REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 995 OF 2021

(@ SLP (CIVIL) No.665 of 2021)

GOVERNMENT OF MAHARASHTRA
(WATER RESOURCES DEPARTMENT)
REPRESENTED BY EXECUTIVE ENGINEER …APPELLANT

VERSUS

M/S BORSE BROTHERS ENGINEERS &

CONTRACTORS PVT. LTD. …RESPONDENT

WITH

CIVIL APPEAL NO. 999 OF 2021

(@ SLP (CIVIL) No.15278 of 2020)

AND

CIVIL APPEAL NO. 996-998 OF 2021

(@ SLP (CIVIL) No. 4872-4874 of 2021)
Diary No.18079 of 2020

JUDGMENT

R.F. Nariman, J.

1. Leave granted. Delay condoned in SLP (C) Diary No.18079 of 2020.

Signature Not Verified

Digitally signed by
Jayant Kumar Arora
Date: 2021.03.19
17:17:37 IST
Reason:

2. The substantial question of law which arises in these appeals is as to

1
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

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 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.

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.

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 103 days in
refiling the appeal. One of the important points

2
 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 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
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 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
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 statute for filing of appeals under

3
 Section 37 of the Arbitration 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 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 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

[“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

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

4
 Limitation Act, 1963 [“Limitation Act”] and, as a matter of fact, a delay

of what was stated to be 57 days was condoned.

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 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. 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 not to orders that are passed under any of

the other aforesaid sections, as there is no hard and fast application of

5
 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 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 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 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 placed reliance on a large

number of judgments citing cases where the Limitation Act had been

6
 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 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 Act”] and

referred to the two Law Commission Reports which led to its

enactment, namely the 188th Law Commission Report and the 253rd

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 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

7
 two provisions bound appellate courts not to apply section 5 of the

Limitation Act to relax the 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 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 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, 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

8
 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 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 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 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 Act, insofar as appeals from section 8 applications are

concerned, is that it is only if a section 8 application is refused that an

9
 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 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 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 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 condoned, since the appeal itself has to be decided within a

10
 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 judgments where a casus omissus could

be supplied, which is what was 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 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 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 brahmāstra and panacea for all

ills, to do justice in individual cases.

12. Dr. Amit George, learned counsel appearing for M/s Associated

11
 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 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 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 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.

13. The arguments that have been made in these appeals and the

12
 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.

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,

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”

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 is important and states :

13
 “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.”

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 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 Court or any Court, refer the parties
to arbitration unless it finds 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 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 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 award made.”

14
“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 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.—

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
(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;

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 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”

15
“13. Challenge procedure.—
(1) Subject to sub-section (4), the parties are free to agree
on a 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-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.

(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 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.”

“16. Competence of arbitral tribunal to rule on its

jurisdiction.—

xxx xxx xxx

16
(2) A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than the submission of the
statement of defence; however, a party shall not be
precluded from raising such a plea 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 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 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 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.

(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:

17
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.

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.

(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 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.

(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.

(9) An application filed under sub-section (5) shall be

disposed of by the Court as expeditiously as possible and

18
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”

“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 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.

(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;
(b) The arbitral tribunal shall have power to call for any
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;
(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 six months from the date the arbitral tribunal
enters upon the reference.

19
(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.

(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.—

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.

(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.

(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

(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

20
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:

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.—

(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;
(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 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.

(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.—

21
 (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.

(3) Where an arbitration agreement to submit future

disputes to 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
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 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) 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 appellant or the applicant
satisfies the court that he had sufficient cause for not
preferring the appeal or making the application within such

22
 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.”

“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 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 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)

xxx xxx xxx

Description of suit Period of Time from which

limitation period begins to
run
116. Under the
Code of Civil
Procedure, 1908 (5
of 1908)—

23
 (a) to a High Court Ninety days. The date of the
from any decree or decree or order.
order.
(b) to any other Thirty days. The date of the
court from any decree or order.
decree or order.
117. From a decree Thirty days. The date of the
or order of any High decree or order.
Court to the same
Court
137. Any other Three years. When the right to
application for which apply accrues.
no period of
limitation is provided
elsewhere in this
Division.

19. The Commercial Courts Act states, in its Statement of Objects and

Reasons, the following:

“STATEMENT OF OBJECTS AND REASONS

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 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 Courts Bill, 2015 to replace the Commercial Courts,
Commercial Division and Commercial Appellate Division of

24
 High Courts Ordinance, 2015 which inter alia, provides for
the following namely:—

xxx xxx xxx

(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.

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:

“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 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 appellate divisions. So far as arbitration is concerned,

25
 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––

(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 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 (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 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 such Commercial Court has been constituted.

22. The other relevant provisions of the Commercial Courts Act are set

out as follows:

26
“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).

(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.”

“16. Amendments to the Code of Civil Procedure, 1908

in its application to commercial disputes.—
(1) The provisions of the Code of Civil Procedure, 1908 (5
of 1908) shall, in their application to any suit in respect of a

27
commercial dispute of a Specified Value, stand amended in
the manner as specified in the Schedule.

(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 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

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.”

“SCHEDULE

4. Amendment of First Schedule.—In the First Schedule

to the Code,––

xxx xxx xxx

(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 by the Court, for reasons to be

28
 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 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 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 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, 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

29
with the provisions of the Limitation Act. “Period of
limitation” means the period of limitation prescribed for any
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, appeal or application a period of
limitation different from the period 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 insofar as, and to
the extent to 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 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 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.

30
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 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 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 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 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 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

31
 that the principles contained in Sections 4 to 24 of the
Limitation Act apply to suits, appeals and applications filed
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

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 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 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, particularly in provisions of law limiting the

32
 period of limitation for 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 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 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)

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 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

33
 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 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, 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:

“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 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 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.”

