
of making the said Arbitrator or the Arbitral
tribunal, as the case may be, a PartyRespondent under proceeding under section
34 or 37 of the Arbitration & Conciliation
Act, 1996. As far as the present case is
concerned, this Court does not find any
personal allegations directed towards the
learned Sole Arbitrator and as such, direct
the office to delete the "Engineer Shri P.N.
Gupta, Sole Arbitrator" as respondent No.2
from the memo of parties of the present
appeal.

(8) In view of the aforesaid, we
propose to issue a practice direction to the
effect that the learned Counsel(s), while
filing appeal under section 37 of the
Arbitration & Conciliation Act, 1996 read
with Section 13 of the Commercial Courts
Act,
2015,
would
not
implead
the
Courts/Tribunals or Arbitrators before this
Court, unless there are specific averments
in the appeal related to allegations of
proved
misfeasance/misconduct
against
that particular Presiding Officer of the
Court/Tribunal.

(9) This practice direction has to be
observed by all litigants, who propose to
file appeal under section 37 of the
Arbitration & Conciliation Act, 1996 read
with Section 13 of the Commercial Courts
Act, 2015.

Background of the Appeal

(10) The facts as available from
records of the present case is that the
respondent-Maruti Construction Limited
(claimant in the Arbitration Proceedings)
on being successful in the bid invited by
the petitioner-UPHSDP, entered into an
Agreement dated 21.02.2002 for execution
of the work of 'repair, renovation and
extension work of District Hospital Male
(DHM), Sultanpur, District Hospital- femal
(DHF), Sultanpur and BPHC- Sangrampur
in District-Sultanpur, Uttar Pradesh' for a
total contract price of Rs. 87,62,721.40.
The stipulated period of the contract was 12
months. Apparently, after completion of
work, the final bill was not paid by the
petitioner (respondent in the Arbitration
proceeding),
certain
payments
were
withheld and it was the contention of the
respondent-contractor that the final bill was
never prepared by the petitioner nor any
copy of the final Bill was given to them.
The respondent-Contractor, thus, claimed
payments under the final bills as well as for
extra items and damages/compensation
under
the
contract,
whereas
it
was
contended by the petitioner that the
execution of the work was delayed and
even extension of time was also granted to
the respondent and, as such, the Bank
Guarantee was rightly encashed by them
and further no payments were required to
be paid. Thus, a dispute having been raised
and the same being not settled by the
adjudicator as per the Agreement, was
referred to Arbitration of an Engineer Mr.
P.N. Gupta, appointed by the Institution of
Engineers
(India).
The
learned
Sole
Arbitrator, framed inasmuch as 15 issues
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
and
awarded
certain
claims
of
the
respondent along with interest vide award
dated 31.01.2021.

(11) Apparently, the appellants being
not satisfied by the award delivered by the
Sole Arbitrator filed an Objection under
section
34
of
the
Arbitration
and
Conciliation Act, 1996 on 03.02.2023,
accompanied
by
an
application
for
condonation of delay, claiming therein that
the authentic/complete copy of the award
dated 31.01.2022 was procured by the
appellants only on 27.12.2022 and, as such,
the objections were within the statutory
limitation period as prescribed under
section 34 (3) of the Arbitration and
Conciliation Act. However, it seems that
the learned Commercial Court-1, Lucknow,
did not find any substance in the argument
of the appellants and, as such, relying on
two judgments of the Apex Court in (i)
Union of India Vs Popular Construction
Co. : (2001) 8 SCC 470 and (ii) Simplex
Infrastructure Limited Vs Union of
India : (2009) 2 SCC 455, dismissed the
said application/objections filed by the
appellants on the ground of limitation vide
judgment and order dated 07.09.2024.

(12) The said judgment and order
dated 07.09.2024 is subject matter of the
present appeal filed under Section 37 of the
Arbitration and Conciliation Act, 1996 read
with Section 13 of the Commercial Courts
Act, 2015. The present appeal is also
accompanied
by
an
application
for
condonation of delay in filing the present
Appeal. Although, the said application for
condonation of delay is accompanied by an
affidavit, however, there is no mention as
to, for how many days of delay the said
application has been filed. Thus, this Court
has been entrusted with the arduous task to
ascertain the number of days of delay and
to examine as to whether the reasons
mentioned for the said number of days
delayed
are
whether
sufficient
for
condoning the said delays.

