Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nKarnataka High Court\nNational Highways Authority Of ... vs Smt Meerashivalingaiah on 28 July, 2023Bench: H.P.Sandesh\n                               1\n\n\n\n       IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n           DATED THIS THE 28   TH\n                                    DAY OF JULY, 2023\n                                                            R\n                          BEFORE\n           THE HON'BLE MR. JUSTICE H.P. SANDESH\n                  M.F.A. NO.1402/2023 (AA)\nBETWEEN:\n\n1.     NATIONAL HIGHWAYS AUTHORITY OF INDIA\n       PROJECT IMPLEMENTATION UNIT-RAMANAGARA,\n       NEAR BASAVANAPURA\n       (RAMADEVARAPADA)\n       RAMANAGARA-562 128.\n       REP. BY ITS THE PROJECT\n       DIRECTOR B.T.SRIDHARA.\n\n2.     SPECIAL LAND ACQUISITION OFFICER\n       AND COMPETENT AUTHORITY, NH-275,\n       BANGALORE MYSORE DIVISION, MANDYA\n       (THE APPELLANT IS NECESSARY PARTY A\n       ND HENCE ARRAYED AS APPELLANT)\n                                                 ... APPELLANTS\n          (BY SRI PRAKASHA ANGADI B.V., ADVOCATE)\nAND:\n\n1.     SMT. MEERASHIVALINGAIAH\n       D/O S.T. NAGALAKSHMI\n       W/O B. SHIVALINGAIAH,\n       R/AT TAVEREGERE, MANDYA CITY.\n\n2.     THE ARBITRATOR AND\n       DEPUTY COMMISSIONER\n       MANDYA DISTRICT,\n       MANDYA.                                 ... RESPONDENTS\n\n       (BY SRI P.V.CHANDRASHEKAR, ADVOCATE FOR R1;\n         MRS.LEENA C. SHIVAPURMATH, HCGP FOR R2)\n                                2\n\n\n\n\n     THIS M.F.A. IS FILED UNDER SECTION 37(1)(C) OF THE\nARBITRATION AND CONCILIATION ACT, AGAINST THE ORDER\nDATED 30.03.2021 PASSED IN A.S.NO.1/2019 ON THE FILE OF\nTHE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANDYA,\nDISMISSING THE PETITION FILED UNDER SECTION 34 OF THE\nARBITRATION AND CONCILIATION ACT READ WITH ORDER VII\nRULE 1 OF CPC.\n\n    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR\nJUDGMENT   ON    12.07.2023 THIS  DAY, THE   COURT\nPRONOUNCED THE FOLLOWING:\n\n\n                        JUDGMENT\n\n     The appellants have filed an application under Section 5 of\n\nthe Limitation Act to condone the delay of 270 days in filing the\n\nabove appeal and in support of an application, an affidavit is\n\nsworn to that, the judgment passed by the Hon'ble District\n\nJudge, Mandya, is against the provisions of law and the\n\njudgment was passed on 30.3.2021 and a copy of the judgment\n\nwas sent for obtaining the legal opinion. After receipt of the\n\nopinion, it is observed that the impugned judgment passed was\n\nerroneous and it requires to be challenged and hence decided to\n\nchallenge the impugned order by filing the above appeal.\n                                     3\n      2. It is sworn to that, on account of the procedure involved\n\nin finalizing the papers and processing the same, there is a bit\n\ndelay in filing the above appeal and with an abundant caution,\n\nthe above application is filed for seeking condonation of delay.\n\n\n      3. This application is resisted by filing the statement of\n\nobjections   by   the   respondents     contending    that     the   very\n\napplication is not maintainable. In the statement of objections it\n\nis contended that admittedly the appeal is filed after the delay of\n\n605 days and no cogent reason is forthcoming for the said undue\n\ndelay. The only reason forthcoming is that matter was sent for\n\nlegal opinion and the file could not be found and could not be\n\ntraced, are not the cogent reasons. In fact, the reason assigned\n\nis, delay and latches on the part of the appellants. It is\n\ncontended that execution petition was filed in No.118/2022\n\nbefore the Principal District and Sessions Judge, Mandya and the\n\nappellants   have filed objections on 2.6.2022 stating that\n\nexecution    petition   was   not   maintainable     because    of   non\n\nfurnishing the conversion order and layout plan. Hence, it is\n\nclear that the appellants have accepted the judgment and decree\n                                 4\n\n\n\nof the District Judge and appellants had no plan to file the appeal\n\nand the present appeal is an after thought.\n\n\n      4. It   is also contended that the learned District Judge\n\ndismissed the arbitration suit incidentally relying upon the\n\ndecision of this Court in (H.M. SHANKARAMURTHY Vs.