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

Citation: [2021] 3 S.C.R. 193; 2021 INSC 194

Court: Supreme Court of India

Bench: R.F. NARIMAN , BHUSHAN RAMKRISHNA GAVAI, HRISHIKESH ROY

Judgment date: 2021-03-19

Case summary

2021 INSC 194. Supreme Court of India judgment dated 2021-03-19. GOVERNMENT OF MAHARASHTRA (WATER RESOURCES DEPARTMENT) REPRESENTED BY EXECUTIVE ENGINEER v....

Judgment text

[2021] 3 S. C. R. 193 193 GOVERNMENT OF MAHARASHTRA (WATER RESOURCES A DEPARTMENT) REPRESENTED BY EXECUTIVE ENGINEER v. M/S BORSE BROTHERS ENGINEERS & CONTRACTORS PVT. LTD. (Civil Appeal No. 995 of 2021) B MARCH 19, 2021 [R. F. NARIMAN, B. R. GAVAI AND HRISHIKESH ROY, JJ. ] Arbitration and Conciliation Act, 1996:s. 37 – Commercial Courts Act, 2015 – Appealable orders – Limitation period for filing C appeal – Condonation of delay in filing appeal u/s. 37 – Held: Object of speedy disposal is sought to be achieved both under the Arbitration Act and the CC Act, for appeals filed u/s. 37 of the 1996 Act that are governed by Arts, 116 and 117 of the Limitation Act or s. 13(1A) of the CC Act – s. 13(1A) of the CC Act lays down a period of limitation of 60 days uniformly for all appeals that are D preferred u/s.

37 of the Act – Delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule – In a fit case in which a party has acted bona fide and not in a negligent manner, a short delay can be condoned – Expression “sufficient cause” is not elastic enough to cover long E delays 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. 37 when read with s. 43 thereof, makes it clear that the provisions of F the Limitation Act would apply to appeals filed u/s. 37 – Appeal u/ s. 37 where specified value within the meaning of the CC Act is below 3 lakhs, are governed by Arts. 116 and 117 – Arts. 116 and 117 of the Limitation Act provide for a limitation period of 90 days and 30 days, for appeal to a High Court or an intra-High Court appeal – Thus, s.

5 of the Limitation Act would apply to the said G appeals, both by virtue of s. 43 of the 1996 Act and s. 29(2) of the Limitation Act – Arts. 116, 117, s. 29(2) – Commercial Courts Act, 2015. s. 5 – Application of, to appeals u/s. 13(1A) of the CC Act providing a uniform 60-day period of limitation – Held: A middle H 193 194 SUPREME COURT REPORTS [2021] 3 S. C. R. A course to be adopted between the N. V. International’s case which does 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 quam pereat-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.

5 of the Limitation Act and held that no condonation of delay could take place beyond 120 days – Whether the hard and fast rule applied by this Court in N. V. International’s case, is correct in law – Held: C N. V. International’s case while determining limitation period for filing appeal u/s. 37 did not notice the provisions of the CC Act at all and can be said to be per incuriam on this count - Period of 90 days plus 30 days and not thereafter mentioned in s. 34(3) of the 1996 Act cannot now apply, the limitation period for filing of appeals D under 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 Court E HELD: 1.

1 The requirement of an arbitral procedure which is efficient and the minimising of the supervisory role of courts in arbitral process would certainly show that one of the main objectives of the Arbitration and Conciliation Act 1996is the speedy disposal of disputes through the arbitral process. Section 5 of the Arbitration Act is important. Section 37 of the Arbitration F Act, when read with section 43 thereof, makes it clear that the provisions of the Limitation Act would apply to appeals that are filed under section 37. Articles 116 and 117 of the Limitation Act provide for a limitation period of 90 days and 30 days, depending upon whether the appeal is from any other court to a High Court G or an intra-High Court appeal. There can be no doubt whatsoever that 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 of section 29(2) of the Limitation Act. [Para 15, 23][210-D-E; 222- C-E] H GOVT.

OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 195 ENGR. v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. Consolidated Engg. Enterprises v. Irrigation Deptt. A (2008) 7 SCC 169 : [2008] 5 SCR 1108 – relied on. 1. 2 When the Commercial Courts Act, 2015 is applied to the said appeals, given the definition of “specified value” and the provisions contained in sections 10 and 13 thereof, it is clear that it is only when the specified value is for a sum less than B three lakh rupees that the appellate provision contained in section 37 of the Arbitration Act would be governed, for the purposes of limitation, by Articles 116 and 117 of the Limitation Act. The submission that depending upon which court decides a matter, a limitation period of either 30 or 90 days is provided, which leads C to arbitrary results, and that, therefore, the uniform period provided by Article 137 of the Limitation Act should govern appeals as well, is rejected.

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 to why they should not be strictly followed. The submission that since no period of limitation has D been provided in section 37 of the Arbitration Act, as a result of which the neat division contained in the Limitation Act of different matters contained in suits, appeals and applications will somehow have to be destroyed, the word “appeals” has to be read into “applications” so that Article 137 of the Limitation Act could E apply, 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 under section 37 of the Arbitration Act would be of a specified value F less than three lakh rupees, resulting in Article 116 or 117 of the Limitation Act applying, the main object of the Arbitration Act requiring speedy resolution of disputes would be the most important principle to be applied when applications under section 5 of the Limitation Act are filed to condone delay beyond 90 days G and/or 30 days depending upon whether Article 116(a) or 116(b) or 117 applies. As a matter of fact, given the timelines contained in 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 resolution of disputes would govern appeals covered by Articles 116 and 117 of the Limitation Act. Thus, from the scheme of the Arbitration H 196 SUPREME COURT REPORTS [2021] 3 S. C. R.

A Act, and the judgments given, condonation of delay under section 5 of the Limitation Act has to be seen in the context of the object of speedy resolution of disputes. [Para 26, 31][225-E-G; 228-C] Union of India v. Popular Construction Co. (2001) 8 SCC 470 : [2001] 3 Suppl. SCR 619; State of Goa v. B Western Builders (2006) 6 SCC 239; Kandla Export Corpn. v. OCI Corpn. (2018) 14 SCC 715 : [2018] 1 SCR 915; ICOMM Tele Ltd. v. Punjab State Water Supply and Sewerage Board (2019) 4 SCC 401 – relied on. C 1. 4 The bulk of appeals, however, to the appellate court under section 37 of the Arbitration Act, are governed by section 13 of the Commercial Courts Act. Sub-section (1A) of section 13 of the Commercial Courts Act provides the forum for appeals as well as the limitation period to be followed, section 13 of the Commercial Courts Act being a special law as compared with the D Limitation Act which is a general law, which follows from a reading of section 29(2) of the Limitation Act.

