GOVERNMENT OF MAHARASHTRA (WATER RESOURCES DEPARTMENT) REPRESENTED BY EXECUTIVE ENGINEER versus M/S BORSE BROTHERS ENGINEERS & CONTRACTORS PVT. LTD.

GOVERNMENT OF MAHARASHTRA (WATER RESOURCESDEPARTMENT) REPRESENTED BY EXECUTIVE ENGINEER

M/S BORSE BROTHERS ENGINEERS & CONTRACTORSPVT. LTD.

(Civil Appeal No. 995 of 2021)

MARCH 19, 2021

[R. F. NARIMAN, B. R. GAVAI AND HRISHIKESH ROY, JJ.]

Arbitration and Conciliation Act, 1996:s. 37 – CommercialCourts Act, 2015 – Appealable orders – Limitation period for filingappeal – Condonation of delay in filing appeal u/s. 37 – Held:Object of speedy disposal is sought to be achieved both under theArbitration Act and the CC Act, for appeals filed u/s. 37 of the1996 Act that are governed by Arts, 116 and 117 of the LimitationAct or s. 13(1A) of the CC Act – s. 13(1A) of the CC Act lays downa period of limitation of 60 days uniformly for all appeals that arepreferred u/s.37 of the Act – Delay beyond 90 days, 30 days or 60days, respectively, is to be condoned by way of exception and notby way of rule – In fit case in which party has acted bona fideand not in negligent manner, short delay can be condoned –Expression “sufficient cause” is not elastic enough to cover longdelays beyond the period provided by the appeal provision itself –Limitation Act, 1963 – Arts. 116 and 117.

Limitation Act, 1963: s. 5 – Application of s. 5, to appeals u/s. 37 of the 1996 Act and to s. 13(1A) of the CC Act – Held: s. 37when read with s. 43 thereof, makes it clear that the provisions ofthe Limitation Act would apply to appeals filed u/s. 37 – Appeal u/s. 37 where specified value within the meaning of the CC Act isbelow 3 lakhs, are governed by Arts. 116 and 117 – Arts. 116 and117 of the Limitation Act provide for limitation period of 90 daysand 30 days, for appeal to High Court or an intra-High Courtappeal – Thus, s. 5 of the Limitation Act would apply to the saidappeals, both by virtue of s. 43 of the 1996 Act and s. 29(2) of theLimitation Act – Arts. 116, 117, s. 29(2) – Commercial Courts Act,2015.

s. 5 – Application of, to appeals u/s. 13(1A) of the CC Actproviding uniform 60-day period of limitation – Held: middle

Acourse to be adopted between the N.V. International’s case whichdoes not allow condonation of delay beyond 30 days, and an open-ended provision in which any amount of delay can be condoned,provided sufficient cause is shown – Maxim ut res magis valeat quampereat-liberal construction should be put upon written instruments,to be followed – Commercial Courts Act, 2015.B

Constitution of India – Art. 141 – Binding precedent – N.V.International v. State of Assam’s case applied the provisions of s. 5of the Limitation Act and held that no condonation of delay couldtake place beyond 120 days – Whether the hard and fast rule appliedby this Court in N.V. International’s case, is correct in law – Held:CN.V. International’s case while determining limitation period for filingappeal u/s. 37 did not notice the provisions of the CC Act at all andcan be said to be per incuriam on this count - Period of 90 daysplus 30 days and not thereafter mentioned in s. 34(3) of the 1996Act cannot now apply, the limitation period for filing of appealsDunder the CC Act being 60 days and not 90 days – Thus, N.V.International’s case has been wrongly decided and is overruled –Arbitration and Conciliation Act, 1996 – ss. 37 and 34(3) –Commercial Courts Act, 2015.Disposing of the appeals, the CourtEHELD: 1.1 The requirement of an arbitral procedure whichis efficient and the minimising of the supervisory role of courts inarbitral process would certainly show that one of the mainobjectives of the Arbitration and Conciliation Act 1996is thespeedy disposal of disputes through the arbitral process. SectionF5 of the Arbitration Act is important. Section 37 of the ArbitrationAct, when read with section 43 thereof, makes it clear that theprovisions of the Limitation Act would apply to appeals that arefiled under section 37. Articles 116 and 117 of the Limitation Actprovide for limitation period of 90 days and 30 days, dependingupon whether the appeal is from any other court to High CourtGor an intra-High Court appeal. There can be no doubt whatsoeverthat section 5 of the Limitation Act would apply to the said appeals,both by virtue of section 43 of the Arbitration Act and by virtue ofsection 29(2) of the Limitation Act. [Para 15, 23][210-D-E; 222-C-E]H

Consolidated Engg. Enterprises v. Irrigation Deptt.(2008) 7 SCC 169 : [2008] 5 SCR 1108 – relied on.

1.2 When the Commercial Courts Act, 2015 is applied tothe said appeals, given the definition of “specified value” andthe provisions contained in sections 10 and 13 thereof, it is clearthat it is only when the specified value is for sum less thanthree lakh rupees that the appellate provision contained in section37 of the Arbitration Act would be governed, for the purposes oflimitation, by Articles 116 and 117 of the Limitation Act. Thesubmission that depending upon which court decides matter, alimitation period of either 30 or 90 days is provided, which leadsto arbitrary results, and that, therefore, the uniform periodprovided by Article 137 of the Limitation Act should governappeals as well, is rejected. It is settled that periods of limitationmust always to some extent be arbitrary and may result in somehardship, but this is no reason as to why they should not be strictlyfollowed. The submission that since no period of limitation hasbeen provided in section 37 of the Arbitration Act, as result ofwhich the neat division contained in the Limitation Act of differentmatters contained in suits, appeals and applications will somehowhave to be destroyed, the word “appeals” has to be read into“applications” so that Article 137 of the Limitation Act couldapply, is also rejected. [Para 24, 25][224-E-G; 225-D-E]

Boota Mal v. Union of India [1963] 1 SCR 70 –referred to.

1.3 Even in the rare situation in which an appeal undersection 37 of the Arbitration Act would be of specified valueless than three lakh rupees, resulting in Article 116 or 117 of theLimitation Act applying, the main object of the Arbitration Actrequiring speedy resolution of disputes would be the mostimportant principle to be applied when applications under section5 of the Limitation Act are filed to condone delay beyond 90 daysand/or 30 days depending upon whether Article 116(a) or 116(b)or 117 applies. As matter of fact, given the timelines containedin sections 8, 9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5)and 34(3) of the Arbitration Act, the object of speedy resolutionof disputes would govern appeals covered by Articles 116 and117 of the Limitation Act. Thus, from the scheme of the Arbitration

AAct, and the judgments given, condonation of delay under section5 of the Limitation Act has to be seen in the context of the objectof speedy resolution of disputes. [Para 26, 31][225-E-G; 228-C]

Union of India v. Popular Construction Co. (2001) 8SCC 470 : [2001] 3 Suppl. SCR 619; State of Goa v.BWestern Builders (2006) 6 SCC 239; Kandla ExportCorpn. v. OCI Corpn. (2018) 14 SCC 715 : [2018] 1SCR 915; ICOMM Tele Ltd. v. Punjab State WaterSupply and Sewerage Board (2019) 4 SCC 401 – reliedon.

C1.4 The bulk of appeals, however, to the appellate courtunder section 37 of the Arbitration Act, are governed by section13 of the Commercial Courts Act. Sub-section (1A) of section 13of the Commercial Courts Act provides the forum for appeals aswell as the limitation period to be followed, section 13 of theCommercial Courts Act being special law as compared with theDLimitation Act which is general law, which follows from readingof section 29(2) of the Limitation Act. Section 13(1A) of theCommercial Courts Act lays down period of limitation of 60days uniformly for all appeals that are preferred under section 37of the Arbitration Act. [Para 32][228-D-E]

EBGS SGS SOMA JV v. NHPC (2020) 4 SCC 234 –referred to.

1.5 Section 13(1A) of the Commercial Courts Act does notcontain any provision akin to section 34(3) of the Arbitration Act.Section 13(1A) of the Commercial Courts Act only provides for aFlimitation period of 60 days from the date of the judgment ororder appealed against, without further going into whether delaybeyond this period can or cannot be condoned. Though the objectof expeditious disposal of appeals is laid down in section 14 ofthe Commercial Courts Act, the language of section 14 makes itclear that the period of six months spoken of is directory and notGmandatory. By way of contrast, section 16 of the CommercialCourts Act read with the Schedule thereof and the amendmentmade to Order VIII Rule 1 of the CPC, would make it clear thatthe defendant in suit is given 30 days to file written statement,

which period cannot be extended beyond 120 days from the dateof service of the summons; and on expiry of the said period, thedefendant forfeits the right to file the written statement and thecourt cannot allow the written statement to be taken on record.By way of contrast, there is no such provision contained in section13 of the Commercial Courts Act. [Para 33, 34, 36][228-F-G; 229-A-B; 232-C]

1.6 There are no other provisions in the Commercial CourtsAct which provide for period of limitation coupled with acondonation of delay provision which is either open-ended orcapped. Also, the period of 180 days provided was one indiciawhich led the Court to exclude the application of section 5 of theLimitation Act, as it was double and triple the period providedfor appeals under the other provisions of the same Act. Section13(1A) of the Commercial Courts Act, by way of contrast, appliesan intermediate period of 60 days for filing an appeal, that is, aperiod that is halfway between 30 days and 90 days provided byArticles 116 and 117 of the Limitation Act. [Para 38][234-B-C]

CCE & Customs v. Hongo India (P) Ltd. (2009) 5 SCC791; Suryachakra Power Corpn. Ltd. v. ElectricityDeptt. (2016) 16 SCC 152 : [2016] 8 SCR 108; ONGCv. Gujarat Energy Transmission Corpn. Ltd. (2017) 5SCC 42 : [2017] 2 SCR 922 – distinguished.Salem Advocate Bar Assn. (II) v. Union of India (2005)6 SCC 344; SCG Contracts (India) (P) Ltd. v. K.S.Chamankar Infrastructure (P) Ltd. (2019) 12 SCC 210: [2019] 3 SCR 1050 – referred to.

1.7 Section 21 of the Commercial Courts Act was pressedinto service stating that the non-obstante clause contained in theCC Act would override other Acts, including the Limitation Act,as result of which, the applicability of section 5 thereof wouldbe excluded. Thus, the submission that the application of section5 of the Limitation Act is excluded given the scheme ofCommercial Courts Act, is rejected. [Para 40, 41][234-E-F; 235-D-E]

B.K. Educational Services (P) Ltd. v. Parag Gupta &Associates (2019) 11 SCC 633 : [2018] 12 SCR 794 –referred to.

A1.8 It was submitted as to whether the hard and fast ruleapplied by this Court in N.V. International’s case is correct in law.N.V. International’s case does not notice the provisions of theCommercial Courts Act at all and can be said to be per incuriamon this count. Secondly, it is also correct to note that the periodof 90 days plus 30 days and not thereafter mentioned in s. 34(3)Bof the Arbitration Act cannot now apply, the limitation period forfiling of appeals under the Commercial Courts Act being 60 daysand not 90 days. Thirdly, the submission that absent of provisioncurtailing the condonation of delay beyond the period providedin s. 13 of the Commercial Courts Act would also make it clearCthat any such bodily lifting of the last part of section 34(3) intosection 37 of the Arbitration Act would also be unwarranted. Itcannot be said that this is mere casus omissus which can befilled in by the Court. [Para 42][235-E-H]

1.9 The difference between interpretation and legislationDis sometimes fine one, as the judges do not merely interpretthe law but also create law. [Para 43][236-A]

Eera v. State (NCT of Delhi) (2017) 15 SCC 133 : [2017]7 SCR 924 – referred to.

1.10 It is littledifficult to appreciate how cap can beEjudicially engrafted onto astatutory provision which then barscondonation of delay by even one day beyond the cap soengrafted.[Para 47][238-A]

1.11 The submission that the limitation of power on civilcourt at the initial stage can be read as limitation onto theFappellate court, cannot be accepted. [Para 49][239-D-E]

Chandi Prasad v. Jagdish Prasad (2004) 8 SCC 724 :[2004] 4 Suppl. SCR 942; D. Purushotama Reddy v. K.Sateesh (2008) 8 SCC 505 : [2008] 11 SCR 738 –referred to.G

1.12 Reliance upon P. Radha Bai’s case on the doctrine ofunbreakability when applied tos. 34(3) of the Arbitration Act, alsodoes not carry the matter much further, as the question is whetherthis doctrine can be bodily lifted and engrafted onto an appeal

provision that has no cut-off point beyond which delay cannot becondoned. Thus, N.V. International’s case has been wronglydecided and is overruled. [Para 50][239-G-H; 240-A-B]

N.V. International v. State of Assam (2020) 2 SCC 109

– overruled.

P. Radha Bai v. P. Ashok Kumar (2019) 13 SCC 445 :

[2018] 12 SCR 143 – referred to.

1.13 The question still arises as to the application of section5 of the Limitation Act to appeals which are governed by uniform60-day period of limitation. At one extreme, there is N.V.International’s case which does not allow condonation of delaybeyond 30 days, and at the other extreme, there is an open-endedprovision in which any amount of delay can be condoned, providedsufficient cause is shown. It is between these two extremes thatthis Court have to steer middle course. One judicial tool tosteer this course is contained in the latin maxim ut res magisvaleat quam pereat- liberal construction should be put uponwritten instruments. [Para 51, 52] [240-B-E]

CIT v. Hindustan Bulk Carriers (2003) 3 SCC 57 :

[2002] 5 Suppl. SCR 387 – referred to.

1.14 Reading the Arbitration Act and the CommercialCourts Act as whole, it is clear that when section 37 of theArbitration Act is read with either Article 116 or 117 of theLimitation Act or section 13(1A) of the Commercial Courts Act,the object and context provided by the said statutes, read as awhole, is the speedy disposal of appeals filed under section 37 ofthe Arbitration Act. To read section 5 of the Limitation Actconsistently with the said object, it is necessary to discover as towhat the expression “sufficient cause” means in the context ofcondoning delay in filing appeals under section 37 of theArbitration Act. The expression “sufficient cause” contained insection 5 of the Limitation Act is elastic enough to yield differentresults depending upon the object and context of statute.[Para 53, 54] [242-B-D]

Ajmer Kaur v. State of Punjab (2004) 7 SCC 381 : [2004] 2Suppl. SCR 601; Brahampal v. National Insurance Company2020 SCC OnLine SC 1053 – referred to.

