Sri a C Venkatesh Vs National Highways Authority of India

NATIONAL HIGHWAYS AUTHORITY OF INDIA NHAI, PIU, BENGALURU, SURVEY NO.13, NAGASANDRA VILLAGE, Digitally signed 14^TH KM FROM BENGALURU-TUMKUR ROAD, by BENGALURU 560 073, GAVRIBIDANUR SUBRAMANYA REPRESENTED BY ITS PROJECT DIRECTOR. GUPTA SREENATH Location: HIGH 2. THE ARBITRATOR AND DEPUTY COMMISSIONER, COURT OF BENGALURU RURAL DISTRICT, KARNATAKA

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THE ARBITRATOR AND DEPUTY COMMISSIONER, BENGALURU RURAL DISTRICT, (HYDERABAD-BENGALURU SECTION NH-7) DISTRICT ADMINISTRATION BUILDNG, 1^ST FLOOR, BEERASANDRA VILLAGE, KUNDANA HOBLI (PO) DEVENAHALLI TALUK, BENGALURU RURAL DISTRICT.

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THE SPECIAL LAND ACQUISITION OFFICER AND COMPETENT AUTHORITY, NATIONAL HIGHWAYS AUTHORITY OF INDIA, HYDERABAD-BENGALURU SECTION OF NH-7, NO,678/3, NEERUBHAVI KEMPANNA LAYOUT, HEBBAL, BENGALURU - 560024,

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REP. BY THE SPECIAL LAND ACQUISITION OFFICER.

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…RESPONDENTS

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(BY SRI. SHILPA GHANSHYAMBHAI SHAH.,ADVOCATE FOR R1 AND R3)

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(BY SRI.B.J.ESWARAPPA, AGA FOR R2)

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THIS MFA IS FILED U/S.37(1)(c) OF THE ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE ORDER DT.14.10.2022 PASSED IN A.P.NO.77/2020 ON THE FILE OF THE PRL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE PETITION FILED U/S.34 OF THE ARBITRATION AND CONCILIATION ACT.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the appellant/respondent No.1, challenging the order dated 14.10.2022 in A.P.No.77/2020 passed by the Principal District and

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Sessions Judge, Bengaluru Rural District, Bengaluru, allowing the petition filed by the respondent No.1 herein by the National Highway Authorities under Section 34(2) of the Arbitration and Conciliation Act, which consequently set aside the common impugned arbitral award dated 09.07.2019 passed by the arbitrator/respondent No.2. The National Highway Authority had issued an initial and thereafter a final notification, for acquiring certain lands. Vide the final notification dated 14.08.2006, amongst other lands, including the land of the appellant situated at Avathi Village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District, the lands were acquired and the compensation was paid.

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Being aggrieved by the arbitral award, initiated pursuant there to, the same was challenged by the National Highway Authority- respondent No.1, the said arbitration petition came to be allowed in favour of respondent No.1 - National Highway Authorities and consequently, the common impugned arbitral award dated

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09.07.2019 passed by the respondent No.2 - arbitrator

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came to be set aside. This judgment came to be passed on 14.10.2022. The appellant, who is one of the land looser, is in appeal before this Court under Section 37 Rule 1 (c) of the Arbitration and Conciliation Act, 1996, challenging the said order of the learned District Judge.

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Along with the appeal, an application is filed seeking to condone the delay of 1162 days in preferring the instant appeal. An affidavit is filed along with the application seeking to condone the delay of 1162 days. The reasons assigned by the appellant to condone the delay are specified at paragraph No.3 of the affidavit. Learned counsel for the appellant contends that he has a very good case on merits and the judgment passed by the learned District Judge is liable to be set aside, for the reason that the learned Judge has not considered and not applied his mind by passing a reasoned order. Therefore, the delay of 1162 days requires to be condoned.

