JUDGMENT : The appellants have filed an application under Section 5 of the Limitation Act to condone the delay of 270 days in filing the above appeal and in support of an application, an affidavit is sworn to that, the judgment passed by the Hon’ble District Judge, Mandya, is against the provisions of law and the judgment was passed on 30.3.2021 and a copy of the judgment was sent for obtaining the legal opinion. After receipt of the opinion, it is observed that the impugned judgment passed was erroneous and it requires to be challenged and hence decided to challenge the impugned order by filing the above appeal. 2. It is sworn to that, on account of the procedure involved in finalizing the papers and processing the same, there is a bit delay in filing the above appeal and with an abundant caution, the above application is filed for seeking condonation of delay. 3. This application is resisted by filing the statement of objections by the respondents contending that the very application is not maintainable. In the statement of objections it is contended that admittedly the appeal is filed after the delay of 605 days and no cogent reason is forthcoming for the said undue delay. The only reason forthcoming is that matter was sent for legal opinion and the file could not be found and could not be traced, are not the cogent reasons. In fact, the reason assigned is, delay and latches on the part of the appellants. It is contended that execution petition was filed in No.118/2022 before the Principal District and Sessions Judge, Mandya and the appellants have filed objections on 2.6.2022 stating that execution petition was not maintainable because of non furnishing the conversion order and layout plan. Hence, it is clear that the appellants have accepted the judgment and decree of the District Judge and appellants had no plan to file the appeal and the present appeal is an after thought. 4. It is also contended that the learned District Judge dismissed the arbitration suit incidentally relying upon the decision of this Court in (H.M. SHANKARAMURTHY Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in 2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in the case of M.P. Power Generation Co. Ltd. Vs. Anraldo Energia SPA and another reported in SCC Online SC 385 as well as Associate Builders Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in 2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in the case of M.P. Power Generation Co. Ltd. Vs. Anraldo Energia SPA and another reported in SCC Online SC 385 as well as Associate Builders Vs. Delhi Development Authority reported in AIR 2015 SC 620 , and hence not made out any ground to condone the delay and having the knowledge about the execution, appeared and filed objection statement on 2.6.2022 itself. The present appeal is filed in the year 2023, that too in the month of February and no explanation for the delay and hence delay cannot be condoned. 5. The counsel in support of his argument relied upon the judgment reported in (2021) 6 SCC 460 and referring this judgment the counsel would vehemently contend that Section 5 of the Limitation Act is not maintainable in an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’ for short). The counsel also relied upon the judgment of this Court dated 23.2.2022 passed in M.F.A.No.201018/2018 (AA), wherein also this Court held that maximum delay period is only 120 days and thereafter they cannot file an application to condone the delay and Section 5 of the Limitation Act cannot be invoked. The counsel also vehemently contend that the judgment of this Court in Bhimashankar Sahakari Sakkare Karkhane Niyamita passed in M.F.A.No.201018/2018 also affirmed by the Apex Court in Civil Appeal No.6810/2022 vide order dated 10.4.2023 and the Apex Court also comes to the conclusion that High Court has not committed any error in rejecting the condonation of delay application and hence the very application filed under Section 5 of the Limitation Act is not maintainable. 6. 6. In reply to the arguments of the respondents counsel vehemently contend that Arbitration and Conciliation Act, 1996 is clear with respect to an appeal under Section 37, no specific limitation is mentioned and those judgments arising out of a suit is filed under 34 of the Act and in order to file an application for setting aside the arbitral award under Section 34, specific limitation is provided in Section itself and the same is not applicable to an appeal filed under Section 37 of the Act, Counsel also brought to notice of this Court Section 43 of the Limitation Act, wherein Section 43 of the Limitation Act shall apply to arbitration as it applies to proceedings in Court and Section 43(3) is very clear that notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time of such period, as it things proper. The counsel also would submit that the judgment of the Apex Court in (2021)6 SCC 460 discussed with regard to the application of Section 5 of the Limitation Act is applicable for condonation of delay in filing the appeal under Section 37 of the Act, and Limitation Act is applicable. Hence, the very contention of the counsel for the respondents that the appellants cannot invoke Section 5 of the Limitation Act, cannot be accepted. 