Section 13(1A) of the Commercial Courts Act lays down a period of limitation of 60 days uniformly for all appeals that are preferred under section 37 of the Arbitration Act. [Para 32][228-D-E] E BGS SGS SOMA JV v. NHPC (2020) 4 SCC 234 – referred to. 1. 5 Section 13(1A) of the Commercial Courts Act does not contain any provision akin to section 34(3) of the Arbitration Act. Section 13(1A) of the Commercial Courts Act only provides for a F limitation period of 60 days from the date of the judgment or order appealed against, without further going into whether delay beyond this period can or cannot be condoned. Though the object of expeditious disposal of appeals is laid down in section 14 of the Commercial Courts Act, the language of section 14 makes it clear that the period of six months spoken of is directory and not G mandatory.

By way of contrast, section 16 of the Commercial Courts Act read with the Schedule thereof and the amendment made to Order VIII Rule 1 of the CPC, would make it clear that the defendant in a suit is given 30 days to file a written statement, H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 197 ENGR. v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. which period cannot be extended beyond 120 days from the date A of service of the summons; and on expiry of the said period, the defendant forfeits the right to file the written statement and the court cannot allow the written statement to be taken on record. By way of contrast, there is no such provision contained in section 13 of the Commercial Courts Act. [Para 33, 34, 36][228-F-G; 229- B A-B; 232-C] 1. 6 There are no other provisions in the Commercial Courts Act which provide for a period of limitation coupled with a condonation of delay provision which is either open-ended or capped.

Also, the period of 180 days provided was one indicia C which led the Court to exclude the application of section 5 of the Limitation Act, as it was double and triple the period provided for appeals under the other provisions of the same Act. Section 13(1A) of the Commercial Courts Act, by way of contrast, applies an intermediate period of 60 days for filing an appeal, that is, a period that is halfway between 30 days and 90 days provided by D Articles 116 and 117 of the Limitation Act. [Para 38][234-B-C] CCE & Customs v. Hongo India (P) Ltd. (2009) 5 SCC 791; Suryachakra Power Corpn. Ltd. v. Electricity Deptt. (2016) 16 SCC 152 : [2016] 8 SCR 108; ONGC v. Gujarat Energy Transmission Corpn. Ltd. (2017) 5 E SCC 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. F 1.

7 Section 21 of the Commercial Courts Act was pressed into service stating that the non-obstante clause contained in the CC Act would override other Acts, including the Limitation Act, as a result of which, the applicability of section 5 thereof would be excluded. Thus, the submission that the application of section G 5 of the Limitation Act is excluded given the scheme of Commercial 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. H 198 SUPREME COURT REPORTS [2021] 3 S. C. R. A 1. 8 It was submitted as to whether the hard and fast rule applied by this Court in N. V. International’s case is correct in law. N. V. International’s case does not notice the provisions of the Commercial Courts Act at all and can be said to be per incuriam on this count. Secondly, it is also correct to note that the period of 90 days plus 30 days and not thereafter mentioned in s.

34(3) B of the Arbitration Act cannot now apply, the limitation period for filing of appeals under the Commercial Courts Act being 60 days and not 90 days. Thirdly, the submission that absent of a provision curtailing the condonation of delay beyond the period provided in s. 13 of the Commercial Courts Act would also make it clear C that any such bodily lifting of the last part of section 34(3) into section 37 of the Arbitration Act would also be unwarranted. It cannot be said that this is a mere casus omissus which can be filled in by the Court. [Para 42][235-E-H] 1. 9 The difference between interpretation and legislation D is sometimes a fine one, as the judges do not merely interpret the 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 a littledifficult to appreciate how a cap can be E judicially engrafted onto astatutory provision which then bars condonation of delay by even one day beyond the cap so engrafted. [Para 47][238-A] 1. 11 The submission that the limitation of power on a civil court at the initial stage can be read as a limitation onto the F appellate 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 of unbreakability when applied tos. 34(3) of the Arbitration Act, also does not carry the matter much further, as the question is whether this doctrine can be bodily lifted and engrafted onto an appeal H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 199 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD.

provision that has no cut-off point beyond which delay cannot be A condoned. Thus, N. V. International’s case has been wrongly decided and is overruled. [Para 50][239-G-H; 240-A-B] N. V. International v. State of Assam (2020) 2 SCC 109 – overruled. B 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 section 5 of the Limitation Act to appeals which are governed by a uniform 60-day period of limitation. At one extreme, there is N. V. C International’s case which does not allow condonation of delay beyond 30 days, and at the other extreme, there is an open-ended provision in which any amount of delay can be condoned, provided sufficient cause is shown. It is between these two extremes that this Court have to steer a middle course. One judicial tool to steer this course is contained in the latin maxim ut res magis D valeat quam pereat- liberal construction should be put upon written 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 Commercial E Courts Act as a whole, it is clear that when section 37 of the Arbitration Act is read with either Article 116 or 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, the object and context provided by the said statutes, read as a whole, is the speedy disposal of appeals filed under section 37 of F the Arbitration Act. To read section 5 of the Limitation Act consistently with the said object, it is necessary to discover as to what the expression “sufficient cause” means in the context of condoning delay in filing appeals under section 37 of the Arbitration Act. The expression “sufficient cause” contained in section 5 of the Limitation Act is elastic enough to yield different G results depending upon the object and context of a statute. [Para 53, 54] [242-B-D] Ajmer Kaur v.

State of Punjab (2004) 7 SCC 381 : [2004] 2 Suppl. SCR 601; Brahampal v. National Insurance Company 2020 SCC OnLine SC 1053 – referred to. H 200 SUPREME COURT REPORTS [2021] 3 S. C. R. A 1. 15 Given the object sought to be achieved under both the Arbitration Act and the Commercial Courts Act, that is, the speedy resolution of disputes, the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression “sufficient cause” is not itself a loose panacea for the ill of pressing B negligent and stale claims. Likewise, merely because the government is involved, a different yardstick for condonation of delay cannot be laid down. Also, merely because sufficient cause has been made out, there is no right in the appellant to have delay condoned. [Para 56, 57, 60][246-B-C; 249-B; 251-F] C Basawaraj v. Land Acquisition Officer (2013) 14 SCC 81: [2013] 8 SCR 227; Postmaster General v.

