As per case facts, the applicant-appellant corporation challenged an arbitrator's award by filing objections under Section 34 of the Arbitration Act. These objections were dismissed by the Commercial Court. Aggrieved, ...
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
2 CM-117-FCARB-2023 in/and
FAO-CARB-37-2023 (O&M)
Date of decision: 11.08.2025
Punjab Small Industries and Export Corporation Ltd.
...Appellant
Versus
M/s Bhullar Construction Company and another
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
HON'BLE MR. JUSTICE VIKAS SURI
Present: Mrs. Kanwal S. Walia, Advocate for the appellant.
Ms. Deepali Puri, Advocate for the respondents.
*****
VIKAS SURI, J.
CM-117-FCARB-2023
Prayer in this application under Section 5 of the Limitation
Act, 1963, is for condoning the delay of 130 days in filing the
accompanying First Appeal from Order (FAO).
Upon notice of the application, the respondents have put in
appearance through counsel and opposed the same.
Learned counsel for the applicant-appellant submits that the
applicant-appellant-corporation had preferred objections under Section 34
of the Arbitration and Conciliation Act, 1996 (for short, ‘Arbitration Act’)
against the award dated 02.04.2017 passed by the learned Arbitrator,
whereby the appellant was ordered to pay a sum of Rs.60,74,075/- to the
claimant-respondent within three months, failing which the awarded
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FAO-CARB-37-2023
amount was to carry interest @ 10% per annum from the date of the
award. The application/objections filed under Section 34 of the
Arbitration Act, were dismissed by the learned Additional District Judge-
cum-Presiding Officer, Commercial Court, Chandigarh, vide judgment
dated 20.01.2023.
Aggrieved by the said judgment, the applicant-appellant-
corporation has moved the present appeal along with the instant
application seeking condonation of delay of 130 days in filing the appeal.
It is pleaded that upon receipt of intimation by the appellant-
applicant from its counsel before the learned Commercial Court, about the
passing of the impugned judgment dated 23.01.2023, request for applying
for a certified copy thereof, was made. The application for obtaining the
certified copy was moved on 08.02.2023, which was delivered on
15.04.2023. Thereafter, on retrieving the entire record from the counsel
who had conducted the matter before the learned Commercial Court,
Chandigarh, an opinion had to be sought from the concerned officials
regarding suitability for preferring an appeal before the High Court. It is
further pleaded that the applicant-corporation is a Government
organization, with a pedantic system having many formalities that involve
hierarchical structure, which resulted in taking some time for appointment
of counsel to prefer the appeal. It is further pleaded that there is no
intentional delay on the part of the applicant in filing the appeal, but for
the circumstances beyond its control.
Learned counsel for the applicant has submitted that initially
the appeal was filed under Section 37 of the Arbitration Act for which the
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FAO-CARB-37-2023
period of limitation is 90 days, provided under Article 116 of the
Limitation Act, 1973. Thus, the delay, in fact, is only of 100 days. It is
further submitted that on certain objections having been raised by the
Registry of this Court, whereafter, the matter was refiled after removing
the said objections and upon refiling, the Registry has treated the present
appeal as First Appeal from Order (Commercial Arbitration) under the
provision of Section 13(1A) of the Commercial Courts Act, 2015. The
period of limitation for preferring an appeal under the said provision has
been reckoned to be 60 days and thus, delay of 130 days in filing the
appeal has been calculated.
Per contra, learned counsel for the respondents has opposed
the present application and defended the impugned order passed by the
learned Commercial Court, Chandigarh. It is contended on behalf of the
respondents that in view of the provision of Section 37 of the Arbitration
Act, delay beyond a period of 120 days in filing the appeal cannot be
condoned. It is further submitted that the provision of Section 5 of the
Limitation Act would not apply to an appeal preferred under Section 13 of
the Commercial Courts Act, 2015. Reliance has been placed on N.V.
International vs. State of Assam and others, (2020) 2 SCC 109, which
followed and applied the ratio in Union of India vs. Varindera
Constructions Ltd., (2020) 2 SCC 111.
Heard learned counsel for the parties and with their able
assistance perused the record.
Learned counsel for the applicant-appellant refuting the
contentions of learned counsel for the respondents has argued that the
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FAO-CARB-37-2023
judgment rendered in N.V. International’s case (supra) has since been
overruled by a three-judge Bench decision in the matter of Government of
Maharashtra (Water Resources Department) Represented by Executive
Engineer vs. Borse Brothers Engineers and Contractors Private
Limited, (2021) 6 SCC 460. It is further submitted that the judgment in
Varindera Constructions (supra) has also been impliedly overruled by
Borse Brothers (supra). It is, thus, contended that the applicant-appellant
being a Government corporation has painstaking lengthy procedures for
taking the decision to prefer an appeal and the applicant was not at fault.
