Allahabad High Court
UNION OF INDIAversusM/S ATUL CONSTRUCTION COMPANY AND 3 OTHERS
- Decided
Holding
The Court held that the 375‑day delay cannot be condoned and dismissed the appeal.
Summary
The Union of India appealed to the Allahabad High Court under Section 37 of the Arbitration and Conciliation Act, 1996, seeking condonation of a 375‑day delay in filing an appeal against a Commercial Court judgment dismissing its Section 34 application. The appellant claimed it was unaware of the Commercial Court’s order until a show‑cause notice in August 2023 and blamed its former counsel for not informing it. The respondents contended that the delay was inexcusable, amounted to negligence and laches, and that the government cannot claim special treatment for condonation. The Court examined the factual timeline, noted the appellant’s own responsibility to monitor its cases, and relied on Supreme Court precedents that limit condonation of delay, especially for State authorities. Finding the appellant’s explanation unsatisfactory and the delay excessive, the Court dismissed the application for condonation and consequently dismissed the appeal.
Issues considered
- Whether a delay of 375 days in filing an appeal under Section 37 of the Arbitration and Conciliation Act can be condoned.
- Whether the appellant’s reliance on alleged counsel negligence can excuse the delay.
- Whether a government department is entitled to a more lenient approach in condoning delay.
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 34, 37
- Commercial Courts Act — s. 13(1A)
- Limitation Act, 1963 — s. 5
Subjects
- Arbitration
- Section 37 appeal
- Condonation of delay
- Limitation period
- Government liability
- Negligence
- Laches
Judgment
Reserved on : 27.02.2026
Delivered on : 18.03.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPEAL UNDER SECTION 37 OF ARBITRATION AND
CONCILIATION ACT 1996 DEFECTIVE No. - 664 of 2023
Union of India
…..Appellant(s)
Versus
M/s Atul Construction Company and 3 others
…..Respondent(s)
Counsel for Appellant(s) : Bal Mukund
Counsel for Respondent(s) : Abhiuday Mehrotra, Neerja Singh,
Sharve Singh
Chief Justice's Court
HON'BLE ARUN BHANSALI, CHIEF JUSTICE
HON'BLE KSHITIJ SHAILENDRA, J.
(Per: Arun Bhansali, CJ)
1. This appeal is directed against judgment dated 12.10.2022 passed by
Commercial Court, Jhansi, whereby the application filed by the appellant
under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the Act’)
against award dated 15.01.2018, passed by the Arbitral Tribunal has been
dismissed.
2. Office has reported the appeal as barred by 375 days.
3. An application under Section 5 of the Limitation Act seeking condonation
of delay in filing the appeal, supported by an affidavit of the Assistant
Garrison Engineer, Military Station, Lalitpur, has been filed. In the affidavit,
it is claimed that the appellant came to know about the dismissal of the
application under Section 34 of the Act by judgment dated 12.10.2022 when
it received show cause notice dated 10.08.2023 on 17.08.2023 from the
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Court of 18th District Judge, Bhopal to appear on 04.09.2023 in execution
application filed by the respondents. It is claimed that immediately after
receiving the show cause notice from Bhopal, the appellant requested its
counsel at Jhansi by letter dated 31.08.2023 to provide a copy of the
judgment dated 12.10.2022. It is alleged that the counsel neither informed
the dismissal of the case nor provided any copy of the judgment to the
appellant till 31.08.2023. A copy of the judgment and order dated
12.10.2022 along with back dated legal opinion dated 05.11.2022 was
handedover to the officer of the appellant on 01.09.2023.
4. On receipt of the opinion, the appellant sought permission from HQ,
Jhansi for filing the appeal before the High Court, statement of case along
with documents were sent on 22.09.2023, officer was authorized to sign the
Vakalatnama on 13.10.2023. Additional Solicitor General of India (‘ASGI’)
was requested to nominate Government Counsel for filing the appeal. The
counsel who has filed the appeal under Section 37 of the Act was
approached on 05.10.2023, however, it is claimed that on 16.11.2023, ASGI
alloted the case to the said counsel, the counsel sought complete
correspondence on 20.11.2023, which are made available on 28.11.2023,
whereafter the Central Government Counsel took time in drafting the appeal,
which has ultimately been filed on 20.12.2023.
5. Submissions have been made that delay may be condoned in the interest
of justice, which is bona fide and unintentional otherwise the appellant
would suffer a great and irreparable loss.
6. Objection to the application seeking condonation of delay has been filed
by the respondents. Submissions have been made that the appellant had full
knowledge of the proceedings before the Commercial Court, Jhansi and that
of judgment dated 12.10.2022, story has been cooked up to cover the
negligence and laches. The delayed appeal has been filed to deprive the
respondents from the fruits of the arbitral award and filing of the appeal is
misuse of legal procedure and therefore, the same is liable to be dismissed.