34
 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 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 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 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 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
commercial disputes involving high amounts of money
should be speedily decided. Given the objects of both the
enactments, if we 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

35
 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 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 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 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 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 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 Ltd. [Centrotrade Minerals &
Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228 :

36
 (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 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)

‘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

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

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

37
 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. 1

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 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.

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 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 VIII Rule 1 of the

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).

38
 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 Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005)

6 SCC 344.

35. In a recent judgment of this Court namely, SCG Contracts (India)

(P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC

210, a Division Bench of this Court referred to the aforesaid

amendment and its hard and fast nature as follows:

“8. The Commercial Courts, Commercial Division and

Commercial Appellate Division of High Courts Act, 2015
came into force on 23-10-2015 bringing in their wake
certain amendments to the Code of Civil Procedure. In
Order 5 Rule 1, sub-rule (1), for the second proviso, the
following proviso was substituted:

“Provided further 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
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 and twenty days

39
 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 be taken on record.”

Equally, in Order 8 Rule 1, a new proviso was substituted

as follows:

“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
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
and twenty days from the date of service of
summons and on expiry of one hundred and
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 be taken on record.”

This was re-emphasised by re-inserting yet another proviso

in Order 8 Rule 10 CPC, which reads as under:

“10. Procedure when party fails to present

written statement called for by court.—Where
any party from whom a written statement is
required under Rule 1 or Rule 9 fails to present
the same within the time permitted or fixed by the
court, as the case may be, the court shall
pronounce judgment against him, or make such
order in relation to the suit as it thinks fit and on
the pronouncement of such judgment a decree
shall be drawn up:

40
 Provided further that no court shall make an order
to extend the time provided under Rule 1 of this
Order for filing of the written statement.”

A perusal of these provisions would show that ordinarily a

written statement is to be filed within a period of 30 days.
However, grace period of a further 90 days is granted
which the Court may employ for reasons to be recorded in
writing and payment of such costs as it deems fit to allow
such written statement to come on record. What is of great
importance is the fact that beyond 120 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 be taken on record. This is further
buttressed by the proviso in Order 8 Rule 10 also adding
that the court has no further power to extend the time
beyond this period of 120 days.

9. In Bihar Rajya Bhumi Vikas Bank Samiti [State of Bihar

v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472
: (2018) 4 SCC (Civ) 387] , a question was raised as to
whether Section 34(5) of the Arbitration and Conciliation
Act, 1996, inserted by Amending Act 3 of 2016 is
mandatory or directory. In para 11 of the said judgment,
this Court referred to Kailash v. Nanhku [Kailash v. Nanhku,
(2005) 4 SCC 480] , referring to the text of Order 8 Rule 1
as it stood pre the amendment made by the Commercial
Courts Act. It also referred (in para 12) to Salem Advocate
Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn.
(2) v. Union of India, (2005) 6 SCC 344] , which, like the
Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] judgment,
held that the mere expression “shall” in Order 8 Rule 1
would not make the provision mandatory. This Court then
went on to discuss in para 17 of State v. N.S.
Gnaneswaran [State v. N.S. Gnaneswaran, (2013) 3 SCC
594 : (2013) 3 SCC (Cri) 235 : (2013) 1 SCC (L&S) 688] ,
in which Section 154(2) of the Code of Criminal Procedure

41
was held to be directory inasmuch as no consequence was
provided if the section was breached. In para 22 by way of
contrast to Section 34, Section 29-A of the Arbitration Act
was set out. This Court then noted in para 23 as under:
(Bihar Rajya Bhumi Vikas Bank Samiti case [State of Bihar
v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472
: (2018) 4 SCC (Civ) 387] , SCC p. 489)

“23. It will be seen from this provision that, unlike

Sections 34(5) and (6), if an award is made
beyond the stipulated or extended period
contained in the section, the consequence of the
mandate of the arbitrator being terminated is
expressly provided. This provision is in stark
contrast to Sections 34(5) and (6) where, as has
been stated hereinabove, if the period for deciding
the application under Section 34 has elapsed, no
consequence is provided. This is one more
indicator that the same Amendment Act, when it
provided time periods in different situations, did so
intending different consequences.”

10. Several High Court judgments on the amended Order 8

Rule 1 have now held that given the consequence of non-
filing of written statement, the amended provisions of the
CPC will have to be held to be mandatory. See Oku Tech
(P) Ltd. v. Sangeet Agarwal [Oku Tech (P) Ltd. v. Sangeet
Agarwal, 2016 SCC OnLine Del 6601] by a learned Single
Judge of the Delhi High Court dated 11-8-2016 in CS (OS)
No. 3390 of 2015 as followed by several other judgments
including a judgment of the Delhi High Court in Maja
Cosmetics v. Oasis Commercial (P) Ltd. [Maja Cosmetics v.
Oasis Commercial (P) Ltd., 2018 SCC OnLine Del 6698]

11. We are of the view that the view taken by the Delhi
High Court in these judgments is correct in view of the fact
that the consequence of forfeiting a right to file the written

42
 statement; non-extension of any further time; and the fact
that the Court shall not allow the written statement to be
taken on record all points to the fact that the earlier law on
Order 8 Rule 1 on the filing of written statement under
Order 8 Rule 1 has now been set at naught.”

36. By way of contrast, there is no such provision contained in section

13 of the Commercial Courts Act. The judgment in Hongo (supra),

strongly relied upon by Dr. George, is clearly distinguishable. In

Hongo (supra), section 35-H of the Central Excise Act provided for a

period of 180 days for filing a reference application to the High Court.

