JUDGMENT : Order on Civil Misc. Delay Condonation Application No. 01 of 2023 Hon'ble Surendra Singh-I, J.-Heard Sri Krishna Mohan Asthana, learned counsel for the appellant/plaintiff and Sri Praveen Kumar Singh, learned counsel for the respondent/defendant on the delay condonation application filed alongwith arbitration appeal. 2. The arguments on the delay condonation application have been heard without calling for a counter-affidavit to the delay condonation application in view of the fact that the counsel for the defendant had agreed to argue the delay condonation application without a counter-affidavit as only a question of law was involved as to whether the limitation for filing the arbitration appeal would be counted as provided under the Commercial Courts Act, 2015 or as provided under the Arbitration and Conciliation Act, 1996 and whether this Court in either case has the power to condone the delay in filing the appeal. 3. The applicant-appellant has preferred this appeal against judgment and order dated 11.7.2023, formal order dated 14.7.2021 passed in Case No. 16 of 2021 (Mathura Vrindavan Development Authority through its Vice Chairman v. M/s. Agrawal Construction) filed under Section 34 of the Arbitration and Conciliation Act,1996. 4. It has been submitted by counsel for the applicant/petitioner that the applicant/petitioner had preferred an application under Section 34 of Arbitration and Conciliation Act,1996 (hereinafter referred to as the ''Act of 1996'') for setting aside the arbitral award within limitation period of 90 days prescribed under Section 34 (3) of the Act of 1996. Since the valuation of the arbitral award was more than Rs. 3,00,000/- the said application of the petitioner/applicant for setting aside the arbitral award was transferred to the Commercial Court No. 1 Agra hearing jurisdiction in accordance with Section 10 (3) of Commercial Courts Act, 2015 (hereinafter referred to as the '' Act of 2015''). The application was rejected vide order dated 14.7.2023 of the aforesaid Commercial Court, thereafter, applicant/petitioner preferred Arbitration Appeal under Section 37 of the Act of 1996 challenging the judgment and order dated 14.7.2023 passed under Section 34 of the Act of 1996. 5. It has also been submitted that no limitation period has been provided for filing an appeal under Section 37 of the Act of 1996 whereas, office has reported a delay of 29-30 days in filing the Arbitration Appeal in reference to Section 13 (1) (A) of the Act of 2015. 5. It has also been submitted that no limitation period has been provided for filing an appeal under Section 37 of the Act of 1996 whereas, office has reported a delay of 29-30 days in filing the Arbitration Appeal in reference to Section 13 (1) (A) of the Act of 2015. It has further been submitted that the applicant/petitioner preferred the appeal on the basis of the judgment of Hon'ble Apex Court in N.V. International v. State of Aassam and another, (2020)2 SCC 109 , in which the Hon'ble Apex Court held that limitation period for preferring an appeal under Section 37 of the Act 1996 to the High Court is 90 days as Article 116-117 of the Schedule of the Limitation Act is applicable in filing the appeal. It has been submitted that the applicant/petitioner preferred the appeal on the basis of bona fide and legal advice of his Counsel and there was no negligence, inaction or lack of bona fide on his part in filing the appeal after limitation period, therefore, the applicant/petitioner may be granted benefit of Section 5 of the Limitation Act. 6. No written objection has been filed by the opposite parties/respondents. 7. It has been submitted by counsel for the respondents that since the valuation of the arbitral award was more than Rs. 3,00,000/- therefore, it was sent to the Commercial Court, Agra for disposal, thus, the provisions of the Commercial Courts Act, 2015 is applicable in deciding the period of limitation for preferring an appeal under Section 37 of the Act of 1996. Under Section 13 (1) of the Act of 2015, the period of limitation in preferring such appeal before the High Court against the order of Commercial Court is 60 days from the date of the judgment and order as the purpose of Commercial Court is expeditious disposal of commercial disputes between the parties. In the case of Government of Maharastra (Water Resources Department) Represented by Executive Engineer v. M/s. Borse Brothers Engineers and Contractors Private Limited, (2021) 6 SCC 460 , the Hon'ble Apex Court held that the condonation of delay, although allowed cannot be seen in complete isolation of main objective of the Act i.e. speedy resolution of disputes. In the case of Government of Maharastra (Water Resources Department) Represented by Executive Engineer v. M/s. Borse Brothers Engineers and Contractors Private Limited, (2021) 6 SCC 460 , the Hon'ble Apex Court held that the condonation of delay, although allowed cannot be seen in complete isolation of main objective of the Act i.e. speedy resolution of disputes. In the light of the same, the Hon'ble Apex Court has observed that expression of ''sufficient cause'' under Section 5 of Limitation Act is not elastic enough to cover the delay and merely because sufficient cause has been made out, there is no right to have such delay condoned. The delay beyond 60 days in filing the appeal is to be condoned by way of exception not by way of Rule. It has been submitted that delay due to ignorance of law of the party cannot be condoned. 