7. A rejoinder affidavit has been filed on behalf of the appellant reiterating
the submissions made in the application and accusing the counsel
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representing the appellant in not informing about the decision on application
under Section 34 of the Act.
8. This Court, on 05.11.2024, noticed the claim of the appellant that it was
not informed of the judgment and order dated 12.10.2022 and only on
receipt of the show cause notice in the execution proceedings on 17.08.2023
that it came aware of the passing of the judgment by the Commercial Court,
Jhansi and that in the material produced along with the application seeking
condonation of delay, a recommendation to take suitable action against the
Government Counsel for his casual approach in dealing with the subject
matter was noticed on which counsel for the appellant was granted time to
indicate if at all the said indication against the counsel has been followed.
9. A supplementary affidavit has been filed annexing a copy of letter dated
24.02.2024 making the recommendation for action against the counsel
representing the appellant before the Commercial Court, Jhansi. However, as
to the result of the said recommendation, the counsel for the appellant is
unaware, however, counsel for the respondents informs that the counsel
continues to represent the appellants.
10. Learned counsel for the appellant made submissions that the delay
occurred only on account of the counsel representing the appellant not
informing the decision on the application under Section 34 of the Act and for
the action/inaction of the counsel, the appellant cannot be punished and
therefore, the delay in filing the appeal deserves to be condoned.
11. Counsel for the respondents opposed the submissions. It was submitted
that present is an example of negligence and laches on part of the appellant
in filing the appeal. Further submissions have been made that the order was
passed by the Commercial Court on 12.10.2022 and it is claimed that on
17.08.2023, the appellant became aware of passing of the said order, still the
appeal has been filed on 20.12.2023, i.e., after four months, i.e., a delay of
more than 100 days even from the date of knowledge. The explanation for
the delay is ex-facie baseless and only indicates the laidback attitude of the
officers of the appellant without caring for the compliance of the award
though execution proceedings are pending. Submissions have been made
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that Hon’ble Supreme Court has repeatedly laid down that the delay in case
of arbitration appeals cannot be condoned by way of routine and therefore,
the application seeking condonation of delay deserves to be dismissed.
Reliance was placed on State of State of Uttar Pradesh & Others Vs. M/s.
Satish Chand Shivhare & Brothers : 2022 SCC Online SC 2151 and
Government of Maharashtra Vs. Borse Brothers Engineers and
Contractors Pvt. Ltd. : (2021) 6 SCC 460.
12. We have considered the submissions made by counsel for the parties and
have perused the material available on record.
13. A perusal of the application seeking condonation of delay, as noticed
hereinbefore, reveals that the appellant has primarily accused the counsel
representing the appellant before the Commercial Court in proceedings
under Section 34 of the Act in not informing the dismissal of the application
on 12.10.2022 and only on receiving the notice in the execution proceedings
on 17.08.2023 that it became aware of the order dated 12.10.2022.
14. If the said assertion made by the appellant is taken at the face value, it is
apparent that since 12.10.2022 till 17.08.2023, the appellant/officer of the
appellant did not contact its counsel to find out the status of the case. The
dates before the Commercial Court are regularly fixed and therefore, the
negligence, on part of the appellant, is writ large on record. It is very
convenient to accuse the lawyer of not informing the proceedings in the
case/outcome of the proceedings, however, in an organization like the
appellant, which have designated post for looking after the court cases, to
claim that they were not made aware of the passing of the judgment by the
counsel, cannot be countenanced. Hon’ble Supreme Court in the case of
Rajneesh Kumar and another Vs. Ved Prakash : 2024 INSC 891, on the
said aspect, has observed as under:
“10. It appears that the entire blame has been thrown on the head of the
advocate who was appearing for the petitioners in the trial court. We have
noticed over a period of time a tendency on the part of the litigants to
blame their lawyers of negligence and carelessness in attending the
proceedings before the court. Even if we assume for a moment that the
concerned lawyer was careless or negligent, this, by itself, cannot be a
ground to condone long and inordinate delay as the litigant owes a duty to
be vigilant of his own rights and is expected to be equally vigilant about the
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judicial proceedings pending in the court initiated at his instance. The
litigant, therefore, should not be permitted to throw the entire blame on the
head of the advocate and thereby disown him at any time and seek relief.”
15. Further, even if the plea raised is accepted on its face value, the appellant
became aware of the passing of the judgment on 17.08.2023 and thereafter
also it has taken more that 120 days in filing the appeal for which, as noticed
from the dates indicated hereinbefore, there is no explanation. It would be
seen that on the one hand it is claimed the appellant had already approached
the counsel on 05.10.2023 to file the appeal vide annexure No. 9 to the
application, in the same affidavit, it is averred that on 16.11.2023, the ASGI
alloted the case to the said counsel, which is in terms contradictory, as if the
allotment took place on 16.11.2023, how could the appellant approach the
counsel on 05.10.2023 itself. While the letter dated 05.10.2023 has been
annexed, the allotment on 16.10.2023 is deliberately missing, which clearly
reflects that the appellant is seeking to manipulate the dates for the purpose
of seeking condonation of delay in filing the appeal. The delay of 375 days
remains wholly unexplained.