Living Media India Ltd. (2012) 3 SCC 563 : [2012] 1 SCR 1045; State of Rajasthan v. Bal Kishan Mathur (2014) 1 SCC 592 : [2013] 10 SCR 137; State of U. P. v. Amar D Nath Yadav (2014) 2 SCC 422; State of T. N. v. N. Suresh Rajan (2014) 11 SCC 709 : [2014] 1 SCR 135; State of M. P. v. Bherulal (2020) 10 SCC 654; State of M. P. v. Chaitram Maywade (2020) 10 SCC 667; Ramlal v. Rewa Coalfields Ltd. (1962) 2 SCR 762 – referred to. 1. 16 The object of speedy disposal sought to be achieved E both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of F exception and not by way of rule.

In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, G negligence or laches. [Para 61][252-E-F] 1. 17 In the Civil Appeal arising out of SLP (C) No. 665 of 2021, the impugned judgment of the High Court, the Govt of Maharashtra had not approached the court bona fide. Apart from H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 201 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. this, there is a long delay of 131 days beyond the 60- day period A provided for filing an appeal under section 13(1A) of the Commercial Courts Act. There is no explanation worth the name contained in the condonation of delay application, beyond the usual file-pushing and administrative exigency.

[Para 62, 63][252- G; 253-C-D] B 1. 18 In the Civil Appeal arising out of SLP (C) No. 15278 of 2020, the impugned judgment of the High Court relied upon Consolidated Engg. ’s case and thereby stated that the judgment of this Court in N. V. International’s case would not apply. The judgment of the High Court is wholly incorrect inasmuch as C Consolidated Engg. ’s case was a judgment which applied the provisions of section 14 of the Limitation Act and had nothing to do with the application of section 5 of the Limitation Act. N. V. International’s case was a direct judgment which applied the provisions of section 5 of the Limitation Act and then held that no condonation of delay could take place beyond 120 days. The D High Court was bound to follow N. V. International’s case, as on the date of the judgment of the High Court, N. V. International’s case was a judgment of two judges of the Supreme Court binding upon the High Court by virtue of Article 141 of the Constitution.

On this score, the impugned judgment of the High Court is set E aside. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court’s judgment was obtained by the respondent on 27. 04. 2019, the appeal was filed only on 09. 09. 2019. This explanation for delay falls woefully short of making out any F sufficient cause. The condonation of delay is set aside on this score 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 a huge delay of 227 days in filing the appeal, and a 200-day delay in refiling. The facts of the case also G show that there was no sufficient cause whatsoever to condone such a long delay. The judgment of the High Court cannot be faulted on this score. [Para 67][254-E-F] Union of India v. Varindera Constructions Ltd. (2020) 2 SCC 111 – referred to.

H 202 SUPREME COURT REPORTS [2021] 3 S. C. R. A Case Law Reference (2020) 2 SCC 111 referred to Para 2 [2008] 5 SCR 1108 relied on Para 23 [1963] 1 SCR 70 referred to Para 24 B [2001] 3 Suppl. SCR 619 relied on Para 27 (2006) 6 SCC 239 relied on Para 28 [2018] 1 SCR 915 relied on Para 29 (2019) 4 SCC 401 relied on Para 30 C (2020) 4 SCC 234 referred to Para 32 (2005) 6 SCC 344 referred to Para 34 [2019] 3 SCR 1050 referred to Para 35 (2009) 5 SCC 791 distinguished Para 36 D [2016] 8 SCR 108 distinguished Para 39 [2017] 2 SCR 922 distinguished Para 39 [2018] 12 SCR 794 referred to Para 40 [2017] 7 SCR 924 referred to Para 43 E [2004] 4 Suppl. SCR 942 referred to Para 48 [2008] 11 SCR 738 referred to Para 48 (2020) 2 SCC 109 overruled Para 50 [2018] 12 SCR 143 referred to Para 50 F [2002] 5 Suppl. SCR 387 referred to Para 52 [2004] 2 Suppl.

SCR 601 referred to Para 54 [2013] 8 SCR 227 referred to Para 56 G [2012] 1 SCR 1045 referred to Para 57 [2013] 10 SCR 137 referred to Para 58 (2014) 2 SCC 422 referred to Para 58 [2014] 1 SCR 135 referred to Para 58 H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 203 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. (2020) 10 SCC 654 referred to Para 58 A (2020) 10 SCC 667 referred to Para 59 (1962) 2 SCR 762 referred to Para 60 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 995 of 2021. B From the Judgment and Order dated 17. 12. 2020 passed by the High Court of Judicature at Bombay Bench at Aurangabad in Civil Application No. 421 of 2020 in Arbitration Petition (Stamp) no. 36068 of 2019. Ms. Aishwarya Bhati, ASG, Vinay Navare, Sr. Adv. Sandeep C Sudhakar Deshmukh, Pravir Kumar Jain, Ameyavikrama Thanvi, Akshay Amritanshu, Ms. Ruchi Kohli, Prashant Singh, Arvind Kumar Sharma, Shashibhushan P.

Adgaonkar, Vijay Patil, Ravibhushan P Adgaonkar, Gagandeep Sharma, Rana Sandeep Bussa, Amalpushp Shroti, Dr. Amit George, Arunabha Ganguli, Guntur Pramod Kumar, Advs. for the D appearing parties. The Judgment of the Court was delivered by R. F. NARIMAN, J. 1. Leave granted. Delay condoned in SLP (C) Diary No. 18079 of E 2020. 2. The substantial question of law which arises in these appeals is as to whether the judgment of a 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 its F earlier 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 may observe that the matter is no longer res integra. In Union of India v. Varindera Constructions Ltd. [Union of India v. Varindera G Constructions Ltd.