The scheme of the Central Excise Act was adverted to in paragraph

15 of the judgment, which reads as follows:

“15. We have already pointed out that in the case of appeal

to the Commissioner, Section 35 provides 60 days' time
and in addition to the same, the Commissioner has power
to condone the delay up to 30 days, if sufficient cause is
shown. Likewise, Section 35-B provides 90 days' time for
filing appeal to the Appellate Tribunal and sub-section (5)
therein enables the Appellate Tribunal to condone the delay
irrespective of the number of days, if sufficient cause is
shown. Likewise, Section 35-EE which provides 90 days'
time for filing revision by the Central Government and,
proviso to the same enables the revisional authority to
condone the delay for a further period of 90 days, if
sufficient cause is shown, whereas in the case of appeal to
the High Court under Section 35-G and reference to the
High Court under Section 35-H of the Act, total period of
180 days has been provided for availing the remedy of
appeal and the reference. However, there is no further
clause empowering the High Court to condone the delay
after the period of 180 days.”

43
37. The Court then went on to observe:

“33. Even otherwise, for filing an appeal to the

Commissioner, and to the Appellate Tribunal as well as
revision to the Central Government, the legislature has
provided 60 days and 90 days respectively, on the other
hand, for filing an appeal and reference to the High Court
larger period of 180 days has been provided with to enable
the Commissioner and the other party to avail the same.
We are of the view that the legislature provided sufficient
time, namely, 180 days for filing reference to the High
Court which is more than the period prescribed for an
appeal and revision.

34. Though, an argument was raised based on Section 29

of the Limitation Act, even assuming that Section 29(2)
would be attracted, what we have to determine is whether
the provisions of this section are expressly excluded in the
case of reference to the High Court.

35. It was contended before us that the words “expressly

excluded” would mean that there must be an express
reference made in the special or local law to the specific
provisions of the Limitation Act of which the operation is to
be excluded. In this regard, we have to see the scheme of
the special law which here in this case is the Central
Excise Act. The nature of the remedy provided therein is
such that the legislature intended it to be a complete code
by itself which alone should govern the several matters
provided by it. If, on an examination of the relevant
provisions, it is clear that the provisions of the Limitation
Act are necessarily excluded, then the benefits conferred
therein cannot be called in aid to supplement the provisions
of the Act. In our considered view, that even in a case
where the special law does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by an express

44
 reference, it would nonetheless be open to the court to
examine whether and to what extent, the nature of those
provisions or the nature of the subject-matter and scheme
of the special law exclude their operation. In other words,
the applicability of the provisions of the Limitation Act,
therefore, is to be judged not from the terms of the
Limitation Act but by the provisions of the Central Excise
Act relating to filing of reference application to the High
Court.

36. The scheme of the Central Excise Act, 1944 supports

the conclusion that the time-limit prescribed under Section
35-H(1) to make a reference to the High Court is absolute
and unextendable by a court under Section 5 of the
Limitation Act. It is well-settled law that it is the duty of the
court to respect the legislative intent and by giving liberal
interpretation, limitation cannot be extended by invoking
the provisions of Section 5 of the Limitation Act.”

38. Unlike the scheme of the Central Excise Act relied upon in Hongo

(supra), 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(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 Articles 116 and 117 of the Limitation Act.

45
39. 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. (See Suryachakra Power Corpn. Ltd. v.

Electricity Deptt., (2016) 16 SCC 152 at paragraph 10; ONGC v.

Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 at

paragraphs 5-10).

40. 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:

“41. Shri Dholakia argued that the Code being complete in

itself, an intruder such as the 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:

46
 “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.”

41. 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 Commercial Courts Act.

42. The next important argument that needs to be addressed is as to

whether the hard and fast rule applied by this Court in N.V.

International (supra) is correct in law. Firstly, as has correctly been

argued by Shri Shroti, N.V. International (supra) does not notice the

47
 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 section

34(3) 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 argument that absent a provision curtailing

the condonation of delay beyond the period provided in section 13 of

the Commercial Courts Act would also make it clear that any such

bodily lifting of the last part of section 34(3) into section 37 of the

Arbitration Act would also be unwarranted. We cannot accept Shri

Navare’s argument that this is a mere casus omissus which can be

filled in by the Court.

43. The difference between interpretation and legislation is sometimes

a fine one, as it has repeatedly been held that judges do not merely

interpret the law but also create law. In Eera v. State (NCT of Delhi),

(2017) 15 SCC 133, this Court was faced with the interpretation of

section 2(1)(d) of the Protection of Children from Sexual Offences Act,

2012. This provision reads as follows:

“(2)(1)(d) "child" means any person below the age of

eighteen years;”

48
44. The argument made before the Court was that the age of 18 years

did not only refer to physical age, but could also refer to the mental

age of the “child” as defined. This Court was therefore faced with the

difficulty between interpreting the law as it stands, and legislating. The

concurring judgment of Nariman, J. put it thus:

“103. Having read the erudite judgment of my learned

Brother, and agreeing fully with him on the conclusion
reached, given the importance of the Montesquiean
separation of powers doctrine where the judiciary should
not transgress from the field of judicial law-making into the
field of legislative law-making, I have felt it necessary to
add a few words of my own.

104. Mr Sanjay R. Hegde, the learned Amicus Curiae, has

argued before us that the interpretation of Section 2(1)(d)
of the Protection of Children from Sexual Offences Act,
2012 cannot include “mental” age as such an interpretation
would be beyond the “Lakshman Rekha” — that is, it is no
part of this Court's function to add to or amend the law as it
stands. This Court's function is limited to interpreting the
law as it stands, and this being the case, he has exhorted
us not to go against the plain literal meaning of the statute.

