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
- Arbitration and Conciliation Act, 1996 — s. 34, 37
- Commercial Courts Act, 2015 — s. 13(1-A)
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
2/7
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
Patna High Court COMMERCIAL APP No.17 of 2025(5) dt.29-01-2026
3/7
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).
Patna High Court COMMERCIAL APP No.17 of 2025(5) dt.29-01-2026
4/7
(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
Patna High Court COMMERCIAL APP No.17 of 2025(5) dt.29-01-2026
5/7
(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
Patna High Court COMMERCIAL APP No.17 of 2025(5) dt.29-01-2026
6/7
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.
Patna High Court COMMERCIAL APP No.17 of 2025(5) dt.29-01-2026
7/7
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
Checking your session…