A1.15 Given the object sought to be achieved under boththe Arbitration Act and the Commercial Courts Act, that is, thespeedy resolution of disputes, the expression “sufficient cause”is not elastic enough to cover long delays beyond the periodprovided by the appeal provision itself. Besides, the expression“sufficient cause” is not itself loose panacea for the ill of pressingBnegligent and stale claims. Likewise, merely because thegovernment is involved, different yardstick for condonation ofdelay cannot be laid down. Also, merely because sufficient causehas been made out, there is no right in the appellant to havedelay condoned.[Para 56, 57, 60][246-B-C; 249-B; 251-F]

CBasawaraj v. Land Acquisition Officer (2013) 14 SCC81: [2013] 8 SCR 227; Postmaster General v. LivingMedia India Ltd. (2012) 3 SCC 563 : [2012] 1 SCR1045; State of Rajasthan v. Bal Kishan Mathur (2014)1 SCC 592 : [2013] 10 SCR 137; State of U.P. v. AmarDNath Yadav (2014) 2 SCC 422; State of T.N. v. N. SureshRajan (2014) 11 SCC 709 : [2014] 1 SCR 135; Stateof M.P. v. Bherulal (2020) 10 SCC 654; State of M.P. v.Chaitram Maywade (2020) 10 SCC 667; Ramlal v. RewaCoalfields Ltd. (1962) 2 SCR 762 – referred to.

E1.16 The object of speedy disposal sought to be achievedboth under the Arbitration Act and the Commercial Courts Act,for appeals filed under section 37 of the Arbitration Act that aregoverned by Articles 116 and 117 of the Limitation Act or section13(1A) of the Commercial Courts Act, delay beyond 90 days,30 days or 60 days, respectively, is to be condoned by way ofFexception and not by way of rule. In fit case in which party hasotherwise acted bona fide and not in negligent manner, shortdelay beyond such period can, in the discretion of the court, becondoned, always bearing in mind that the other side of thepicture is that the opposite party may have acquired both in equityGand justice, what may now be lost by the first party’s inaction,negligence or laches. [Para 61][252-E-F]

1.17 In the Civil Appeal arising out of SLP (C) No. 665 of2021, the impugned judgment of the High Court, the Govt ofMaharashtra had not approached the court bona fide. Apart from

this, there is long delay of 131 days beyond the 60- day periodprovided for filing an appeal under section 13(1A) of theCommercial Courts Act. There is no explanation worth the namecontained in the condonation of delay application, beyond theusual file-pushing and administrative exigency. [Para 62, 63][252-G; 253-C-D]

1.18 In the Civil Appeal arising out of SLP (C) No. 15278 of2020, the impugned judgment of the High Court relied uponConsolidated Engg.’s case and thereby stated that the judgmentof this Court in N.V. International’s case would not apply. Thejudgment of the High Court is wholly incorrect inasmuch asConsolidated Engg.’s case was judgment which applied theprovisions of section 14 of the Limitation Act and had nothing todo with the application of section 5 of the Limitation Act. N.V.International’s case was direct judgment which applied theprovisions of section 5 of the Limitation Act and then held thatno condonation of delay could take place beyond 120 days. TheHigh Court was bound to follow N.V. International’s case, as onthe date of the judgment of the High Court, N.V. International’scase was judgment of two judges of the Supreme Court bindingupon the High Court by virtue of Article 141 of the Constitution.On this score, the impugned judgment of the High Court is setaside. That apart, on the facts of this appeal, there is long delayof 75 days beyond the period of 60 days provided by theCommercial Courts Act. Despite the fact that certified copy ofthe District Court’s judgment was obtained by the respondenton 27.04.2019, the appeal was filed only on 09.09.2019. Thisexplanation for delay falls woefully short of making out anysufficient cause. The condonation of delay is set aside on thisscore also. [Para 64-66][253-D-H; 254-A-E]

1.19 In the Civil Appeal arising out of SLP (C) Diary No.18079 of 2020, there is huge delay of 227 days in filing theappeal, and 200-day delay in refiling. The facts of the case alsoshow that there was no sufficient cause whatsoever to condonesuch long delay. The judgment of the High Court cannot befaulted on this score. [Para 67][254-E-F]

Union of India v. Varindera Constructions Ltd. (2020)2 SCC 111 – referred to.

[2021] 3 S.C.R.

GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.ENG.R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 995 of2021.

From the Judgment and Order dated 17.12.2020 passed by theHigh Court of Judicature at Bombay Bench at Aurangabad in CivilApplication No. 421 of 2020 in Arbitration Petition (Stamp) no. 36068 of2019.

Ms. Aishwarya Bhati, ASG, Vinay Navare, Sr. Adv. SandeepSudhakar Deshmukh, Pravir Kumar Jain, Ameyavikrama Thanvi, AkshayAmritanshu, Ms. Ruchi Kohli, Prashant Singh, Arvind Kumar Sharma,Shashibhushan P. Adgaonkar, Vijay Patil, Ravibhushan P Adgaonkar,Gagandeep Sharma, Rana Sandeep Bussa, Amalpushp Shroti, Dr. AmitGeorge, Arunabha Ganguli, Guntur Pramod Kumar, Advs. for theappearing parties.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. Leave granted. Delay condoned in SLP (C) Diary No.18079 of2020.

2. The substantial question of law which arises in these appeals isas to whether the judgment of Division Bench of this Court in N.V.International v. State of Assam, (2020) 2 SCC 109 [“N.V.International”] lays down the law correctly. This Court followed itsearlier judgment in Union of India v. Varindera Constructions Ltd.,(2020) 2 SCC 111 [“Varindera Constructions”] and held as follows:

“3. Having heard the learned counsel for both sides, we mayobserve that the matter is no longer res integra. In Union of Indiav. Varindera Constructions Ltd. [Union of India v. VarinderaConstructions Ltd., (2020) 2 SCC 111] , this Court, by its judgmentand order dated 17-9-2018 [Union of India v. VarinderaConstructions Ltd., (2020) 2 SCC 111] held thus: (SCC p. 112,paras 1-5)

“1. Heard the learned counsel appearing for the parties.

2. By judgment dated 19-4-2018 in Union of India v.Varindera Constructions Ltd. [Union of India v. VarinderaConstructions Ltd., (2018) 7 SCC 794], this Court has in nearidentical facts and circumstances allowed the appeal of theUnion of India in proceeding arising from an arbitral award.

3. Ordinarily, we would have applied the said judgment to thiscase as well. However, we find that the impugned DivisionBench judgment dated 10-4-2013 [Union of India v. VarinderaConstructions Ltd., 2013 SCC OnLine Del 6511] has dismissedthe appeal filed by the Union of India on the ground of delay.The delay was found to be 142 days in filing the appeal and103 days in refiling the appeal. One of the important pointsmade by the Division Bench is that, apart from the fact thatthere is no sufficient cause made out in the grounds of delay,since Section 34 application has to be filed within maximumperiod of 120 days including the grace period of 30 days, anappeal filed from the selfsame proceeding under Section 37should be covered by the same drill.

4. Given the fact that an appellate proceeding is continuationof the original proceeding, as has been held in LachmeshwarPrasad Shukul v. Keshwar Lal Chaudhuri [LachmeshwarPrasad Shukul v. Keshwar Lal Chaudhuri, 1940 SCCOnLine FC 10 : AIR 1941 FC 5] , and repeatedly followed byour judgments, we feel that any delay beyond 120 days in thefiling of an appeal under Section 37 from an application beingeither dismissed or allowed under Section 34 of the Arbitrationand Conciliation Act, 1996 should not be allowed as it will defeatthe overall statutory purpose of arbitration proceedings beingdecided with utmost despatch.

5. In this view of the matter, since even the original appealwas filed with delay period of 142 days, we are not inclinedto entertain these special leave petitions on the facts of thisparticular case. The special leave petitions stand disposed ofaccordingly.

Pending applications, if any, also stand disposed of.”

4. We may only add that what we have done in the aforesaidjudgment is to add to the period of 90 days, which is provided by

GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.ENG.R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN]

statute for filing of appeals under Section 37 of the ArbitrationAct, grace period of 30 days under Section 5 of the LimitationAct by following Lachmeshwar Prasad Shukul [LachmeshwarPrasad Shukul v. Keshwar Lal Chaudhuri, 1940 SCC OnLineFC 10 : AIR 1941 FC 5] , as also having regard to the object ofspeedy resolution of all arbitral disputes which was uppermost inthe minds of the framers of the 1996 Act, and which has beenstrengthened from time to time by amendments made thereto.The present delay being beyond 120 days is not liable, therefore,to be condoned.”3. In two of the three appeals before us, i.e., Civil Appeal arisingout of SLP (C) No. 665 of 2021 and Civil Appeal arising out of SLP (C)Diary No.18079 of 2020, the High Courts of Bombay and Delhi videjudgments dated 17.12.2020 and 15.10.2019 respectively, dismissed theappeals filed by the Government of Maharashtra and by the Union ofIndia respectively, refusing to condone the delay in the filing of the appealunder section 37 of the Arbitration and Conciliation Act, 1996[“Arbitration Act”] beyond 120 days. So far as the Civil Appeal arisingout of SLP (C) No.15278 of 2020 is concerned, the High Court of MadhyaPradesh refused to follow the judgment of this Court in N.V.International (supra) stating that there is conflict between this judgmentand the judgment of larger Bench of this Court reported inConsolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC169 [“Consolidated Engg.”]. It was, therefore, held that it was openfor the High Court to condone the delay applying section 5 of the LimitationAct, 1963 [“Limitation Act”] and, as matter of fact, delay of whatwas stated to be 57 days was condoned.

4. Shri Sandeep Sudhakar Deshmukh, learned counsel appearingon behalf of the Government of Maharashtra (Water ResourcesDepartment) [“Govt of Maharashtra”], the appellant in Civil Appealarising out of SLP (C) No. 665 of 2021, submitted that the ArbitrationAct in its original avatar did not include the concept or idea of expeditiousresolution of disputes. At best, the Arbitration Act can be treated as amechanism providing for alternate dispute resolution. This originalobjective is continued by the Arbitration and Conciliation (Amendment)Act, 2015 [“2015 Amendment”] which provides time limit for arbitralawards and for fast track procedure contained in sections 29A and 29Bof the Arbitration Act. This being the case, the very foundation of N.V.

AInternational (supra) is erroneous in law. Shri Deshmukh also arguedthat section 37 of the Arbitration Act provides for appeals from severalorders, including orders made under sections 8, 9, 16 and 17, apart fromorders that may be made under section 34 of the Arbitration Act.According to him, the rationale or logic contained in N.V. International(supra) would perhaps apply only to appeals from section 34 orders, butBnot to orders that are passed under any of the other aforesaid sections,as there is no hard and fast application of 120-day limitation periodwhen it comes to applications that have been filed under any of thesesections.

5. Shri Deshmukh also argued that section 33 of the ArbitrationCAct contemplates correction and interpretation of an award, the arbitraltribunal being clothed with the power to extend time without there beingany outer limit. He also stated that vide section 29(2) of the LimitationAct, the period of limitation for filing applications under the ArbitrationAct would be governed by Article 137 of the Limitation Act, providingDfor much longer limitation period of three years. He further arguedthat Articles 116 and 117 of the Limitation Act provide different periodsof limitation, being 90 days and 30 days respectively. Since these differentprescribed periods lead to arbitrary results, the concept of an “appeal”would have to be read into the definition of the term “application” so thatthe “appeal” provision under section 37 of the Arbitration Act is uniformlyEgoverned by Article 137 of the Limitation Act, which would lead to auniform limitation period of three years. He also argued that to read theperiod of limitation contemplated under section 34(3) for an appeal filedunder section 37 of the Arbitration Act, would amount to judicial legislationdue to the absence of any period of limitation provided in section 37. HeFplaced reliance on large number of judgments citing cases where theLimitation Act had been held to be applicable to arbitration proceedingsand others in which it had not so been held. He also cited large numberof judgments on section 29(2) of the Limitation Act, relating to themeaning of “express exclusion” under the said section. He then citedjudgments on the applicability of Article 137 of the Limitation Act and aGjudgment which eschews judicial legislation.

6. Ms. Aishwarya Bhati, learned Additional Solicitor Generalappearing on behalf of the Union of India, the appellant in the Civil Appealarising out of SLP (C) Diary No. 18079 of 2020, read in detail theprovisions of the Commercial Courts Act, 2015 [“Commercial CourtsH

Act”] and referred to the two Law Commission Reports which led to itsenactment, namely the 188[th] Law Commission Report and the 253[rd]Law Commission Report. She then referred to this Court’s judgments inKandla Export Corpn. v. OCI Corpn., (2018) 14 SCC 715 [“KandlaExport Corpn”] and BGS SGS SOMA JV v. NHPC, (2020) 4 SCC234, dealing with the interplay between section 13 of the CommercialCourts Act and section 37 of the Arbitration Act. She argued that alimitation period of 60 days was laid down by section 13(1A) of theCommercial Courts Act, and though section 14 thereof commands thatan expeditious disposal of appeals take place within period of six monthsfrom the date of filing such appeal, neither of the two provisions boundappellate courts not to apply section 5 of the Limitation Act to relax theperiod of limitation in deserving cases. She also relied upon section 12Aof the Commercial Courts Act, which speaks of the Limitation Act in thecontext of the Commercial Courts Act. She then referred to section 16of the Commercial Courts Act read with the Schedule, and, in particular,the amendment made to Order VIII Rule 1 of the Code of CivilProcedure, 1908 [“CPC”] which closes the right of defence after acertain period of limitation is over, which is to be contrasted with section13 of the Commercial Courts Act, which contains no such provision.She then referred to judgments under different statutes such as theInsolvency and Bankruptcy Code, 2016 [“IBC”] and the Electricity Act,2003 in which section 5 of the Limitation Act becomes inapplicable byvirtue of either the scheme of the statute in question or by virtue of an“express exclusion” spoken of in section 29(2) of the Limitation Act.

