Dismissed

Ismail v. Arbitrator N H a I Collector District Haridwar

Uttarakhand HC5 Mar 2022AO/10/2022

Case brief

AI extract

What is this about?

High Court rejected delay condonation applications filed by appellants challenging District Judge's arbitration settlement order. Court held 551 days delay in filing appeals under Section 37 of Arbitration Act was not condonable as explanation was not sufficient per Supreme Court precedent.

What did the court decide?

Delay condonation applications rejected; all appeals dismissed.

Ismail Vs Arbitrator N H a I Collector District Haridwar — Arbitration | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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ON THE 5^TH DAY OF MARCH, 2022

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BEFORE:

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HON’BLE SHRI JUSTICE MANOJ K. TIWARI Delay Condonation Application No. 1 of 2022 IN

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APPEAL FROM ORDER No. 9 of 2022

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BETWEEN:

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Jishan Ali … Appellant

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AND:

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Arbitrator NHAI/Collector … Respondents

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Petitioners

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(By Mr. Siddhartha Singh and Mr. P.S. Bisht, Advocates)

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Respondents

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(By Mr. Raunak Pant, Advocate holding brief of Mr. Naresh Pant, Advocate)

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With

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Delay Condonation Application No. 1 of 2022 In

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Appeal From Order No. 10 of 2022

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With Delay Condonation Application No. 1 of 2022 In

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Appeal From Order No. 11 of 2022 With Delay Condonation Application No. 1 of 2022 In

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Appeal From Order No. 12 of 2022

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With Delay Condonation Application No. 1 of 2022 In

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Appeal From Order No. 15 of 2022 With

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Delay Condonation Application No. 1 of 2022 In

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Appeal From Order No. 16 of 2022

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With

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Delay Condonation Application No. 1 of 2022 In

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Appeal From Order No. 18 of 2022

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JUDGMENT

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1. These appeals have been filed under Section 37 of Arbitration and Conciliation Act, 1996, challenging the orders passed by learned District Judge, Haridwar. By the impugned orders, objection filed by appellants under Section 34 of the said Act were decided, in terms of settlement entered into between the parties. There is considerable delay in filing these appeals and condonation of delay has been sought in all the appeals. The extent of delay in these appeals, as per office report, is as under:-

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(i)	A.O. No. 09 of 2022	Delay-551 days
(ii)	A.O. No. 10 of 2022	Delay-1317 days.
(iii)	A.O. No. 11 of 2022	Delay -1261 days
(iv)	A.O. No. 12 of 2022	Delay-658 days
(v)	AO No. 15 of 2022	Delay-1223 days
(vi)	A.O. No. 16 of 2022	Delay-658 days
(vii)	A.O. No. 18 of 2022	Delay-1303 days

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2. Since the explanation for delay given in the delay condonation applications filed in all these appeals is the same, therefore, the applications filed under Section 5 of Limitation Act in these appeals are heard and decided together. However, for the sake of brevity, facts of A.O. No. 09 of 2022 alone are being considered, in which there is least delay of 551 days.

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3. In this appeal, challenge is to final order dated 14.09.2018 passed by learned District Judge, Haridwar in Misc. Application No. 40 of 2012. By the said order, appellants’ objection under Section 34 of Arbitration and Conciliation Act, 1996 was decided, based on a compromise between the parties.

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4. Learned counsel appearing for the appellants submitted that appellants were entitled to solatium and interest, in terms of judgment rendered in the case of Union of India and another v. Tarsem Singh and others, reported in (2019) 9 SCC 304, in which Hon’ble Supreme Court declared that provisions of the Land Acquisition Act, relating to solatium and interest contained under Section 23(1A) and (2) and interest payable in terms of s ection 2 8 proviso, will apply to acquisitions made under the N ational Highways Act. Thus, according to him, learned District Judge erred in not granting solatium and interest to the appellants.

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5. Perusal of the record reveals that Competent Authority, Land Acquisition, vide order dated 04.12.2010 had made a determination that appellant is entitled to compensation at the rate of 558/- per square meter. The Arbitrator enhanced rate of compensation to 980.97/- per square meter.

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6. Before learned District Judge in proceedings under Section 34 of Arbitration and Conciliation Act, an application was made on behalf of appellants that they have entered into a settlement with opposite party pursuant to which they are ready to accept compensation at the rate of ` 1,450/- per square meter, which will be in addition to other benefits mentioned in the compromise deed.