8. On the basis of statutory provisions provided in Limitation Act, Arbitration and Conciliation Act and Commercial Courts Act and in light of the judgments of Hon'ble Apex Court it has to be decided whether the period of limitation for filing the appeal under Section 37 of the Act of 1996 against the order passed under Section 34 of the Act of 1996 shall be 60 days as provided under Commercial Courts Act and 90 days under Arbitration and Conciliation Act1996. 9. The statutory provisions regarding filing of appeals of commercial Courts is provided under Section 13 of the Commercial Courts Act, 2015, which is as follows : ''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 District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (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.'' 10. The present appeal has been filed against the impugned order dated 14.7.2023 passed by the Commercial Court, Agra under Section 34 of the Act of 1996. The present appeal has been filed against the impugned order dated 14.7.2023 passed by the Commercial Court, Agra under Section 34 of the Act of 1996. Thus, under Section 13 (1-A) of the Commercial Courts Act shall lie of the Commercial Appellate Division of the High Court within the period of 60 days from the date of the judgment and order. 11. It has been argued on behalf of the applicant/appellant that the appeal has been filed under Section 37 of the Act of 1996 against the order passed by the commercial Court under Section 34 of the Act of 1996, since no period of limitation has been provided in the Act for filing appeal therefore, Article 116 (a) of the Schedule of Limitation Act shall be applicable. Under Article 116 (a) of the Act, the period of limitation for filing the appeal to the High Court from any decree or order of the District Courts is 90 days, therefore, appeal has been filed within the period of limitation. 12. Per contra, learned counsel for the opposite party has argued that the appeal has been filed against the impugned order dated 14.7.2023 passed by the Commercial Court Agra, the Commercial Courts Act is a Special Act, therefore, the period of filing an appeal shall be 60 days as provided under Section 13 (1-A) of the Commercial Courts Act as has been settled by the Hon'ble Apex Court by it's pronouncement in Borse Brothers (supra), in Paragraph No. 33 the Hon'ble Apex Court has held that; ''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 (1-A) 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 general law, which follows from a reading of Section 29(2) of the Limitation Act. Section 13(1-A) 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.'' 13. Section 13(1-A) 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.'' 13. After considering various decisions, the Hon'ble Apex Court has concluded in Borse Brothers case (supra) that Section 5 of the Limitation Act shall be applicable to the appeals filed against the order passed by the commercial Court, the Hon'ble Apex Court has also held that a total period of limitation for filing such appeal should not exceed the period of limitation provided under Section 34 (3) of the Act of 1996 i.e. 120 days. 14. In paragraph No. 61 the Hon'ble Apex Court further held; ''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.'' 15. In Collector (L.A.) v. Katiji, (1987) 2 SCC 107 , the Supreme Court laid down the following principles, while dealing with an appeal or application not preferred within the period of limitation : 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. ''Every day's delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 3. ''Every day's delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 16. In light of the aforesaid pronouncements of the Hon'ble Apex Court, it is conspicuous that Section 5 of Limitation Act is applicable to the appeals filed under Section 37 of the Act of 1996. 17. The applicant/appellant has averred that his counsel has advised that the period of limitation for filing an appeal against the order passed under the Act of 1996 is 90 days as it was earlier held by the Hon'ble Apex Court in N.V. International v. State of Aassam and another, (2020)2 SCC 109 , the applicant's counsel had no knowledge that the aforesaid case has been overruled by Hon'ble Apex Court vide its judgment and order passed in Borse Brothers (supra). 18. The delay caused in filing the appeal is due to wrong advice give by the applicant's counsel regarding period of limitation for filing the appeal. Thus, there was no negligence on the part of the applicant in filing the appeal after a lapse of 29 days of the limitation period, the delay was caused due to wrong advice given by his counsel about the limitation period in filing the appeal against the impugned order. 19. In the case of Oil and Natural Gas Commission v. Tridib Nath Sanyal and others, AIR 1983 Cal 124 ; the Culcutta High Court has held that; ''A litigant would not be responsible for negligence of his counsel unless there has been some remissness on the part of the litigant.'' 20. 19. In the case of Oil and Natural Gas Commission v. Tridib Nath Sanyal and others, AIR 1983 Cal 124 ; the Culcutta High Court has held that; ''A litigant would not be responsible for negligence of his counsel unless there has been some remissness on the part of the litigant.'' 20. Apart from this, considering the facts and circumstances of the case and period of delay in filing the appeal, we are of the considered view that there is sufficient cause that the delay in filing appeal should be condoned under Section 5 of the Limitation Act. The applicant/appellant is granted benefit of Section 5 of the Limitation Act and the delay of 29 days in filing the appeal is condoned accordingly. 21. The delay condonation application is allowed accordingly. 22. Office to allot regular number to the appeal, if there is no other legal impediment. 23. Put up as fresh on 21st December, 2023 for admission of appeal.