The State of Jharkhand through Its Executive Engineer Namely Neelam Sanjeev Minz Vs M/S Alok Coal Agency

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Commercial Appeal No. 22 of 2023

The State of Jharkhand, Subarn Rekha Canal Division, Dimna Road, PO & PS: Mango, Town: Jamshedpur, Dist.: East Singhbhum (Jharkhand) through its Executive Engineer, namely, Neelam Sanjeev Minz, son of Blacius Minz, resident of Fasiya Bartoli, near Notredame School, PO & PS: Gumla, District: Gumla.

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… … Appellant

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Versus

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M/s Alok Coal Agency, having its office at Vikas Bhawan, Bariyatu Road, PO & PS: Bariyatu, Dist.: Ranchi, Jharkhand … … 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. Ashutosh Anand, AAG-III For the Respondent : Order No. 05/ Dated: 21^st August, 2024

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Per Anubha Rawat Choudhary, J.

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Heard the learned counsel for the appellant.

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2. This commercial appeal has been filed under section 13(1) of the Commercial Courts Act, 2015 challenging the judgement dated 2^nd of February 2019 in Misc. Arbitration Case No. 29 of 2007 whereby the petition filed by the appellant under section 34 of the Arbitration and Conciliation Act, 1996 seeking setting aside of the Arbitral Award, has been dismissed. The Arbitral Award is dated 30^th December 2005 passed by a former Judge of Hon’ble Patna High Court.

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3. The appeal is barred by limitation of 944 days as pointed out by the office. The delay pointed out by the office is not in dispute. As per office note the period for filing the appeal expired on 03.04.2019 and after excluding the period on account of COVID-19 pandemic from 15.03.2020 to 28.02.2022, the appeal is still shown as barred by limitation of 944 days.

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4. The learned counsel for the appellant submits that petition for condonation of delay has been filed under section 5 read with section 14 of the Limitation Act, 1963. It is submitted that initially Arbitration Appeal No. 26 of 2019 was filed before this Court but the said appeal

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was not maintainable and was dismissed as not maintainable by learned single judge vide order dated 20.09.2023. However, the appellant was granted liberty to file a commercial appeal, if so advised, subject to limitation to be considered by the appropriate Bench. It is submitted that thereafter the present commercial appeal has been filed along the petition seeking condonation of delay. 5. Paragraph Nos.3 to 20 of the I.A. No.7016 of 2024, giving explanation for condonation of delay in filing this appeal are quoted as under:

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“3. That it is stated and submitted that the impugned judgment passed on 02.02.2019 by Shri Radha Krishan, Learned District Judge – I – cum – Commercial Court, East Singhbhum, Jamshedpur in Misc. Arbitration Case No.29/2007.

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4. That it is stated and submitted that upon receipt of information opinion was sought for in the matter and the office of the Advocate General gave opinion on 10.06.2019 for filing of an Arbitration Appeal before the Hon’ble Jharkhand High Court.

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5. That it is stated and submitted that upon receipt of the opinion statement of fact along with grounds of appeal was desired and the same was accordingly drafted and approved on 27.08.2019 and thereafter the same was sent to the concerned law officer for filing and the same was readied and filed without any further delay.

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6. That it is stated and submitted that the appellant bonafidely filed the Arbitration Appeal No.26/2019 and was bonafidely pursuing the same.

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7. That it is stated that the said Arbitration Appeal No.26/2019 was filed against the Order dated 02.02.2019 passed by Shri Radha Krishan, Learned District Judge – I – cum – Commercial Court, East Singhbhum, Jamshedpur in Misc. Arbitration Case No.29/2007.

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8. That it is stated and submitted that the delay has been caused due to aforesaid aspects & there is no willful omission on the part of the Appellants. However, it is mentioned in Section S.14 of the Limitation Act, 1963 that in computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same

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party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

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9. That it is stated and submitted that the appellant bonafidely filed the Arbitration Appeal No.26/2019 and was prosecuting the same with due diligence against the respondent herein and the said proceeding was in relation to the same matter in issue and the appellant was prosecuting the same in good faith.

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10. That the Arbitration Appeal No.26/2019 was taken up on 20.09.2023 wherein the Hon’ble Court was pleased to hold the same as not maintainable with a liberty to file the Commercial appeal.

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11. That it is stated that immediately thereafter the factum of the order was informed to the appellants.

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12. That upon receipt of the information, an opinion was sought as to the further course of action is required wherein it was opined that in view of the liberty so given, Commercial Appeal may be filed before the Hon’ble Division Bench.

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13. That accordingly, the Statement of Facts for preferring the Commercial Appeal was desired whereafter the same was prepared and submitted on 09.10.2023.

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14. That the Executive Engineer thereafter by his letter no.687 dt. 10.10.2023 forwarded the Statement of Facts to the Superintending Engineer for necessary action.

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15. That thereafter the file was put up before the Chief Engineer and ultimaltey the statement of facts was approved at the Department level.