105. Since Mr Hegde's argument raises the constitutional

spectre of separation of powers, let it first be admitted that
under our constitutional scheme, Judges only declare the
law; it is for the legislatures to make the law. This much at
least is clear on a conjoint reading of Articles 141 and 245
of the Constitution of India, which are set out hereinbelow:

“141. Law declared by Supreme Court to be

binding on all courts.—The law declared by the

49
 Supreme Court shall be binding on all courts
within the territory of India.
***
245. Extent of laws made by Parliament and
by the legislatures of States.—(1) Subject to the
provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory
of India, and the legislature of a State may make
laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed
to be invalid on the ground that it would have
extra-territorial operation.”
(emphasis supplied)

106. That the legislature cannot “declare” law is embedded

in Anglo-Saxon jurisprudence. Bills of attainder, which used
to be passed by Parliament in England, have never been
passed from the 18th century onwards. A legislative
judgment is anathema. As early as 1789, the US
Constitution expressly outlawed bills of attainder vide
Article I Section 9(3). This being the case with the
legislature, the counter-argument is that the Judiciary
equally cannot “make” but can only “declare” law. While
declaring the law, can Judges make law as well?...”

45. The concurring judgment went on to state:

“127. It is thus clear on a reading of English, US, Australian

and our own Supreme Court judgments that the
“Lakshman Rekha” has in fact been extended to move
away from the strictly literal rule of interpretation back to
the rule of the old English case of Heydon [Heydon case,
(1584) 3 Co Rep 7a : 76 ER 637] , where the Court must
have recourse to the purpose, object, text and context of a
particular provision before arriving at a judicial result. In
fact, the wheel has turned full circle. It started out by the
rule as stated in 1584 in Heydon case [Heydon case,

50
 (1584) 3 Co Rep 7a : 76 ER 637] , which was then waylaid
by the literal interpretation rule laid down by the Privy
Council and the House of Lords in the mid-1800s, and has
come back to restate the rule somewhat in terms of what
was most felicitously put over 400 years ago in Heydon
case [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] .”

“139. A reading of the Act as a whole in the light of the

Statement of Objects and Reasons thus makes it clear that
the intention of the legislator was to focus on children, as
commonly understood i.e. persons who are physically
under the age of 18 years. The golden rule in determining
whether the judiciary has crossed the Lakshman Rekha in
the guise of interpreting a statute is really whether a Judge
has only ironed out the creases that he found in a statute in
the light of its object, or whether he has altered the material
of which the Act is woven. In short, the difference is the
well-known philosophical difference between “is” and
“ought”. Does the Judge put himself in the place of the
legislator and ask himself whether the legislator intended a
certain result, or does he state that this must have been the
intent of the legislator and infuse what he thinks should
have been done had he been the legislator. If the latter, it is
clear that the Judge then would add something more than
what there is in the statute by way of a supposed intention
of the legislator and would go beyond creative
interpretation of legislation to legislating itself. It is at this
point that the Judge crosses the Lakshman Rekha and
becomes a legislator, stating what the law ought to be
instead of what the law is.”

46. Ultimately, the judgment concluded:

“146. A reading of the Objects and Reasons of the

aforesaid Act together with the provisions contained therein
would show that whatever is the physical age of the person
affected, such person would be a “person with disability”

51
 who would be governed by the provisions of the said Act.
Conspicuous by its absence is the reference to any age
when it comes to protecting persons with disabilities under
the said Act.

147. Thus, it is clear that viewed with the lens of the

legislator, we would be doing violence both to the intent
and the language of Parliament if we were to read the word
“mental” into Section 2(1)(d) of the 2012 Act. Given the fact
that it is a beneficial/penal legislation, we as Judges can
extend it only as far as Parliament intended and no further.
I am in agreement, therefore, with the judgment of my
learned Brother, including the directions given by him.”

47. Given the ‘lakshman rekha’ laid down in this judgment, it is a little

difficult to appreciate how a cap can be judicially engrafted onto a

statutory provision which then bars condonation of delay by even one

day beyond the cap so engrafted.

48. Shri George, however, relied upon the judgments of this Court in

Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 (at paragraph

22) and D. Purushotama Reddy v. K. Sateesh, (2008) 8 SCC 505 (at

paragraph 11), to support the reasoning contained in Varindera

Constructions (supra) and N.V. International (supra). He relied

strongly upon paragraph 11 of the judgment in D. Purushotama

Reddy v. K. Sateesh, (2008) 8 SCC 505, which reads as follows:

“11. We have noticed hereinbefore that whereas the

judgment of conviction and sentence was passed on 15-
12-2005, the suit was decreed by the civil court on 23-1-

52
 2006. Deposit of a sum of Rs 2,00,000 by the appellants in
favour of the respondent herein, was directed by the
criminal court. Such an order should have been taken into
consideration by the trial court. An appeal from a decree,
furthermore, is a continuation of suit. The limitation of
power on a civil court should also be borne in mind by the
appellate court. Was any duty cast upon the civil court to
consider the amount of compensation deposited in terms of
Section 357 of the Code is the question.”

49. From this paragraph, what was sought to be argued was that the

limitation of power on a civil court at the initial stage can be read as a

limitation onto the appellate court, as was done in the aforesaid

judgments. We are afraid that we are unable to agree. This sentence

was in the context of a decree passed in a civil suit for a sum of rupees

3.09 lakh with interest, without taking into consideration the fact that an

amount of rupees 2.10 lakh had already been deposited by the

appellant in criminal proceedings. The Court relied upon section

357(5) of the Code of Criminal Procedure, 1973 to hold that “the court”

shall take into account any sum paid or recovered as compensation at

the time of awarding compensation in any subsequent civil suit relating

to the same matter. “The court” would obviously include an appellate

court as well. It was only in this context that the aforesaid observation

of limitation of power on a civil court being “borne in mind” by the

appellate court, was made.

53
50. Shri George’s reliance upon the judgment of this Court in P. Radha

Bai v. P. Ashok Kumar, (2019) 13 SCC 445 (at paragraphs 36.2-36.3)

on the doctrine of unbreakability when applied to section 34(3) of the

Arbitration Act, also does not carry the matter much further, as the

question is whether this doctrine can be bodily lifted and engrafted

onto an appeal provision that has no cut-off point beyond which delay

cannot be condoned.