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It is also the vehement contention of learned

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counsel for the appellant that he has made out sufficient cause and bona fide reasons for condonation of delay by stating in paragraph No.3 of the affidavit i.e., the appellant

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having undergone treatment for locomotor disability i.e. contracture of the right elbow with right claw hand that he is depending on the agricultural income to maintain his livelihood and also for his continuous treatment of the said disability. It is also contended that the appellant would be prejudiced and serious injustice, hardship, and inconvenience would be caused to him if the application is not allowed. It is also contended by the learned counsel for the appellant that he has made out good bonafide reasons and sufficient cause is shown to condone the delay in view of his having undergone the treatment for locomotor disability, which is a continuous one; therefore, he seeks to condone the delay of 1162 days in filing the appeal.

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Per contra, learned counsel Smt. Shilpa.G.Shah,

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appearing for respondent Nos.1 and 3, vehemently contends that the application filed for condoning the delay is highly belated. There is an inordinate delay, and the

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said application cannot be allowed on the frivolous grounds and reasons stated. It is also vehemently contended by learned counsel for the respondent Nos.1 and 3 that in the application or in the affidavit annexed to the application there are no documents produced to substantiate the delay of 1162 days in filing the appeal. Therefore, she contends that merely by stating that he was undergoing a disability due to locomotor disability, the

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delay cannot be condoned, as it is for the appellant to show cause by way of sufficient means and cogent reasons that there was a genuine delay in preferring the appeal within the time limit prescribed for filing the appeal. She

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further contends that the appellant has deliberately slept over the matter and has not chosen to file the appeal within reasonable time after the lapse of three months.

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The same is evident and shows a lethargic manner. Much

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less the bonafide reasons, which also have not been shown by the appellant in filing the delay application within proper time and the appeal being filed within a reasonable time.

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Learned counsel for the respondent Nos.1 and 3

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further contends that whenever there is an application for delay, the appellant is bound to show sufficient cause for the delay having been caused, and each delay should be properly explained by making out a proper case; bonafide reasons are to be stated, which should be satisfactory to the Court rather than flimsy and vague reasons being forthcoming in the affidavit or the application to condone the delay. It is further contended that apart from there being an inordinate delay in filing the present appeal, the appellant has not mentioned anything with regard to the sequence of events or causation of the delay from the date of expiry of the time for filing the appeal till the filing of

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the appeal and any plausible reason for not filing the appeal within time.

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Learned counsel for the respondent Nos.1 and 3 has relied upon the following judgments in support of her case. In the case of State of Madhya Pradesh V/s Ramkumar Choudhary, reported in 2024 SCC Online SC 3612 . Learned counsel relies upon paragraph No.7 of the said judgment in support of her case.

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" 7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1^st day and the 90^th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further

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delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. (See : Ajit Singh Thakur Singh v. State of Gujarat, (1981) 1 SCC 495 : AIR 1981 SC 733)."

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Learned counsel has also relied upon another

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judgment in the case of Government of Maharashtra (Water Resources Department) V/s Borse Brothers Engineers and Contractors Pvt. Ltd. reported in (2021) 6 SCC 460. She relies upon paragraph No.53, paragraph No.56 sub paragraph Nos.9 and 12 and also paragraph Nos.61 and 63 of the said judgment in support of her case

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53. Reading the Arbitration Act and the Commercial Courts Act as a whole, it is clear that when Section 37 of the Arbitration Act is read with either Article 116 or 117 of the Limitation Act or Section 13(1-A) of the Commercial Courts Act, the object and context provided by the aforesaid statutes, read as a whole, is the speedy disposal of appeals filed under Section 37 of the Arbitration Act. To read Section 5 of the Limitation Act consistently with

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the aforesaid object, it is necessary to discover as to what the expression “sufficient cause” means in the context of condoning delay in filing appeals under Section 37 of the Arbitration Act.

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56. Given the object sought to be achieved under both the Arbitration Act and the Commercial Courts Act, that is, the speedy resolution of disputes, the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression “sufficient cause” is not itself a loose panacea for the ill of pressing negligent and stale claims. This Court, in Basawaraj v. LAO [Basawaraj v. LAO, (2013) 14 SCC 81] , has held : (SCC pp. 85-88, paras 9-15)

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“9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context,

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“sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land & Building Corpn. v. Bhutnath Banerjee [Manindra Land & Building Corpn. v. Bhutnath Banerjee, AIR 1964 SC 1336] , Mata Din v. A. Narayanan [Mata Din v. A. Narayanan, (1969) 2 SCC 770] , Parimal v. Veena [Parimal v. Veena, (2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24] .)