Hence, the delay in filing the appeal be condoned.
The first issue arising for consideration is, what would be the
period of limitation for preferring an appeal to this Court against an order
passed by the Additional District Judge-cum-Presiding Officer,
Commercial Court, Chandigarh.
The contention of learned counsel for the applicant-appellant
that the appeal was filed under Section 37 of the Arbitration Act and as
such, the period of limitation for preferring the same is 90 days from the
date of the impugned order, in terms of Article 116 of the Limitation Act,
cannot be accepted.
Admittedly, the impugned order dated 20.01.2023 has been
passed by the learned Additional District Judge-cum-Presiding Officer,
Commercial Court, Chandigarh. Under the Commercial Courts Act,
appeals from decree of Commercial Courts and Commercial Division are
provided under Chapter IV. Section 13(1A) provides that any person
aggrieved by the judgment or order passed by a Commercial Court, at the
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FAO-CARB-37-2023
level of District Judge, may appeal to the Commercial Appellate Division
of that High Court within a period of 60 days from the date of judgment
or order. The proviso thereto, stipulates that an appeal shall lie from such
orders passed by a Commercial Division or a Commercial Court that are
specifically enumerated under Order 43 of the Code of Civil Procedure,
1908 (for short, ‘CPC’) as amended by the Commercial Courts Act and
Section 37 of the Arbitration Act. Section 13(2) ibid begins with a non
obstante clause that no appeal shall lie from any order or decree of a
Commercial Division or Commercial Court otherwise than in accordance
with the provisions of the Commercial Courts Act. Chapter IV of the
Commercial Courts Act reads as thus:-
CHAPTER IV
APPEALS
13. Appeals from decrees of Commercial Courts
and Commercial Divisions.—(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.
(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:
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).
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FAO-CARB-37-2023
(2) Notwithstanding anything contained in any
other law for the 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 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.
A bare reading of the aforesaid provisions would show that
an order passed by a Commercial Court is only appealable under the
provisions of Commercial Courts Act, which by the proviso to Section
13(1A) ibid provides for an appeal enumerated under Order 43 CPC as
well as Section 37 of the Arbitration Act. The said provision also
prescribes the period of limitation within which the appeal is to be
preferred. Thus, an appeal against the impugned order dated 20.01.2023
could only be filed under the Commercial Courts Act and the period of
limitation for preferring such an appeal is 60 days from the date of the
impugned judgment or order. The aforesaid position stands affirmed by
the Apex Court in Borse Brothers’ case (supra), the relevant portion of
the said decision, is as follows:
“32. Thus, from the scheme of the Arbitration
Act as well as the 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.
CM-117-FCARB-2023 in/and -7-
FAO-CARB-37-2023
33. 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 (1-A) 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 Limitation Act which is a general law, which
follows from a reading of Section 29(2) of the Limitation
Act. Section 13(1-A) 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.”
Perusal of the record would further show that upon institution
of the present appeal before this Court on 21.08.2023, certain objections
were raised by the Registry, which were accordingly complied with by
learned counsel for the appellant and the matter was refiled on 23.08.2023
by appending a note ‘Refiled after compliance. Kindly put up as it is.’ The
period of limitation calculated by the Registry, after deducting the
requisite days consumed in the preparation of the certified copy, i.e. 23
days, has correctly concluded that as on 21.08.2023, the present appeal
was barred by 130 days. A meticulous perusal of the instant application
would also show that the same was apparently amended, wherein the
prayer is for condonation of 130 days in filing the appeal, and not 100
days, as argued by learned counsel for the applicant-appellant.
The next issue which arises for consideration is whether
Section 5 of the Limitation Act would be applicable to an appeal preferred
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FAO-CARB-37-2023
under Section 37 of the Arbitration Act read with Section 13 of the
Commercial Courts Act. The said question is no more res integra. A
three-judge bench of the Hon’ble Supreme Court in Borse Brothers’ case
(supra) has settled the aforesaid issue and laid down that the application of
Section 5 of the Limitation Act is not excluded. The relevant portion of
the judgment, reads as thus:-
“34. 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 Dr
George. The first important thing to note is that Section
13(1-A) of the Commercial Courts Act does not contain
any provision akin to Section 34(3) of the Arbitration
Act. Section 13(1-A) 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.
35. 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 Act, the language of
Section 14 makes it clear that the period of six 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 8 Rule 1 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 date 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. This
provision was enacted as a result of the judgment of this
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FAO-CARB-37-2023
Court in Salem Advocate Bar Assn. (2) Union of India,
(2005) 6 SCC 344.”