7. Having heard the appellants’ counsel and also the counsel appearing for the respondents and also the grounds urged in the application and the statement of objections, the points that would arise for consideration of this Court are: i) Whether Section 5 of the Limitation Act can be invoked in an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 to condone the delay? ii) Whether the appellants have made out the ground and sufficient cause to condone the delay? iii) What order? Point No.1: Having heard the respective counsel, the main contention of the respondents counsel that the maximum period of limitation is 90 days and additional 30 days, in all 120 days is provided under the Act itself to file an appeal. 8. Admittedly, this appeal is filed against the dismissal of the suit filed under Section 34 of the Act confirming the award of the Arbitrator and hence, the present appeal is filed under Section 37 of the Act. 9. 8. Admittedly, this appeal is filed against the dismissal of the suit filed under Section 34 of the Act confirming the award of the Arbitrator and hence, the present appeal is filed under Section 37 of the Act. 9. No doubt, the judgments of this Court and the Apex Court in the case of Bhimashankar Sahakari Sakkare Karkhane Niyamita arising out of dismissing the suit filed under Section 34 of the Act on the ground of Condonation of delay and Apex Court also comes to the conclusion that High Court has not committed any error in dismissing the appeal in coming to the conclusion that the maximum period allowed to file the appeal is within 120 days. Having perused Section 34 of the Act, when an application for setting aside of arbitral award, it is clear that recourse to a Court under an arbitral award may be made only by an application for setting aside such award, in accordance with sub-sections (2) and (3) of Section 34 of the Act. The grounds also set out to challenge the same and the proviso under Section 34(3) of the Act is very clear that an application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal and further proviso is made that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter. 10. 10. Reading of sub-clause (3) of Section 34 of the Act and also further proviso, the maximum period is 120 days and the very statue itself makes clear that it could be challenged within three months and thereafter also after 30 days, in total 120 days and no dispute with regard to the fact that the principles laid down in the judgment of this Court as well as the Apex Court referred supra, the maximum period is 120 days, wherein the appeal was not entertained, since an application was filed before the District Court under Section 34 of the Act, since there was a delay of more than 120 days and hence, the same is dismissed. 11. But in the case on hand, application filed under Section 34 of the Act was considered and decided the same on merits and dismissed, thereafter an appeal is filed under Section 37 of the Act. This Court would like to extract Section 37 of the Act as below: 37. Appealable orders.-(1) 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 authorizes bylaw to hear appeals from original decrees of the Court passing the order, namely:- (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) An appeal shall also lie to a Court from an order of the arbitral- (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. (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. And also this Court would like to extract Section 43 of the Act with regard to the limitation as below:- 43. Limitation.-(1) The Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in Court. (2) For the purposes of this section and the Limitation Act, 1963, an arbitration shall be deemed to have commenced on the date referred in Section 21. Limitation.-(1) The Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in Court. (2) For the purposes of this section and the Limitation Act, 1963, an arbitration shall be deemed to have commenced on the date referred in Section 21. (3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed Having heard the respective counsel and also on perusal of the material available on record, expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper. (4) where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.” 12. Having considered Section 37-1(c) of the Act, it is clear that, setting aside or refusing to set aside the arbitral award under Section 34 of the Act and an appeal lies where an order is passed under Section 34. But no any exclusion of Section 5 of the Limitation Act, but in Section 34 it is very clear that the maximum period provided is 90 + 30 days, in all 120 days, but no specific limitation is made provided under Section 37 of the Act while filing an appeal. 13. But no any exclusion of Section 5 of the Limitation Act, but in Section 34 it is very clear that the maximum period provided is 90 + 30 days, in all 120 days, but no specific limitation is made provided under Section 37 of the Act while filing an appeal. 