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12. It is a settled legal proposition that law of limitation may harshly

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affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

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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(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

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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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65. Apart from this, there is a long delay of 131 days beyond the 60-day period provided for filing an appeal under Section 13(1-A) of the Commercial Courts Act. There is no explanation worth the name contained in the condonation of delay application, beyond the usual file-pushing and administrative exigency. This appeal is therefore dismissed."

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Learned counsel vehemently contends that in the present application, no proper delay having been mentioned, no explanation having been provided, no sufficient cause having been shown, and no due diligence having been shown in filing the appeal within the time limit prescribed, the application cannot be permitted to be allowed as there is gross and inordinate delay. On these

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grounds, she seeks to dismiss the application and, consequently, the appeal.

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Learned AGA supports the contention of learned counsel for the respondent Nos.1 and 3 and also relies upon the same judgments in contending that there is inordinate delay and no proper reasons or grounds are specified to condone the delay, and hence the application deserves to be dismissed.

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I have heard learned counsel for the appellant

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and learned counsel for the respondents.

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Admittedly, the appeal is preferred under Section 37 of the Arbitration Act. Though, unlike Section 34, there can be an application filed under Section 5 of the Limitation Act to consider the appeal preferred under Section 37 of the Arbitration Act. But, however, there is a catch which is stipulated in the filing of the appeal, as the same would have to be filed within the time limit specified for filing the appeals. If at all there is any delay, sufficient

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cause and cogent reasons are to be shown and explained

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for condonation of such delay and if the Court is satisfied with such sufficient cause and cogent reasons which are not negligent or deliberate, the same could be condoned

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on the facts and circumstances of each case. In the present case admittedly, there is a delay of 1162 days. Therefore, the onus lies heavy on the appellant to show what is the reason for having not filed the appeal within the time limit for filing the appeal and whether any sufficient cause is shown, for the inordinate delay.

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On a bare perusal of the affidavit annexed to

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the application, it is only paragraph No.3 that speaks about the reasons for condonation of delay and the cause for delay. On careful perusal of the said paragraph, it is seen that apart from stating that the appellant had undergone locomotor disability i.e., contracture of right elbow with right claw hand and that he is depending upon

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the agricultural income to maintain his livelihood and he would be put to hardship and inconvenience for having no

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source of income other than the agricultural activities. No explanation is provided as to why there was a delay in the filing of the appeal. It is also relevant to see that the appellant has not produced any document in support of his contentions or the averments made in the application. Therefore, it is apparently clear that there is no sufficient cause, cogent reasons or any reason for that matter that could impress upon this Court to even consider this appeal, as there are no cogent reasons specified to condone the delay.

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Apparently, the appellant has taken a very casual approach in filing the appeal, and there being an inordinate huge delay of 1162 days and no cautious approach by the appellant in filing the appeal within the statutory time limit prescribed for filing an appeal, the appellant cannot be permitted to canvass or plead for condonation of such delay when he has not shown any diligence in filing the appeal within a reasonable time. Whether this is a fit case to declare that it is a negligent

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act on behalf of the appellant in not filing the appeal within

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the prescribed time limit or within a reasonable time beyond the time prescribed. No doubt Section 5 of the Limitation Act could be invoked when an appeal is filed under Section 37. But again, as stated earlier, sufficient cause and bona fide reasons to the satisfaction of this Court would have to be explained and huge delay would have to be explained, which is not forthcoming in the present application or affidavit. Under the circumstances, I am in agreement with learned counsel for the respondent. The judgments relied by her are aptly applicable to the present case on hand. Under the circumstances when the Hon'ble Apex Court has clearly stated in the case of Esha Bhattacharjee V/s Managing Committee of

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Raghunathpur nafar Academy and others reported in (2013) 12 SCC 649 "When a person sleeps like a Kumbhakarna and does not exhaust his remedy to file an appeal within the proper time, he shall not be given the

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