N.V. International Vs State of Assam & Ors. (Gauhati High Court)
Summary: The Gauhati High Court dismissed an application seeking condonation of a delay of 189 days in filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996. The applicant No. 1, a registered partnership firm based in New Delhi, and applicant No. 2, one of its partners, sought to challenge the rejection of their commercial claim against the State of Assam by the Arbitral Tribunal. The applicants contended that their counsel had informed them about the District Judge’s dismissal order dated 30 May 2016 in the first week of June 2016, but they could not file the appeal within the prescribed limitation period due to unforeseen personal circumstances.
The applicants explained that their representative had suffered a serious illness, requiring prolonged treatment and complete bed rest, which prevented timely action. They further stated that the brother of applicant No. 2 had died on 14 November 2016. Subsequently, on 20 February 2017, the applicant approached a new counsel and handed over the case records for preparing the appeal. According to the applicants, the voluminous records required approximately 15 days for preparation. However, the High Court observed that no particulars had been furnished regarding the nature of the representative’s illness or how the death of the partner’s brother prevented the filing of the appeal. The Court also questioned why a partnership firm engaged in commercial activities depended entirely upon a single employee to initiate appellate proceedings.
The High Court reiterated that while deciding an application for condonation of delay, the decisive consideration is not the length of the delay but the sufficiency of the explanation offered. In the present case, the applicants failed to establish sufficient cause for the delay of 189 days. The Court held that personal difficulties could not justify condonation in a commercial dispute without adequate supporting particulars and a satisfactory explanation. Consequently, the application for condonation of delay was rejected, the interlocutory application was dismissed, and no order as to costs was passed.
Related Supreme Court Proceedings: The subsequent Supreme Court proceedings concerning the Gauhati High Court’s refusal to condone the 189-day delay in filing the arbitration appeal are discussed in Supreme Court Dismisses Arbitration Appeal After Gauhati HC Refuses to Condon 189-Day Delay.
FULL TEXT OF THE GAUHATI HIGH COURT ORDER
Heard Mr. B. Kaushik, learned counsel for the applicant. I have also heard Mr. R. Borpujari, learned standing counsel, Finance Department, Assam appearing for the respondent No. 2 and Mr. G. Bordoloi, learned Govt. Advocate, Assam appearing for the respondent Nos. 1 and 3.
This I.A. has been filed with a prayer to condone the delay of 189 days in preferring the connected appeal under Section 37 of the Arbitration and Conciliation Act, 1996. The applicant No. 1 is a registered partnership firm and applicant No. 2 is one of the partners of the said firm. The applicant has sought to explain the delay of 189 days by making the following statement in paragraph 3 of the application:
“3. That the petitioner is a registered partnership firm having its registered office and ordinary place of business at New Delhi. It is worth mentioning herein that the counsel who was engaged by the petitioner to conduct the case before the District Judge, Kamrup (M) at Guwahati had informed the petitioner about the dismissal order dated 30-05-16 on someday in the first week of June, 2016. Thereafter, the petitioner requested the counsel to obtain the certified copy of the impugn order and accordingly the same was forwarded to the petitioner. But unfortunately the representative of the petitioner fell seriously ill and was undergoing treatment for a long period of time and was advised by the Doctor to take complete bed rest. On account of illness he was unable take note the dismissal order and take appropriate steps so to prefer appeal within the period of limitation. Meanwhile to the ill luck of the petitioner, his brother also expired on 14-11-2016 and in view of the above circumstances, the petitioner could not take steps for preferring an appeal. However, on 20-02-2017 the petitioner visited the chamber of his new counsel and engaged him to prefer an appeal. He also have handed the entire case to the concern counsel for preparing the appeal. As the record was voluminous, the counsel took 15 days in preparing the appeal. But in the meantime there occurred a delay of 189 days in preferring the appeal.”
Save and except the above statement, nothing else has been stated by the applicants for condoning the delay of 189 days. From a perusal of the materials available on record, it is not clear as to what was the nature of ailment suffered by the employee of the applicant No. 1 and the manner in which the demise of the brother of the applicant No. 2 had come in the way of filing the appeal. There is also no explanation as to why the applicant No. 1 being a partnership firm, was dependent upon only one of its employee to take steps, for filing the appeal. Not to speak of day to day explanation for the delay, this Court is of the view that there is no proper explanation from the applicants so as to consider the prayer for condoning the delay of 189 days filing the appeal. The applicant No. 1 is engaged in commercial activities and is pursuing a commercial claim against the State of Assam which was rejected by the Arbitral Tribunal. Therefore, the present is not a case where the applicants can urge personal difficulty of one of its partners as ground to condone the delay without furnishing complete particulars of the same.
It is trite that while considering an application for condonation of delay, it is not the length of delay but the sufficiency of explanation that is to be taken note of by the Court. But having regard to the statements made in the application, I am of the considered opinion that the applicant has failed to furnish sufficient explanation for delay of 189 days.
As such the prayer for condoning the delay of 189 days in filing the appeal stands rejected.
The I.A. is accordingly dismissed.
No order as to cost.