13. Having read Section 43 of the Act, it is very clear that Limitation Act, 1963 shall apply to arbitrations as it applies to proceedings in Court and further sub-clause (3) is very clear that, where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper. Sub-clause (4) is also very clear that where the Court orders that an arbitral award be set aside, the period between commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted. Hence it is clear that, Limitation Act, 1963 shall apply to arbitration as it applies to proceedings in the Court. 14. The Apex Court also in the judgment referred by the respondents’ counsel himself in the case of Government of Maharashtra (Water Resources Department) represented by Executive Engineer Vs. Borse Brothers Engineers and Contractors Private Limited with regard to Section 37, limitation period for filing appeal under Section 37 of the Act, both in respect of cases falling under Commercial Courts Act as well as the Arbitration and Conciliation Act, 1996, in respect of cases not falling under Commercial Courts Act, formulated the point with regard to Section 5 of the Limitation Act. Since issues involved in the appeal, whether limitation period for filing an appeal under Section 37 of the Act, would governed by limitation period provided under Section 34 of the Act, or limitation period prescribed under Article 137 of the Limitation Act or limitation period prescribed under Articles 116 and 117 of the Limitation Act or limitation period prescribed under Section 131-A of the Commercial Courts Act, 2015. 15. The third issue was framed whether delay in filing the appeal under Section 37 of the Act, can be condoned and if so, to what extent and whether application under Section 5 of the Limitation Act to condone the delay in filing the appeal under Section 37 of the Act, is excluded by the scheme of the Commercial Court’s Act. The Apex Court having considered these issues held that Section 37 of the Act, when read with Section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37 of the Act. This takes us to Articles 116 and 117 of the Limitation Act, which provides for a limitation period of 90+30 days, depending upon whether the appeal is from any other Court to a High Court or a intra-High Court Appeal, there can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virtue of Section 43 of the Act and by virtue of Section 29(2) of the Limitation Act and the same is also reiterated in paragraph 23. Paragraph 23 of the judgment referred supra is extracted here below: “23. Section 37 of the Arbitration Act, when read with Section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37. This takes us to Articles 116 and 117 of the Limitation Act, which provide for a limitation period of 90 days and 30 days depending upon whether the appeal is from any other court to a High Court or an intra-High Court appeal. There can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virrtue of Section 43 of the Arbitration Act and by virtue of Section 29(2) of the Limitation Act.” 16. There can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virrtue of Section 43 of the Arbitration Act and by virtue of Section 29(2) of the Limitation Act.” 16. Having read Section 37 of the Act, no limitation is prescribed to file an appeal as in case of an application to be filed under Section 34 of the Act, wherein specific limitation is provided for three months + 30 days, total 120 days. But no such specific limitation is provided in Section 37 of the Act for filing an appeal and also Section 43 of the Act, which I have extracted above, is also very clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37 of the Act. Hence, the judgments which have been relied upon by the counsel for the respondents, Bhimashankar Sahakari Sakkare Karkhane Niyamita, wherein challenge was made only with regard to Section 34 of the Act and limitation as provided in the very Section itself, but not in an appeal and Section 43 of the Act makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under Section 37 of the Act and Apex Court having discussed the same and even framing the issues involved between the parties in the said appeal also, in paragraph 23 which has been extracted is very clear that there can be no doubt whatsoever that Section 5 of the Limitation Act will apply to the aforesaid appeals, both by virtue of Section 43 of the Arbitration Act and by virtue of Section 29(2) of the Limitation Act and hence, I do not find any force in the contention of the respondents’ counsel that Section 5 of the Limitation Act cannot be invoked and hence, I held that Section 5 of the Limitation Act could be invoked while filing an appeal under Section 37 of the Act and hence, I answer the point No.1 as affirmative. Point No.2 : Now the question before this Court is with regard to, whether sufficient cause has been shown by the appellants to condone the delay? 