\n\nNATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in\n\n2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in\n\nthe case of M.P. Power Generation Co. Ltd. Vs. Anraldo\n\nEnergia SPA and another reported in SCC Online SC 385 as\n\nwell as Associate Builders Vs. Delhi Development Authority\n\nreported in AIR 2015 SC 620, and hence not made out any\n\nground to condone the delay and having the knowledge about\n\nthe execution, appeared and filed objection statement on\n\n2.6.2022 itself. The present appeal is filed in the year 2023, that\n\ntoo in the month of February and no explanation for the delay\n\nand hence delay cannot be condoned.\n\n\n      5. The counsel in support of his argument relied upon the\n\njudgment reported in (2021) 6 SCC 460 and referring this\n\njudgment the counsel would vehemently contend that Section 5\n 5\n\n\n\nof the Limitation Act is not maintainable in an appeal filed under\n\nSection 37 of the Arbitration and Conciliation Act, 1996\n\n(hereinafter referred to as the 'Act' for short). The counsel also\n\nrelied upon the judgment of this Court dated 23.2.2022 passed\n\nin M.F.A.No.201018/2018 (AA), wherein also this Court held that\n\nmaximum delay period is only 120 days and thereafter they\n\ncannot file an application to condone the delay and Section 5 of\n\nthe   Limitation   Act   cannot    be   invoked.   The    counsel   also\n\nvehemently    contend     that    the   judgment   of    this   Court   in\n\nBhimashankar        Sahakari       Sakkare    Karkhane          Niyamita\n\npassed in M.F.A.No.201018/2018 also affirmed by the Apex\n\nCourt in Civil Appeal No.6810/2022 vide order dated 10.4.2023\n\nand the Apex Court also comes to the conclusion that High Court\n\nhas not committed any error in rejecting the condonation of\n\ndelay application and hence the very application filed under\n\nSection 5 of the Limitation Act is not maintainable.\n\n\n      6. In reply to the arguments of the respondents counsel\n\nvehemently contend that Arbitration and Conciliation Act, 1996\n\nis clear with respect to an appeal under Section 37, no specific\n                                  6\n\n\n\nlimitation is mentioned and those judgments arising out of a suit\n\nis filed under 34 of the Act and in order to file an application for\n\nsetting aside the arbitral award under Section 34, specific\n\nlimitation is provided in Section itself and the same is not\n\napplicable to an appeal filed under Section 37 of the Act, Counsel\n\nalso brought to notice of this Court Section 43 of the Limitation\n\nAct, wherein Section 43 of the Limitation Act shall apply to\n\narbitration as it applies to proceedings in Court and Section\n\n43(3) is very clear that notwithstanding that the time so fixed\n\nhas expired, may on such terms, if any, as the justice of the\n\ncase may require, extend the time of such period, as it things\n\nproper. The counsel also would submit that the judgment of the\n\nApex Court in (2021)6 SCC 460 discussed with regard to the\n\napplication of Section 5 of the Limitation Act is applicable for\n\ncondonation of delay in filing the appeal under Section 37 of the\n\nAct, and Limitation Act is applicable. Hence, the very contention\n\nof the counsel for the respondents that the appellants cannot\n\ninvoke Section 5 of the Limitation Act, cannot be accepted.\n                                  7\n      7. Having heard the appellants' counsel and also the\n\ncounsel appearing for the respondents and also the grounds\n\nurged in the application and the statement of objections, the\n\npoints that would arise for consideration of this Court are:\n\n      i)     Whether Section 5 of the Limitation Act can be\n             invoked in an appeal filed under Section 37 of the\n             Arbitration and Conciliation Act, 1996 to condone the\n             delay?\n      ii)    Whether the appellants have made out the ground\n             and sufficient cause to condone the delay?\n      iii)   What order?\n      Point No.1: Having heard the respective counsel, the\n\nmain contention of the respondents counsel that the maximum\n\nperiod of limitation is 90 days and additional 30 days, in all 120\n\ndays is provided under the Act itself to file an appeal.\n\n\n      8. Admittedly, this appeal is filed against the dismissal of\n\nthe suit filed under Section 34 of the Act confirming the award of\n\nthe Arbitrator and hence, the present appeal is filed under\n\nSection 37 of the Act.