, (2020) 2 SCC 111] , this Court, by its judgment and order dated 17-9-2018 [Union of India v. Varindera Constructions Ltd. , (2020) 2 SCC 111] held thus: (SCC p. 112, paras 1-5) “1. Heard the learned counsel appearing for the parties. H 204 SUPREME COURT REPORTS [2021] 3 S. C. R. A 2. By a judgment dated 19-4-2018 in Union of India v. Varindera Constructions Ltd. [Union of India v. Varindera Constructions Ltd. , (2018) 7 SCC 794], this Court has in near identical facts and circumstances allowed the appeal of the Union of India in a proceeding arising from an arbitral award. B 3. Ordinarily, we would have applied the said judgment to this case as well. However, we find that the impugned Division Bench judgment dated 10-4-2013 [Union of India v. Varindera Constructions Ltd. , 2013 SCC OnLine Del 6511] has dismissed the appeal filed by the Union of India on the ground of delay. The delay was found to be 142 days in filing the appeal and C 103 days in refiling the appeal.

One of the important points made by the Division Bench is that, apart from the fact that there is no sufficient cause made out in the grounds of delay, since a Section 34 application has to be filed within a maximum period of 120 days including the grace period of 30 days, an D appeal filed from the selfsame proceeding under Section 37 should be covered by the same drill. 4. Given the fact that an appellate proceeding is a continuation of the original proceeding, as has been held in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [Lachmeshwar Prasad Shukul v.

Keshwar Lal Chaudhuri, 1940 SCC E OnLine FC 10 : AIR 1941 FC 5] , and repeatedly followed by our judgments, we feel that any delay beyond 120 days in the filing of an appeal under Section 37 from an application being either dismissed or allowed under Section 34 of the Arbitration and Conciliation Act, 1996 should not be allowed as it will defeat F the overall statutory purpose of arbitration proceedings being decided with utmost despatch. 5. In this view of the matter, since even the original appeal was filed with a delay period of 142 days, we are not inclined to entertain these special leave petitions on the facts of this G particular case. The special leave petitions stand disposed of accordingly. Pending applications, if any, also stand disposed of. ” 4. We may only add that what we have done in the aforesaid judgment is to add to the period of 90 days, which is provided by H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 205 ENG. R v. M/S BORSE BROS. ENGR.

& CONTR (P) LTD. [R. F. NARIMAN] statute for filing of appeals under Section 37 of the Arbitration A Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul [Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 SCC OnLine FC 10 : AIR 1941 FC 5] , as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in B the minds of the framers of the 1996 Act, and which has been strengthened 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 arising C out 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 vide judgments dated 17. 12. 2020 and 15. 10.

2019 respectively, dismissed the appeals filed by the Government of Maharashtra and by the Union of India respectively, refusing to condone the delay in the filing of the appeal under section 37 of the Arbitration and Conciliation Act, 1996 D [“Arbitration Act”] beyond 120 days. So far as the Civil Appeal arising out of SLP (C) No. 15278 of 2020 is concerned, the High Court of Madhya Pradesh refused to follow the judgment of this Court in N. V. International (supra) stating that there is a conflict between this judgment and the judgment of a larger Bench of this Court reported in E Consolidated Engg. Enterprises v. Irrigation Deptt. , (2008) 7 SCC 169 [“Consolidated Engg. ”]. It was, therefore, held that it was open for the High Court to condone the delay applying section 5 of the Limitation Act, 1963 [“Limitation Act”] and, as a matter of fact, a delay of what was stated to be 57 days was condoned. F 4.

Shri Sandeep Sudhakar Deshmukh, learned counsel appearing on behalf of the Government of Maharashtra (Water Resources Department) [“Govt of Maharashtra”], the appellant in Civil Appeal arising out of SLP (C) No. 665 of 2021, submitted that the Arbitration Act in its original avatar did not include the concept or idea of expeditious resolution of disputes. At best, the Arbitration Act can be treated as a G mechanism providing for alternate dispute resolution. This original objective is continued by the Arbitration and Conciliation (Amendment) Act, 2015 [“2015 Amendment”] which provides a time limit for arbitral awards and for fast track procedure contained in sections 29A and 29B of the Arbitration Act. This being the case, the very foundation of N. V. H 206 SUPREME COURT REPORTS [2021] 3 S. C. R. A International (supra) is erroneous in law.

Shri Deshmukh also argued that section 37 of the Arbitration Act provides for appeals from several orders, including orders made under sections 8, 9, 16 and 17, apart from orders 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, but B not to orders that are passed under any of the other aforesaid sections, as there is no hard and fast application of a 120-day limitation period when it comes to applications that have been filed under any of these sections. 5. Shri Deshmukh also argued that section 33 of the Arbitration C Act contemplates correction and interpretation of an award, the arbitral tribunal being clothed with the power to extend time without there being any outer limit.

He also stated that vide section 29(2) of the Limitation Act, the period of limitation for filing applications under the Arbitration Act would be governed by Article 137 of the Limitation Act, providing D for a much longer limitation period of three years. He further argued that Articles 116 and 117 of the Limitation Act provide different periods of limitation, being 90 days and 30 days respectively. Since these different prescribed periods lead to arbitrary results, the concept of an “appeal” would have to be read into the definition of the term “application” so that the “appeal” provision under section 37 of the Arbitration Act is uniformly E governed by Article 137 of the Limitation Act, which would lead to a uniform limitation period of three years.

He also argued that to read the period of limitation contemplated under section 34(3) for an appeal filed under section 37 of the Arbitration Act, would amount to judicial legislation due to the absence of any period of limitation provided in section 37. He F placed reliance on a large number of judgments citing cases where the Limitation Act had been held to be applicable to arbitration proceedings and others in which it had not so been held. He also cited a large number of judgments on section 29(2) of the Limitation Act, relating to the meaning of “express exclusion” under the said section. He then cited judgments on the applicability of Article 137 of the Limitation Act and a G judgment which eschews judicial legislation. 6. Ms. Aishwarya Bhati, learned Additional Solicitor General appearing on behalf of the Union of India, the appellant in the Civil Appeal arising out of SLP (C) Diary No.

18079 of 2020, read in detail the provisions of the Commercial Courts Act, 2015 [“Commercial Courts H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 207 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] Act”] and referred to the two Law Commission Reports which led to its A th rd enactment, namely the 188 Law Commission Report and the 253 Law Commission Report. She then referred to this Court’s judgments in Kandla Export Corpn. v. OCI Corpn. , (2018) 14 SCC 715 [“Kandla Export Corpn”] and BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, dealing with the interplay between section 13 of the Commercial B Courts Act and section 37 of the Arbitration Act.