7. Shri Amalpushp Shroti, learned counsel appearing for therespondents in the Civil Appeal arising out of SLP (C) No. 15278 of2020, broadly supported the arguments of Shri Deshmukh and Ms. Bhati,while citing certain other judgments to buttress the same submissions.

8. Shri Vinay Navare, learned Senior Advocate appearing for M/s Borse Brothers Engineers and Contractors Pvt. Ltd [“Borse Bros.”],the respondent in the Civil Appeal arising out of SLP (C) No. 665 of2021, was at pains to point out the conduct of the Govt of Maharashtraand added that if period of 60 days is to be reckoned under theCommercial Courts Act, the appeal filed by the Govt of Maharashtrawould be delayed by period of 131 days for which there is no explanationworthy of the name. He relied heavily on the impugned judgment of theHigh Court of Bombay which had also stated that though the certified

DEF

Acopy of the judgment was applied for and was ready by 27.05.2019, theGovt of Maharashtra wrongly mentioned that it received such copy onlyon 24.07.2019, as result of which the Govt of Maharashtra had notappeared before the High Court with clean hands.

9. Further, Shri Navare sought to answer Shri Deshmukh’sBsubmission that the rationale of N.V. International (supra) can andshould apply to an appeal filed against section 34 order, as severaldifferent appeal provisions were all bunched together in one section andcould have been the subject matter of different appellate provisionscontained in the very original proceeding that was sought to be appealedagainst. He, therefore, argued that the scheme contained in the ArbitrationCAct, insofar as appeals from section 8 applications are concerned, isthat it is only if section 8 application is refused that an appeal lies andnot otherwise, contrasting it with an appeal against section 34 order,which lies whether or not the court allows the section 34 application.Hence, according to the learned Senior Advocate, each appellate provisionDwould have its own rationale, appeals in the cases of section 8, 9, 16 and17 of the Arbitration Act allowing for sufficient cause to be shown beyondthe period of 30 days, as opposed to appeals filed under section 34,which ought to allow for sufficient cause being shown upto period of30 days, or else the whole object of section 34 would be destroyed. Hereferred to the Statement of Objects and Reasons of the Arbitration ActEand judgments to show that Shri Deshmukh’s submission that theArbitration Act provided only alternate dispute resolution and not speedydisposal was wholly incorrect. He also pointed out that specific timelinesare contained in several sections of the Arbitration Act such as sections9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5) and 34(3), to indicateFthat the object of speedy disposal was at the heart of the ArbitrationAct.

10. Shri Navare then relied upon the Commercial Courts Act andin particular, on sections 13(1A) and 14, to show that the whole object ofspeedy disposal of appeals contained in the Commercial Courts Act wouldGbe given go-bye if long periods of delay beyond 30 days are to becondoned, since the appeal itself has to be decided within period of sixmonths. He also cited number of judgments and supported the judgmentof this Court in N.V. International (supra) by arguing that judge is nothelpless when faced with provision which, when literally read, wouldresult in arbitrary and unjust orders being passed. He also referred toH

judgments where casus omissus could be supplied, which is what wasdone in N.V. International (supra).

11. Shri Manoj Chouhan, learned counsel appearing on behalf ofM/s Swastik Wires, the appellant in Civil Appeal arising out of SLP (C)No.15278 of 2020, supported the impugned judgment dated 27.01.2020of the High Court of Madhya Pradesh and argued that this Court’sjudgment in Consolidated Engg. (supra), being judgment of threelearned judges, would prevail over the judgment of this Court in N.V.International (supra), which is only delivered by two learned judgesand, therefore, delay can be condoned. He also added that once section5 of the Limitation Act applies, the Court cannot impose any limits on theexpression “sufficient cause” and even if there are long delays andsufficient cause is made out, such delays can be condoned. Further, heargued that this Court could use Article 142 of the Constitution, which isa veritable brahmâstra and panacea for all ills, to do justice in individualcases.12. Dr. Amit George, learned counsel appearing for M/s AssociatedConstruction Co., the respondent in the Civil Appeal arising out of SLP(C) Diary No. 18079 of 2020, argued that section 13 of the CommercialCourts Act, having regard to the object of speedy disposal sought to beachieved, excludes the application of section 5 of the Limitation Actaltogether. For this purpose, he relied heavily upon the judgment of thisCourt in Kandla Export Corpn (supra) and the judgment of this Courtin CCE & Customs v. Hongo India (P) Ltd., (2009) 5 SCC 791[“Hongo”] which dealt with section 35-H(1) of the Central Excise Act,1944 [“Central Excise Act”]. He also relied upon other judgmentswhich interpreted section 29(2) of the Limitation Act to state that thescheme of particular statute may make it clear that there is an “expressexclusion” of section 5 of the Limitation Act, which is the case under theCommercial Courts Act. He then relied strongly upon the judgment inN.V. International (supra) by supporting its logic and citing judgmentswhich would show that other sections of the Limitation Act were excludedin the context of section 34(3) of the Arbitration Act – such as sections4 and 17 of the Limitation Act. In any case, he argued that on factssufficient cause had not been made out, and that the judgment of theHigh Court of Delhi dated 15.10.2019 ought to be set aside on this groundalso.

DEF

13. The arguments that have been made in these appeals and thecase law cited have gone way beyond the narrow question which arisesbefore us. However, in dealing with these arguments, it is necessary tofirst set out the relevant statutory provisions contained in the three statutesthat have been strongly relied upon by either side in these appeals.

B14. First and foremost, the Arbitration Act has, in its Statement ofObjects and Reasons, the following:

“4. The main objectives of the Bill are as under:-

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C(ii) to make provision for an arbitral procedure which is fair,efficient and capable of meeting the needs of the specificarbitration;

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(v) to minimise the supervisory role of courts in the arbitral process”

15. As has correctly been pointed out by Shri Navare, therequirement of an arbitral procedure which is efficient and the minimisingof the supervisory role of courts in arbitral process would certainly showthat one of the main objectives of the Arbitration Act is the speedy disposalof disputes through the arbitral process. Section 5 of the Arbitration ActEis important and states :

“5. Extent of judicial intervention.—Notwithstanding anythingcontained in any other law for the time being in force, in mattersgoverned by this Part, no judicial authority shall intervene exceptwhere so provided in this Part.”

F16. The other relevant provisions of the Arbitration Act provideas follows:

“8. Power to refer parties to arbitration where there is anarbitration agreement.—

(1) judicial authority, before which an action is brought in amatter which is the subject of an arbitration agreement shall, if aparty to the arbitration agreement or any person claiming throughor under him, so applies not later than the date of submitting hisfirst statement on the substanceof the dispute, then,notwithstanding any judgment, decree or order of the Supreme

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Court or any Court, refer the parties to arbitration unless it findsthat prima facie no valid arbitration agreement exists.

(2) The application referred to in sub-section (1) shall not beentertained unless it is accompanied by the original arbitrationagreement or duly certified copy thereof: 2 [Provided that wherethe original arbitration agreement or certified copy thereof isnot available with the party applying for reference to arbitrationunder sub-section (1), and the said agreement or certified copy isretained by the other party to that agreement, then, the party soapplying shall file such application along with copy of thearbitration agreement and petition praying the Court to call uponthe other party to produce the original arbitration agreement or itsduly certified copy before that Court.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority,an arbitration may be commenced or continued and an arbitralaward made.”

“9. Interim measures, etc., by Court.—

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(2) Where, before the commencement of the arbitral proceedings,a Court passes an order for any interim measure of protectionunder sub-section (1), the arbitral proceedings shall be commencedwithin period of ninety days from the date of such order or”within such further time as the Court may determine.

“11. Appointment of arbitrators.—

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(4) If the appointment procedure in sub-section (3) applies and—

(a) party fails to appoint an arbitrator within thirty daysfrom the receipt of request to do so from the other party; or

(b) the two appointed arbitrators fail to agree on the thirdarbitrator within thirty days from the date of their appointment,

the appointment shall be made, upon request of party, by theSupreme Court or, as the case may be, the High Court or anyperson or institution designated by such Court;

Axxx xxx xxx

(13) An application made under this section for appointment of anarbitrator or arbitrators shall be disposed of by the Supreme Courtor the High Court or the person or institution designated by suchCourt, as the case maybe, as expeditiously as possibleand anendeavour shall be made to dispose of the matter within periodof sixty days from the date of service of notice on the oppositeparty”

“13. Challenge procedure.—

(1) Subject to sub-section (4), the parties are free to agree on aCprocedure for challenging an arbitrator.

(2) Failing any agreement referred to in sub-section (1), partywho intends to challenge an arbitrator shall, within fifteen daysafter becoming aware of the constitution of the arbitral tribunal orafter becoming aware of any circumstances referred to in sub-Dsection(3) of section 12, send written statement of the reasonsfor the challenge to the arbitral tribunal.

(3) Unless the arbitrator challenged under sub-section (2)withdraws from his office or the other party agrees to the challenge,the arbitral tribunal shall decide on the challenge.

(4) If challenge under any procedure agreed upon by the partiesor under the procedure under subsection (2) is not successful, thearbitral tribunal shall continue the arbitral proceedings and makean arbitral award.

(5) Where an arbitral award is made under sub-section (4), theFparty challenging the arbitrator may make an application for settingaside such an arbitral award in accordance with section 34.

(6) Where an arbitral award is set aside on an application madeunder sub-section (5), the Court may decide as to whether thearbitrator who is challenged is entitled to any fees.”

“16. Competence of arbitral tribunal to rule on itsjurisdiction.—

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(2) plea that the arbitral tribunal does not have jurisdiction shallHbe raised not later than the submission of the statement of defence;

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however, party shall not be precluded from raising such pleamerely because that he has appointed, or participated in theappointment of, an arbitrator.”

“29A. Time limit for arbitral award.—

(1)The award in matters other than international commercialarbitration shall be made by the arbitral tribunal within period oftwelve monthsfrom the date of completion of pleadings undersub-section (4) of section 23:

Provided that the award in the matter of international commercialarbitration may be made as expeditiously as possible and endeavormay be made to dispose of the matter within period of twelvemonths from the date of completion of pleadings under sub-section(4) of section 23.

(2) If the award is made within period of six monthsfrom thedate the arbitral tribunal enters upon the reference, the arbitraltribunal shall be entitled to receive such amount of additional feesas the parties may agree.

(3) The parties may, by consent, extend the period specified insub-section (1) for making award for further period not exceedingsix months.

-(4) If the award is not made within the period specified in subsection (1) or the extended period specified under sub-section(3), the mandate of the arbitrator(s) shall terminateunless theCourt has, either prior to or after the expiry of the period sospecified, extended the period:

Provided that while extending the period under this sub-section, ifthe Court finds that the proceedings have been delayed for thereasons attributable to the arbitral tribunal, then, it may orderreduction of fees of arbitrator(s) by not exceeding five per cent.for each month of such delay.

Provided further that where an application under sub-section (5)is pending, the mandate of the arbitrator shall continue till thedisposal of the said application:

Provided also that the arbitrator shall be given an opportunity ofbeing heard before the fees is reduced.

(5) The extension of period referred to in sub-section (4) may beon the application of any of the parties and may be granted onlyfor sufficient cause and on such terms and conditions as may beimposed by the Court.

(6) While extending the period referred to in sub-section (4), itshall be open to the Court to substitute one or all of the arbitratorsand if one or all of the arbitrators are substituted, the arbitralproceedings shall continue from the stage already reached and onthe basis of the evidence and material already on record, and thearbitrator(s)appointed under this section shall be deemed to havereceived the said evidence and material.

(7) In the event of arbitrator(s) being appointed under this section,the arbitral tribunal thus reconstituted shall be deemed to be incontinuation of the previously appointed arbitral tribunal.

(8) It shall be open to the Court to impose actual or exemplarycosts upon any of the parties under this section.

-(9) An application filed under subsection (5) shall be disposed ofby the Court as expeditiously as possible and endeavour shall bemade to dispose of the matter within period of sixty days fromthe date of service of notice on the opposite party”

“29B. Fast track procedure.—

(1) Notwithstanding anything contained in this Act, the parties toan arbitration agreement, may, at any stage either before or at thetime of appointment of the arbitral tribunal, agree in writing tohave their dispute resolved by fast track procedure specified insub-section (3).

(2) The parties to the arbitration agreement, while agreeing forresolution of dispute by fast track procedure, may agree that thearbitral tribunal shall consist of sole arbitrator who shall be chosenby the parties.

(3) The arbitral tribunal shall follow the following procedure whileconducting arbitration proceedings under sub-section (1):—

(a) The arbitral tribunal shall decide the dispute on the basisof written pleadings, documents and submissions filed by the partieswithout any oral hearing;

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(b) The arbitral tribunal shall have power to call for anyfurther information or clarification from the parties in addition tothe pleadings and documents filed by them;

(c) An oral hearing may be held only, if, all the parties makea request or if the arbitral tribunal considers it necessary to haveoral hearing for clarifying certain issues;

(d) The arbitral tribunal may dispense with any technicalformalities, if an oral hearing is held, and adopt such procedure asdeemed appropriate for expeditious disposal of the case.

(4) The award under this section shall be made within period ofsix months from the date the arbitral tribunal enters upon thereference.

(5) If the award is not made within the period specified in sub-section (4), the provisions of subsections (3) to (9) of section 29Ashall apply to the proceedings.

(6) The fees payable to the arbitrator and the manner of paymentof the fees shall be such as may be agreed between the arbitratorand the parties.”

“33. Correction and interpretation of award; additionalaward.—

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(3) The arbitral tribunal may correct any error of the type referredto in clause (a) of sub-section (1), on its own initiative, withinthirty daysfrom the date of the arbitral award.

(4) Unless otherwise agreed by the parties, party with notice tothe other party, may request, within thirty days from the receipt ofthe arbitral award, the arbitral tribunal to make an additional arbitralaward as to claims presented in the arbitral proceedings but omittedfrom the arbitral award.

(5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral awardwithin sixty days from the receipt of such request.”