“39. Unlike the scheme of the Central Excise Act
relied upon in Hongo, 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 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(1-A) 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 Articles 116 and 117 of
the Limitation Act.
40. The other judgments relied upon by Dr
George are all distinguishable in that they are judgments
which deal with provisions that provide for a period of
limitation and a period of condonation of delay beyond
which delay cannot be condoned, such as Section 125 of
the Electricity Act.
41. Section 21 of the Commercial Courts Act
was also pressed into service stating that the non obstante
clause contained in the Commercial Courts Act would
override other Acts, including the Limitation Act, as a
result of which, the applicability of Section 5 thereof
would be excluded. This argument has been addressed in
the context of the IBC in B.K. Educational Services (P)
Ltd. v. Parag Gupta & Associates, (2019) 11 SCC 633, as
follows : (SCC p. 664, para 41)
“41. Shri Dholakia argued that the Code
being complete in itself, an intruder such as the
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FAO-CARB-37-2023
Limitation Act must be shut out also by application
of Section 238 of the Code which provides that,
‘notwithstanding anything inconsistent therewith
contained in any other law for the time being in
force’, the provisions of the Code would override
such laws. In fact, Section 60(6) of the Code
specifically 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 in force, in computing
the period of limitation specified for any suit or
application by or against a corporate debtor for
which an order of moratorium has been made
under this Part, the period during which such
moratorium is in place shall be excluded.’
This provision would have been wholly unnecessary if
the Limitation Act was otherwise excluded either by
reason of the Code being complete in itself or by virtue of
Section 238 of the Code. Both, Section 433 of the
Companies Act as well as Section 238-A of the Code,
apply the provisions of the Limitation Act “as far as may
be”. Obviously, therefore, where periods of limitation
have been laid down in the Code, these periods will apply
notwithstanding anything to the contrary contained in the
Limitation Act. From this, it does not follow that the baby
must be thrown out with the bathwater. This argument,
therefore, must also be rejected.”
42. For all these reasons we reject the argument
made by Shri George that the application of Section 5 of
the Limitation Act is excluded given the scheme of the
Commercial Courts Act.”
CM-117-FCARB-2023 in/and -11-
FAO-CARB-37-2023
In view of the aforesaid, the instant application under Section
5 of the Limitation Act for condonation of 130 days in filing the appeal, is
thus, to be considered on merits by this Court.
A careful perusal of the instant application seeking
condonation of delay shows that the same is devoid of material
particulars. The only ground raised therein is that the applicant-appellant-
corporation, being an instrumentality of the State, has lengthy procedures
and a hierarchical structure for taking a decision to prefer an appeal and
for engaging a counsel.
It is well settled that no special treatment is to be given to a
litigant if the said litigant happens to be the Government and the law has
to be uniformly applied. In Post Master General vs. Living Media (India)
Ltd., (2012) 3 SCC 563, it was held that merely because the Government
is involved, a different yardstick for condonation of delay cannot be laid
down. The said decision has been followed in many subsequent
judgments by the Apex Court. The relevant portion of the judgment is
extracted hereunder:-
“27. It is not in dispute that the person(s)
concerned were well aware or conversant with the issues
involved including the prescribed period of limitation for
taking up the matter by way of filing a special leave
petition in this Court. They cannot claim that they have a
separate period of limitation when the Department was
possessed with competent persons familiar with court
proceedings. In the absence of plausible and acceptable
explanation, we are posing a question why the delay is to
be condoned mechanically merely because the
CM-117-FCARB-2023 in/and -12-
FAO-CARB-37-2023
Government or a wing of the Government is a party
before us.
28. Though we are conscious of the fact that in
a matter of condonation of delay when there was no gross
negligence or deliberate inaction or lack of bona fides, a
liberal concession has to be adopted to advance
substantial justice, we are of the view that in the facts and
circumstances, the Department cannot take advantage of
various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic
methodology of making several notes cannot be accepted
in view of the modern technologies being used and
available. The law of limitation undoubtedly binds
everybody, including the Government.
29. In our view, it is the right time to inform all
the government bodies, their agencies and
instrumentalities that unless they have reasonable and
acceptable explanation for the delay and there was bona
fide effort, there is no need to accept the usual
explanation that the file was kept pending for several
months/years due to considerable degree of procedural
red tape in the process. The government departments are
under a special obligation to ensure that they perform
their duties with diligence and commitment. Condonation
of delay is an exception and should not be used as an
anticipated benefit for the government departments. The
law shelters everyone under the same light and should not
be swirled for the benefit of a few.”