(13) A close examination of the
present appeal would reveal that the appeal
was firstly filed on 22.01.2025 challenging
the impugned order dated 07.09.2024, but
with several defects. It was re-filed again
on 07.02.2025 by removing the defects as
well as accompanying with application for
condonation of delay. Impugned judgment
was passed on 07.09.2024. The limitation
for filing the appeal under Section 37 of the
Act, 1996 being 60 days from the date of
judgment and order, the same expired on
06.11.2024. The affidavit in support of the
application
under
Section
5
of
the
Limitation Act is dated 07.02.2025. Thus,
as on 22.01.2025 i.e. when the appeal was
firstly filed, the delay was of about 77 days
and as on 07.02.2005 i.e. when the appeal
was re-filed along with the application for
condonation of delay after removing the
defects, the delay was about 93 days. The
reasons for delay has been mentioned in
paragraph 24 to 36 of the affidavit
accompanying
the
application
for
condonation of delay.

Law of Limitation holding the
ground for filing of an Appeal under
Section 37 of the Arbitration and
Conciliation Act, 1996

(14) At this juncture, we would like to
discuss the law of limitation holding the
ground for filing an appeal under Section
37 of the Arbitration and Conciliation Act,
1996 read with Section 13 of the
Commercial Courts Act, 2015.

(15) Section 37 of the Arbitration and
Conciliation Act, 1996 deals with general
5 All. The Project Director, Uphsdp, Lko. & Ors. Vs. Commercial Court No. 1 Lko. & Ors.
1171
provision for filing appeal, which inter alia
provides as under : -

"(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."

(16) Apparently, the Arbitration and
Conciliation Act, 1996 does not provide
any specific limitation for filing such
appeals under Section 37 of the Arbitration
and Conciliation Act, 1996 as it provides
for filing an objection/application against
the Arbitral Award as per section 34 (3) of
the said Act. However, Section 43 of the
Arbitration and Conciliation Act, 1996
provides that the Limitation Act, 1963
('hereinafter referred to as 'Limitation
Act') shall apply to arbitrations as it applies
to proceedings in Court. The Hon'ble
Supreme Court in the case of Consolidated
Engineering Enterprises v. Irrigation
Department: (2008) 7 SCC 169] 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
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 would be as per Article 116
or Article 117 of the Schedule provided for
in the Limitation Act. 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 appeal
before the High Court, 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.

(17) However, with the promulgation
of the Commercial Courts Act, 2015
(hereinafter referred to as 'Commercial
Courts Act'), a new regime of limitation for
filing of the appeals under Section 37 of the
Arbitration and Conciliation Act, 1996
came
to
force.
Section
13
of
the
Commercial Court Act inter alia states :-

"Section
13: Appeals
from
decrees of Commercial Courts and
Commercial Divisions.
1172 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
decree of a Commercial Division or
Commercial Court otherwise than in
accordance with the provisions of this Act."

(18) Thus, the limitation for preferring
of an appeal under Section 37 of the
Arbitration and Conciliation Act, 1996 in
view of the Commercial Court Act, is sixty
days only and, of course, the provisions of
Section 5 of the Limitation Act would
apply for condonation of delay. However,
there is a caveat, inasmuch as the Hon'ble
Supreme Court in Union of India v.
Varindera Constructions Ltd.: (2020) 2
SCC 111, while adjudicating the similar
issue of limitation for filing of an appeal
under Section 37 of the Act, 1996, has
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, which in a way ruled
out the provisions of Section 5 of the
Limitation Act in preferring an appeal
under Section 37 of the Act, 1996. Hon'ble
Supreme Court while noting that since as
per Section 34 of the Act, 1996, application
has to be filed within a maximum period of
120 days, which also included a grace
period of 30 days and nothing more,
therefore, an appeal filed from the same
should also be covered by the same ratio,
has observed 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
under Section
34 of
the
Arbitration and Conciliation Act, 1996
should not be allowed as it will defeat the
5 All. The Project Director, Uphsdp, Lko. & Ors. Vs. Commercial Court No. 1 Lko. & Ors.
1173
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."