For all these reasons, given the illuminating arguments made in

these appeals, we are of the view that N.V. International (supra) has

been wrongly decided and is therefore overruled.

51. However, the matter does not end here. 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,

we have the judgment in N.V. International (supra) which does not

allow condonation of delay beyond 30 days, and at the other extreme,

we have 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 we have to steer a middle course.

54
52. One judicial tool with which to steer this course is contained in the

latin maxim ut res magis valeat quam pereat. This maxim was fleshed

out in CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57 as follows:2

“14. A construction which reduces the statute to a futility

has to be avoided. A statute or any enacting provision
therein must be so construed as to make it effective and
operative on the principle expressed in the maxim ut res
magis valeat quam pereat i.e. a liberal construction should
be put upon written instruments, so as to uphold them, if
possible, and carry into effect the intention of the parties.
[See Broom's Legal Maxims (10th Edn.), p. 361, Craies on
Statutes (7th Edn.), p. 95 and Maxwell on Statutes (11th
Edn.), p. 221.]

15. A statute is designed to be workable and the

interpretation thereof by a court should be to secure that
object unless crucial omission or clear direction makes that
end unattainable. (See Whitney v. IRC [1926 AC 37 : 10
Tax Cas 88 : 95 LJKB 165 : 134 LT 98 (HL)] , AC at p. 52
referred to in CIT v. S. Teja Singh [AIR 1959 SC 352 :
(1959) 35 ITR 408] and Gursahai Saigal v. CIT [AIR 1963
SC 1062 : (1963) 48 ITR 1] .)

16. The courts will have to reject that construction which

will defeat the plain intention of the legislature even though
there may be some inexactitude in the language used.
(See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC
69 : 55 LT 446 (PC)] AC at p. 634, Curtis v. Stovin [(1889)
22 QBD 513 : 58 LJQB 174 : 60 LT 772 (CA)] referred to in
S. Teja Singh case [AIR 1959 SC 352 : (1959) 35 ITR
408].)

2 Followed in the separate opinion delivered by Pasayat, J. in Ashoka Kumar

Thakur v. Union of India, (2008) 6 SCC 1 (see paragraphs 333-334).

55
17. If the choice is between two interpretations, the
narrower of which would fail to achieve the manifest
purpose of the legislation, we should avoid a construction
which would reduce the legislation to futility, and should
rather accept the bolder construction, based on the view
that Parliament would legislate only for the purpose of
bringing about an effective result. (See Nokes v. Doncaster
Amalgamated Collieries [(1940) 3 All ER 549 : 1940 AC
1014 : 109 LJKB 865 : 163 LT 343 (HL)] referred to in Pye
v. Minister for Lands for NSW [(1954) 3 All ER 514 : (1954)
1 WLR 1410 (PC)] .) The principles indicated in the said
cases were reiterated by this Court in Mohan Kumar
Singhania v. Union of India [1992 Supp (1) SCC 594 : 1992
SCC (L&S) 455 : (1992) 19 ATC 881 : AIR 1992 SC 1] .

18. The statute must be read as a whole and one provision

of the Act should be construed with reference to other
provisions in the same Act so as to make a consistent
enactment of the whole statute.

19. The court must ascertain the intention of the legislature

by directing its attention not merely to the clauses to be
construed but to the entire statute; it must compare the
clause with other parts of the law and the setting in which
the clause to be interpreted occurs. (See R.S. Raghunath
v. State of Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S)
286 : (1992) 19 ATC 507 : AIR 1992 SC 81] .) Such a
construction has the merit of avoiding any inconsistency or
repugnancy either within a section or between two different
sections or provisions of the same statute. It is the duty of
the court to avoid a head-on clash between two sections of
the same Act. (See Sultana Begum v. Prem Chand Jain
[(1997) 1 SCC 373 : AIR 1997 SC 1006] .)

20. Whenever it is possible to do so, it must be done to

construe the provisions which appear to conflict so that
they harmonise. It should not be lightly assumed that

56
 Parliament had given with one hand what it took away with
the other.

21. The provisions of one section of the statute cannot be

used to defeat those of another unless it is impossible to
effect reconciliation between them. Thus a construction that
reduces one of the provisions to a “useless lumber” or
“dead letter” is not a harmonised construction. To
harmonise is not to destroy.”

53. Reading the Arbitration Act and the Commercial 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

aforesaid statutes, read as a whole, is the speedy disposal of appeals

filed under section 37 of the Arbitration Act. To read section 5 of the

Limitation Act consistently with the aforesaid 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.

54. The expression “sufficient cause” contained in section 5 of the

Limitation Act is elastic enough to yield different results depending

upon the object and context of a statute. Thus, in Ajmer Kaur v. State

of Punjab, (2004) 7 SCC 381, this Court, in the context of section

11(5) of the Punjab Land Reforms Act, 1972, held as follows:

57
“10. Permitting an application under Section 11(5) to be
moved at any time would have disastrous consequences.
The State Government in which the land vests on being
declared as surplus, will not be able to utilise the same.
The State Government cannot be made to wait indefinitely
before putting the land to use. Where the land is utilised by
the State Government, a consequence of the order passed
subsequently could be of divesting it of the land. Taking the
facts of the present case by way of an illustration, it would
mean that the land which stood mutated in the State
Government in 1982 and which was allotted by the State
Government to third parties in 1983, would as a result of
reopening the settled position, lead to third parties being
asked to restore back the land to the State Government
and the State Government in turn would have to be
divested of the land. The land will in turn be restored to the
landowner. This will be the result of the land being declared
by the Collector as not surplus with the landowner. The
effect of permitting such a situation will be that the land will
remain in a situation of flux. There will be no finality. The
very purpose of the legislation will be defeated. The allottee
will not be able to utilise the land for fear of being divested
in the event of deaths and births in the family of the
landowners. Deaths and births are events which are bound
to occur. Therefore, it is reasonable to read a time-limit in
sub-section (5) of Section 11. The concept of reasonable
time in the given facts would be most appropriate. An
application must be moved within a reasonable time. The
facts of the present case demonstrate that redetermination
under sub-section (5) of Section 11 almost 5 years after the
death of Kartar Kaur and more than 6 years after the order
of the Collector declaring the land as surplus had become
final, has resulted in grave injustice besides defeating the
object of the legislation which was envisaged as a socially
beneficial piece of legislation. Thus we hold that the
application for redetermination filed by Daya Singh under
sub-section (5) of Section 11 of the Act on 21-6-1985 was