\n                                  8\n      9. No doubt, the judgments of this Court and the Apex\n\nCourt in the     case   of Bhimashankar Sahakari Sakkare\n\nKarkhane Niyamita arising out of dismissing the suit filed\n\nunder Section 34 of the Act on the ground of Condonation of\n\ndelay and Apex Court also comes to the conclusion that High\n\nCourt has not committed any error in dismissing the appeal in\n\ncoming to the conclusion that the maximum period allowed to\n\nfile the appeal is within 120 days. Having perused Section 34 of\n\nthe Act, when an application for setting aside of arbitral award, it\n\nis clear that recourse to a Court under an arbitral award may be\n\nmade only by an application for setting aside such award, in\n\naccordance with sub-sections (2) and (3) of Section 34 of the\n\nAct. The grounds also set out to challenge the same and the\n\nproviso under Section 34(3) of the Act is very clear that an\n\napplication for setting aside may not be made after three months\n\nhave elapsed from the date on which the party making that\n\napplication had received the arbitral award or, if a request had\n\nbeen made under Section 33, from the date on which that\n\nrequest had been disposed of by the arbitral tribunal and further\n\nproviso is made that if the Court is satisfied that the applicant\n                                 9\n\n\n\nwas prevented by sufficient cause from making the application\n\nwithin the said period of three months, it may entertain the\n\napplication within a further period of thirty days, but not\n\nthereafter.\n\n\n      10. Reading of sub-clause (3) of Section 34 of the Act and\n\nalso further proviso, the maximum period is 120 days and the\n\nvery statue itself makes clear that it could be challenged within\n\nthree months and thereafter also after 30 days, in total 120 days\n\nand no dispute with regard to the fact that the principles laid\n\ndown in the judgment of this Court as well as the Apex Court\n\nreferred supra, the maximum period is 120 days, wherein the\n\nappeal was not entertained, since an application was filed before\n\nthe District Court under Section 34 of the Act, since there was a\n\ndelay of more than 120 days and hence, the same is dismissed.\n\n\n      11. But in the case on hand, application filed under Section\n\n34 of the Act was considered and decided the same on merits\n\nand dismissed, thereafter an appeal is filed under Section 37 of\n\nthe Act. This Court would like to extract Section 37 of the Act as\n\nbelow:\n                                 10\n            37. Appealable orders.-(1) Notwithstanding\n      anything contained in any other law for the time\n      being in force, an appeal shall lie from the following\n      orders (and from no others) to the Court authorizes\n      bylaw to hear appeals from original decrees of the\n      Court passing the order, namely:-\n\n            (a) refusing to refer the parties to arbitration\n      under Section 8;\n            (b) granting or refusing to grant any measure\n      under section 9;\n            (c) setting aside or refusing to set aside an\n      arbitral award under section 34.\n            (2) An appeal shall also lie to a Court from an\n      order of the arbitral-\n            (a) accepting the plea referred to in sub-\n      section(2) or sub-section(3) of Section 16; or\n            (b) granting or refusing to grant an interim\n      measure under section 17.\n            (3) No second appeal shall lie from an order\n      passed in appeal under this section, but nothing in\n      this section shall affect or take away any right to\n      appeal to the Supreme Court.\n\nand also this Court would like to extract Section 43 of the Act\n\nwith regard to the limitation as below:-\n                                     11\n        43. Limitation.- (1) The Limitation Act, 1963,\nshall    apply        to    arbitrations      as    it    applies    to\nproceedings in Court.\n        (2) For the purposes of this section and the\nLimitation Act, 1963, an arbitration shall be deemed\nto have commenced on the date referred in Section\n21.