(19) Thus, the Hon'ble Supreme Court
declined to condone the delay of 142 days
in
filing
of
appeal
in
Varindera
Construction Ltd. (supra) by holding that
a maximum period of 120 days is available
to a party filing an appeal under Section 37
of the Arbitration and Conciliation Act,
1996 and to the same effect is another
judgment of the Apex Court in M/s N. V.
International v. the State of Assam and
Ors. : (2020) 2 SCC 109, wherein also the
Apex Court reiterated the position as stated
in Virendra Constructions Ltd. (supra) and
declined to condone a delay of 189 days
from the 90 days in filing an appeal under
Section 37 of the Act, 1996. The Apex
Court in the said judgment also placed
emphasis upon the main object of the Act,
i.e., speedy disposal of arbitral disputes and
held that any delay beyond 120 days cannot
be condoned.

(20) In both these decisions, the earlier
judgment i.e. Consolidated Engineering
Enterprises (Supra) could not be noted.

(21) Law laid down in both the cases
i.e Varindera Construction Ltd. (supra)
and M/s N.V. International (supra) came
up for consideration before a three-Judge
Bench of the Apex Court in Government
of Maharashtra Vs M/s Borse Brothers
Engineers & Contractors Pvt. Ltd. : 2021
SCC OnLine SC 233, wherein the Apex
Court noted the conflicting position vis-avis Consolidated Engineering Ltd (supra)
and taking into consideration the provisions
of Commercial Courts Act, 2015 and
decision Consolidated Engineering Ltd.
(supra) 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. The Hon'ble
Supreme Court in the said case has 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 to section 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 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
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
Thus, the Apex Court has inter alia held in
Government of Maharashtra Vs M/s
Borse Brothers Engineers & Contractors
Pvt. Ltd. (Supra) 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 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."

(22) In the present appeal, this Court
finds that the impugned order is dated
07.09.2024. Thus, as on 22.01.2025 i.e.
when the appeal was firstly filed, the delay
was of about 77 days and as on 07.02.2005
i.e. when the appeal was re-filed along with
the application for condonation of delay
after removing the defects, the delay was
about 93 days.

Order on the report of Stamp
Reporter

(23) As per the report of the Stamp
Reporter, the Appeal would had been in
time up to 06-12-2024 (wrongly mentioned
as it should be 06-11-2024) and thus has
put an endorsement in its report to the
extent that "Beyond time by 47 days as on
22.01.2025. Delay filed upto 07.02.2025 at
11:00 AM". First and foremost, the Stamp
Reporting
Officer
has
incorrectly
mentioned that the appeal would have been
in time, had the same been filed upto 0612-2024, for the simple reason that the
impugned order sought to be challenged
was
passed
on
07.09.2024
and
the
limitation of sixty days as per section 13
(1A) of the Commercial Court Act, 2015 as
discussed herein above lapsed on 06-112024. It seems that Reporting Section has
treated the period of limitation as 90 days
which is incorrect as it is an appeal against
order of a Commercial Court, under
Section 37 of the Act, 1996. Thus, the
appeal would had been within time, had it
been filed on or before 06-11-2024 and not
06-12-2024 as erroneously reported in the
stamp report. Secondly, the stamp reporting
contains the date '22.01.2025' possibly
indicating that the first date of e-filing of
the Appeal, however, the fact of the matter
remains that the Appeal was e-filed with
too many defects as pointed out by the
registry and it came to be eventually refiled after removing defects accompanying
with application for condonation of delay
on 07.02.2025 as is also apparent from the
stamp report. Considering the first date of
filing the appeal i.e. on 22.01.2025, the
present appeal would be delayed by 77
days, whereas on considering the date of
re-filing
after
removing
defects
accompanying
with
application
for
condonation of delay i.e. 07.02.2025, the
present appeal would be delayed by 93
days.

Consideration for Application of
Condonation of Delay
5 All. The Project Director, Uphsdp, Lko. & Ors. Vs. Commercial Court No. 1 Lko. & Ors.
1175

(24) That brings this Court to the
application filed by the appellants seeking
condonation of delay in filing of the present
appeal under Section 37 of Act, 1996.