“34. Application for setting aside arbitral award.—

xxx xxx xxx

A(3) An application for setting aside may not be made after threemonths have elapsed from the date on which the party makingthat application had received the arbitral award or, if requesthad been made under section 33, from the date on which thatrequest had been disposed of by the arbitral tribunal:

BProvided that if the Court is satisfied that the applicant wasprevented by sufficient cause from making the application withinthe said period of three months it may entertain the applicationwithin further period of thirty days, but not thereafter.”

“37. Appealable orders.—

(1) Notwithstanding anything contained in any other law for thetime being in force, an appeal shall lie from the following orders(and from no others) to the Court authorised by law to hear appealsfrom original decrees of the Court passing the order, namely:—

(a) refusing to refer the parties to arbitration under section 8;

(b) granting or refusing to grant any measure under section 9;(c) setting aside or refusing to set aside an arbitral award undersection 34.

(2) Appeal shall also lie to court from an order of the arbitralEtribunal—

(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure undersection 17.

(3) No second appeal shall lie from an order passed in appealunder this section, but nothing in this section shall affect ortakeaway any right to appeal to the Supreme Court.”

“43. Limitations.—G(1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrationsas it applies to proceedings in court.

(2) For the purposes of this section and the Limitation Act, 1963(36 of 1963),an arbitration shall be deemed to have commencedon the date referred to in section 21.

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(3) Where an arbitration agreement to submit future disputes toarbitration provides that any claim to which the agreement appliesshall be barred unless some step to commence arbitral proceedingsis taken within time fixed by the agreement, and dispute arisesto which the agreement applies, the Court, if it is of opinion that inthe circumstances of the case undue hardship would otherwisebe caused, and notwithstanding that the time so fixed has expired,may on such terms, if any, as the justice of the case may require,extend the time for such period as it thinks proper.

(4) Where the Court orders that an arbitral award be set aside,the period between the commencement of the arbitration and thedate of the order of the Court shall be excluded in computing thetime prescribed by the Limitation Act, 1963 (36 of 1963),for thecommencement of the proceedings (including arbitration) withrespect to the dispute so submitted.”

17. So far as the Limitation Act is concerned, sections 5 and 29(2)read as follows:

“5. Extension of prescribed period in certain cases.—Anyappeal or any application, other than an application under any ofthe provisions of Order XXI of the Code of Civil Procedure, 1908(5 of 1908), may be admitted after the prescribed period if theappellant or the applicant satisfies the court that he had sufficientcause for not preferring the appeal or making the application withinsuch period. Explanation.—The fact that the appellant or theapplicant was missed by any order, practice or judgment of theHigh Court in ascertaining or computing the prescribed periodmay be sufficient cause within the meaning of this section.”

“29. Savings.—

xxx xxx xxx

(2) Where any special or local law prescribes for any suit, appealor application period of limitation different from the periodprescribed by the Schedule, the provisions of section 3 shall applyas if such period were the period prescribed by the Schedule andfor the purpose of determining any period of limitation prescribedfor any suit, appeal or application by any special or local law, theprovisions contained in sections 4 to 24 (inclusive) shall apply only

218SUPREME COURT REPORTS

Ain so far as, and to the extent to which, they are not expresslyexcluded by such special or local law.”

18. Further, the relevant Articles of the Schedule provide as follows:

“THE SCHEDULE

B(PERIODS OF LIMITATION)

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19. The Commercial Courts Act states, in its Statement of Objectsand Reasons, the following:

“STATEMENT OF OBJECTS AND REASONSF

The proposal to provide for speedy disposal of high valuecommercial disputes has been under consideration of theGovernment for quite some time. The high vlaue commercialdisputes involve complex facts and question of law. Therefore,there is need to provide for an independent mechanism for theirGearly resolution. Early resolution of commercial disputes shallcreate positive image to the investor world about the independentand responsive Indian legal system.”

“6. It is proposed to introduced the Commercial Courts,Commercial Division and Commercial Appellate Division of High

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Courts Bill, 2015 to replace the Commercial Courts, CommercialDivision and Commercial Appellate Division of High CourtsOrdinance, 2015 which inter alia, provides for the followingnamely:—

xxx xxx xxx

(v) to amend the Code of Civil Procedure, 1908 as applicableto the Commercial Courts and Commercial Divisions which shallprevail over the existing High Courts Rules and other provisionsof the Code of Civil Procedure, 1908 so as to improve theefficiency and reduce delays in disposal of commercial cases.

7. The proposed Bill shall accelerate economic growth, improvethe international image of the Indian Justice delivery system, andthe faith of the investor world in the legal culture of the nation.”

20. Section 2(1)(i) of the Commercial Courts Act defines “specifiedvalue” as follows:

“2. Definitions.—(1) In this Act, unless the context otherwiserequires,––

xxx xxx xxx

(i) “Specified Value”, in relation to commercial dispute, shallmean the value of the subject-matter in respect of suit asdetermined in accordance with section 12 which shall not be lessthan three lakh rupees or such higher value, as may be notified bythe Central Government.”

21. Chapter II of the Commercial Courts Act sets up commercialcourts, commercial appellate courts, commercial divisions and commercialappellate divisions. So far as arbitration is concerned, section 10 isimportant and states as follows:

“10. Jurisdiction in respect of arbitration matters.—Wherethe subject-matter of an arbitration is commercial dispute of aSpecified Value and––

(1) If such arbitration is an international commercial arbitration,all applications or appeals arising out of such arbitration under theprovisions of the Arbitration and Conciliation Act, 1996 (26 of1996) that have been filed in High Court, shall be heard and

Adisposed of by the Commercial Division where such CommercialDivision has been constituted in such High Court.

(2) If such arbitration is other than an international commercialarbitration, all applications or appeals arising out of such arbitrationunder the provisions of the Arbitration and Conciliation Act, 1996B(26 of 1996) that have been filed on the original side of the HighCourt, shall be heard and disposed of by the Commercial Divisionwhere such Commercial Division has been constituted in suchHigh Court.

(3) If such arbitration is other than an international commercialCarbitration, all applications or appeals arising out of such arbitrationunder the provisions of the Arbitration and Conciliation Act, 1996(26 of 1996) that would ordinarily lie before any principal civilcourt of original jurisdiction in district (not being High Court)shall be filed in, and heard and disposed of by the CommercialCourt exercising territorial jurisdiction over such arbitration whereDsuch Commercial Court has been constituted.22. The other relevant provisions of the Commercial Courts Actare set out as follows:

“13. Appeals from decrees of Commercial Courts andCommercial Divisions.—E

(1) Any person aggrieved by the judgment or order of aCommercial Court below the level of District Judge may appealto the Commercial Appellate Court within period of sixty daysfrom the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of aCommercial Court at the level of District Judge exercising originalcivil jurisdiction or, as the case may be, Commercial Division of aHigh Court may appeal to the Commercial Appellate Division ofthat High Court within period of sixty days from the date of thejudgment or order:

Provided that an appeal shall lie from such orders passed by aCommercial Division or Commercial Court that are specificallyenumerated under Order XLIII of the Code of Civil Procedure,1908 (5 of 1908) as amended by this Act and section 37 of theArbitration and Conciliation Act, 1996 (26 of 1996).

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(2) Notwithstanding anything contained in any other law for thetime being in force or Letters Patent of High Court, no appealshall lie from any order or decree of Commercial Division orCommercial Court otherwise than in accordance with theprovisions of this Act.

14. Expeditious disposal of appeals.—The CommercialAppellate Court and the Commercial Appellate Division shallendeavour to dispose of appeals filed before it within period ofsix months from the date of filing of such appeal.”

“16. Amendments to the Code of Civil Procedure, 1908 inits application to commercial disputes.—

(1) The provisions of the Code of Civil Procedure, 1908 (5 of1908) shall, in their application to any suit in respect of commercialdispute of Specified Value, stand amended in the manner asspecified in the Schedule.

(2) The Commercial Division and Commercial Court shall followthe provisions of the Code of Civil Procedure, 1908 (5 of 1908),as amended by this Act, in the trial of suit in respect of acommercial dispute of Specified Value.

(3) Where any provision of any Rule of the jurisdictional HighCourt or any amendment to the Code of Civil Procedure, 1908 (5of 1908), by the State Government is in conflict with the provisionsof the Code of Civil Procedure, 1908 (5 of 1908), as amended bythis Act, the provisions of the Code of Civil Procedure as amendedby this Act shall prevail.”

“21. Act to have overriding effect.—Save as otherwiseprovided, the provisions of this Act shall have effect,notwithstanding anything inconsistent therewith contained in anyother law for the time being in force or in any instrument havingeffect by virtue of any law for the time being in force other thanthis Act.”

“SCHEDULE

4. Amendment of First Schedule.—In the First Schedule tothe Code,––

xxx xxx xxx

(D) in Order VIII,–– (i) in Rule 1, for the proviso, the followingproviso shall be substituted, namely:––

“Provided that where the defendant fails to file the writtenstatement within the said period of thirty days, he shall be allowedto file the written statement on such other day, as may be specifiedby the Court, for reasons to be recorded in writing and on paymentof such costs as the Court deems fit, but which shall not be laterthan one hundred twenty days from the date of service of summonsand on expiry of one hundred twenty days from the date of serviceof summons, the defendant shall forfeit the right to file the writtenstatement and the Court shall not allow the written statement tobe taken on record.”;”

23. Section 37 of the Arbitration Act, when read with section 43thereof, makes it clear that the provisions of the Limitation Act will applyto appeals that are filed under section 37. This takes us to Articles 116and 117 of the Limitation Act, which provide for limitation period of 90Ddays and 30 days, depending upon whether the appeal is from any othercourt to High Court or an intra-High Court appeal. There can be nodoubt whatsoever that section 5 of the Limitation Act will apply to theaforesaid appeals, both by virtue of section 43 of the Arbitration Act andby virtue of section 29(2) of the Limitation Act. This aspect of the matterEhas been set out in the concurring judgment of Raveendran, J. inConsolidated Engg. (supra), as follows:

“40. Let me next refer to the relevant provisions of the LimitationAct. Section 3 of the Limitation Act provides for the bar oflimitation. It provides that subject to the provisions contained inFSections 4 to 24 (inclusive), every suit instituted, appeal preferred,and application made after the prescribed period shall bedismissed although limitation has not been set up as defence.“Prescribed period” means that period of limitation computedin accordance with the provisions of the Limitation Act. “Periodof limitation” means the period of limitation prescribed for anyGsuit, appeal or application by the Schedule to the Limitation Act[vide Section 2(j) of the said Act]. Section 29 of the LimitationAct relates to savings. Sub-section (2) thereof which is relevantis extracted below:

“29. (2) Where any special or local law prescribes for any suit,appeal or application period of limitation different from the

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period prescribed by the Schedule, the provisions of Section 3shall apply as if such period were the period prescribed by theSchedule and for the purpose of determining any period oflimitation prescribed for any suit, appeal or application by anyspecial or local law, the provisions contained in Sections 4 to24 (inclusive) shall apply only insofar as, and to the extent towhich, they are not expressly excluded by such special or locallaw.”

41. Article 116 of the Schedule prescribes the period of limitationfor appeals to the High Court (90 days) and appeals to any othercourt (30 days) under the Code of Civil Procedure, 1908. It isnow well settled that the words “appeals under the Code of CivilProcedure, 1908” occurring in Article 116 refer not only to appealspreferred under the Code of Civil Procedure, 1908, but also toappeals, where the procedure for filing of such appeals and powersof the court for dealing with such appeals are governed by theCode of Civil Procedure. (See decision of the Constitution Benchin Vidyacharan Shukla v. Khubchand Baghel [AIR 1964 SC1099] .) Article 119(b) of the Schedule prescribes the period oflimitation for filing an application (under the Arbitration Act, 1940),for setting aside an award, as thirty days from the date of serviceof notice of filing of the award.

42. The AC Act is no doubt, special law, consolidating andamending the law relating to arbitration and matters connectedtherewith or incidental thereto. The AC Act does not prescribethe period of limitation, for various proceedings under that Act,except where it intends to prescribe period different from whatis prescribed in the Limitation Act. On the other hand, Section 43makes the provisions of the Limitation Act, 1963 applicable toproceedings—both in court and in arbitration—under the AC Act.There is also no express exclusion of application of any provisionof the Limitation Act to proceedings under the AC Act, but thereare some specific departures from the general provisions of theLimitation Act, as for example, the proviso to Section 34(3) andsub-sections (2) to (4) of Section 43 of the AC Act.43. Where the Schedule to the Limitation Act prescribes periodof limitation for appeals or applications to any court, and the specialor local law provides for filing of appeals and applications to the

Acourt, but does not prescribe any period of limitation in regard tosuch appeals or applications, the period of limitation prescribed inthe Schedule to the Limitation Act will apply to such appeals orapplications and consequently, the provisions of Sections 4 to 24will also apply. Where the special or local law prescribes for anyappeal or application, period of limitation different from the periodBprescribed by the Schedule to the Limitation Act, then the provisionsof Section 29(2) will be attracted. In that event, the provisions ofSection 3 of the Limitation Act will apply, as if the period oflimitation prescribed under the special law was the periodprescribed by the Schedule to the Limitation Act, and for theCpurpose of determining any period of limitation prescribed for theappeal or application by the special law, the provisions containedin Sections 4 to 24 will apply to the extent to which they are notexpressly excluded by such special law. The object of Section29(2) is to ensure that the principles contained in Sections 4 to 24of the Limitation Act apply to suits, appeals and applications filedDin court under special or local laws also, even if it prescribes aperiod of limitation different from what is prescribed in theLimitation Act, except to the extent of express exclusion of theapplication of any or all of those provisions.”