\n        (3) Where an arbitration agreement to submit\nfuture disputes to arbitration provides that any\nclaim to which the agreement applies shall be\nbarred unless some step to commence arbitral\nproceedings is taken within a time fixed by the\nagreement, and a dispute arises to which the\nagreement applies, the Court, if it is of opinion that\nin the circumstances of the case undue hardship\nwould otherwise be caused, and notwithstanding\nthat the time so fixed Having heard the respective\ncounsel and also on perusal of the material available\non record, expired, may on such terms, if any, as\nthe justice of the case may require, extend the time\nfor such period as it thinks proper.\n        (4) where the Court orders that an arbitral\naward     be     set       aside,   the    period        between    the\ncommencement of the arbitration and the date of\nthe     order    of    the     Court      shall    be    excluded    in\ncomputing the time prescribed by the Limitation Act,\n                                 12\n\n\n\n       1963, for the commencement of the proceedings\n       (including arbitration) with respect to the dispute so\n       submitted."\n\n\n      12. Having considered Section 37-1(c) of the Act, it is clear\n\nthat, setting aside or refusing to set aside the arbitral award\n\nunder Section 34 of the Act and an appeal lies where an order is\n\npassed under Section 34. But no any exclusion of Section 5 of\n\nthe Limitation Act, but in Section 34 it is very clear that the\n\nmaximum period provided is 90 + 30 days, in all 120 days, but\n\nno specific limitation is made provided under Section 37 of the\n\nAct while filing an appeal.\n\n\n      13. Having read Section 43 of the Act, it is very clear that\n\nLimitation Act, 1963 shall apply to arbitrations as it applies to\n\nproceedings in Court and further sub-clause (3) is very clear\n\nthat, where an arbitration agreement to submit future disputes\n\nto arbitration provides that any claim to which the agreement\n\napplies shall be barred unless some step to commence arbitral\n\nproceedings is taken within a time fixed by the agreement, and a\n\ndispute arises to which the agreement applies, the Court, if it is\n                                 13\n\n\n\nof opinion that in the circumstances of the case undue hardship\n\nwould otherwise be caused, and notwithstanding that the time so\n\nfixed has expired, may on such terms, if any, as the justice of\n\nthe case may require, extend the time for such period as it\n\nthinks proper.\n\n      Sub-clause (4) is also very clear that where the Court\n\norders that an arbitral award be set aside, the period between\n\ncommencement of the arbitration and the date of the order of\n\nthe Court shall be excluded in computing the time prescribed by\n\nthe Limitation Act, 1963, for the commencement of the\n\nproceedings (including arbitration) with respect to the dispute so\n\nsubmitted. Hence it is clear that, Limitation Act, 1963 shall\n\napply to arbitration as it applies to proceedings in the Court.\n\n\n      14. The Apex Court also in the judgment referred by the\n\nrespondents' counsel himself in the case of Government of\n\nMaharashtra (Water Resources Department) represented\n\nby Executive Engineer Vs. Borse Brothers Engineers and\n\nContractors Private Limited with regard to Section 37,\n\nlimitation period for filing appeal under Section 37 of the Act,\n                                14\n\n\n\nboth in respect of cases falling under Commercial Courts Act as\n\nwell as the Arbitration and Conciliation Act, 1996, in respect of\n\ncases not falling under Commercial Courts Act, formulated the\n\npoint with regard to Section 5 of the Limitation Act. Since issues\n\ninvolved in the appeal, whether limitation period for filing an\n\nappeal under Section 37 of the Act, would governed by limitation\n\nperiod provided under Section 34 of the Act, or limitation period\n\nprescribed under Article 137 of the Limitation Act or limitation\n\nperiod prescribed under Articles 116 and 117 of the Limitation\n\nAct or limitation period prescribed under Section 131-A of the\n\nCommercial Courts Act, 2015.\n\n\n      15. The third issue was framed whether delay in filing the\n\nappeal under Section 37 of the Act, can be condoned and if so,\n\nto what extent and whether application under Section 5 of the\n\nLimitation Act to condone the delay in filing the appeal under\n\nSection 37 of the Act, is excluded by the scheme of the\n\nCommercial Court's Act. The Apex Court having considered these\n\nissues held that Section 37 of the Act, when read with Section 43\n\nthereof, makes it clear that the provisions of the Limitation Act\n                                15\n\n\n\nwill apply to appeals that are filed under Section 37 of the Act.