She argued that a limitation period of 60 days was laid down by section 13(1A) of the Commercial Courts Act, and though section 14 thereof commands that an expeditious disposal of appeals take place within a period of six months from the date of filing such appeal, neither of the two provisions bound appellate courts not to apply section 5 of the Limitation Act to relax the C period of limitation in deserving cases. She also relied upon section 12A of the Commercial Courts Act, which speaks of the Limitation Act in the context of the Commercial Courts Act. She then referred to section 16 of the Commercial Courts Act read with the Schedule, and, in particular, the amendment made to Order VIII Rule 1 of the Code of Civil D Procedure, 1908 [“CPC”] which closes the right of defence after a certain period of limitation is over, which is to be contrasted with section 13 of the Commercial Courts Act, which contains no such provision.

She then referred to judgments under different statutes such as the Insolvency and Bankruptcy Code, 2016 [“IBC”] and the Electricity Act, 2003 in which section 5 of the Limitation Act becomes inapplicable by E virtue 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 the respondents in the Civil Appeal arising out of SLP (C) No. 15278 of 2020, broadly supported the arguments of Shri Deshmukh and Ms. Bhati, F 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 of 2021, was at pains to point out the conduct of the Govt of Maharashtra G and added that if a period of 60 days is to be reckoned under the Commercial Courts Act, the appeal filed by the Govt of Maharashtra would be delayed by a period of 131 days for which there is no explanation worthy of the name. He relied heavily on the impugned judgment of the High Court of Bombay which had also stated that though the certified H 208 SUPREME COURT REPORTS [2021] 3 S. C. R. A copy of the judgment was applied for and was ready by 27. 05. 2019, the Govt of Maharashtra wrongly mentioned that it received such copy only on 24. 07. 2019, as a result of which the Govt of Maharashtra had not appeared before the High Court with clean hands. 9. Further, Shri Navare sought to answer Shri Deshmukh’s B submission that the rationale of N. V.

International (supra) can and should apply to an appeal filed against a section 34 order, as several different appeal provisions were all bunched together in one section and could have been the subject matter of different appellate provisions contained in the very original proceeding that was sought to be appealed against. He, therefore, argued that the scheme contained in the Arbitration C Act, insofar as appeals from section 8 applications are concerned, is that it is only if a section 8 application is refused that an appeal lies and not otherwise, contrasting it with an appeal against a section 34 order, which lies whether or not the court allows the section 34 application.

Hence, according to the learned Senior Advocate, each appellate provision D would have its own rationale, appeals in the cases of section 8, 9, 16 and 17 of the Arbitration Act allowing for sufficient cause to be shown beyond the period of 30 days, as opposed to appeals filed under section 34, which ought to allow for sufficient cause being shown upto a period of 30 days, or else the whole object of section 34 would be destroyed. He referred to the Statement of Objects and Reasons of the Arbitration Act E and judgments to show that Shri Deshmukh’s submission that the Arbitration Act provided only alternate dispute resolution and not speedy disposal was wholly incorrect. He also pointed out that specific timelines are contained in several sections of the Arbitration Act such as sections 9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5) and 34(3), to indicate F that the object of speedy disposal was at the heart of the Arbitration Act. 10.

Shri Navare then relied upon the Commercial Courts Act and in particular, on sections 13(1A) and 14, to show that the whole object of speedy disposal of appeals contained in the Commercial Courts Act would be given a go-bye if long periods of delay beyond 30 days are to be G condoned, since the appeal itself has to be decided within a period of six months. He also cited a number of judgments and supported the judgment of this Court in N. V. International (supra) by arguing that a judge is not helpless when faced with a provision which, when literally read, would result in arbitrary and unjust orders being passed. He also referred to H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 209 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] judgments where a casus omissus could be supplied, which is what was A done in N. V. International (supra). 11.

Shri Manoj Chouhan, learned counsel appearing on behalf of M/s Swastik Wires, the appellant in Civil Appeal arising out of SLP (C) No. 15278 of 2020, supported the impugned judgment dated 27. 01. 2020 of the High Court of Madhya Pradesh and argued that this Court’s B judgment in Consolidated Engg. (supra), being a judgment of three learned judges, would prevail over the judgment of this Court in N. V. International (supra), which is only delivered by two learned judges and, therefore, delay can be condoned. He also added that once section 5 of the Limitation Act applies, the Court cannot impose any limits on the C expression “sufficient cause” and even if there are long delays and sufficient cause is made out, such delays can be condoned. Further, he argued that this Court could use Article 142 of the Constitution, which is a veritable brahmâstra and panacea for all ills, to do justice in individual cases. D 12. Dr.

Amit George, learned counsel appearing for M/s Associated Construction Co. , the respondent in the Civil Appeal arising out of SLP (C) Diary No. 18079 of 2020, argued that section 13 of the Commercial Courts Act, having regard to the object of speedy disposal sought to be achieved, excludes the application of section 5 of the Limitation Act altogether. For this purpose, he relied heavily upon the judgment of this E Court in Kandla Export Corpn (supra) and the judgment of this Court in 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 judgments which interpreted section 29(2) of the Limitation Act to state that the F scheme of a particular statute may make it clear that there is an “express exclusion” of section 5 of the Limitation Act, which is the case under the Commercial Courts Act. He then relied strongly upon the judgment in N. V.

International (supra) by supporting its logic and citing judgments which would show that other sections of the Limitation Act were excluded in the context of section 34(3) of the Arbitration Act – such as sections G 4 and 17 of the Limitation Act. In any case, he argued that on facts sufficient cause had not been made out, and that the judgment of the High Court of Delhi dated 15. 10. 2019 ought to be set aside on this ground also. H 210 SUPREME COURT REPORTS [2021] 3 S. C. R. A 13. The arguments that have been made in these appeals and the case law cited have gone way beyond the narrow question which arises before us. However, in dealing with these arguments, it is necessary to first set out the relevant statutory provisions contained in the three statutes that have been strongly relied upon by either side in these appeals. B 14. First and foremost, the Arbitration Act has, in its Statement of Objects and Reasons, the following: “4.

The main objectives of the Bill are as under:-xxx xxx xxx (ii) to make provision for an arbitral procedure which is fair, C efficient and capable of meeting the needs of the specific arbitration; xxx xxx xxx (v) to minimise the supervisory role of courts in the arbitral process” D 15. As has correctly been pointed out by Shri Navare, the requirement of an arbitral procedure which is efficient and the minimising of the supervisory role of courts in arbitral process would certainly show that one of the main objectives of the Arbitration Act is the speedy disposal of disputes through the arbitral process. Section 5 of the Arbitration Act E is important and states : “5. Extent of judicial intervention. —Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. ” F 16. The other relevant provisions of the Arbitration Act provide as follows: “8.