24. When the Commercial Courts Act is applied to the aforesaidEappeals, given the definition of “specified value” and the provisionscontained in sections 10 and 13 thereof, it is clear that it is only when thespecified value is for sum less than three lakh rupees that the appellateprovision contained in section 37 of the Arbitration Act will be governed,for the purposes of limitation, by Articles 116 and 117 of the LimitationFAct. Shri Deshmukh’s argument that depending upon which court decidesa matter, limitation period of either 30 or 90 days is provided, whichleads to arbitrary results, and that, therefore, the uniform period providedby Article 137 of the Limitation Act should govern appeals as well, isrejected. It is settled that periods of limitation must always to some extent

be arbitrary and may result in some hardship, but this is no reason as toGwhy they should not be strictly followed. In Boota Mal v. Union ofIndia, (1963) 1 SCR 70, this Court referred to this aspect of the case,as follows:

“Ordinarily, the words of statute have to be given their strictgrammatical meaning and equitable considerations are out of place,H

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particularly in provisions of law limiting the period of limitation forfiling suits or legal proceedings. This was laid down by the PrivyCouncil in two decisions in Nagendranath v. Suresh [AIR(1932)PC 165] and General Accident Fire and Life AssuranceCorporation Limited v. Janmahomed Abdul Rahim [AIR (1941)PC 6] . In the first case the Privy Council observed that “thefixation of periods of limitation must always be to some extentarbitrary and may frequently result in hardship. But in construingsuch provisions equitable considerations are out of place, and thestrict grammatical meaning of the words is the only safe guide”.In the latter case it was observed that “a limitation Act ought toreceive such construction as the language in its plain meaningimports … Great hardship may occasionally be caused by statutesof limitation in cases of poverty, distress and ignorance of rights,yet the statutory rules must be enforced according to their ordinarymeaning in these and in other like cases”.”

(pages 74-75)

25. Shri Deshmukh’s other argument that since no period oflimitation has been provided in section 37 of the Arbitration Act, as aresult of which the neat division contained in the Limitation Act of differentmatters contained in suits, appeals and applications will somehow haveto be destroyed, the word “appeals” has to be read into “applications” sothat Article 137 of the Limitation Act could apply, is also rejected.

26. Even in the rare situation in which an appeal under section 37of the Arbitration Act would be of specified value less than three lakhrupees, resulting in Article 116 or 117 of the Limitation Act applying, themain object of the Arbitration Act requiring speedy resolution of disputeswould be the most important principle to be applied when applicationsunder section 5 of the Limitation Act are filed to condone delay beyond90 days and/or 30 days depending upon whether Article 116(a) or 116(b)or 117 applies. As matter of fact, given the timelines contained insections 8, 9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5) and 34(3)of the Arbitration Act, and the observations made in some of this Court’sjudgments, the object of speedy resolution of disputes would governappeals covered by Articles 116 and 117 of the Limitation Act.

27. This Court in Union of India v. Popular Construction Co.,(2001) 8 SCC 470, put it thus:

ABC

A“14. Here the history and scheme of the 1996 Act support theconclusion that the time-limit prescribed under Section 34 tochallenge an award is absolute and unextendible by court underSection 5 of the Limitation Act. The Arbitration and ConciliationBill, 1995 which preceded the 1996 Act stated as one of its mainobjectives the need “to minimise the supervisory role of courts inBthe arbitral process” [ Para 4(v) of the Statement of Objects andReasons of the Arbitration and Conciliation Act, 1996] . Thisobjective has found expression in Section 5 of the Act whichprescribes the extent of judicial intervention in no uncertain terms:

“5. Extent of judicial intervention.— NotwithstandingCanything contained in any other law for the time being in force,in matters governed by this Part, no judicial authority shallintervene except where so provided in this Part.”

15. The “Part” referred to in Section 5 is Part I of the 1996 Actwhich deals with domestic arbitrations. Section 34 is contained inDPart I and is therefore subject to the sweep of the prohibitioncontained in Section 5 of the 1996 Act.”

28. Likewise, in State of Goa v. Western Builders, (2006) 6SCC 239, this Court, while stating that the provisions of section 14 ofthe Limitation Act would apply to applications filed under section 34 ofEthe Arbitration Act, held:

“25. … It is true that the Arbitration and Conciliation Act, 1996intended to expedite commercial issues expeditiously. It is alsoclear in the Statement of Objects and Reasons that in order torecognise economic reforms the settlement of both domestic andFinternational commercial disputes should be disposed of quicklyso that the country’s economic progress be expedited…”

29. The judgment in Kandla Export Corpn (supra) also observed:

“27. The matter can be looked at from slightly different angle.Given the objects of both the statutes, it is clear that arbitrationGitself is meant to be speedy resolution of disputes between parties.Equally, enforcement of foreign awards should take place as soonas possible if India is to remain as an equal partner, commerciallyspeaking, in the international community. In point of fact, the raisond’être for the enactment of the Commercial Courts Act is thatHcommercial disputes involving high amounts of money should be

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speedily decided. Given the objects of both the enactments, if wewere to provide an additional appeal, when Section 50 does awaywith an appeal so as to speedily enforce foreign awards, we wouldbe turning the Arbitration Act and the Commercial Courts Act ontheir heads. Admittedly, if the amount contained in foreign awardto be enforced in India were less than Rs 1 crore, and SingleJudge of High Court were to enforce such award, no appealwould lie, in keeping with the object of speedy enforcement offoreign awards. However, if, in the same fact circumstance, aforeign award were to be for Rs 1 crore or more, if the appellantsare correct, enforcement of such award would be further delayedby providing an appeal under Section 13(1) of the CommercialCourts Act. Any such interpretation would lead to absurdity, andwould be directly contrary to the object sought to be achieved bythe Commercial Courts Act viz. speedy resolution of disputes of acommercial nature involving sum of Rs 1 crore and over. Forthis reason also, we feel that Section 13(1) of the CommercialCourts Act must be construed in accordance with the object soughtto be achieved by the Act. Any construction of Section 13 of theCommercial Courts Act, which would lead to further delay, insteadof an expeditious enforcement of foreign award must, therefore,be eschewed. Even on applying the doctrine of harmoniousconstruction of both statutes, it is clear that they are bestharmonised by giving effect to the special statute i.e. the ArbitrationAct, vis-à-vis the more general statute, namely, the CommercialCourts Act, being left to operate in spheres other than arbitration.”

30. recent judgment of this Court in ICOMM Tele Ltd. v.Punjab State Water Supply and Sewerage Board, (2019) 4 SCC401, states:

25. Several judgments of this Court have also reiterated that theprimary object of arbitration is to reach final disposal of disputesin speedy, effective, inexpensive and expeditious manner. Thus,in Centrotrade Minerals & Metal Inc. v. Hindustan CopperLtd. [Centrotrade Minerals & Metal Inc. v. Hindustan CopperLtd., (2017) 2 SCC 228 : (2017) 1 SCC (Civ) 593] , this Courtheld: (SCC p. 250, para 39)

“39. In Union of India v. U.P. State Bridge Corpn. Ltd.[Union of India v. U.P. State Bridge Corpn. Ltd., (2015) 2

ABC

SCC 52 : (2015) 1 SCC (Civ) 732] this Court accepted theview [ Indu Malhotra, O.P. Malhotra on the Law and Practiceof Arbitration and Conciliation (3rd Edn., Thomson Reuters,2014).] that the A&C Act has four foundational pillars andthen observed in para 16 of the Report that: (SCC p. 64)

‘16. First and paramount principle of the first pillar is ‘fair,speedy and inexpensive trial by an Arbitral Tribunal’.Unnecessary delay or expense would frustrate the verypurpose of arbitration.””

31. Thus, from the scheme of the Arbitration Act as well as theCaforesaid judgments, condonation of delay under section 5 of theLimitation Act has to be seen in the context of the object of speedyresolution of disputes.

32. The bulk of appeals, however, to the appellate court undersection 37 of the Arbitration Act, are governed by section 13 of theDCommercial Courts Act. Sub-section (1A) of section 13 of theCommercial Courts Act provides the forum for appeals as well as thelimitation period to be followed, section 13 of the Commercial CourtsAct being special law as compared with the Limitation Act which is ageneral law, which follows from reading of section 29(2) of theLimitation Act. Section 13(1A) of the Commercial Courts Act lays downEa period of limitation of 60 days uniformly for all appeals that are preferredunder section 37 of the Arbitration Act.[1]33. The vexed question which faces us is whether, first andforemost, the application of section 5 of the Limitation Act is excludedby the scheme of the Commercial Courts Act, as has been argued byFDr. George. The first important thing to note is that section 13(1A) ofthe Commercial Courts Act does not contain any provision akin to section34(3) of the Arbitration Act. Section 13(1A) of the Commercial CourtsAct only provides for limitation period of 60 days from the date of thejudgment or order appealed against, without further going into whetherGdelay beyond this period can or cannot be condoned.

34. It may also be pointed out that though the object of expeditiousdisposal of appeals is laid down in section 14 of the Commercial Courts

1 As held in BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, whereas section 37 ofthe Arbitration Act provides the substantive right to appeal, section 13 of the CommercialHCourts Act provides the forum and procedure governing the appeal (see paragraph 13).

Act, the language of section 14 makes it clear that the period of sixmonths spoken of is directory and not mandatory. By way of contrast,section 16 of the Commercial Courts Act read with the Schedule thereofand the amendment made to Order VIII Rule 1 of the CPC, wouldmake it clear that the defendant in suit is given 30 days to file writtenstatement, which period cannot be extended beyond 120 days from thedate of service of the summons; and on expiry of the said period, thedefendant forfeits the right to file the written statement and the courtcannot allow the written statement to be taken on record. This provisionwas enacted as result of the judgment of this Court in Salem AdvocateBar Assn. (II) v. Union of India, (2005) 6 SCC 344.

35. In recent judgment of this Court namely, SCG Contracts(India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019)12 SCC 210, Division Bench of this Court referred to the aforesaidamendment and its hard and fast nature as follows:

“8. The Commercial Courts, Commercial Division and CommercialAppellate Division of High Courts Act, 2015 came into force on23-10-2015 bringing in their wake certain amendments to the Codeof Civil Procedure. In Order 5 Rule 1, sub-rule (1), for the secondproviso, the following proviso was substituted:

“Provided further that where the defendant fails to file thewritten statement within the said period of thirty days, he shallbe allowed to file the written statement on such other day, asmay be specified by the court, for reasons to be recorded inwriting and on payment of such costs as the court deems fit,but which shall not be later than one hundred twenty daysfrom the date of service of summons and on expiry of onehundred and twenty days from the date of service of summons,the defendant shall forfeit the right to file the written statementand the court shall not allow the written statement to be takenon record.”

Equally, in Order 8 Rule 1, new proviso was substituted asfollows:

“Provided that where the defendant fails to file the writtenstatement within the said period of thirty days, he shall beallowed to file the written statement on such other day, as maybe specified by the court, for reasons to be recorded in writing

and on payment of such costs as the court deems fit, but whichshall not be later than one hundred and twenty days from thedate of service of summons and on expiry of one hundred andtwenty days from the date of service of summons, the defendantshall forfeit the right to file the written statement and the courtshall not allow the written statement to be taken on record.”

This was re-emphasised by re-inserting yet another proviso inOrder 8 Rule 10 CPC, which reads as under:

“10. Procedure when party fails to present written statementcalled for by court.—Where any party from whom writtenstatement is required under Rule 1 or Rule 9 fails to presentthe same within the time permitted or fixed by the court, as thecase may be, the court shall pronounce judgment against him,or make such order in relation to the suit as it thinks fit and onthe pronouncement of such judgment decree shall be drawn

Provided further that no court shall make an order to extendthe time provided under Rule 1 of this Order for filing of thewritten statement.”

perusal of these provisions would show that ordinarily writtenstatement is to be filed within period of 30 days. However, graceperiod of further 90 days is granted which the Court may employfor reasons to be recorded in writing and payment of such costsas it deems fit to allow such written statement to come on record.What is of great importance is the fact that beyond 120 days fromthe date of service of summons, the defendant shall forfeit theright to file the written statement and the Court shall not allow thewritten statement to be taken on record. This is further buttressedby the proviso in Order 8 Rule 10 also adding that the court has nofurther power to extend the time beyond this period of 120 days.

9. In Bihar Rajya Bhumi Vikas Bank Samiti [State of Bihar v.Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 :(2018) 4 SCC (Civ) 387] , question was raised as to whetherSection 34(5) of the Arbitration and Conciliation Act, 1996, insertedby Amending Act 3 of 2016 is mandatory or directory. In para 11of the said judgment, this Court referred to Kailash v. Nanhku[Kailash v. Nanhku, (2005) 4 SCC 480] , referring to the text of

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Order 8 Rule 1 as it stood pre the amendment made by theCommercial Courts Act. It also referred (in para 12) to SalemAdvocate Bar Assn. (2) v. Union of India [Salem AdvocateBar Assn. (2) v. Union of India, (2005) 6 SCC 344] , which, likethe Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] judgment,held that the mere expression “shall” in Order 8 Rule 1 would notmake the provision mandatory. This Court then went on to discussin para 17 of State v. N.S. Gnaneswaran [State v. N.S.Gnaneswaran, (2013) 3 SCC 594 : (2013) 3 SCC (Cri) 235 :(2013) 1 SCC (L&S) 688] , in which Section 154(2) of the Codeof Criminal Procedure was held to be directory inasmuch as noconsequence was provided if the section was breached. In para22 by way of contrast to Section 34, Section 29-A of the ArbitrationAct was set out. This Court then noted in para 23 as under: (BiharRajya Bhumi Vikas Bank Samiti case [State of Bihar v. BiharRajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 : (2018) 4SCC (Civ) 387] , SCC p. 489)

“23. It will be seen from this provision that, unlike Sections34(5) and (6), if an award is made beyond the stipulated orextended period contained in the section, the consequence ofthe mandate of the arbitrator being terminated is expresslyprovided. This provision is in stark contrast to Sections 34(5)and (6) where, as has been stated hereinabove, if the periodfor deciding the application under Section 34 has elapsed, noconsequence is provided. This is one more indicator that thesame Amendment Act, when it provided time periods indifferent situations, did so intending different consequences.”10. Several High Court judgments on the amended Order 8 Rule1 have now held that given the consequence of non-filing of writtenstatement, the amended provisions of the CPC will have to beheld to be mandatory. See Oku Tech (P) Ltd. v. Sangeet Agarwal[Oku Tech (P) Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del6601] by learned Single Judge of the Delhi High Court dated 11-8-2016 in CS (OS) No. 3390 of 2015 as followed by several otherjudgments including judgment of the Delhi High Court in MajaCosmetics v. Oasis Commercial (P) Ltd. [Maja Cosmetics v.Oasis Commercial (P) Ltd., 2018 SCC OnLine Del 6698]

ABC

A11. We are of the view that the view taken by the Delhi HighCourt in these judgments is correct in view of the fact that theconsequence of forfeiting right to file the written statement;non-extension of any further time; and the fact that the Courtshall not allow the written statement to be taken on record allpoints to the fact that the earlier law on Order 8 Rule 1 on theBfiling of written statement under Order 8 Rule 1 has now been setat naught.”

