SUREKA INTERNATIONAL vs UNION OF INDIA & ANR.

$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 02.02.2024
+ FAO (COMM) 23/2024 and CM APPL. 6505-6506/2024
SUREKA INTERNATIONAL ….. Appellant
Through: Mr.Raghav Parwatiyar, Advocate.

Versus

UNION OF INDIA & ANR. ….. Respondent
Through: Mr.Anurag Ahluwalia, CGSC and Mr.Shivam Sachdeva, GP for UOI.

CORAM:
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MS. JUSTICE TARA VITASTA GANJU

VIBHU BAKHRU, J. (ORAL)
1. The appellant has filed the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereafter ‘the A & C Act’) impugning the judgment dated 14.07.2022 (hereafter ‘the impugned judgment’) passed by the learned Commercial Court in OMP (COMM) no.100/2020 captioned Union of India v. Sureka International.
2. The respondents had preferred the said petition under Section 34 of the A & C Act impugning an arbitral award dated 13.05.2020 (hereafter ‘the arbitral award’). The learned Commercial Court had substantially rejected the said petition. The learned Commercial Court interfered with the arbitral award to a limited extent of reducing the interest and litigation costs. The Arbitral Tribunal had, inter alia, awarded compound interest at the rate of 12% (quarterly rest) on the awarded amount but the learned Commercial Court reduced the same to simple interest at the rate of 9% per annum. The litigation cost as awarded in favour of the appellant was also reduced from ?1,00,000/- to ?35,000/-.
3. There is a delay of 548 days in filing the present appeal. The appellant has filed an application (CM APPL. 6506/2024) seeking condonation of delay in filing the appeal. The relevant extract of the said application setting out the reasons for the delay are reproduced below:
“3 That in the month of September,2022, the mother of the Appellant fall seriously ill and was under constant medical support, she was totally dependent upon the Appellant being son who was taking care of his mother.
4 That on 17/03/2023, ultimately the mother of the Appellant died after a prolong illness. Copy of the death Certificate is annexed as Annexure-P6.
5 That thereafter, the Appellant fall sick due to his asthmatic problem and was shown to the Doctor on 21/11/2023. A copy of the Medical prescription is annexed as Annexure-P7.
6 That on 25/11/2023, a test in relation to the heart of the Appellant was done. Copy of the Test report is annexed as Annexure-P8.
7 That thereafter on 26/11/2023 2D ECHO-CARDIOGRAPHY AND COLOR DOPPLER STUDY test was done. Copy of the Test Report is annexed as Annexure-P9.”
4. We are not satisfied with the explanation. First, it proceeds on the basis that the appellant is an individual (a sole proprietorship concern) as it refers to the appellant’s mother falling ill and the appellant suffering asthmatic attacks. However, the appellant is a partnership firm. There is no reason why the other partner(s) of the firm could not step in to do the needful if the mother of one of the partners was unwell.
5. The impugned order was passed on 14.07.2022. There was sufficient time for the appellant to file an appeal even prior to the mother of one of the partners falling ill in September, 2022. The explanation that the appeal could not be filed for a period of five months, after the mother of one of the partners of the appellant fell ill, because the concerned partner was the care giver, is difficult to accept. In any view, there is no explanation whatsoever as to why the appellant could not file an appeal during the period from 17.03.2023 to November 2023 (the period between the demise of the partner’s mother and his falling unwell due to asthmatic problem).
6. In Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited : (2021) 6 SCC 460, the Supreme Court had explained the scope of ‘sufficient cause’ under Section 5 of the Limitation Act, 1963 in the context of proceedings relating to commercial disputes. The Supreme Court had held that Courts are not denuded of its power to condone the delay beyond the period of thirty days and accordingly, overruled the earlier decision in N.V. International v. State of Assam and Ors.: (2020) 2 SCC 109. However, the Supreme Court also explained that the expression “sufficient cause” was not elastic enough to cover long delays beyond the period as specified in the Limitation Act, 1963. The relevant extract of said decision is set out below.
“58. 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 negligent and stale claims.
* * * *
63.Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under 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 exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches.”
7. The present appeal was required to be filed within a period of sixty days and we find no ground to condone the inordinate delay of 548 (five hundred and forty-eight days) in filing the present appeal. The application is dismissed. Consequently, the appeal along with pending application is dismissed.

VIBHU BAKHRU, J

TARA VITASTA GANJU, J
FEBRUARY 02, 2024
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FAO (COMM) 23/2024 Page 4 of 4