58
 liable to be dismissed on the ground of inordinate delay
and the Collector was wrong in reopening the issue
declaring the land as not surplus in the hands of Daya
Singh and Kartar Kaur.

11. The above reasoning is in consonance with the

provision in sub-section (7) of Section 11 of the Act. Sub-
section (7) uses the words “where succession has opened
after the surplus area or any part thereof has been
determined by the Collector …”. The words “determined by
the Collector” would mean that the order of the Collector
has attained finality. The provisions regarding appeals, etc.
contained in Sections 80-82 of the Punjab Tenancy Act,
1887, as made applicable to proceedings under the Punjab
Land Reforms Act, 1972, show that the maximum period of
limitation in case of appeal or review is ninety days. The
appeal against the final order of the Collector dated 30-9-
1976 whereby 3.12 hectares of land had been declared as
surplus was dismissed on 27-3-1979. The order was
allowed to become final as it was not challenged any
further. Thus the determination by the Collector became
final on 27-3-1979. The same could not be reopened after
a lapse of more than 6 years by order dated 23-7-1985.
The subsequent proceedings before the Revenue
Authorities did not lie. The order dated 23-7-1985 is non
est. All the subsequent proceedings therefore fall through.
The issue could not have been reopened.”
(emphasis supplied)

55. Nearer home, in Brahampal v. National Insurance Company,

2020 SCC OnLine SC 1053, this Court specifically referred to the

difference between a delay in filing commercial claims under the

Arbitration Act or the Commercial Courts Act and claims under the

Motor Vehicles Act, 1988, as follows:

59
“16. This Court has firstly held that purpose of conferment
of such power must be examined for the determination of
the scope of such discretion conferred upon the court.
[refer to Bhaiya Punjalal Bhagwandin v. Dave
Bhagwatprasad Prabhuprasad, AIR 1963 SC 120; Shri
Prakash Chand Agarwal v. Hindustan Steel Ltd., (1970) 2
SCC 806]. Our analysis of the purpose of the Act suggests
that such discretionary power is conferred upon the Courts,
to enforce the rights of the victims and their dependents.
The legislature intended that Courts must have such power
so as to ensure that substantive justice is not trumped by
technicalities.
(emphasis supplied)

“22. Therefore, the aforesaid provision being a beneficial

legislation, must be given liberal interpretation to serve its
object. Keeping in view the substantive rights of the parties,
undue emphasis should not be given to technicalities. In
such cases delay in filing and refiling cannot be viewed
strictly, as compared to commercial claims under the
Arbitration and Concilliation Act, 1996 or the Commercial
Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar,
(2019) 13 SCC 445, wherein this Court while interpreting
Section 34 of the Arbitration Act, held that the right to object
to an award itself is substantively bound with the limitation
period prescribed therein and the same cannot merely a
procedural prescription. In effect the Court held that a
complete petition, has to be filed within the time prescribed
under Section 34 of the Arbitration Act and ‘not thereafter’.
The Court while coming to the aforesaid conclusion,
reasoned as under:

“36.1 First, the purpose of the Arbitration Act was

to provide for a speedy dispute resolution
process. The Statement of Objects and Reasons
reveal that the legislative intent of enacting the
Arbitration Act was to provide parties with an

60
 efficient alternative dispute resolution system
which gives litigants an expedited resolution of
disputes while reducing the burden on the courts.
Article 34(3) reflects this intent when it defines the
commencement and concluding period for
challenging an award. This Court in Popular
Construction case [Union of India v. Popular
Construction Co., (2001) 8 SCC 470] highlighted
the importance of the fixed periods under the
Arbitration Act. We may also add that the
finality is a fundamental principle enshrined
under the Arbitration Act and a definitive time-
limit for challenging an award is necessary for
ensuring finality. If Section 17 were to be
applied, an award can be challenged even after
120 days. This would defeat the Arbitration Act's
objective of speedy resolution of disputes. The
finality of award would also be in a limbo as a
party can challenge an award even after the 120
day period.”
(emphasis in original)

“23. Coming back to the Motor Vehicles Act, the legislative

intent is to provide appropriate compensation for the
victims and to protect their substantive rights, in pursuit of
the same, the interpretation should not be as strict as
commercial claims as elucidated above.

24. Undoubtedly, the statute has granted the Courts with

discretionary powers to condone the delay, however at the
same time it also places an obligation upon the party to
justify that he was prevented from abiding by the same due
to the existence of “sufficient cause”. Although there exists
no strait jacket formula for the Courts to condone delay, but
the Courts must not only take into consideration the entire
facts and circumstances of case but also the conduct of the
parties. The concept of reasonableness dictates that, the

61
 Courts even while taking a liberal approach must weigh in
the rights and obligations of both the parties. When a right
has accrued in favour of one party due to gross negligence
and lackadaisical attitude of the other, this Court shall
refrain from exercising the aforesaid discretionary relief.

