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Patna High Court

The General Manager,versusM/s KEC-DELCO- VARAHA (JV)

Decided
Disposal
DISMISSED

Holding

The Court held that the 222‑day delay was inordinate and could not be condoned, leading to dismissal of the interlocutory application and the appeal.

Summary

The General Manager and other officials of East Central Railways filed an interlocutory application seeking condonation of a 222‑day delay in filing a commercial appeal against a judgment that dismissed their Section 34 application under the Arbitration and Conciliation Act, 1996. The delay was attributed to internal approval procedures within the Railways. The High Court examined the statutory time‑limit of 60 days for filing an appeal under Section 13(1‑A) of the Commercial Courts Act, 2015 and Section 37 of the Arbitration Act, and considered the Supreme Court’s decision in Government of Maharashtra v. Borse Brothers (2021) on condoning short delays. Finding the delay inordinate, not bona‑fide, and prejudicial to the respondent who had already commenced execution proceedings, the Court refused to condone the delay. Consequently, the interlocutory application and the commercial appeal were dismissed.

Issues considered

  • Whether a delay of 222 days in filing a commercial appeal under Section 13(1‑A) of the Commercial Courts Act, 2015 and Section 37 of the Arbitration and Conciliation Act, 1996 can be condoned.
  • Whether procedural approvals within a government department constitute a bona‑fide reason for such delay.
  • Whether the Supreme Court’s precedent in Government of Maharashtra v. Borse Brothers permits condonation of a delay of this magnitude.

Legislation cited

Subjects

  • Arbitration
  • Section 34
  • Condonation of delay
  • Commercial appeal
  • Inordinate delay
  • Supreme Court precedent
  • Commercial Courts Act
  • Railways

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                COMMERCIAL APPEAL No.17 of 2025
                 ======================================================
           1.     The General Manager, East Central Railways.
           2.    The Chief Administrative Officer, East Central Railways, Mahendrughat.
           3.    The Chief Engineer, East Central Railways, Mahendrughat.
           4.     The Deputy Chief Engineer, East Central Railways, Samastipur.
                                                                            ... ... Appellants
                                                   Versus
                 M/s KEC-DELCO- VARAHA (JV), Administrative Office at First Floor
                 Building 9-A DLF, Cybercity, Phase III, Gurgaon 122002.
                                                                          ... ... Respondent
                 ======================================================
                 Appearance :
                 For the Appellants     :      Mr. Anand Kumar Ojha, Senior CGC
                                               Mr. Ram Tujabh Singh, CGC
                 For the Respondent     :      None
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
                         and
                         HONOURABLE MR. JUSTICE PRAVEEN KUMAR
                                       ORAL ORDER

                 (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

5   29-01-2026                               I.A. No. 3 of 2026

                               This interlocutory application has been filed seeking

                   condonation of delay of 222 days in filing of the Commercial

                   Appeal against the impugned judgment dated 28.05.2024 passed

                   by     learned     Additional    District    Judge-XIV,        Patna    in

                   Miscellaneous (Arbitration) Case No. 173 of 2019.

                               2. By the impugned judgment, the learned Additional

                   District Judge-XIV has been pleased to dismiss the application

                   under Section 34 of the Arbitration and Conciliation Act, 1996

                   (hereinafter referred to as the ‘Act of 1996’) and thereby refused

                   to interfere with the award.
Patna High Court COMMERCIAL APP No.17 of 2025(5) dt.29-01-2026
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                     3. It appears on perusal of the interlocutory

         application that the delay occurred in the process of completing

         the formalities in getting approval for filing of the appeal from

         various Departments of the Railways. The contention of the

         appellants is that there had been no deliberate and intentional

         laches on the part of the Railways in filing of the appeal. The

         delay is totally attributable to the procedures which are required

         to be followed in getting approval at various levels of the

         Department.

                     4. Mr. Anand Kumar Ojha, learned Senior Counsel

         assisted by Mr. Ram Tujabh Singh, learned CGC representing

         the Railways has taken this Court through the statements made

         in paragraphs ‘4’ to ‘7’ of the application. It is his submission

         that there are procedures and hierarchy in the administrative,

         finance and legal Departments of the Railways. It is his

         submission that an attempt to act in unison and in alignment to

         the compulsory protocol has resulted into this delay.

                     5. We have considered the application seeking

         condonation of delay.