Power to refer parties to arbitration where there is an arbitration agreement. — (1) A judicial authority, before which an action is brought in a G matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 211 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] Court or any Court, refer the parties to arbitration unless it finds A that prima facie no valid arbitration agreement exists.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: 2 [Provided that where the original arbitration agreement or a certified copy thereof is B not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon C the other party to produce the original arbitration agreement or its duly 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 arbitral D award made. ” “9. Interim measures, etc. , by Court.

— xxx xxx xxx (2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection E under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine. ” “11. Appointment of arbitrators. — F xxx xxx xxx (4) If the appointment procedure in sub-section (3) applies and— (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or G (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court; H 212 SUPREME COURT REPORTS [2021] 3 S. C. R.

A xxx xxx xxx (13) An application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the Supreme Court or the High Court or the person or institution designated by such Court, as the case maybe, as expeditiously as possible and an B endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party” “13. Challenge procedure. — (1) Subject to sub-section (4), the parties are free to agree on a C procedure for challenging an arbitrator. (2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub- D section(3) of section 12, send a written statement of the reasons for 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. E (4) If a challenge under any procedure agreed upon by the parties or under the procedure under subsection (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award. (5) Where an arbitral award is made under sub-section (4), the F party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34. (6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees. ” G “16. Competence of arbitral tribunal to rule on its jurisdiction.

— xxx xxx xxx (2) A plea that the arbitral tribunal does not have jurisdiction shall H be raised not later than the submission of the statement of defence; GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 213 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] however, a party shall not be precluded from raising such a plea A merely because that he has appointed, or participated in the appointment of, an arbitrator. ” “29A. Time limit for arbitral award. — (1)The award in matters other than international commercial B arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23: Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavor C may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23.

(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral D tribunal shall be entitled to receive such amount of additional fees as the parties may agree. (3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months. E (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: F Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay.

G Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application: Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced. H 214 SUPREME COURT REPORTS [2021] 3 S. C. R. A (5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court. (6) While extending the period referred to in sub-section (4), it B shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s)appointed under this section shall be deemed to have received the said evidence and material.

C (7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal. (8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section. D (9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party” E “29B. Fast track procedure. — (1) Notwithstanding anything contained in this Act, the parties to an arbitration agreement, may, at any stage either before or at the time of appointment of the arbitral tribunal, agree in writing to have their dispute resolved by fast track procedure specified in F sub-section (3).

(2) The parties to the arbitration agreement, while agreeing for resolution of dispute by fast track procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be chosen by the parties. G (3) The arbitral tribunal shall follow the following procedure while conducting arbitration proceedings under sub-section (1):— (a) The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents and submissions filed by the parties without any oral hearing; H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 215 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F.

NARIMAN] (b) The arbitral tribunal shall have power to call for any A further information or clarification from the parties in addition to the pleadings and documents filed by them; (c) An oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal considers it necessary to have oral hearing for clarifying certain issues; B (d) The arbitral tribunal may dispense with any technical formalities, if an oral hearing is held, and adopt such procedure as deemed appropriate for expeditious disposal of the case. (4) The award under this section shall be made within a period of C six months from the date the arbitral tribunal enters upon the reference. (5) If the award is not made within the period specified in sub-section (4), the provisions of subsections (3) to (9) of section 29A shall apply to the proceedings.

D (6) The fees payable to the arbitrator and the manner of payment of the fees shall be such as may be agreed between the arbitrator and the parties. ” “33. Correction and interpretation of award; additional award. — E xxx xxx xxx (3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award. F (4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. G (5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request. ” “34. Application for setting aside arbitral award.

— xxx xxx xxx H 216 SUPREME COURT REPORTS [2021] 3 S. C. R. A (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: B Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. ” “37. Appealable orders.

— C (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:— (a) refusing to refer the parties to arbitration under section 8; D (b) granting or refusing to grant any measure under section 9; (c) setting aside or refusing to set aside an arbitral award under section 34. (2) Appeal shall also lie to a court from an order of the arbitral E tribunal— (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 under section 17. F (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or takeaway any right to appeal to the Supreme Court. ” “43. Limitations.

— G (1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as 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 commenced on the date referred to in section 21. H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 217 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] (3) Where an arbitration agreement to submit future disputes to A arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise B be 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 the C date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963),for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted. ” 17. So far as the Limitation Act is concerned, sections 5 and 29(2) D read as follows: “5. Extension of prescribed period in certain cases. —Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the E appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.

—The fact that the appellant or the applicant was missed by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. ” F “29. Savings. — xxx xxx xxx (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period G prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only H 218 SUPREME COURT REPORTS [2021] 3 S. C. R. A in so far as, and to the extent to which, they are not expressly excluded by such special or local law. ” 18.

Further, the relevant Articles of the Schedule provide as follows: “THE SCHEDULE (PERIODS OF LIMITATION) B xxx xxx xxx C D E 19. The Commercial Courts Act states, in its Statement of Objects and Reasons, the following: “STATEMENT OF OBJECTS AND REASONS F The proposal to provide for speedy disposal of high value commercial disputes has been under consideration of the Government for quite some time. The high vlaue commercial disputes involve complex facts and question of law. Therefore, there is a need to provide for an independent mechanism for their G early resolution. Early resolution of commercial disputes shall create a positive image to the investor world about the independent and responsive Indian legal system. ” “6. It is proposed to introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 219 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F.

NARIMAN] Courts Bill, 2015 to replace the Commercial Courts, Commercial A Division and Commercial Appellate Division of High Courts Ordinance, 2015 which inter alia, provides for the following namely:— xxx xxx xxx B (v) to amend the Code of Civil Procedure, 1908 as applicable to the Commercial Courts and Commercial Divisions which shall prevail over the existing High Courts Rules and other provisions of the Code of Civil Procedure, 1908 so as to improve the efficiency and reduce delays in disposal of commercial cases. C 7. The proposed Bill shall accelerate economic growth, improve the international image of the Indian Justice delivery system, and the faith of the investor world in the legal culture of the nation. ” 20. Section 2(1)(i) of the Commercial Courts Act defines “specified value” as follows: D “2. Definitions.