25. Taking into consideration the facts and circumstances

of the present case, we are of the opinion that the delay of
45 days has been properly explained by the appellants,
which was on account of illness of the wife of Appellant No.
1. It was not appropriate on the part of the High Court to
dismiss the appeal merely on the ground of delay of short
duration, particularly in matters involving death in motor
accident claims. Moreover, in the present case no mala
fide can be imputable against the appellants for filing the
appeal after the expiry of ninety days. Therefore, we are of
the opinion that the strict approach taken in the impugned
order is hyper-technical and cannot be sustained in the
eyes of law.”
(emphasis supplied)

56. 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. This Court,

in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81, has

held:

“9. Sufficient cause is the cause for which the defendant

could not be blamed for his absence. The meaning of the

62
word “sufficient” is “adequate” or “enough”, inasmuch as
may be necessary to answer the purpose intended.
Therefore, the word “sufficient” embraces no more than
that which provides a platitude, which when the act done
suffices to accomplish the purpose intended in the facts
and circumstances existing in a case, duly examined from
the viewpoint of a reasonable standard of a cautious man.
In this context, “sufficient cause” means that the party
should not have acted in a negligent manner or there was a
want of bona fide on its part in view of the facts and
circumstances of a case or it cannot be alleged that the
party has “not acted diligently” or “remained inactive”.
However, the facts and circumstances of each case must
afford sufficient ground to enable the court concerned to
exercise discretion for the reason that whenever the court
exercises discretion, it has to be exercised judiciously. The
applicant must satisfy the court that he was prevented by
any “sufficient cause” from prosecuting his case, and
unless a satisfactory explanation is furnished, the court
should not allow the application for condonation of delay.
The court has to examine whether the mistake is bona fide
or was merely a device to cover an ulterior purpose. (See
Manindra Land and Building Corpn. Ltd. v. Bhutnath
Banerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan
[(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena
[(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC
1150] and Maniben Devraj Shah v. Municipal Corpn. of
Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24
: AIR 2012 SC 1629] .)

10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993]

this Court explained the difference between a “good cause”
and a “sufficient cause” and observed that every “sufficient
cause” is a good cause and vice versa. However, if any
difference exists it can only be that the requirement of good
cause is complied with on a lesser degree of proof than
that of “sufficient cause”.

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

12. It is a settled legal proposition that law of limitation may

harshly affect a particular party but it has to be applied with
all its rigour when the statute so prescribes. The court has
no power to extend the period of limitation on equitable
grounds. “A result flowing from a statutory provision is
never an evil. A court has no power to ignore that provision
to relieve what it considers a distress resulting from its
operation.” The statutory provision may cause hardship or
inconvenience to a particular party but the court has no
choice but to enforce it giving full effect to the same. The
legal maxim dura lex sed lex which means “the law is hard
but it is the law”, stands attracted in such a situation. It has
consistently been held that, “inconvenience is not” a
decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its

aim being to secure peace in the community, to suppress
fraud and perjury, to quicken diligence and to prevent
oppression. It seeks to bury all acts of the past which have
not been agitated unexplainably and have from lapse of
time become stale. According to Halsbury's Laws of
England, Vol. 28, p. 266:

“605. Policy of the Limitation Acts.—The courts

have expressed at least three differing reasons
supporting the existence of statutes of limitations

64
 namely, (1) that long dormant claims have more of
cruelty than justice in them, (2) that a defendant
might have lost the evidence to disprove a stale
claim, and (3) that persons with good causes of
actions should pursue them with reasonable
diligence.”

An unlimited limitation would lead to a sense of insecurity

and uncertainty, and therefore, limitation prevents
disturbance or deprivation of what may have been acquired
in equity and justice by long enjoyment or what may have
been lost by a party's own inaction, negligence or laches.
(See Popat and Kotecha Property v. SBI Staff Assn.
[(2005) 7 SCC 510] , Rajender Singh v. Santa Singh
[(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam
Patil v. Jalgaon Medium Project [(2008) 17 SCC 448 :
(2009) 5 SCC (Civ) 907] .)

14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4

SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] this
Court held that judicially engrafting principles of limitation
amounts to legislating and would fly in the face of law laid
down by the Constitution Bench in Abdul Rehman Antulay
v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR
1992 SC 1701] .

15. The law on the issue can be summarised to the effect

that where a case has been presented in the court beyond
limitation, the applicant has to explain the court as to what
was the “sufficient cause” which means an adequate and
enough reason which prevented him to approach the court
within limitation. In case a party is found to be negligent, or
for want of bona fide on his part in the facts and
circumstances of the case, or found to have not acted
diligently or remained inactive, there cannot be a justified
ground to condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any

65
 condition whatsoever. The application is to be decided only
within the parameters laid down by this Court in regard to
the condonation of delay. In case there was no sufficient
cause to prevent a litigant to approach the court on time
condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in
violation of the statutory provisions and it tantamounts to
showing utter disregard to the legislature.”
(emphasis supplied)

57. Likewise, merely because the government is involved, a different

yardstick for condonation of delay cannot be laid down. This was

felicitously stated in Postmaster General v. Living Media India Ltd.,

(2012) 3 SCC 563 [“Postmaster General”], as follows:

“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 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

66
 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.”

58. The decision in Postmaster General (supra) has been followed in the

following subsequent judgments of this Court:

i) State of Rajasthan v. Bal Kishan Mathur, (2014) 1 SCC 592 at

paragraphs 8-8.2;

ii) State of U.P. v. Amar Nath Yadav, (2014) 2 SCC 422 at

paragraphs 2-3;

iii) State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 at

paragraphs 11-13; and

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

67
59. In a recent judgment, namely, State of M.P. v. Chaitram

Maywade, (2020) 10 SCC 667, this Court referred to Postmaster

General (supra), and held as follows:

“1. The State of Madhya Pradesh continues to do the same

thing again and again and the conduct seems to be
incorrigible. The special leave petition has been filed after a
delay of 588 days. We had an occasion to deal with such
inordinately delayed filing of the appeal by the State of
Madhya Pradesh in State of M.P. v. Bherulal [State of M.P.
v. Bherulal, (2020) 10 SCC 654] in terms of our order dated
15-10-2020.