The applicant-appellant was not only required to plead but
also demonstrate from the record that ‘sufficient cause’ was made out for
not preferring the appeal within the prescribed period of limitation. It is
also well settled that the expression ‘sufficient cause’ contained in Section
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FAO-CARB-37-2023
5 of the Limitation Act is elastic enough to yield different results
depending upon the object and the context of a statute. However, having
regard to the object sought to be achieved under both the Arbitration and
the Commercial Courts Act, i.e. speedy resolution of disputes, the
expression ‘sufficient cause’ cannot be stretched to cover long delays
beyond the period prescribed for filing an appeal. The delay is to be
condoned by way of exception and not by way of rule. The said aspect has
been discussed in detail by the Apex Court in Borse Brothers’ case
(supra). The relevant findings in that regard read as under:-
“62. Also, it must be remembered that merely
because sufficient cause has been made out in the facts of
a given case, there is no right in the appellant to have
delay condoned. This was felicitously put in Ramlal v.
Rewa Coalfields Ltd., (1962) 2 SCR 762 as follows (SCR
p. 771 : AIR p. 365, para 12)
“12. It is, however, necessary to emphasise
that even after sufficient cause has been shown a
party is not entitled to the condonation of delay in
question as a matter of right. The proof of a
sufficient cause is a condition precedent for the
exercise of the discretionary jurisdiction vested in
the court by Section 5. If sufficient cause is not
proved nothing further has to be done; the
application for condoning delay has to be
dismissed on that ground alone. If sufficient cause
is shown then the Court has to enquire whether in
its discretion it should condone the delay. This
aspect of the matter naturally introduces the
consideration of all relevant facts and it is at this
stage that diligence of the party or its bona fides
may fall for consideration; but the scope of the
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FAO-CARB-37-2023
enquiry while exercising the discretionary power
after sufficient cause is shown would naturally be
limited only to such facts as the Court may regard
as relevant. It cannot justify an enquiry as to why
the party was sitting idle during all the time
available to it. In this connection we may point out
that considerations of bona fides or due diligence
are always material and relevant when the Court is
dealing with applications made under Section 14 of
the Limitation Act. In dealing with such
applications the Court is called upon to consider
the effect of the combined provisions of Sections 5
and 14. Therefore, in our opinion, considerations
which have been expressly made material and
relevant by the provisions of Section 14 cannot to
the same extent and in the same manner be
invoked in dealing with applications which fall to
be decided only under Section 5 without reference
to Section 14.”
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(1-A) of the Commercial Courts Act, a delay beyond
90 days, 30 days or 60 days, respectively, is to be
condoned by way of exception and not by way of rule. In
a fit case in which a party has otherwise acted bona fide
and not in a negligent manner, a short delay beyond such
period can, in the discretion of the court, be condoned,
always bearing in mind that the other side of the picture is
that the opposite party may have acquired both in equity
and justice, what may now be lost by the first party's
inaction, negligence or laches.”
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It is notable that in the decision in Borse Brothers’ case
(supra), in one of the appeals, arising from SLP (C) No.665 of 2021,
impugning the judgment of the Hon’ble High Court of Bombay, there was
a delay of 131 days in filing the appeal. In the said case, like in the present
case, there was no explanation worth the name contained in the
condonation of delay application, beyond administrative exigency. The
Hon’ble Apex Court considering the inordinate long delay of 131 days,
dismissed the said appeal. In the present case, the situation is no different,
there being a long delay of 130 days beyond the 60 days period provided
for filing an appeal under Section 13(1A) of the Commercial Courts Act.
It is also notable that the office of the appellant-corporation is
situated at Chandigarh and the matter has been decided by the
Commercial Court, at the District Judge level, at Chandigarh and
apparently, the counsel representing the corporation before the
Commercial Court concerned was a local counsel. Thus, the applicant-
appellant has been grossly negligent in pursuing the matter. It ought to
have ensured timely filing of the appeal within the prescribed period of
limitation. It is also well settled that the time consumed for preparation of
a certified copy is only upto the date of preparation of the certified copy
by the copying agency concerned and not upto the date of its delivery. In
the present case, the certified copy of the impugned judgment dated
20.01.2023 was prepared on 02.03.2023 but the same was collected only
on 15.04.2023. No explanation is forthcoming for the said inordinate
delay of nearly 1½ months since preparation of the certified copy and it
being collected from the copying agency concerned.
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On a conspectus of the aforesaid, the applicant-appellant has
miserably failed to show sufficient cause, much less any cogent ground or
material to establish the existence of any exceptional circumstance
warranting condonation of delay of 130 days in filing the appeal beyond
the period of limitation prescribed by law.
Accordingly, the present application is dismissed.
FAO-CARB-37-2023
The main appeal, being time barred, is dismissed.
(HARSIMRAN SINGH SETHI) (VIKAS SURI)
JUDGE JUDGE
11.08.2025
sumit.k
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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