36. By way of contrast, there is no such provision contained insection 13 of the Commercial Courts Act. The judgment in Hongo(supra), strongly relied upon by Dr. George, is clearly distinguishable. InCHongo (supra), section 35-H of the Central Excise Act provided for aperiod of 180 days for filing reference application to the High Court.The scheme of the Central Excise Act was adverted to in paragraph 15of the judgment, which reads as follows:

“15. We have already pointed out that in the case of appeal to theDCommissioner, Section 35 provides 60 days’ time and in additionto the same, the Commissioner has power to condone the delayup to 30 days, if sufficient cause is shown. Likewise, Section 35-B provides 90 days’ time for filing appeal to the Appellate Tribunaland sub-section (5) therein enables the Appellate Tribunal toEcondone the delay irrespective of the number of days, if sufficientcause is shown. Likewise, Section 35-EE which provides 90 days’time for filing revision by the Central Government and, proviso tothe same enables the revisional authority to condone the delay fora further period of 90 days, if sufficient cause is shown, whereasin the case of appeal to the High Court under Section 35-G andFreference to the High Court under Section 35-H of the Act, totalperiod of 180 days has been provided for availing the remedy ofappeal and the reference. However, there is no further clauseempowering the High Court to condone the delay after the periodof 180 days.”

G37. The Court then went on to observe:

“33. Even otherwise, for filing an appeal to the Commissioner,and to the Appellate Tribunal as well as revision to the CentralGovernment, the legislature has provided 60 days and 90 daysrespectively, on the other hand, for filing an appeal and reference

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to the High Court larger period of 180 days has been providedwith to enable the Commissioner and the other party to avail thesame. We are of the view that the legislature provided sufficienttime, namely, 180 days for filing reference to the High Court whichis more than the period prescribed for an appeal and revision.

34. Though, an argument was raised based on Section 29 of theLimitation Act, even assuming that Section 29(2) would beattracted, what we have to determine is whether the provisions ofthis section are expressly excluded in the case of reference to theHigh Court.

35. It was contended before us that the words “expresslyexcluded” would mean that there must be an express referencemade in the special or local law to the specific provisions of theLimitation Act of which the operation is to be excluded. In thisregard, we have to see the scheme of the special law which herein this case is the Central Excise Act. The nature of the remedyprovided therein is such that the legislature intended it to be acomplete code by itself which alone should govern the severalmatters provided by it. If, on an examination of the relevantprovisions, it is clear that the provisions of the Limitation Act arenecessarily excluded, then the benefits conferred therein cannotbe called in aid to supplement the provisions of the Act. In ourconsidered view, that even in case where the special law doesnot exclude the provisions of Sections 4 to 24 of the LimitationAct by an express reference, it would nonetheless be open to thecourt to examine whether and to what extent, the nature of thoseprovisions or the nature of the subject-matter and scheme of thespecial law exclude their operation. In other words, the applicabilityof the provisions of the Limitation Act, therefore, is to be judgednot from the terms of the Limitation Act but by the provisions ofthe Central Excise Act relating to filing of reference applicationto the High Court.

36. The scheme of the Central Excise Act, 1944 supports theconclusion that the time-limit prescribed under Section 35-H(1) tomake reference to the High Court is absolute and unextendableby court under Section 5 of the Limitation Act. It is well-settledlaw that it is the duty of the court to respect the legislative intent

Aand by giving liberal interpretation, limitation cannot be extendedby invoking the provisions of Section 5 of the Limitation Act.”

38. Unlike the scheme of the Central Excise Act relied upon inHongo (supra), there are no other provisions in the Commercial CourtsAct which provide for period of limitation coupled with condonationBof delay provision which is either open-ended or capped. Also, the periodof 180 days provided was one indicia which led the Court to excludethe application of section 5 of the Limitation Act, as it was double andtriple the period provided for appeals under the other provisions of thesame Act. Section 13(1A) of the Commercial Courts Act, by way ofcontrast, applies an intermediate period of 60 days for filing an appeal,Cthat is, period that is halfway between 30 days and 90 days providedby Articles 116 and 117 of the Limitation Act.

39. The other judgments relied upon by Dr. George are alldistinguishable in that they are judgments which deal with provisionsthat provide for period of limitation and period of condonation ofDdelay beyond which delay cannot be condoned, such as section 125 ofthe Electricity Act. (See Suryachakra Power Corpn. Ltd. v.Electricity Deptt., (2016) 16 SCC 152 at paragraph 10; ONGC v.Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 atparagraphs 5-10).

40. Section 21 of the Commercial Courts Act was also pressedinto service stating that the non-obstante clause contained in theCommercial Courts Act would override other Acts, including theLimitation Act, as result of which, the applicability of section 5 thereofwould be excluded. This argument has been addressed in the context ofFthe IBC in B.K. Educational Services (P) Ltd. v. Parag Gupta &Associates, (2019) 11 SCC 633, as follows:

“41. Shri Dholakia argued that the Code being complete in itself,an intruder such as the Limitation Act must be shut out also byapplication of Section 238 of the Code which provides that,G“notwithstanding anything inconsistent therewith contained in anyother law for the time being in force”, the provisions of the Codewould override such laws. In fact, Section 60(6) of the Codespecifically states as follows:

“60. Adjudicating authority for corporate persons.—(1)-(5) * * *

(6) Notwithstanding anything contained in the Limitation Act,1963 (36 of 1963) or in any other law for the time being inforce, in computing the period of limitation specified for anysuit or application by or against corporate debtor for whichan order of moratorium has been made under this Part, theperiod during which such moratorium is in place shall beexcluded.”

This provision would have been wholly unnecessary if theLimitation Act was otherwise excluded either by reason of theCode being complete in itself or by virtue of Section 238 of theCode. Both, Section 433 of the Companies Act as well as Section238-A of the Code, apply the provisions of the Limitation Act “asfar as may be”. Obviously, therefore, where periods of limitationhave been laid down in the Code, these periods will applynotwithstanding anything to the contrary contained in the LimitationAct. From this, it does not follow that the baby must be thrownout with the bathwater. This argument, therefore, must also berejected.”

41. For all these reasons we reject the argument made by ShriGeorge that the application of section 5 of the Limitation Act is excludedgiven the scheme of Commercial Courts Act.

42. The next important argument that needs to be addressed is asto whether the hard and fast rule applied by this Court in N.V.International (supra) is correct in law. Firstly, as has correctly beenargued by Shri Shroti, N.V. International (supra) does not notice theprovisions of the Commercial Courts Act at all and can be said to be perincuriam on this count. Secondly, it is also correct to note that theperiod of 90 days plus 30 days and not thereafter mentioned in section34(3) of the Arbitration Act cannot now apply, the limitation period forfiling of appeals under the Commercial Courts Act being 60 days andnot 90 days. Thirdly, the argument that absent provision curtailing thecondonation of delay beyond the period provided in section 13 of theCommercial Courts Act would also make it clear that any such bodilylifting of the last part of section 34(3) into section 37 of the ArbitrationAct would also be unwarranted. We cannot accept Shri Navare’sargument that this is mere casus omissus which can be filled in by theCourt.

A43. The difference between interpretation and legislation issometimes fine one, as it has repeatedly been held that judges do notmerely interpret the law but also create law. In Eera v. State (NCT ofDelhi), (2017) 15 SCC 133, this Court was faced with theinterpretation of section 2(1)(d) of the Protection of Children from SexualOffences Act, 2012. This provision reads as follows:B

“(2)(1)(d) “child” means any person below the age of eighteenyears;”

44. The argument made before the Court was that the age of 18years did not only refer to physical age, but could also refer to the mentalCage of the “child” as defined. This Court was therefore faced with thedifficulty between interpreting the law as it stands, and legislating. Theconcurring judgment of Nariman, J. put it thus:

“103. Having read the erudite judgment of my learned Brother,and agreeing fully with him on the conclusion reached, given theDimportance of the Montesquiean separation of powers doctrinewhere the judiciary should not transgress from the field of judiciallaw-making into the field of legislative law-making, I have felt itnecessary to add few words of my own.

104. Mr Sanjay R. Hegde, the learned Amicus Curiae, has arguedEbefore us that the interpretation of Section 2(1)(d) of the Protectionof Children from Sexual Offences Act, 2012 cannot include“mental” age as such an interpretation would be beyond the“Lakshman Rekha” — that is, it is no part of this Court’s functionto add to or amend the law as it stands. This Court’s function islimited to interpreting the law as it stands, and this being theFcase, he has exhorted us not to go against the plain literal meaningof the statute.

105. Since Mr Hegde’s argument raises the constitutional spectreof separation of powers, let it first be admitted that under ourconstitutional scheme, Judges only declare the law; it is for theGlegislatures to make the law. This much at least is clear on aconjoint reading of Articles 141 and 245 of the Constitution ofIndia, which are set out hereinbelow:

“141. Law declared by Supreme Court to be binding on allcourts.—The law declared by the Supreme Court shall beHbinding on all courts within the territory of India.

245. Extent of laws made by Parliament and by thelegislatures of States.—(1) Subject to the provisions of thisConstitution, Parliament may make laws for the whole or anypart of the territory of India, and the legislature of State maymake laws for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be invalidon the ground that it would have extra-territorial operation.”

(emphasis supplied)

106. That the legislature cannot “declare” law is embedded inAnglo-Saxon jurisprudence. Bills of attainder, which used to bepassed by Parliament in England, have never been passed fromthe 18th century onwards. legislative judgment is anathema. Asearly as 1789, the US Constitution expressly outlawed bills ofattainder vide Article I Section 9(3). This being the case with thelegislature, the counter-argument is that the Judiciary equally cannot“make” but can only “declare” law. While declaring the law, canJudges make law as well?...”

45. The concurring judgment went on to state:

“127. It is thus clear on reading of English, US, Australian andour own Supreme Court judgments that the “Lakshman Rekha”has in fact been extended to move away from the strictly literalrule of interpretation back to the rule of the old English case ofHeydon [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] , wherethe Court must have recourse to the purpose, object, text andcontext of particular provision before arriving at judicial result.In fact, the wheel has turned full circle. It started out by the ruleas stated in 1584 in Heydon case [Heydon case, (1584) 3 CoRep 7a : 76 ER 637] , which was then waylaid by the literalinterpretation rule laid down by the Privy Council and the Houseof Lords in the mid-1800s, and has come back to restate the rulesomewhat in terms of what was most felicitously put over 400years ago in Heydon case [Heydon case, (1584) 3 Co Rep 7a :76 ER 637] .”

“139. reading of the Act as whole in the light of the Statementof Objects and Reasons thus makes it clear that the intention of

Athe legislator was to focus on children, as commonly understoodi.e. persons who are physically under the age of 18 years. Thegolden rule in determining whether the judiciary has crossed theLakshman Rekha in the guise of interpreting statute is reallywhether Judge has only ironed out the creases that he found ina statute in the light of its object, or whether he has altered theBmaterial of which the Act is woven. In short, the difference is thewell-known philosophical difference between “is” and “ought”.Does the Judge put himself in the place of the legislator and askhimself whether the legislator intended certain result, or does hestate that this must have been the intent of the legislator and infuseCwhat he thinks should have been done had he been the legislator.If the latter, it is clear that the Judge then would add somethingmore than what there is in the statute by way of supposed intentionof the legislator and would go beyond creative interpretation oflegislation to legislating itself. It is at this point that the Judge crossesthe Lakshman Rekha and becomes legislator, stating what theDlaw ought to be instead of what the law is.”

46. Ultimately, the judgment concluded:

“146. reading of the Objects and Reasons of the aforesaid Acttogether with the provisions contained therein would show thatEwhatever is the physical age of the person affected, such personwould be “person with disability” who would be governed bythe provisions of the said Act. Conspicuous by its absence is thereference to any age when it comes to protecting persons withdisabilities under the said Act.

F147. Thus, it is clear that viewed with the lens of the legislator,we would be doing violence both to the intent and the language ofParliament if we were to read the word “mental” into Section2(1)(d) of the 2012 Act. Given the fact that it is beneficial/penallegislation, we as Judges can extend it only as far as Parliamentintended and no further. I am in agreement, therefore, with theGjudgment of my learned Brother, including the directions given byhim.”

47. Given the ‘lakshman rekha’ laid down in this judgment, it is alittle difficult to appreciate how cap can be judicially engrafted onto astatutory provision which then bars condonation of delay by even oneHday beyond the cap so engrafted.

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48. Shri George, however, relied upon the judgments of this Courtin Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 (at paragraph22) and D. Purushotama Reddy v. K. Sateesh, (2008) 8 SCC 505(at paragraph 11), to support the reasoning contained in VarinderaConstructions (supra) and N.V. International (supra). He reliedstrongly upon paragraph 11 of the judgment in D. Purushotama Reddyv. K. Sateesh, (2008) 8 SCC 505, which reads as follows:

“11. We have noticed hereinbefore that whereas the judgment ofconviction and sentence was passed on 15-12-2005, the suit wasdecreed by the civil court on 23-1-2006. Deposit of sum of Rs2,00,000 by the appellants in favour of the respondent herein, wasdirected by the criminal court. Such an order should have beentaken into consideration by the trial court. An appeal from decree,furthermore, is continuation of suit. The limitation of power on acivil court should also be borne in mind by the appellate court.Was any duty cast upon the civil court to consider the amount ofcompensation deposited in terms of Section 357 of the Code isthe question.”49. From this paragraph, what was sought to be argued was thatthe limitation of power on civil court at the initial stage can be read asa limitation onto the appellate court, as was done in the aforesaidjudgments. We are afraid that we are unable to agree. This sentencewas in the context of decree passed in civil suit for sum of rupees3.09 lakh with interest, without taking into consideration the fact that anamount of rupees 2.10 lakh had already been deposited by the appellantin criminal proceedings. The Court relied upon section 357(5) of theCode of Criminal Procedure, 1973 to hold that “the court” shall take intoaccount any sum paid or recovered as compensation at the time ofawarding compensation in any subsequent civil suit relating to the samematter. “The court” would obviously include an appellate court as well.It was only in this context that the aforesaid observation of limitation ofpower on civil court being “borne in mind” by the appellate court, wasmade.

