The State of Jharkhand through the Deputy Commissioner Vs Ms Bharat Drilling and Foundation Treatment Pvt. Ltd.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Commercial Appeal No. 17 of 2019

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with

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IA No.10565 of 2019

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The State of Jharkhand through the Deputy Commissioner, Ranchi

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The Regional Chief Engineer Public Health Engineering Department Doranda, Ranchi

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The Superintending Engineer, Public Health Engineering Circle, PO & PS Doranda, Ranchi

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The Executive Engineer, Public Health Engineering Division, Ranchi West Khunti ... Appellant

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... Appellant

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-Versus-

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M/s Bharat Drilling & Foundation Treatment Pvt. Ltd. 53, Booty Road, P.O. RMCH, P.S. Bariyatu, District-Ranchi ... Respondent

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CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA :- HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant :- Mr. Gaurav Raj AC TO AAG-II, Advocate; For the Respondent :- None

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Order No. 10 Dated 28.08.2024

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Per Anubha Rawat Choudhary, J.

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The learned counsels for the appellant is present.

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This appeal has been filed against the judgment dated 30.01.2009 passed in Misc Case No. 20 of 2000 by the learned Sub-Judge II, Ranchi, whereby the application under section 34 of the Arbitration/Commercial Act 1996 for setting aside the award dated 23.08.2000 drawn by the sole arbitrator in Arbitration/Commercial Case No. 01 of 1999 has been rejected and the said Misc Case No. 20 of 2000 has been dismissed.

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The appeal was filed on 13.11.2019 and in spite of

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repeated opportunities having been granted, the defects have not been removed. As per the office note, the appeal is barred by limitation of 4001 days.

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IA No.10565 of 2019

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This interlocutory application has been filed for condonation of delay in filing this appeal.

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As per the calculation made by the office, the limitation for filing the appeal had expired on 31.03.2009 and the appeal is barred by limitation of 4001 days. The calculation made by the office is not disputed by the learned counsel for the appellant.

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The petition for condonation of delay under section 5 of the Limitation Act has been filed wherein there is no mention about the number of days for which the delay is to be condoned.

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The grounds seeking condonation of delay as mentioned in the petition are contained in paragraph 3 to 10 which are as under: -

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" 3. That at the very outside it is humbly stated that section 37(1)(b) of the Arbitration & Conciliation Act, 1996 does not provide any limitation for filing an appeal against order/judgment passed under section 34 of the Act. However, in abandon caution, the appellants are filing the present limitation petition.

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4. That the appellants have filed the present arbitration appeal against order dated 30.01.2009 passed in Misc Case No. 21 of 2000 by the court of Sub-Judge II, Ranchi. 5. That it is humbly stated that the after passing of the order dated 30.01.2009, due to inadvertence/change of the officers on being transferred, the concerned authority could not know about the judgment dated 30.01.2009. The fact regarding order dated 30.01.2009 as per record available in the office could be known only through letter no. 111 dated 03.10.2012 sent by the Government

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Advocate mentioning the facts of Execution case No. 08 of 2001.

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6. That it is further humbly stated that the concerned authority after knowing the facts seek direction of the higher officials in terms of filing the appeal against the same. For the said purpose, the authority also took advice of the government counsel of the Jharkhand High Court, who opined that the facts may be sent after proper discussion by the Department personnel with all reasonable grounds to file the Arbitration Appeal.

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7. That during the said circumventing period the Department could not availed the opportunity to file appeal as no decision could be taken on it. It is important to mention here that taking the fact that the Principle amount is payable to the contractor claimant, as such, the Department vide memo no. 187 dated 06.01.2016 sanctioned an amount of Rs. 68,77,091/- to be paid to the contractors i.e. in relation to M/s Bharat Drilling and foundation Treatment Pvt. Ltd. Ranch and M/s Rock Drill India, Ranchi.

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8. That on opinion rendered by the Learned Advocate General, Jharkhand, a decision was taken by the Department to prefer an appeal as against the order dated 30.01.2009. Pursuant thereto, statement of fact was prepared for taking necessary approval before the Department.

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9. That it is further humbly stated that the Department granted approval in terms of the drafted statement of fact and directed to file the present appeal as soon as possible. 10. That it is further humbly stated that the Department accordingly requested the learned Advocate General, Jharkhand for appropriate direction to the concerned State Counsel to draft and file the present appeal."

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Thus, the appellant has taken a ground that section 37 (1) (b) of the Arbitration and Conciliation Act, 1996 does not provide any limitation for filing an appeal against order/judgement passed under section 34 of the

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aforesaid Act and the limitation petition has been filed only by way of abundant precaution; after passing the impugned order on 30.01.2009 , due to inadvertence /change of officers on being transferred the concerned authority could not know about the judgement and came to know only through letter dated 03.10.2012 sent by the government advocate mentioning about execution case no. 08/2001; the appellant took required advice, discussed the matter , prepared and filed the appeal. It has also been mentioned that the department vide memo dated 06.01.2016 sanctioned an amount of Rs.68,77,091/- to be paid to the contractor being the principal amount.

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The averment made in the petition for condonation of delay that that there is no prescribed period for filing appeal under section 37 of the aforesaid Act of 1996 is misconceived. The period of limitation for filing appeal in the high court is governed by Article 116 of the Limitation Act, 1963 which is 90 days from the date of the decree of order. The impugned order was passed way back as in the year 2009, much before coming into force of the Commercial Courts Act, 2015.

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In the judgement passed by the Hon’ble Supreme Court in Government of Maharashtra (Wate resources Department) Represented by Executive Engineer -vs- Borse Brothers Engineers and Contractors Private Limited, (2021) 6 SCC 460 , a reference has been made to the earlier judgement of the Hon’ble Supreme Court passed in the case of Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169 and it has been held in paragraph 23 that Section 37 of the Arbitration Act, when read with Section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37 and Articles 116 and 117 of the Limitation Act, provide for a limitation period of 90 days

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and 30 days, depending upon whether the appeal is from any other court to a High Court or an intra-High Court appeal. It has also been held that there can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virtue of Section 43 of the Arbitration Act and by virtue of Section 29(2) of the Limitation Act.

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It has been ultimately held in paragraph 63 of the judgement of Borse Brothers Engineers (supra) while considering the provisions limitation Act, 1963, Arbitration and Conciliation Act, 1996 and Commercial Courts Act, 2015 as follows: -

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

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The other averments made in the petition for condonation of delay also do not disclose “sufficient cause” for enormous delay in filing the appeal. There is no cogent and acceptable explanation for the period from 2009 to 2012 as no foundational details have been mentioned about one or the other officer responsible at the relevant point of time and even after coming to know in the year 2012 about the execution case the appeal was filed only on 13.11.2019 against without showing any cogent reason for condonation of delay.

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This court is not at all satisfied with the so-called

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explanation seeking condonation of delay and finds that on the face of the petition there is no sufficient ground for condonation of delay. Under the aforesaid facts and circumstances, the petition seeking condonation of delay being I.A No.10565 of 2019 is dismissed.

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Consequently, this appeal is also dismissed.

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(Ratnaker Bhengra, J.)

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(Anubha Rawat Choudhary, J.)

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Abha/-

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The State of Jharkhand through the Deputy Commissioner v. Ms Bharat Drilling and Foundation Treatment Pvt. Ltd.

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The State of Jharkhand through the Deputy Commissioner v. Ms Bharat Drilling and Foundation Treatment Pvt. Ltd.

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