—(1) In this Act, unless the context otherwise requires,–– xxx xxx xxx (i) “Specified Value”, in relation to a commercial dispute, shall mean the value of the subject-matter in respect of a suit as E determined in accordance with section 12 which shall not be less than three lakh rupees or such higher value, as may be notified by the Central Government. ” 21. Chapter II of the Commercial Courts Act sets up commercial courts, commercial appellate courts, commercial divisions and commercial F appellate divisions. So far as arbitration is concerned, section 10 is important and states as follows: “10. Jurisdiction in respect of arbitration matters.

—Where the subject-matter of an arbitration is a commercial dispute of a Specified Value and–– G (1) If such arbitration is an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed in a High Court, shall be heard and H 220 SUPREME COURT REPORTS [2021] 3 S. C. R. A disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court. (2) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 B (26 of 1996) that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(3) If such arbitration is other than an international commercial C arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where D such Commercial Court has been constituted. 22. The other relevant provisions of the Commercial Courts Act are set out as follows: “13. Appeals from decrees of Commercial Courts and Commercial Divisions. — E (1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

F (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order: G Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996). H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 221 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F.

NARIMAN] (2) Notwithstanding anything contained in any other law for the A time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act. 14. Expeditious disposal of appeals. —The Commercial B Appellate Court and the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within a period of six months from the date of filing of such appeal. ” “16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes. — C (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

D (2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. (3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 E of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail. ” “21. Act to have overriding effect. —Save as otherwise F provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act. ” G “SCHEDULE 4. Amendment of First Schedule.

—In the First Schedule to the Code,–– xxx xxx xxx H 222 SUPREME COURT REPORTS [2021] 3 S. C. R. A (D) in Order VIII,–– (i) in Rule 1, for the proviso, the following proviso shall be substituted, namely:–– “Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified B by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to C be taken on record. ”;” 23.

Section 37 of the Arbitration Act, when read with section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under section 37. This takes us to Articles 116 and 117 of the Limitation Act, which provide for a limitation period of 90 D days and 30 days, depending upon whether the appeal is from any other court to a High Court or an intra-High Court appeal. There can be no doubt whatsoever that section 5 of the Limitation Act will apply to the aforesaid appeals, both by virtue of section 43 of the Arbitration Act and by virtue of section 29(2) of the Limitation Act. This aspect of the matter has been set out in the concurring judgment of Raveendran, J. in E Consolidated Engg. (supra), as follows: “40. Let me next refer to the relevant provisions of the Limitation Act. Section 3 of the Limitation Act provides for the bar of limitation.

It provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, F and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. “Prescribed period” means that period of limitation computed in accordance with the provisions of the Limitation Act. “Period of limitation” means the period of limitation prescribed for any G suit, appeal or application by the Schedule to the Limitation Act [vide Section 2(j) of the said Act]. Section 29 of the Limitation Act relates to savings. Sub-section (2) thereof which is relevant is extracted below: “29. (2) Where any special or local law prescribes for any suit, H appeal or application a period of limitation different from the GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 223 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F.

NARIMAN] period prescribed by the Schedule, the provisions of Section 3 A shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to B which, they are not expressly excluded by such special or local law. ” 41. Article 116 of the Schedule prescribes the period of limitation for appeals to the High Court (90 days) and appeals to any other court (30 days) under the Code of Civil Procedure, 1908.

It is C now well settled that the words “appeals under the Code of Civil Procedure, 1908” occurring in Article 116 refer not only to appeals preferred under the Code of Civil Procedure, 1908, but also to appeals, where the procedure for filing of such appeals and powers of the court for dealing with such appeals are governed by the Code of Civil Procedure. (See decision of the Constitution Bench D in Vidyacharan Shukla v. Khubchand Baghel [AIR 1964 SC 1099] . ) Article 119(b) of the Schedule prescribes the period of limitation for filing an application (under the Arbitration Act, 1940), for setting aside an award, as thirty days from the date of service of notice of filing of the award. E 42. The AC Act is no doubt, a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto.

The AC Act does not prescribe the period of limitation, for various proceedings under that Act, except where it intends to prescribe a period different from what F is prescribed in the Limitation Act. On the other hand, Section 43 makes the provisions of the Limitation Act, 1963 applicable to proceedings—both in court and in arbitration—under the AC Act. There is also no express exclusion of application of any provision of the Limitation Act to proceedings under the AC Act, but there are some specific departures from the general provisions of the G Limitation Act, as for example, the proviso to Section 34(3) and sub-sections (2) to (4) of Section 43 of the AC Act. 43. Where the Schedule to the Limitation Act prescribes a period of limitation for appeals or applications to any court, and the special or local law provides for filing of appeals and applications to the H 224 SUPREME COURT REPORTS [2021] 3 S. C. R.

A court, but does not prescribe any period of limitation in regard to such appeals or applications, the period of limitation prescribed in the Schedule to the Limitation Act will apply to such appeals or applications and consequently, the provisions of Sections 4 to 24 will also apply. Where the special or local law prescribes for any appeal or application, a period of limitation different from the period B prescribed by the Schedule to the Limitation Act, then the provisions of Section 29(2) will be attracted. In that event, the provisions of Section 3 of the Limitation Act will apply, as if the period of limitation prescribed under the special law was the period prescribed by the Schedule to the Limitation Act, and for the C purpose of determining any period of limitation prescribed for the appeal or application by the special law, the provisions contained in Sections 4 to 24 will apply to the extent to which they are not expressly excluded by such special law.

The object of Section 29(2) is to ensure that the principles contained in Sections 4 to 24 of the Limitation Act apply to suits, appeals and applications filed D in a court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Limitation Act, except to the extent of express exclusion of the application of any or all of those provisions. ” 24. When the Commercial Courts Act is applied to the aforesaid E appeals, given the definition of “specified value” and the provisions contained in sections 10 and 13 thereof, it is clear that it is only when the specified value is for a sum less than three lakh rupees that the appellate provision contained in section 37 of the Arbitration Act will be governed, for the purposes of limitation, by Articles 116 and 117 of the Limitation F Act.