\n\nThis takes us to Articles 116 and 117 of the Limitation Act, which\n\nprovides for a limitation period of 90+30 days, depending upon\n\nwhether the appeal is from any other Court to a High Court or a\n\nintra-High Court Appeal, there can be no doubt whatsoever that\n\nSection 5 of the Limitation Act will apply to the aforesaid\n\nappeals, both by virtue of Section 43 of the Act and by virtue of\n\nSection 29(2) of the Limitation Act and the same is also\n\nreiterated in paragraph 23. Paragraph 23 of the judgment\n\nreferred supra is extracted here below:\n\n            "23. Section 37 of the Arbitration Act, when\n      read with Section 43 thereof, makes it clear that the\n      provisions of the Limitation Act will apply to appeals\n      that are filed under Section 37. This takes us to\n      Articles 116 and 117 of the Limitation Act, which\n      provide for a limitation period of 90 days and 30\n      days depending upon whether the appeal is from\n      any other court to a High Court or an intra-High\n      Court appeal. There can be no doubt whatsoever\n      that Section 5 of the Limitation Act will apply to the\n      aforesaid appeals, both by virrtue of Section 43 of\n      the Arbitration Act and by virtue of Section 29(2) of\n      the Limitation Act."\n                                   16\n       16. Having read Section 37 of the Act, no limitation is\n\nprescribed to file an appeal as in case of an application to be\n\nfiled under Section 34 of the Act, wherein specific limitation is\n\nprovided for three months + 30 days, total 120 days. But no\n\nsuch specific limitation is provided in Section 37 of the Act for\n\nfiling an appeal and also Section 43 of the Act, which I have\n\nextracted above, is also very clear that the provisions of the\n\nLimitation Act will apply to appeals that are filed under Section\n\n37 of the Act. Hence, the judgments which have been relied\n\nupon   by   the   counsel   for   the   respondents,   Bhimashankar\n\nSahakari Sakkare Karkhane Niyamita, wherein challenge was\n\nmade only with regard to Section 34 of the Act and limitation as\n\nprovided in the very Section itself, but not in an appeal and\n\nSection 43 of the Act makes it clear that the provisions of the\n\nLimitation Act will apply to appeals that are filed under Section\n\n37 of the Act and Apex Court having discussed the same and\n\neven framing the issues involved between the parties in the said\n\nappeal also, in paragraph 23 which has been extracted is very\n\nclear that there can be no doubt whatsoever that Section 5 of\n                                17\n\n\n\nthe Limitation Act will apply to the aforesaid appeals, both by\n\nvirtue of Section 43 of the Arbitration Act and by virtue of\n\nSection 29(2) of the Limitation Act and hence, I do not find any\n\nforce in the contention of the respondents' counsel that Section\n\n5 of the Limitation Act cannot be invoked and hence, I held that\n\nSection 5 of the Limitation Act could be invoked while filing an\n\nappeal under Section 37 of the Act and hence, I answer the point\n\nNo.1 as affirmative.\n\n\n      Point No.2: Now the question before this Court is with\n\nregard to, whether sufficient cause has been shown by the\n\nappellants to condone the delay?\n\n\n      17. The Apex Court also in the judgment referred supra in\n\nGovernment of Maharashtra case also discussed the same with\n\nregard to sufficient cause,, wherein held that Government is\n\ninvolved a different yardstick for condonation of delay cannot be\n\nlaid down and hence it is clear that the Court cannot show any\n\nlenience even if Government is involved in the litigation and also\n\nheld that it was open for the High Court to condone the delay\n\napplying Section 5 of the Limitation Act, 1963 and whether the\n                                  18\n\n\n\nappellants have made out the ground to condone the delay and\n\nthen this Court has to consider the reason assigned in the\n\napplication and reason assigned in the application is that when\n\nthe judgment was passed on 30.3.2021 and after receiving the\n\njudgment and decree passed by the Court and the same was\n\nsent for obtaining legal opinion and after receipt of the opinion, it\n\nwas opined that judgment passed was erroneous and