Allowed

Tvrcpl Hnbepl(Jv) v. Coimbatore City Municipal Corporation

Madras HC18 Sept 2024CMP/20065/2024

Case brief

AI extract

What is this about?

Court allowed the Civil Miscellaneous Petition for condonation of delay in an Arbitration appeal under Section 37, relying on the Borse principle. The application was granted due to bona fides, short delay, and the operational nature of a cross-appeal by the opposite party.

What did the court decide?

Condonation of delay prayer in the Civil Miscellaneous Petition allowed subject to payment of Rs. 10,000/- to the Court Clerks Welfare Association.

Tvrcpl Hnbepl(Jv) Vs Coimbatore City Municipal Corporation — Arbitration | Madras HC (2024)

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C.M.P.No.20065 of 2024

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C.M.P.No.20065 of 2024

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Arb.Appeal SR.No.93793 of 2024 (Filing Number)

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M.SUNDAR, J., and

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K.GOVINDARAJAN THILAKAVADI, J.,

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[Order of the Court was made by M.SUNDAR. J.,]

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Read this in conjunction with and in continuation of earlier

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proceedings made in previous listing on 11.09.2024 which reads as

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follows:

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'C.M.P.No.20065 of 2024

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Arb.Appeal SR.No.93793 of 2024

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(Filing Number)

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M.SUNDAR,J.,

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and

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R.SAKTHIVEL, J.,

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[Order of the Court was made by M.SUNDAR. J.,]

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Captioned 'Civil Miscellaneous Petition'

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{hereinafter 'CMP' for the sake of brevity} has been filed

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https://www.mhc.tn.gov.in/judis

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C.M.P.No.20065 of 2024

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with 'Condonation of Delay' {'CoD'} prayer qua 80 days.

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2. Captioned main appeal is one under Section 37

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of 'The Arbitration and Conciliation Act, 1996 (Act 26 of

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1996)' (hereinafter 'A and C Act' for the sake of convenience and clarity).

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3. In the light of Borse principle [ Government of

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Maharashtra (Water Resources Department) Vs. M/s.Borse Brothers Engineers & Contractors Pvt. Ltd., reported in (2021) 6 SCC 460 ] Mr.S.R.Raghunathan, learned counsel on record for petitioner requests for a short accommodation to examine the position and revert

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to this Court. Request acceded to.

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List one week hence. List on 18.09.2024.'

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Today, Mr.S.R.Raghunathan, learned counsel on record for

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petitioner along with Mr.K.V.Karthik Subramanian, adverting to

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afore-referred earlier proceedings dated 11.09.2024 submitted that

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paragraph No.63 of Borse principle comes to his rescue. To be noted,

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C.M.P.No.20065 of 2024

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paragraph No.63 of Borse principle reads as follows:

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'63. Given the aforesaid and the object of speedy

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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

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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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This 'Commercial Appellate Division' {'CAD' for the sake of

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https://www.mhc.tn.gov.in/judis

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C.M.P.No.20065 of 2024

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brevity} for completion of narrative, deems it appropriate to write that in

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NV International case law {N.V. International Vs. State of Assam and others reported in (2020) 2 SCC 109} , rendered on 06.12.2019 a two Judge Bench of Hon'ble Supreme Court (after referring to earlier order of another two Judge Bench in Varindera case being Union of India Vs. Varindera Constructions Limited reported in (2020) 2 SCC 111 rendered on 17.09.2018) held that delay beyond condonable cap / period post prescribed period is not condonable as regards Section 37 appeals as in Section 34 petitions. Subsequently, in Borse principle rendered by a three Judge Bench on 19.03.2021, NV International case law was held to be not laying down correct principle and that it did not notice the provision of 'The Commercial Courts Act, 2015 [Act 4 of 2016]' {hereinafter 'CCA' for the sake of brevity} at all. To put it differently, Borse principle laid down that NV International case law is per

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C.M.P.No.20065 of 2024

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incuriam

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incuriam in this aspect of the matter i.e., CCA aspect. It is in this

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context, the aforementioned paragraph No.63 of Borse principle was rendered.

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We find twin conditions in paragraph No.63 of Borse principle,

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(a) whether the delay is short, party has been bona fide and not negligent

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and (b) the position of opposite party.

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As regards the reason for delay, adverting to support affidavit,

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learned counsel for petitioner submitted that the petitioner is in

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Hyderabad, the original litigation was in Coimbatore, the appeal is in

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Chennai and this has caused the delay. Paragraph No.3 of the support

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affidavit was adverted to. As regards the opposite party, R2 has already

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filed an appeal against the same impugned order vide C.M.A.No.1888 of

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2024, the same is admitted, notice has been issued on 31.07.2024, an

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interim order has been granted and the same is operating. R1 and R3

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C.M.P.No.20065 of 2024

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being parties to this CMA are no differently placed.

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Issue notice.

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Mr.N.Umapathi, learned standing counsel accepts notice for R1

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{Coimbatore City Municipal Corporation}, Mr.P.Giridharan, learned

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counsel, who is on 'Videoconferencing' platform {'VC'} accepts notice for

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R2 {HNB Engineers Private Limited} and Mr.Alladi Rahul, learned counsel accepts notice for R3 {TVR Constructions Private Limited}. To

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be noted, this is a Hybrid Hearing, which is a daily / regular / routine

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feature in this Court.

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Learned counsel for respondents agreed to have the CMP heard

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out without waiting for counter, considering the nature of the matter. Learned Standing Counsel for R1 submitted that the petitioner could have

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been diligent and as regards position of opposite party, it is a matter of

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record. As regards R2 and R3, both learned counsel submitted that they

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C.M.P.No.20065 of 2024

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are not opposing the CoD prayer. This submission is recorded.

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We carefully considered the submissions on either side as

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regards petitioner and R1. We find that the cause shown is acceptable in

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the facts and circumstances of the case, nature of the matter, the trajectory the matter has taken, the opposite party has also having filed an appeal against the same impugned order and interim order operating in favour of opposite party (R2).

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We also considered the position that when there are two

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appeals against the same impugned order and when they are in the nature

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of cross appeals, permitting only one appeal to have hearing in CAD and

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shutting the other at threshold may not be a ideal situation. This unique

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feature of this case also weighed in the mind of CAD in acceding to the

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CoD prayer. In the same breath, we add that this will not serve as a

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precedent for all and every case where paragraph No.63 of Borse

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C.M.P.No.20065 of 2024

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principle is resorted to. In other words, the cases where paragraph No.63

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of Borse principle is resorted to, will be tested on case to case basis on

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their own merits and in accordance with law.

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Prayer in captioned CMP is acceded to albeit with the

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aforementioned caveat.

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Captioned CMP is allowed / ordered as prayed for subject to

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payment of Rs.10,000/- in favour of Madras High Court Advocate Clerks

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Welfare Association, Chennai {Savings Bank Account No.484077244, IFSC No.IDIB000M157, Indian Bank, High Court Branch, Chennai-600

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104} and the same shall be paid by day-after-tomorrow i.e., 20.09.2024.

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List on 23.09.2024 under the cause list caption 'FOR REPORTING

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COMPLIANCE'.

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[M.S., J] [K.G.T., J] 18.09.2024

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C.M.P.No.20065 of 2024

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P.S. I: Upload forthwith

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P.S . II : All concerned to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are water marked, besides being QR Coded.

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M.SUNDAR, J., and

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K.GOVINDARAJAN THILAKAVADI, J.,

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C.M.P.No.20065 of 2024

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in Arb.Appeal SR.No.93793 of 2024 (Filing Number)

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