50. Shri George’s reliance upon the judgment of this Court in P.Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 (at paragraphs36.2-36.3) on the doctrine of unbreakability when applied to section 34(3)of the Arbitration Act, also does not carry the matter much further, asthe question is whether this doctrine can be bodily lifted and engrafted

Aonto an appeal provision that has no cut-off point beyond which delaycannot be condoned.

For all these reasons, given the illuminating arguments made inthese appeals, we are of the view that N.V. International (supra) hasbeen wrongly decided and is therefore overruled.B

51. However, the matter does not end here. The question stillarises as to the application of section 5 of the Limitation Act to appealswhich are governed by uniform 60-day period of limitation. At oneextreme, we have the judgment in N.V. International (supra) whichdoes not allow condonation of delay beyond 30 days, and at the otherCextreme, we have an open-ended provision in which any amount of delaycan be condoned, provided sufficient cause is shown. It is between thesetwo extremes that we have to steer middle course.

52. One judicial tool with which to steer this course is contained inthe latin maxim ut res magis valeat quam pereat. This maxim wasDfleshed out in CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57 asfollows:[2]

“14. construction which reduces the statute to futility has tobe avoided. statute or any enacting provision therein must be soconstrued as to make it effective and operative on the principleEexpressed in the maxim ut res magis valeat quam pereat i.e. aliberal construction should be put upon written instruments, so asto uphold them, if possible, and carry into effect the intention ofthe parties. [See Broom’s Legal Maxims (10th Edn.), p. 361,Craies on Statutes (7th Edn.), p. 95 and Maxwell on Statutes(11th Edn.), p. 221.]F

15. statute is designed to be workable and the interpretationthereof by court should be to secure that object unless crucialomission or clear direction makes that end unattainable. (SeeWhitney v. IRC [1926 AC 37 : 10 Tax Cas 88 : 95 LJKB 165 : 134LT 98 (HL)] , AC at p. 52 referred to in CIT v. S. Teja SinghG[AIR 1959 SC 352 : (1959) 35 ITR 408] and Gursahai Saigal v.CIT [AIR 1963 SC 1062 : (1963) 48 ITR 1] .)

16. The courts will have to reject that construction which willdefeat the plain intention of the legislature even though there may

2 Followed in the separate opinion delivered by Pasayat, J. in Ashoka Kumar ThakurHv. Union of India, (2008) 6 SCC 1 (see paragraphs 333-334).

be some inexactitude in the language used. (See Salmon v.Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)]AC at p. 634, Curtis v. Stovin [(1889) 22 QBD 513 : 58 LJQB174 : 60 LT 772 (CA)] referred to in S. Teja Singh case [AIR1959 SC 352 : (1959) 35 ITR 408].)

17. If the choice is between two interpretations, the narrower ofwhich would fail to achieve the manifest purpose of the legislation,we should avoid construction which would reduce the legislationto futility, and should rather accept the bolder construction, basedon the view that Parliament would legislate only for the purposeof bringing about an effective result. (See Nokes v. DoncasterAmalgamated Collieries [(1940) 3 All ER 549 : 1940 AC 1014 :109 LJKB 865 : 163 LT 343 (HL)] referred to in Pye v. Ministerfor Lands for NSW [(1954) 3 All ER 514 : (1954) 1 WLR 1410(PC)] .) The principles indicated in the said cases were reiteratedby this Court in Mohan Kumar Singhania v. Union of India[1992 Supp (1) SCC 594 : 1992 SCC (L&S) 455 : (1992) 19 ATC881 : AIR 1992 SC 1] .

18. The statute must be read as whole and one provision of theAct should be construed with reference to other provisions in thesame Act so as to make consistent enactment of the wholestatute.

19. The court must ascertain the intention of the legislature bydirecting its attention not merely to the clauses to be construedbut to the entire statute; it must compare the clause with otherparts of the law and the setting in which the clause to be interpretedoccurs. (See R.S. Raghunath v. State of Karnataka [(1992) 1SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507 : AIR 1992SC 81] .) Such construction has the merit of avoiding anyinconsistency or repugnancy either within section or betweentwo different sections or provisions of the same statute. It is theduty of the court to avoid head-on clash between two sectionsof the same Act. (See Sultana Begum v. Prem Chand Jain[(1997) 1 SCC 373 : AIR 1997 SC 1006] .)

20. Whenever it is possible to do so, it must be done to construethe provisions which appear to conflict so that they harmonise. Itshould not be lightly assumed that Parliament had given with onehand what it took away with the other.

BCD

A21. The provisions of one section of the statute cannot be used todefeat those of another unless it is impossible to effectreconciliation between them. Thus construction that reducesone of the provisions to “useless lumber” or “dead letter” is nota harmonised construction. To harmonise is not to destroy.”

B53. Reading the Arbitration Act and the Commercial Courts Actas whole, it is clear that when section 37 of the Arbitration Act is readwith either Article 116 or 117 of the Limitation Act or section 13(1A) ofthe Commercial Courts Act, the object and context provided by theaforesaid statutes, read as whole, is the speedy disposal of appealsfiled under section 37 of the Arbitration Act. To read section 5 of theCLimitation Act consistently with the aforesaid object, it is necessary todiscover as to what the expression “sufficient cause” means in the contextof condoning delay in filing appeals under section 37 of the ArbitrationAct.

54. The expression “sufficient cause” contained in section 5 ofDthe Limitation Act is elastic enough to yield different results dependingupon the object and context of statute. Thus, in Ajmer Kaur v. Stateof Punjab, (2004) 7 SCC 381, this Court, in the context of section11(5) of the Punjab Land Reforms Act, 1972, held as follows:

“10.Permitting an application under Section 11(5) to be moved atEany time would have disastrous consequences. The StateGovernment in which the land vests on being declared as surplus,will not be able to utilise the same. The State Government cannotbe made to wait indefinitely before putting the land to use. Wherethe land is utilised by the State Government, consequence of theForder passed subsequently could be of divesting it of the land.Taking the facts of the present case by way of an illustration, itwould mean that the land which stood mutated in the StateGovernment in 1982 and which was allotted by the StateGovernment to third parties in 1983, would as result of reopeningthe settled position, lead to third parties being asked to restoreGback the land to the State Government and the State Governmentin turn would have to be divested of the land. The land will in turnbe restored to the landowner. This will be the result of the landbeing declared by the Collector as not surplus with the landowner.The effect of permitting such situation will be that the land willremain in situation of flux. There will be no finality. The veryH

purpose of the legislation will be defeated.The allottee will not beable to utilise the land for fear of being divested in the event ofdeaths and births in the family of the landowners. Deaths andbirths are events which are bound to occur. Therefore, it isreasonable to read time-limit in sub-section (5) of Section 11.The concept of reasonable time in the given facts would be mostappropriate. An application must be moved within reasonabletime. The facts of the present case demonstrate thatredetermination under sub-section (5) of Section 11 almost 5 yearsafter the death of Kartar Kaur and more than 6 years after theorder of the Collector declaring the land as surplus had becomefinal, has resulted in grave injustice besides defeating the objectof the legislation which was envisaged as socially beneficialpiece of legislation. Thus we hold that the application forredetermination filed by Daya Singh under sub-section (5) ofSection 11 of the Act on 21-6-1985 was liable to be dismissed onthe ground of inordinate delay and the Collector was wrong inreopening the issue declaring the land as not surplus in the handsof Daya Singh and Kartar Kaur.

11. The above reasoning is in consonance with the provision insub-section (7) of Section 11 of the Act. Sub-section (7) uses thewords “where succession has opened after the surplus area orany part thereof has been determined by the Collector …”. Thewords “determined by the Collector” would mean that the orderof the Collector has attained finality. The provisions regardingappeals, etc. contained in Sections 80-82 of the Punjab TenancyAct, 1887, as made applicable to proceedings under the PunjabLand Reforms Act, 1972, show that the maximum period oflimitation in case of appeal or review is ninety days. The appealagainst the final order of the Collector dated 30-9-1976 whereby3.12 hectares of land had been declared as surplus was dismissedon 27-3-1979. The order was allowed to become final as it wasnot challenged any further. Thus the determination by the Collectorbecame final on 27-3-1979. The same could not be reopened aftera lapse of more than 6 years by order dated 23-7-1985. Thesubsequent proceedings before the Revenue Authorities did notlie. The order dated 23-7-1985 is non est. All the subsequentproceedings therefore fall through. The issue could not have beenreopened.”

(emphasis supplied)

55. Nearer home, in Brahampal v. National InsuranceCompany, 2020 SCC OnLine SC 1053, this Court specifically referredto the difference between delay in filing commercial claims under theArbitration Act or the Commercial Courts Act and claims under theMotor Vehicles Act, 1988, as follows:

“16. This Court has firstly held that purpose of conferment ofsuch power must be examined for the determination of the scopeof such discretion conferred upon the court. [refer to BhaiyaPunjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad,AIR 1963 SC 120; Shri Prakash Chand Agarwal v. HindustanSteel Ltd., (1970) 2 SCC 806]. Our analysis of the purpose of theAct suggests that such discretionary power is conferred upon theCourts, to enforce the rights of the victims and their dependents.The legislature intended that Courts must have such power so asto ensure that substantive justice is not trumped by technicalities.

(emphasis supplied)

“22.Therefore, the aforesaid provision being beneficial legislation,must be given liberal interpretation to serve its object. Keeping inview the substantive rights of the parties, undue emphasis shouldnot be given to technicalities. In such cases delay in filing andrefiling cannot be viewed strictly, as compared to commercial claimsEunder the Arbitration and Concilliation Act, 1996 or the CommercialCourts Act, 2015.In P. Radha Bai v. P. Ashok Kumar, (2019) 13SCC 445, wherein this Court while interpreting Section 34 of theArbitration Act, held that the right to object to an award itself issubstantively bound with the limitation period prescribed thereinFand the same cannot merely procedural prescription. In effectthe Court held that complete petition, has to be filed within thetime prescribed under Section 34 of the Arbitration Act and ‘notthereafter’. The Court while coming to the aforesaid conclusion,reasoned as under:

“36.1 First, the purpose of the Arbitration Act was to providefor speedy dispute resolution process. The Statement ofObjects and Reasons reveal that the legislative intent ofenacting the Arbitration Act was to provide parties with anefficient alternative dispute resolution system which giveslitigants an expedited resolution of disputes while reducing the

burden on the courts. Article 34(3) reflects this intent when itdefines the commencement and concluding period forchallenging an award. This Court in Popular Constructioncase [Union of India v. Popular Construction Co., (2001) 8SCC 470] highlighted the importance of the fixed periodsunder the Arbitration Act. We may also add that thefinality is fundamental principle enshrined under theArbitration Act and definitive time-limit for challengingan award is necessary for ensuring finality. If Section 17were to be applied, an award can be challenged even after120 days. This would defeat the Arbitration Act’s objective ofspeedy resolution of disputes. The finality of award would alsobe in limbo as party can challenge an award even after the120 day period.”

(emphasis in original)

“23.Coming back to the Motor Vehicles Act, the legislative intentis to provide appropriate compensation for the victims and to protecttheir substantive rights, in pursuit of the same, the interpretationshould not be as strict as commercial claims as elucidated above.

24. Undoubtedly, the statute has granted the Courts withdiscretionary powers to condone the delay, however at the sametime it also places an obligation upon the party to justify that hewas prevented from abiding by the same due to the existence of“sufficient cause”. Although there exists no strait jacket formulafor the Courts to condone delay, but the Courts must not only takeinto consideration the entire facts and circumstances of case butalso the conduct of the parties. The concept of reasonablenessdictates that, the Courts even while taking liberal approach mustweigh in the rights and obligations of both the parties. When aright has accrued in favour of one party due to gross negligenceand lackadaisical attitude of the other, this Court shall refrain fromexercising the aforesaid discretionary relief.

25. Taking into consideration the facts and circumstances of thepresent case, we are of the opinion that the delay of 45 days hasbeen properly explained by the appellants, which was on accountof illness of the wife of Appellant No. 1. It was not appropriate onthe part of the High Court to dismiss the appeal merely on the

ground of delay of short duration, particularly in matters involvingdeath in motor accident claims. Moreover, in the present case nomala fide can be imputable against the appellants for filing theappeal after the expiry of ninety days. Therefore, we are of theopinion that the strict approach taken in the impugned order ishyper-technical and cannot be sustained in the eyes of law.”

(emphasis supplied)

56. Given the object sought to be achieved under both theArbitration Act and the Commercial Courts Act, that is, the speedyresolution of disputes, the expression “sufficient cause” is not elasticCenough to cover long delays beyond the period provided by the appealprovision itself. Besides, the expression “sufficient cause” is not itself aloose panacea for the ill of pressing negligent and stale claims. ThisCourt, in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC81, has held:

“9. Sufficient cause is the cause for which the defendant couldDnot be blamed for his absence. The meaning of the word“sufficient” is “adequate” or “enough”, inasmuch as may benecessary to answer the purpose intended. Therefore, the word“sufficient” embraces no more than that which provides platitude,which when the act done suffices to accomplish the purposeEintended in the facts and circumstances existing in case, dulyexamined from the viewpoint of reasonable standard of acautious man. In this context, “sufficient cause” means that theparty should not have acted in negligent manner or there was awant of bona fide on its part in view of the facts and circumstancesFof case or it cannot be alleged that the party has “not acteddiligently” or “remained inactive”. However, the facts andcircumstances of each case must afford sufficient ground to enablethe court concerned to exercise discretion for the reason thatwhenever the court exercises discretion, it has to be exercisedjudiciously. The applicant must satisfy the court that he wasGprevented by any “sufficient cause” from prosecuting his case,and unless satisfactory explanation is furnished, the court shouldnot allow the application for condonation of delay. The court hasto examine whether the mistake is bona fide or was merely adevice to cover an ulterior purpose. (See Manindra Land andHBuilding Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336],

Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ)1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. MunicipalCorpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC(Civ) 24 : AIR 2012 SC 1629] .)