(25) The condonation of delay
application and supporting affidavit filed
by the appellants makes for an interesting
reading and this Court finds appropriate
to quote relevant part of the affidavit
which inter alia also would show as to
whether any "sufficient cause" has been
made out by the appellants to condone
the delay in filing the appeal or not. The
affidavit for delay condonation inter alia
states from paragraph 24 to 36; as
follows: -

"24. That the learned commercial
court after hearing the parties and filling of
objections by the respondent/opposite party
finally dismissed the application under
section 34 of the Act, 1996 filed by the
appellants on the ground of limitation only
holding the proceedings under section 34 to
the
time
barred
vide
order
dated
07.09.2024.

25. That vide the Directorate
General's letter dated 25.09.2024, request
was made before the state Government
seeking necessary instructions in the
Matter. A true copy of the letter dated
25.09.2024 is being filed as Annexure-D9
to this affidavit.

26. That vide the Government's
letter dated 21.10.2024, instructions were
given to the Directorate of Medical Health
Services to seek legal opinion from the
Chief Standing Counsel and thereafter
provide necessary narrative of the case
along-with the legal opinion provided.

27. That the legal opinion was
sought from the Chief Standing Counsel
through
Directorate
General's
dated
23.10.2024.

28. That the legal opinion was
accorded by the learned State Law Officer
through
letter
dated
12.11.2024
to
challenge the order 07.09.2025 passed by
the learned Commercial Court, Lucknow
before the Hon'ble High Court by filing
appeal.

29. That after receiving the legal
opinion dated 12.11.2024 thereafter vide
Directorate
General's
letter
dated
13.11.2023
sent
before
the
State
Government necessary permissions and
approval were sought for challenging the
order dated 07.09.2024 before the Hon'ble
High Court.

30. That vide contest permission
dated 21.11.2024 the necessary approvals
and sanctions were accorded by the State
Government.

31. That after the issuance of
necessary contest permission vide order
dated 21.11.2024, the State Government
vide its letter dated 26.11.2024, the
aforesaid contest order dated 21.11.2024
was received in the office of the Directorate
of Medical Health and Services, UP. A true
copy of the letter dated 26.11.2024 is being
filed as Annexure-D10 to this affidavit.

32. That thereafter the Directorate
of Medical and Health Services, UP vide its
letter dated 26.11.2024 received in the
Office of Chief Standing Counsel, High
Court, Lucknow on 27.11.2024 on which
the relevant file was allotted to the learned
State Law Officer on 29.11.2024 for the
preparation of Appeal.

33. That the State Law Officer
who was allotted the relevant file received
the aforesaid allotted file on 02.12.2024
and asked the concerned pairovkar for the
certified
copy
of
the
order
dated
07.09.2024 whereby it was informed that
they only have the photocopy of the order
dated 07.09.2024, as such it was instructed
to apply for the certified copy of the order
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 07.09.2024 for the purposes of filing
the appeal before this Hon'ble Court.

34. That in view of aforesaid the
certified copy was applied on 03.12.2024
which was received on 01.01.2025 and
handed over to the learned State Law
Officer for the purposes of filing the appeal
on 06.01.2024.

35. That thereafter certain other
letters and documents were required since
the arbitration case between M/s Marutti
Constructions Versus The Project Director
And Others was relevant records with
regard to the aforesaid arbitration case were
not available with the Directorate of
Medical And Health, UP. As such after the
allotment of the relevant file with regard to
the challenging the judgment and order
dated 07.09.2024 the relevant documents
sought by the learned State Law Officer
could only be provided on 13.01.2025 and
after which the Appeal was prepared and
filed through e-filing on 20.01.2025 on
which too many defects were pointed out
by the registry. Although the defects were
being tried to be removed but the
agreement as well as the award dated
31.01.2021
being
bulky
took
some
considerable time to get typed as such after
completion again it was e-filed with certain
more defects which also included the
requirement of the copy of the Decree of
the impugned order dated 31.01.2021.

36.
That
on
aforesaid
immediately the copy of the formal order
has been applied on 24.01.2025 which
could
be
obtained
on
06.02.2025.
Thereafter removal of all the effects the
appeal is being filed without any further
delay..."