appeal\n\nrequires to be challenged and for finalizing the same in taking\n\nopinion, delay was occurred and it is stated that there is a bit\n\ndelay in filing the above appeal. In the case on hand, there was\n\na delay of 605 days as contended by the respondents and it is\n\nalso the contention that no cogent reason is forthcoming for the\n\nsaid undue delay. But records reveals that judgment was passed\n\non 30.3.2021 and by that time S.O.P. was prevailing in view of\n\nthe Covid-19, but it is calculated as delay of 270 days. But\n\nreason assigned in the application is that while getting the\n\nopinion there was a delay and affidavit is not specific, when the\n\ncopy was obtained and also when the papers were sent for legal\n\nopinion and on what date opinion was received, but affidavit is\n\nvery vague and nothing is mentioned in the application and also\n                                     19\n\n\n\nit   is   important   to   note   that   in   the   objection   statement\n\nrespondents took the specific contention that when the award\n\nwas not satisfied, they have filed execution petition which was\n\nnumbered as 118/2022 before the Hon'ble District and Sessions\n\nJudge, Mandya and also it has to be noted that the appellants\n\nhave filed objections on 2.6.2022 stating that execution petition\n\nwas not maintainable because of not furnishing the conversion\n\norder and layout plan and hence it is clear that appellants were\n\nalso having knowledge of filing of the execution petition and they\n\nhave filed statement of objections on 2.6.2022 itself and even\n\nthen they have not filed any appeal immediately and the present\n\nappeal is filed on 23.2.2023, almost after eight months of filing\n\nof statement of objections in the execution petition by the\n\nappellants themselves and having perused the order, the\n\narbitration award was confirmed by the District Court. When the\n\nappellants participated in the arbitration proceedings initiated\n\nunder Section 34 of Arbitration and Conciliation Act and order\n\nwas passed on 30.3.2021, almost one year 11 months was taken\n\nto file the appeal and reason was not assigned except stating\n\nthat there was a delay in getting the opinion. The Apex Court in\n                                    20\n\n\n\nthe judgment referred supra itself held with regard to the\n\nsufficient cause is concerned, merely because the Government is\n\ninvolved, a different yardstick for condonation of delay cannot be\n\nlaid down. In the case on hand, no doubt the appeal is filed by\n\nNational Highway Authority and there was no need to take\n\nopinion for a period of two years and apart from that even\n\nappellants had the knowledge about filing of execution petition\n\nand in    the   said   execution   petition participated and filed\n\nstatement of objections on 2.6.2022 itself and even immediately\n\nafter filing statement of objections appeal was not filed.\n\n\n      18. Having perused the certified copy of the order it is\n\nclear that though the judgment was passed on 30.3.2021,\n\ncertified copy was obtained on 2.3.2023 and no material is\n\nplaced on what date earlier certified copy was taken and sent to\n\nthe Department for opinion and nothing is stated in the affidavit\n\nand affidavit is very bald except stating that when the file was\n\nsent to opinion and opinion was given that order was not correct\n\nand it requires challenge and when that opinion was given is also\n\nnot stated in the affidavit, only bald affidavit is filed in paragraph\n                                 21\n\n\n\nNo.4 narrating the same that file was sent for opinion, after\n\nreceipt of the opinion decided to file an appeal and no sufficient\n\ncause is shown to condone the delay and hence, I do not find\n\nany reason to condone the delay and application deserves to be\n\ndismissed. Hence, I answer point No.2 as negative.\n\n\n      19. In view of the discussions made above, I pass the\n\nfollowing\n\n                             ORDER\n\n      I.A.No.1/2023 is dismissed,    since no sufficient cause is\n\nshown. However, made it clear that Section 5 of the Limitation\n\nAct could be invoked in an appeal filed under Section 37 of the\n\nArbitration and Conciliation Act.\n\n      Consequently, appeal is also dismissed.\n\n\n                                                   Sd/-\n                                                  JUDGE\n\n\nAP