SECRETARY, IRRIGATION, GOVERNMENT OF UP Vs. GAUTAM BUILDERS

JUDGEMENT

(1.) The instant appeal has been filed by the Department of Irrigation under Sec. 37 of the Arbitration and Conciliation Act, 1996 (the 'Act, 1996') challenging the judgment and order of Commercial Court dtd. 19/1/2021, rejecting the objection of the appellants under Sec. 34 of the Act, 1996 against the award of the Arbitrator dtd. 15/2/2011 as barred by limitation.

(2.) The appeal has been filed with a delay of 1448 days. If we go through the explanation given for the delay, we find it to be a result of gross negligence and callous approach and not for any reason beyond the control of the appellants.

(3.) The impugned order of the Commercial Court is dtd. 19/1/2021. On 12/2/2021, the Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur wrote to the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to obtain legal opinion in respect of the said order. The Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur after getting legal opinion from the District Government Counsel, Kanpur Nagar forwarded the same to the Executive Engineer along with letter dtd. 8/3/2021. On 12/3/2021 the Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur forwarded the legal opinion to the Superintending Engineer, Second Circle, Irrigation Works, Kanpur with a request to take proper and appropriate steps. The Superintending Engineer, in turn, forwarded the same to the Chief Engineer (Ram Ganga) Irrigation and Water Resource Department, U.P. Kanpur. At the same time, he also directed the Executive Engineer to prepare a brief history of the case. On 3/4/2021, the Executive Engineer once again wrote to the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to prepare a brief history of the case. On 8/7/2021, the Executive Engineer informed the Superintending Engineer about the application of the respondent to comply with the judgment and order of the Commercial Court dtd. 19/1/2021. Despite having full knowledge that the claimant- respondent has been insisting for compliance of the order, no concrete step was taken to ensure filing of the appeal. On 7/1/2022, the Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur Nagar again wrote the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to provide a brief history of the case. On 3/3/2022, the history of the case was provided to the Executive Engineer. The Executive Engineer, for reasons best known to him, returned the file once again to Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur to provide summary of the case in five sets under his signature. On 4/4/2022, the said direction was complied with. Again, the Executive Engineer vide letter dtd. 16/4/2022 returned the file to Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur with direction to rectify some errors and resubmit it to his office. It is stated that the Assistant Engineer II, Kanpur Division, Lower Ganga Canal, Kanpur resubmitted the file vide letter dtd. 21/4/2022. The Executive Engineer, Kanpur Division, Lower Ganga Canal, Kanpur, thereafter, vide letter dtd. 13/5/2022 forwarded the file to the Superintending Engineer and who on 18/5/2022 forwarded the file to Chief Engineer (Ram Ganga), Irrigation and Water Resource Department, U.P. Kanpur. This time, the Chief Engineer returned the file for obtaining signatures of Superintending Engineer over the same as was done by the Executive Engineer in the past in respect of the summary provided by Assistant Engineer. The Superintending Engineer on 19/5/2022 further returned the file to the Executive Engineer with direction to verify it under his signature and resubmit it. The Executive Engineer vide letter dtd. 23/5/2022 transmitted the file to Assistant Engineer to provide verified copy of the attachments to the summary of the case. The Assistant Engineer vide letter dtd. 31/5/2022 complied with the direction. The file was transmitted to the office of Executive Engineer and then to the office of Superintending Engineer and thereafter, to the office of Chief Engineer. It is stated that on 9/6/2024, the Superintending Engineer directed the Executive Engineer to remain present in the office of Chief Engineer to ensure resolution of the issue. However, it is alleged that the Executive Engineer failed to take appropriate steps and speedy action in the matter.