17. Point No.2 : Now the question before this Court is with regard to, whether sufficient cause has been shown by the appellants to condone the delay? 17. The Apex Court also in the judgment referred supra in Government of Maharashtra case also discussed the same with regard to sufficient cause,, wherein held that Government is involved a different yardstick for condonation of delay cannot be laid down and hence it is clear that the Court cannot show any lenience even if Government is involved in the litigation and also held that it was open for the High Court to condone the delay applying Section 5 of the Limitation Act, 1963 and whether the appellants have made out the ground to condone the delay and then this Court has to consider the reason assigned in the application and reason assigned in the application is that when the judgment was passed on 30.3.2021 and after receiving the judgment and decree passed by the Court and the same was sent for obtaining legal opinion and after receipt of the opinion, it was opined that judgment passed was erroneous and appeal requires to be challenged and for finalizing the same in taking opinion, delay was occurred and it is stated that there is a bit delay in filing the above appeal. In the case on hand, there was a delay of 605 days as contended by the respondents and it is also the contention that no cogent reason is forthcoming for the said undue delay. But records reveals that judgment was passed on 30.3.2021 and by that time S.O.P. was prevailing in view of the Covid-19, but it is calculated as delay of 270 days. But records reveals that judgment was passed on 30.3.2021 and by that time S.O.P. was prevailing in view of the Covid-19, but it is calculated as delay of 270 days. But reason assigned in the application is that while getting the opinion there was a delay and affidavit is not specific, when the copy was obtained and also when the papers were sent for legal opinion and on what date opinion was received, but affidavit is very vague and nothing is mentioned in the application and also it is important to note that in the objection statement respondents took the specific contention that when the award was not satisfied, they have filed execution petition which was numbered as 118/2022 before the Hon’ble District and Sessions Judge, Mandya and also it has to be noted that the appellants have filed objections on 2.6.2022 stating that execution petition was not maintainable because of not furnishing the conversion order and layout plan and hence it is clear that appellants were also having knowledge of filing of the execution petition and they have filed statement of objections on 2.6.2022 itself and even then they have not filed any appeal immediately and the present appeal is filed on 23.2.2023, almost after eight months of filing of statement of objections in the execution petition by the appellants themselves and having perused the order, the arbitration award was confirmed by the District Court. When the appellants participated in the arbitration proceedings initiated under Section 34 of Arbitration and Conciliation Act and order was passed on 30.3.2021, almost one year 11 months was taken to file the appeal and reason was not assigned except stating that there was a delay in getting the opinion. The Apex Court in the judgment referred supra itself held with regard to the sufficient cause is concerned, merely because the Government is involved, a different yardstick for condonation of delay cannot be laid down. In the case on hand, no doubt the appeal is filed by National Highway Authority and there was no need to take opinion for a period of two years and apart from that even appellants had the knowledge about filing of execution petition and in the said execution petition participated and filed statement of objections on 2.6.2022 itself and even immediately after filing statement of objections appeal was not filed. 18. 18. Having perused the certified copy of the order it is clear that though the judgment was passed on 30.3.2021, certified copy was obtained on 2.3.2023 and no material is placed on what date earlier certified copy was taken and sent to the Department for opinion and nothing is stated in the affidavit and affidavit is very bald except stating that when the file was sent to opinion and opinion was given that order was not correct and it requires challenge and when that opinion was given is also not stated in the affidavit, only bald affidavit is filed in paragraph No.4 narrating the same that file was sent for opinion, after receipt of the opinion decided to file an appeal and no sufficient cause is shown to condone the delay and hence, I do not find any reason to condone the delay and application deserves to be dismissed. Hence, I answer point No.2 as negative. 19. In view of the discussions made above, I pass the following ORDER : I.A.No.1/2023 is dismissed, since no sufficient cause is shown. However, made it clear that Section 5 of the Limitation Act could be invoked in an appeal filed under Section 37 of the Arbitration and Conciliation Act. Consequently, appeal is also dismissed.