10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] thisCourt explained the difference between “good cause” and a“sufficient cause” and observed that every “sufficient cause” is agood cause and vice versa. However, if any difference exists itcan only be that the requirement of good cause is complied withon lesser degree of proof than that of “sufficient cause”.

11. The expression “sufficient cause” should be given liberalinterpretation to ensure that substantial justice is done, but only solong as negligence, inaction or lack of bona fides cannot beimputed to the party concerned, whether or not sufficient causehas been furnished, can be decided on the facts of particularcase and no straitjacket formula is possible. (Vide Madanlal v.Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram NathSao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201].)

12. It is settled legal proposition that law of limitation may harshlyaffect particular party but it has to be applied with all its rigourwhen the statute so prescribes. The court has no power to extendthe period of limitation on equitable grounds. “A result flowingfrom statutory provision is never an evil. court has no powerto ignore that provision to relieve what it considers distressresulting from its operation.” The statutory provision may causehardship or inconvenience to particular party but the court hasno choice but to enforce it giving full effect to the same. The legalmaxim dura lex sed lex which means “the law is hard but it is thelaw”, stands attracted in such situation. It has consistently beenheld that, “inconvenience is not” decisive factor to be consideredwhile interpreting statute.

13. The statute of limitation is founded on public policy, its aimbeing to secure peace in the community, to suppress fraud andperjury, to quicken diligence and to prevent oppression. It seeksto bury all acts of the past which have not been agitatedunexplainably and have from lapse of time become stale. Accordingto Halsbury’s Laws of England, Vol. 28, p. 266:

“605. Policy of the Limitation Acts.—The courts haveexpressed at least three differing reasons supporting theexistence of statutes of limitations namely, (1) that long dormantclaims have more of cruelty than justice in them, (2) that adefendant might have lost the evidence to disprove stale claim,and (3) that persons with good causes of actions should pursuethem with reasonable diligence.”

An unlimited limitation would lead to sense of insecurity anduncertainty, and therefore, limitation prevents disturbance ordeprivation of what may have been acquired in equity and justiceby long enjoyment or what may have been lost by party’s owninaction, negligence or laches. (See Popat and Kotecha Propertyv. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. SantaSingh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and PundlikJalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448 :(2009) 5 SCC (Civ) 907] .)

14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] this Courtheld that judicially engrafting principles of limitation amounts tolegislating and would fly in the face of law laid down by theConstitution Bench in Abdul Rehman Antulay v. R.S. Nayak[(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701] .

15. The law on the issue can be summarised to the effect thatwhere case has been presented in the court beyond limitation,the applicant has to explain the court as to what was the “sufficientcause” which means an adequate and enough reason whichprevented him to approach the court within limitation. In case aparty is found to be negligent, or for want of bona fide on his partin the facts and circumstances of the case, or found to have notacted diligently or remained inactive, there cannot be justifiedground to condone the delay. No court could be justified incondoning such an inordinate delay by imposing any conditionwhatsoever. The application is to be decided only within theparameters laid down by this Court in regard to the condonationof delay. In case there was no sufficient cause to prevent litigantto approach the court on time condoning the delay without anyjustification, putting any condition whatsoever, amounts to passing

GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.ENG.R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN]

an order in violation of the statutory provisions and it tantamountsto showing utter disregard to the legislature.”

(emphasis supplied)

57. Likewise, merely because the government is involved, adifferent yardstick for condonation of delay cannot be laid down. Thiswas felicitously stated in Postmaster General v. Living Media IndiaLtd., (2012) 3 SCC 563 [“Postmaster General”], as follows:

“27. It is not in dispute that the person(s) concerned were wellaware or conversant with the issues involved including theprescribed period of limitation for taking up the matter by way offiling special leave petition in this Court. They cannot claim thatthey have separate period of limitation when the Departmentwas possessed with competent persons familiar with courtproceedings. In the absence of plausible and acceptableexplanation, we are posing question why the delay is to becondoned mechanically merely because the Government or wingof the Government is party before us.

28. Though we are conscious of the fact that in matter ofcondonation of delay when there was no gross negligence ordeliberate inaction or lack of bona fides, liberal concession hasto be adopted to advance substantial justice, we are of the viewthat in the facts and circumstances, the Department cannot takeadvantage of various earlier decisions. The claim on account ofimpersonal machinery and inherited bureaucratic methodology ofmaking several notes cannot be accepted in view of the moderntechnologies being used and available. The law of limitationundoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the governmentbodies, their agencies and instrumentalities that unless they havereasonable and acceptable explanation for the delay and therewas bona fide effort, there is no need to accept the usual explanationthat the file was kept pending for several months/years due toconsiderable degree of procedural red tape in the process. Thegovernment departments are under special obligation to ensurethat they perform their duties with diligence and commitment.Condonation of delay is an exception and should not be used asan anticipated benefit for the government departments. The law

DEF

250SUPREME COURT REPORTS

[2021] 3 S.C.R.

Ashelters everyone under the same light and should not be swirledfor the benefit of few.”

58. The decision in Postmaster General (supra) has beenfollowed in the following subsequent judgments of this Court:

i)State of Rajasthan v. Bal Kishan Mathur, (2014) 1 SCCB592 at paragraphs 8-8.2;

ii)State of U.P. v. Amar Nath Yadav, (2014) 2 SCC 422 atparagraphs 2-3;

iii)State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709at paragraphs 11-13; and

iv)State of M.P. v. Bherulal, (2020) 10 SCC 654 atparagraphs 3-4.

59. In recent judgment, namely, State of M.P. v. ChaitramMaywade, (2020) 10 SCC 667, this Court referred to PostmasterDGeneral (supra), and held as follows:

“1. The State of Madhya Pradesh continues to do the same thingagain and again and the conduct seems to be incorrigible. Thespecial leave petition has been filed after delay of 588 days. Wehad an occasion to deal with such inordinately delayed filing ofEthe appeal by the State of Madhya Pradesh in State of M.P. v.Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in termsof our order dated 15-10-2020.

2. We have penned down detailed order in that case and we seeno purpose in repeating the same reasoning again except to recordFwhat are stated to be the facts on which the delay is sought to becondoned. On 5-1-2019, it is stated that the Government Advocatewas approached in respect of the judgment delivered on 13-11-2018 [Chaitram Maywade v. State of M.P., 2018 SCC OnLineHP 1632] and the Law Department permitted filing of the SLPagainst the impugned order on 26-5-2020. Thus, the LawGDepartment took almost about 17 months’ time to decide whetherthe SLP had to be filed or not. What greater certificate ofincompetence would there be for the Legal Department!

3. We consider it appropriate to direct the Chief Secretary of theState of Madhya Pradesh to look into the aspect of revamping the

GOVT. OF MAHARASTRA (WATER RESOURCES DEPT.) REP. BY EXEC.ENG.R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN]

Legal Department as it appears that the Department is unable tofile appeals within any reasonable period of time much less withinlimitation. These kinds of excuses, as already recorded in theaforesaid order, are no more admissible in view of the judgment inPostmaster General v. Living Media (India) Ltd. [PostmasterGeneral v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012)2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S)649]

4. We have also expressed our concern that these kinds of thecases are only “certificate cases” to obtain certificate of dismissalfrom the Supreme Court to put quietus to the issue. The objectis to save the skin of officers who may be in default. We havealso recorded the irony of the situation where no action is takenagainst the officers who sit on these files and do nothing.

5. Looking to the period of delay and the casual manner in whichthe application has been worded, the wastage of judicial timeinvolved, we impose costs on the petitioner State of Rs 35,000 tobe deposited with the Mediation and Conciliation ProjectCommittee. The amount be deposited within four weeks. Theamount be recovered from the officer(s) responsible for the delayin filing and sitting on the files and certificate of recovery of thesaid amount be also filed in this Court within the said period oftime. We have put to Deputy Advocate General to caution thatfor any successive matters of this kind the costs will keep ongoing up.”

60. Also, it must be remembered that merely because sufficientcause has been made out in the facts of given case, there is no right inthe appellant to have delay condoned. This was felicitously put in Ramlalv. Rewa Coalfields Ltd., (1962) 2 SCR 762 as follows:

“It is, however, necessary to emphasise that even after sufficientcause has been shown party is not entitled to the condonation ofdelay in question as matter of right. The proof of sufficientcause is condition precedent for the exercise of the discretionaryjurisdiction vested in the court by s. 5. If sufficient cause is notproved nothing further has to be done; the application for condoningdelay has to be dismissed on that ground alone. If sufficient causeis shown then the Court has to enquire whether in its discretion it

Ashould condone the delay. This aspect of the matter naturallyintroduces the consideration of all relevant facts and it is at thisstage that diligence of the party or its bona fides may fall forconsideration; but the scope of the enquiry while exercising thediscretionary power after sufficient cause is shown would naturallybe limited only to such facts as the Court may regard as relevant.BIt cannot justify an enquiry as to why the party was sitting idleduring all the time available to it. In this connection we may pointout that considerations of bona fides or due diligence are alwaysmaterial and relevant when the Court is dealing with applicationsmade under s. 14 of the Limitation Act. In dealing with suchCapplications the Court is called upon to consider the effect of thecombined provisions of ss. 5 and 14. Therefore, in our opinion,considerations which have been expressly made material andrelevant by the provisions of s. 14 cannot to the same extent andin the same manner be invoked in dealing with applications whichfall to be decided only under s. 5 without reference to s. 14.”

(page 771)

61. Given the aforesaid and the object of speedy disposal soughtto be achieved both under the Arbitration Act and the Commercial CourtsAct, for appeals filed under section 37 of the Arbitration Act that areEgoverned by Articles 116 and 117 of the Limitation Act or section 13(1A)of the Commercial Courts Act, delay beyond 90 days, 30 days or 60days, respectively, is to be condoned by way of exception and not byway of rule. In fit case in which party has otherwise acted bonafide and not in negligent manner, short delay beyond such periodcan, in the discretion of the court, be condoned, always bearing in mindFthat the other side of the picture is that the opposite party may haveacquired both in equity and justice, what may now be lost by the firstparty’s inaction, negligence or laches.

62. Coming to the facts of the appeals before us, in the CivilAppeal arising out of SLP (C) No. 665 of 2021, the impugned judgmentGof the High Court of Bombay, dated 17.12.2020, has found that the Govtof Maharashtra had not approached the court bona fide, as follows:

“7. I have carefully gone through the papers. There can be nodoubt in view of the documentary evidence in the form of copy ofthe application tendered by the Advocate representing the applicant

for obtaining certified copy (Exhibit-R1) that in fact, afterpronouncement of the judgment and order in the proceeding underSection 34 of the Act, the concerned Advocate had applied forcertified copy on 14.05.2019. The endorsement further reads thatit was to be handed over to Mr. A.D. Patil of the IrrigationDepartment, Dhule, who is staff from the office of the applicant.The further endorsements also clearly show that the certified copywas ready and was to be delivered on 27.05.2019. [In spite] ofsuch stand and document, the applicant has not controvertedthis or has not come up with any other stand touching this aspect.It is therefore apparent that the applicant is not coming to theCourt with clean hands even while seeking the discretionary reliefof condonation of delay”63. Apart from this, there is long delay of 131 days beyond the60-day period provided for filing an appeal under section 13(1A) of theCommercial Courts Act. There is no explanation worth the namecontained in the condonation of delay application, beyond the usual file-pushing and administrative exigency. This appeal is therefore dismissed.

64. In the Civil Appeal arising out of SLP (C) No. 15278 of 2020,the impugned judgment of the High Court of Madhya Pradesh dated27.01.2020 relies upon Consolidated Engg. (supra)and thereby statesthat the judgment of this Court in N.V. International (supra) would notapply. The judgment of the High Court is wholly incorrect inasmuch asConsolidated Engg. (supra) was judgment which applied theprovisions of section 14 of the Limitation Act and had nothing to do withthe application of section 5 of the Limitation Act. N.V. International(supra) was direct judgment which applied the provisions of section 5of the Limitation Act and then held that no condonation of delay couldtake place beyond 120 days. The High Court was bound to follow N.V.International (supra), as on the date of the judgment of the High Court,N.V. International (supra) was judgment of two learned judges ofthe Supreme Court binding upon the High Court by virtue of Article 141of the Constitution. On this score, the impugned judgment of the HighCourt deserves to be set aside.

65. That apart, on the facts of this appeal, there is long delay of75 days beyond the period of 60 days provided by the Commercial CourtsAct. Despite the fact that certified copy of the District Court’s judgment

ABC

Awas obtained by the respondent on 27.04.2019, the appeal was filed onlyon 09.09.2019, the explanation for delay being:

“2. That, the certified copy of the order dated 01/04/2013 wasreceived by the appellant on 27/04/2019. Thereafter the matterwas placed before the CGM purchase MPPKVVCL for theBcompliance of the order. The same was then sent to the law officer,MPPKVVCL for opinion.

3. That after taking opinion for appeal, and approval of theconcerned authorities, the officer-in-charge was appointed videorder dated 23/07/2019.

4. That, thereafter due to bulky records of the case and forprocurement of the necessary documents some delay has beencaused however, the appeal has been prepared and filed to pursuantto the same and further delay.

5. That due to the aforesaid procedural approval and since theDappellant is public entity formed under the Energy departmentof the State Government, the delay caused in filing the appeal isbonafide and which deserve[s] to be condoned.”

66. This explanation falls woefully short of making out any sufficientcause. This appeal is therefore allowed and the condonation of delay isEset aside on this score also.

67. In the Civil Appeal arising out of SLP (C) Diary No. 18079 of2020, there is huge delay of 227 days in filing the appeal, and 200-day delay in refiling. The facts of this case also show that there was nosufficient cause whatsoever to condone such long delay. The impugnedFjudgment of the High Court of Delhi dated 15.10.2019 cannot be faultedon this score and this appeal is consequently dismissed.

68. Appeals disposed of accordingly.

Nidhi Jain

Appeals disposed of.