Shri Deshmukh’s argument that depending upon which court decides a matter, a limitation period of either 30 or 90 days is provided, which leads to arbitrary results, and that, therefore, the uniform period provided by Article 137 of the Limitation Act should govern appeals as well, is rejected. 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 to G why they should not be strictly followed. In Boota Mal v. Union of India, (1963) 1 SCR 70, this Court referred to this aspect of the case, as follows: “Ordinarily, the words of a statute have to be given their strict grammatical meaning and equitable considerations are out of place, H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 225 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] particularly in provisions of law limiting the period of limitation for A filing suits or legal proceedings.

This was laid down by the Privy Council in two decisions in Nagendranath v. Suresh [AIR(1932) PC 165] and General Accident Fire and Life Assurance Corporation Limited v. Janmahomed Abdul Rahim [AIR (1941) PC 6] . In the first case the Privy Council observed that “the B fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide”. In the latter case it was observed that “a limitation Act ought to receive such a construction as the language in its plain meaning C imports … Great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights, yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases”. ” (pages 74-75) D 25.

Shri Deshmukh’s other argument that since no period of limitation has been provided in section 37 of the Arbitration Act, as a result of which the neat division contained in the Limitation Act of different matters contained in suits, appeals and applications will somehow have to be destroyed, the word “appeals” has to be read into “applications” so E that Article 137 of the Limitation Act could apply, is also rejected. 26. Even in the rare situation in which an appeal under section 37 of the Arbitration Act would be of a specified value less than three lakh rupees, resulting in Article 116 or 117 of the Limitation Act applying, the main object of the Arbitration Act requiring speedy resolution of disputes F would be the most important principle to be applied when applications under section 5 of the Limitation Act are filed to condone delay beyond 90 days and/or 30 days depending upon whether Article 116(a) or 116(b) or 117 applies.

As a matter of fact, given the timelines contained in sections 8, 9(2), 11(4), 11(13), 13(2)-(5), 29A, 29B, 33(3)-(5) and 34(3) G of the Arbitration Act, and the observations made in some of this Court’s judgments, the object of speedy resolution of disputes would govern appeals 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: H 226 SUPREME COURT REPORTS [2021] 3 S. C. R. A “14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need “to minimise the supervisory role of courts in B the arbitral process” [ Para 4(v) of the Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996] .

This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: “5. Extent of judicial intervention. — Notwithstanding C anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. ” 15. The “Part” referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in D Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act. ” 28. Likewise, in State of Goa v. Western Builders, (2006) 6 SCC 239, this Court, while stating that the provisions of section 14 of the Limitation Act would apply to applications filed under section 34 of E the Arbitration Act, held: “25. … It is true that the Arbitration and Conciliation Act, 1996 intended to expedite commercial issues expeditiously.

It is also clear in the Statement of Objects and Reasons that in order to recognise economic reforms the settlement of both domestic and F international commercial disputes should be disposed of quickly so 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 a slightly different angle. Given the objects of both the statutes, it is clear that arbitration G itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d’être for the enactment of the Commercial Courts Act is that H commercial disputes involving high amounts of money should be GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 227 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F.

NARIMAN] speedily decided. Given the objects of both the enactments, if we A were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs 1 crore, and a Single B Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs 1 crore or more, if the appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial C Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act viz.

speedy resolution of disputes of a commercial nature involving a sum of Rs 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial D Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best E harmonised by giving effect to the special statute i. e. the Arbitration Act, vis-à-vis the more general statute, namely, the Commercial Courts Act, being left to operate in spheres other than arbitration. ” 30. A recent judgment of this Court in ICOMM Tele Ltd. v. Punjab State Water Supply and Sewerage Board, (2019) 4 SCC F 401, states: 25.

Several judgments of this Court have also reiterated that the primary object of arbitration is to reach a final disposal of disputes in a speedy, effective, inexpensive and expeditious manner. Thus, in Centrotrade Minerals & Metal Inc. v. Hindustan Copper G Ltd. [Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd. , (2017) 2 SCC 228 : (2017) 1 SCC (Civ) 593] , this Court held: (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 H 228 SUPREME COURT REPORTS [2021] 3 S. C. R. A SCC 52 : (2015) 1 SCC (Civ) 732] this Court accepted the view [ Indu Malhotra, O. P. Malhotra on the Law and Practice of Arbitration and Conciliation (3rd Edn. , Thomson Reuters, 2014). ] that the A&C Act has four foundational pillars and then observed in para 16 of the Report that: (SCC p. 64) B ‘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 very purpose of arbitration. ”” 31. Thus, from the scheme of the Arbitration Act as well as the C aforesaid judgments, condonation of delay under section 5 of the Limitation Act has to be seen in the context of the object of speedy resolution of disputes. 32. The bulk of appeals, however, to the appellate court under section 37 of the Arbitration Act, are governed by section 13 of the Commercial Courts Act. Sub-section (1A) of section 13 of the D Commercial Courts Act provides the forum for appeals as well as the limitation period to be followed, section 13 of the Commercial Courts Act being a special law as compared with the Limitation Act which is a general law, which follows from a reading of section 29(2) of the Limitation Act. Section 13(1A) of the Commercial Courts Act lays down E a period of limitation of 60 days uniformly for all appeals that are preferred 1 under section 37 of the Arbitration Act. 33.

The vexed question which faces us is whether, first and foremost, the application of section 5 of the Limitation Act is excluded by the scheme of the Commercial Courts Act, as has been argued by F Dr. George. The first important thing to note is that section 13(1A) of the Commercial Courts Act does not contain any provision akin to section 34(3) of the Arbitration Act. Section 13(1A) of the Commercial Courts Act only provides for a limitation period of 60 days from the date of the judgment or order appealed against, without further going into whether delay beyond this period can or cannot be condoned. G 34. It may also be pointed out that though the object of expeditious disposal 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 of the Arbitration Act provides the substantive right to appeal, section 13 of the Commercial Courts Act provides the forum and procedure governing the appeal (see paragraph 13). H GOVT. OF MAHARASTRA (WATER RESOURCES DEPT. ) REP. BY EXEC. 229 ENG. R v. M/S BORSE BROS. ENGR. & CONTR (P) LTD. [R. F. NARIMAN] Act, the language of section 14 makes it clear that the period of six A months spoken of is directory and not mandatory. By way of contrast, section 16 of the Commercial Courts Act read with the Schedule thereof and the amendment made to Order VIII Rule 1 of the CPC, would make it clear that the defendant in a suit is given 30 days to file a written statement, which period cannot be extended beyond 120 days from the B date of service of the summons; and on expiry of the said period, the defendant forfeits the right to file the written sta

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