                     6. This is an appeal preferred under Section 37 of the

         Act of 1996 read with Section 13(1-A) of the Commercial

         Courts Act, 2015 (hereinafter referred to as the ‘Act of 2015’ or
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         the ‘Commercial Courts Act’). Section 13(1-A) of the Act of

         2015 and Section 37 of the Act of 1996 are being reproduced

         hereunder for a ready reference:-

                                  “Section 13. Appeals from decrees of
                                  Commercial        Courts     and      Commercial
                                  Divisions. (1-A) 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).]
                                  Section      37.    Appealable       order.-   (1)
                                  2[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:-
                                  3[(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.
         2. Substituted by Act 33 of 2019, S.8, for “An appeal” (w.e.f. 30-8-2019).
         3. Substituted by Act 3 of 2016, S. 20, for Cls. (a) and (b) (w.r.e.f. 23-10-2015).
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                              (3) No second appeal shall lie from an order
                              passed in appeal under this section, but nothing in
                              this section shall affect or take away any right to
                              appeal to the Supreme Court.”

                     7. On a bare perusal of the provisions noted

         hereinabove, it would appear that the maximum period

         prescribed for preferring an appeal under Section 13(1-A) of the

         Act of 2015 is a period of 60 days from the date of the judgment

         or order. The Commercial Courts Act does not prescribe any

         provision empowering the Court to condone a delay over and

         above the 60 days’ period, however, this issue came up for

         consideration before the Hon’ble Supreme Court in the case of

         Government           of      Maharashtra          (Water        Resources

         Department) Represented by Executive Engineer Vs. Borse

         Brothers Engineers & Contractors Private Ltd. reported in

         (2021) 6 SCC 460. Their Lordships of the Hon’ble Supreme

         Court having gone through the scheme of the Act of 1996 and

         then the scheme of the Commercial Courts Act held that even

         though there is no provision for condonation of delay, the Court

         may in its discretion condone delay of few days in the nature of

         a short delay beyond the period of limitation but that would be

         by way of an exception and not by way of rule. In this regard,

         the opinion of the Hon’ble Supreme Court contained in

         paragraph ‘63’ of the judgment in case of Borse Brothers
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         (Supra) is extracted hereinbelow for a ready reference:-

                               “63. Given the aforesaid and the object of
                               speedy disposal sought to be achieved both
                               under the Arbitration Act and the
                               Commercial Courts Act, for appeals filed
                               under Section 37 of the Arbitration Act that
                               are governed by Articles 116 and 117 of
                               the Limitation Act or Section 13(1-A) of
                               the Commercial Courts Act, a delay
                               beyond 90 days, 30 days or 60 days,
                               respectively, is to be condoned by way of
                               exception and not by way of rule. In a fit
                               case in which a party has otherwise acted
                               bona fide and not in a negligent manner, a
                               short delay beyond such period can, in the
                               discretion of the court, be condoned,
                               always bearing in mind that the other side
                               of the picture is that the opposite party may
                               have acquired both in equity and justice,
                               what may now be lost by the first party’s
                               inaction, negligence or laches.”


                     8. When we consider the kind of delay which has

         taken place in filing of the present appeal, it is found that the

         delay is a kind of inordinate delay and it cannot be said to have

         occurred on account of any bona fide reason. We further find

         that this delay has definitely given rise to certain rights to the

         other side who had already filed an execution case giving rise to

         Execution Case No. 627 of 2019 and the appellants were well

         aware of the said execution case.

                     9. In course of hearing, we have been informed that

         even before presenting this appeal before this Court, the

         Railways were in discussions with the party and from a minute
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         of the meeting held on 25.07.2025, it has been informed to this

         Court that on the said date, the Railways Officials had a

         discussion with the Agency Representative and it was agreed by

         both the Agency and the Railways Representatives that the

         awarded amount will be submitted before the Hon’ble Court at

         all items, however, further discussion would be required in

         respect of three items. It is, thus, an admitted position that in

         this case, the Railways decided to submit the entire awarded

         amount based on the discussions with the Agency. This Court

         has been informed that the awarded amount has already been

         paid. We have taken note of this fact only to complete the

         records. The fact remains that there is an inordinate delay of 222

         days. In case of Borse Brothers (Supra), the Hon’ble Supreme

         Court has held the delay of 131 days beyond the 60 days’ period

         as a long delay and the appeal was dismissed.

                     10. We are of the considered opinion that the

         explanation furnished in the application seeking condonation of

         delay only shows that the Railways was not acting with

         promptness and the negligence in taking appropriate decision

         within the prescribed period of limitation or even with a delay

         of a short period is writ large on the face of the record. The

         Railways have to blame themselves for this inordinate delay.
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                                11. We find no reason to condone this huge delay of

                    222 days. I.A. No. 3 of 2026 stands dismissed.

                                12. As a result of the dismissal of the interlocutory

                    application seeking condonation of delay, the appeal itself

                    stands dismissed.



                                         (Rajeev Ranjan Prasad, J)


                                              (Praveen Kumar, J)
lekhi/-

          AFR

U


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