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7. In his deposition before learned District Judge, appellant no. 1 stated that appellants have arrived at a settlement with National Highways

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Authority of India, therefore, their objection under Section 34 of the aforesaid Act can be decided in terms of the settlement. Accordingly, learned District Judge decided the objection filed by appellants, in terms of settlement, vide order dated 14.09.2018.

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8. Learned counsel for the appellants submits that appellants had given their acceptance for higher rate of compensation, but their signatures/thumb impressions were fraudulently obtained by mentioning much less amount in the compromise deed. Thus, according to him, the order passed by learned District Judge deserves to be set-aside, as it is based on a compromise, which was fraudulently obtained from the appellants. He further submits that appellants are entitled to solatium and interest, which has been denied to them. He further submits that appellants’ claim was alive on 28.03.2008, which is the cut-off date indicated by Hon’ble Supreme Court in the case of Sunita Mehra v. Union of India, reported in (2019) 17 SCC 642.

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9. At this stage, this Court is considering delay condonation applications only and the contentions raised by learned counsel for the appellants are concerning merits of the case, therefore, these submissions have no relevance for decision on applications under Section 5 of Limitation Act filed by appellants.

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10. As per office report, in this appeal there is delay of 551 days, excluding the period between 15.03.2020 to 02.10.2021 in terms of order passed by

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Hon’ble Supreme Court in Suo Moto W.P. (Civil) No. 03 of 2020.

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11. In the affidavit filed in support of delay condonation application, it is contended that since no limitation period has been prescribed in Arbitration and Conciliation Act, 1996 for appeal under Section 37 of the Act, therefore, by virtue of Article 137 of Indian Limitation Act, the appeal would be in time upto 3 years, i.e., 13.09.2021. It is further stated that the appellants are rustic persons, who are not familiar with limitation aspect and the fraud played upon them was unearthed recently, thus, question of delay/laches does not arise, as fraud vitiates all solemn proceedings. It is further stated that in November, 2019, worldwide news of spread of COVID-19 Pandemic was there and in the meantime, this Court closed on account of Dusshera & Deepawali holidays and thereafter Court was closed due to winter vacation and after re-opening of the Court, appellant no. 1 tried to seek advice from local lawyers of Haridwar regarding judgment rendered in the case of Union of India & another v. Tarsem Singh & others, but satisfactory advice was not given to him. It is further stated that in the meantime, COVID-19 hit the country and due to lockdown imposed by the Government, movement became restricted. It is further stated that, after consulting High Court lawyer at Nainital, appellant no. 1 returned to Haridwar and on 23.10.2021, he applied for certified copy of compromise and the order passed by learned District Judge, which were supplied to him, on 27.10.2021.

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12. The explanation given in the delay condonation application does not appear to be plausible. The order impugned in this appeal was passed on 14.09.2018. Lockdown was imposed in the third week of March, 2020 and there is no explanation regarding the steps taken by appellants, between 14.09.2018 till imposition of lockdown. Steps taken after lifting of lockdown have also not been indicated. What they did after 27.10.2021, when certified copies were delivered to them is also not indicated. For filing appeal after expiry of limitation period, appellants are required to give day-to-day explanation for the delay caused in the matter and only then delay in filing appeal can be condoned. Having regard to the explanation given by the appellants, it cannot be termed as ‘satisfactory’. At any rate, it cannot be treated as sufficient cause for condoning the delay caused in filing the appeal.

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13. In the case of Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited, reported in (2021) 6 SCC 460, Hon’ble Supreme Court has held that for appeals filed under Section 37 of the Arbitration 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 and in SLP (C) No. 15278 of 2020 decided by the said judgment, condonation of delay of 75 days by High Court was set-aside by holding that explanation offered for delay falls woefully short of making out any

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sufficient cause. Para no. 63 of the aforesaid judgment is reproduced below:-

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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 s ection 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.”

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14. Learned counsel for the appellants submits that while considering delay condonation application, a liberal and justice oriented approach should be adopted. The said submission may be valid in respect of other proceedings, however, in view of the law of the land laid down in the case of Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited, the said contention cannot be accepted in respect of proceedings under Arbitration & Conciliation Act, 1996.

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15. Since there is no sufficient cause given for condoning delay of 551 days, therefore, the delay condonation application filed in A.O. No. 09 of 2021 is rejected.

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16. Since in other appeals also, same explanation has been given for condoning delay in filing the

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appeals, consequently, the delay condonation applications filed in other appeals are also rejected.

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