16. The lethargic attitude on the part of the State and its instrumentalities has
been frowned upon by Hon'ble Supreme Court in Postmaster General v.
Living Media India Ltd. : (2012) 3 SCC 563 wherein, while dealing with
the appeals filed on behalf of the State, by its agencies and government
bodies, it was, inter alia, observed as under:
"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 bonafide 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.
30. Considering the fact that there was no proper explanation offered by the
Department for the delay except mentioning of various dates, according to
us, the Department has miserably failed to give any acceptable and cogent
reasons sufficient to condone such a huge delay. Accordingly, the appeals
are liable to be dismissed on the ground of delay."
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17. The issue with regard to the extent of condonation of delay in filing of
the appeals under Section 37 of the 1996 Act came up before the Hon'ble
Apex Court in Government of Maharashtra vs. Borse Brothers
Engineers and Contractors Private Limited : (2021) 6 SCC 460, wherein
following was observed:
"63. Given the aforesaid and the object of speedy disposal sought to be
achieved both under the Arbitration Act and the Commercial Courts Act,
for appeals filed under section 37 of the Arbitration Act that are governed
by Articles 116 and 117 of the Limitation Act or section 13(1A) of the
Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days,
respectively, is to be condoned by way of exception and not by way of rule.
In a fit case in which a party has otherwise acted bona fide and not in a
negligent manner, a short delay beyond such period can, in the discretion of
the court, be condoned, always bearing in mind that the other side of the
picture is that the opposite party may have acquired both in equity and
justice, what may now be lost by the first party's inaction, negligence or
laches."
18. Yet in another decision emanating from the proceedings under Section
37 of the 1996 Act wherein similar defence was sought to be taken by the
State in preferring appeal beyond the statutory period the Hon'ble Apex
Court in the case of State of Uttar Pradesh & Others Vs. M/s. Satish
Chand Shivhare & Brothers : 2022 SCC Online SC 2151 held as under:
"17. The explanation as given in the affidavit in support of the application
for condonation of delay filed by the petitioners in the High Court does not
make out sufficient cause for condonation of the inordinate delay of 337
days in filing the appeal under Section 37 of the Arbitration and
Conciliation Act. The law of limitation binds everybody including the
Government. The usual explanation of red tapism, pushing of files and the
rigmarole of procedures cannot be accepted as sufficient cause. The
Government Departments are under an obligation to exercise due diligence
to ensure that their right to initiate legal proceedings is not extinguished by
operation of the law of limitation. A different yardstick for condonation of
delay cannot be laid down because the government is involved."
19. Recently, Hon'ble Supreme Court, in Shivamma (Dead) by LRs Vs.
Karnataka Housing Board and others : Civil Appeal No. 11794 of 2025,
decided on 12.09.2025, after scanning the entire law on the subject, observed
as under:
"262. The High Courts ought not give a legitimizing eff ect to such callous
attitude of State authorities or its instrumentalities, and should remain
extra cautious, if the party seeking condonation of delay is a State-
authority. They should not become surrogates for State laxity and lethargy.
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The constitutional courts ought to be cognizant of the apathy and pangs of
a private litigant. Litigants cannot be placed in situations of perpetual
litigations, wherein the fruits of their decrees or favourable orders are
frustrated at later stages. We are at pains to reiterate this everlasting trend,
and put all the High Courts to notice, not to reopen matters with inordinate
delay, until sufficient cause exists, as by doing so the courts only add insult
to the injury, more particularly in appeals under Section 100 of the CPC,
wherein its jurisdiction is already limited to questions of law.
263. Limitation periods are prescribed to maintain a sweeping scope for the
lis to attain for finality. More than the importance of judicial time, what
worries us is the plight of a litigant with limited means, who is to contest
against an enormous State, and its elaborate and never-exhausting
paraphernalia. Such litigations deserve to be disposed of at the very
threshold, because, say if a party litigating against the State, for whatever
reason, is unable to contest the condonation of delay in appeal, unlike the
present case, it reopens the lis for another round of litigation, and leaves
such litigant listless yet again. As courts of conscience, it is our obligation
that we assure that a litigant is not sent from pillar to post to seek justice.
264. No litigant should be permitted to be so lethargic and apathetic, much
less be permitted by the courts to misuse the process of law."
20. From the above, it is apparent that no case for condonation of delay is
made out. The application is, therefore, dismissed. Consequently, the appeal
is also dismissed.
(Kshitij Shailendra,J.) (Arun Bhansali,CJ.)
March 18, 2026
Mukesh Pal
Digitally signed by :-
MUKESH PAL
High Court of Judicature at Allahabad
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