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16. That further by letter no.5775 dt. 17.10.2023, the Under Secretary, Water Resources Department, Government of Jharkhand authorized the Executive Engineer to swear affidavit in the matter.

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17. That thereafter the Commercial Appeal was readied and filed without any further delay on 19.10.2023 itself.

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18. That it is stated and submitted that the appellant bonafidely filed the Arbitration Appeal No.26/2019 and was prosecuting the same with due diligence against the respondent herein and the said proceeding is in relation to the same matter in issue and the appellant was prosecuting the same in good faith and

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the same was not entertained by the Hon’ble Court on account of defect of jurisdiction.

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19. That it is humbly stated and submitted that the delay has been caused due to aforesaid aspects. There is no willful omission on the part of the Appellants.

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20. That it is further stated and submitted that considering the urgency in the matter, necessary steps were taken for filing the appeal vigorously from the very date of receiving the information of pronouncement of the impugned judgement.”

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6. The aforesaid paragraphs quoted above and the records of this case reveal that the impugned judgment was passed by the learned commercial court on 02.02.2019 in Misc. Arbitration Case No.29/2007 whereby the petition filed under section 34 of the Arbitration and Conciliation Act, 1996 was rejected against arbitral award is dated 30.12.2005.

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The matter was placed before the learned Advocate General who gave opinion on 10.06.2019 for filing of an Arbitration Appeal before this Court and the appeal was filed on 27.08.2019 numbered Arbitration Appeal No.26/2019.

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The Arbitration Appeal No.26/2019 was taken up on 20.09.2023 wherein this court held that it was not maintainable and liberty was given to file Commercial appeal with an observation that limitation will also be considered at appropriate stage.

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The present commercial appeal was filed on 19.10.2023 .

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The office note reveals that the initial filing of arbitration appeal No.26/2019 was also barred by limitation.

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The matter in the arbitration appeal remained pending from 27.08.2019 to 20.09.2023 which is at best the period which can be said to be covered by section 14 of the limitation Act. The office has suo moto excluded the COVID -19 period from 15.03.2020 to 28.02.2022 which overlaps with the period during which the case remained pending in the earlier arbitration appeal.

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7. Upon perusal of the petition for condonation of delay, in paragraph no.3 it has been specifically stated that the impugned judgment dated 02.02.2019 was passed by the learned District JudgeI-cum-Commercial Court, East Singhbhum, Jamshedpur in Misc.

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Arbitration Case No. 29 of 2007 and in the next paragraph i.e. paragraph no.4, it has been mentioned that the Office of the Advocate General gave its opinion on 10.06.2019 for filing of an Arbitration Appeal. Thereafter, in paragraph no.5, it has been mentioned that the same was accordingly drafted and approved on 27.08.2019.Even after excluding the COVID -19 period /period during which the matter remained pending before this court the present in arbitration appeal No.26/2019, there is no cogent and acceptable explanation for condonation of delay even in filing the arbitration appeal No.26/2019 which is said to have been filed under wrong nomenclature which was filed on 27.08.2019 against the impugned judgement dated 02.02.2019. The appellant took further time of about a month in filing this appeal after the arbitration appeal No.26/2019 was held to be not maintainable for which also there is no cogent explanation except that of their internal communications amongst the officers of the state.

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8. The Hon'ble Supreme Court in paragraph 59 of the judgement passed in Government of Maharashtra (Wate resources Department) Represented by Executive Engineer -vs- Borse Brothers Engineers and Contractors Private Limited reported in (2021) 6 SCC 460 it has been held that merely because the Government is involved, a different yardstick for condonation of delay cannot be laid down.In the said judgment it has also been held in paragraph 63,64 and 65 of the judgment considering the object of Commercial Courts Act, 2015 that delay in filing appeal under commercial courts Act, 2015 is to be condoned by way of exception and not by way of rule. It has been further held that 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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9. This court is of the considered view that the litigants are not only required to file appeal on time but in case of delay they are required to give convincing and acceptable explanation in the form of

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‘sufficient cause’ to persuade the court to exercise sound discretion in the matter of condonation of delay. This court finds that the appellant has failed to give convincing and acceptable explanation for delay in filing the appeal even if the period during which the matter was pending in Arbitration Appeal No.26/2019 from 27.08.2019 to 20.09.2023 is taken into consideration. This Court is not at all satisfied with the cause shown by the appellant for delay in filing the present appeal except the aforesaid period from 27.08.2019 to 20.09.2023 under section 14 of the limitation Act. Still the appeal is barred by limitation of about 173 days for which there is no cogent and acceptable explanation for delay.

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10. Accordingly, this court is not inclined to condone the delay in filing the appeal.

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11. I.A. No.7016 of 2024 seeking condonation of delay is dismissed.

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12. Consequently, this Commercial Appeal is also dismissed.

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(RatnakerBhengra, J.)

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(AnubhaRawatChoudhary, J.)

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S.B.