2. We have penned down a detailed order in that case and

we see no purpose in repeating the same reasoning again
except to record what are stated to be the facts on which
the delay is sought to be condoned. On 5-1-2019, it is
stated that the Government Advocate was approached in
respect of the judgment delivered on 13-11-2018 [Chaitram
Maywade v. State of M.P., 2018 SCC OnLine HP 1632] and
the Law Department permitted filing of the SLP against the
impugned order on 26-5-2020. Thus, the Law Department
took almost about 17 months' time to decide whether the
SLP had to be filed or not. What greater certificate of
incompetence would there be for the Legal Department!

3. We consider it appropriate to direct the Chief Secretary

of the State of Madhya Pradesh to look into the aspect of
revamping the Legal Department as it appears that the
Department is unable to file appeals within any reasonable
period of time much less within limitation. These kinds of
excuses, as already recorded in the aforesaid order, are no
more admissible in view of the judgment in Postmaster
General v. Living Media (India) Ltd. [Postmaster General v.
Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC

68
 (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S)
649]

4. We have also expressed our concern that these kinds of

the cases are only “certificate cases” to obtain a certificate
of dismissal from the Supreme Court to put a quietus to the
issue. The object is to save the skin of officers who may be
in default. We have also recorded the irony of the situation
where no action is taken against the officers who sit on
these files and do nothing.

5. Looking to the period of delay and the casual manner in

which the application has been worded, the wastage of
judicial time involved, we impose costs on the petitioner
State of Rs 35,000 to be deposited with the Mediation and
Conciliation Project Committee. The amount be deposited
within four weeks. The amount be recovered from the
officer(s) responsible for the delay in filing and sitting on
the files and certificate of recovery of the said amount be
also filed in this Court within the said period of time. We
have put to Deputy Advocate General to caution that for
any successive matters of this kind the costs will keep on
going up.”

60. 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:

“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 s. 5. If sufficient cause is not proved nothing

69
 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
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 s. 14 of the Limitation Act. In
dealing with such applications the Court is called upon to
consider the effect of the combined provisions of ss. 5 and
14. Therefore, in our opinion, considerations which have
been expressly made material and relevant by the
provisions of s. 14 cannot to the same extent and in the
same manner be invoked in dealing with applications which
fall to be decided only under s. 5 without reference to s.
14.”
(page 771)

61. 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

70
 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.

62. Coming to the facts of the appeals before us, in the Civil Appeal

arising out of SLP (C) No. 665 of 2021, the impugned judgment of the

High Court of Bombay, dated 17.12.2020, has found that the Govt of

Maharashtra had not approached the court bona fide, as follows:

“7. I have carefully gone through the papers. There can be

no doubt in view of the documentary evidence in the form
of copy of the application tendered by the Advocate
representing the applicant for obtaining a certified copy
(Exhibit-R1) that in fact, after pronouncement of the
judgment and order in the proceeding under Section 34 of
the Act, the concerned Advocate had applied for certified
copy on 14.05.2019. The endorsement further reads that it
was to be handed over to Mr. A.D. Patil of the Irrigation
Department, Dhule, who is a staff from the office of the
applicant. The further endorsements also clearly show that
the certified copy was ready and was to be delivered on
27.05.2019. [In spite] of such a stand and document, the
applicant has not controverted this or has not come up with
any other stand touching this aspect. It is therefore
apparent that the applicant is not coming to the Court with
clean hands even while seeking the discretionary relief of
condonation of delay”

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63. Apart from this, there is a long delay of 131 days beyond the 60-

day period 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. This appeal is therefore

dismissed.

64. In the Civil Appeal arising out of SLP (C) No. 15278 of 2020, the

impugned judgment of the High Court of Madhya Pradesh dated

27.01.2020 relies upon Consolidated Engg. (supra) and thereby

states that the judgment of this Court in N.V. International (supra)

would not apply. The judgment of the High Court is wholly incorrect

inasmuch as Consolidated Engg. (supra) 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 (supra) 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 High

Court was bound to follow N.V. International (supra), as on the date

of the judgment of the High Court, N.V. International (supra) was a

judgment of two learned judges of the Supreme Court binding upon

the High Court by virtue of Article 141 of the Constitution. On this

72
 score, the impugned judgment of the High Court deserves to be set

aside.

65. 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, the explanation for delay being:

“2. That, the certified copy of the order dated 01/04/2013

was received by the appellant on 27/04/2019. Thereafter
the matter was placed before the CGM purchase
MPPKVVCL for the compliance of the order. The same was
then sent to the law officer, MPPKVVCL for opinion.

3. That after taking opinion for appeal, and approval of the

concerned authorities, the officer-in-charge was appointed
vide order dated 23/07/2019.

4. That, thereafter due to bulky records of the case and for

procurement of the necessary documents some delay has
been caused however, the appeal has been prepared and
filed to pursuant to the same and further delay.

5. That due to the aforesaid procedural approval and since

the appellant is a public entity formed under the Energy
department of the State Government, the delay caused in
filing the appeal is bonafide and which deserve[s] to be
condoned.”

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66. This explanation falls woefully short of making out any sufficient

cause. This appeal is therefore allowed and the condonation of delay

is set aside on this score also.

67. 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 this case also show that there was no

sufficient cause whatsoever to condone such a long delay. The

impugned judgment of the High Court of Delhi dated 15.10.2019

cannot be faulted on this score and this appeal is consequently

dismissed.

68. Appeals disposed of accordingly.

…………………..………………J.
(R. F. Nariman)

……………..……………………J.
(B.R. Gavai)

……………..……………………J.
(Hrishikesh Roy)

New Delhi.
March 19, 2021.

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