Page No.# 1/11 GAHC020007832025 2026:GAU-NL:332-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : I.A.(Civil)/218/2025 STROYPROEKT- OIA JV THROUGH ITS AUTHORISED REPRESENTATIVE, ANOOP GUPTA, OIA HOUSE NO. 470 CARDINAL GRACIOUS ROAD, ANDHERI (E), MUMBAI-400099 VERSUS NATIONAL HIGHWAY AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. (NHIDCL) MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, GOVT. OF INDIA, 3ED FLOOR PTI BUILDING, 4-PARLIAMENT STREET, NEW DELHI-110001 Advocate for the Petitioner : APPU RAJ GOGOI, Advocate for the Respondent : , Linked Case : WA/40/2025 STROYPROEKT- OIA JV THROUGH ITS AUTHORISED REPRESENTATIVE ANOOP GUPTA OIA HOUSE NO. 470 CARDINAL GRACIOUS ROAD ANDHERI (E) MUMBAI-400099 Page No.# 2/11 VERSUS NATIONAL HIGHWAY AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. (NHIDCL) MINISTRY OF ROAD TRANSPORT AND HIGHWAYS GOVT. OF INDIA 3ED FLOOR PTI BUILDING 4-PARLIAMENT STREET NEW DELHI-110001 ------------ Advocate for : PFOSEKHO PFOTTE Advocate for : appearing for NATIONAL HIGHWAY AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. (NHIDCL) BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Advocates: For the applicant/appellant : P.K. Tiwari, Sr. Adv. : S.P. Sharma For the State respondent : A. Garg (R/1) : Moa Jamir Date on which Judgment was reserved : NA Date of pronouncement of Judgment : 03.06.2026 Whether the pronouncement is of the : NA operative part of the Judgment? Whether the full Judgment has been : Yes pronounced? JUDGMENT & ORDER (ORAL) (Y. Longkumer,J) Heard Mr. P.K. Tiwari, learned senior counsel assisted by Mr. S.P Sharma, learned counsel for the applicant. Also heard Mr. A. Garg, learned counsel for the respondent. Page No.# 3/11 2. By filing the instant application under Section 5 of the Indian Limitation Act, the applicant has prayed for the condonation of a delay of 835 days in filing the connected writ appeal against the impugned judgment and order dated 23.06.2023 passed in WP(C)/44/2023. 3. In the application herein the applicant has shown a timeline of events from the date of the impugned judgment culminating in circumstances necessitating the filing of the accompanying writ appeal. By showing the timeline of events, the applicant has stated that after receiving the judgment and order dated 23.06.2023, the appellant/applicant had decided to approach the Arbitral Tribunal for adjudicating the claims of the applicant company, as even though the order of contract termination dated 15.03.2023 was not interfered with by the learned Single Judge, the applicant still had the remedy to approach the Arbitral Tribunal for securing its claims. The applicant having been awarded the EPC contract by the respondent was compelled to challenge the arbitrary termination of the same by filing the WP(C)/44/2023 before the learned Single Judge which came to be dismissed by judgment dated 23.06.2023. Thereafter the applicant pursued its contractual remedy by initiating arbitration proceedings under the contract agreement. However, in the course of the arbitral proceedings, the respondent raised the plea of res judicata on untenable grounds, thereby constraining the appellant/applicant to prefer the accompanying writ appeal. 4. The learned senior counsel for the applicant submits that after receiving the judgment dated 23.06.2023 the applicant had decided to approach the Arbitral Tribunal for adjudicating the claims of the applicant company. The respondent filed an application before the tribunal stating that the Page No.# 4/11 claims of the applicant are barred by res judicata and therefore the arbitral tribunal does not have jurisdiction. Learned senior counsel submits that this plea of the respondent is not maintainable inasmuch as the jurisdiction under Article 226 of the Constitution of India vis-à-vis the jurisdiction of the Arbitral Tribunal under the provisions of the Arbitration and Conciliation Act, 1996 are quite distinct and separate. However, since the respondent has raised the issue of res judicata, the appellant/applicant has preferred the writ appeal as a measure of abundant caution. 5. The Learned Senior Counsel further submits that the respondents by filing the application with regard to applicability of res judicata before the Arbitral Tribunal has categorically stated that as the learned Single Judge had decided the issue of termination, therefore the proceeding before the Arbitral Tribunal is barred by res judicata. As such the applicant/appellant is constrained to challenge the judgment of the learned Single Judge as the judgment dated 23.06.2023 is being projected by the respondents as a bar for arbitration proceedings. Learned senior counsel also submits that in this case there is a necessity for this Court to do substantial justice and to apply the law in a meaningful manner as the right of the applicant company for raising its claims with regard to the termination of the contract has been hindered by the judgment dated 23.06.2023 passed by the learned single judge. Therefore, this Court should allow the condonation petition and hear the writ appeal on merits despite the delay. 6. The Learned senior counsel has relied on the cases of Collector, Land Acquisition, Anantnag and others v. Katiji and others reported in (1987) 2 SCC 107 and Esha Bhattacharjee v. Managing Committee of Raghunathpur Page No.# 5/11 Nafar Academy & others, reported in (2013) 12 SCC 649 in support of his submissions. By relying on the said judgments, it is submitted that the Hon’ble Supreme Court held that the courts should adopt a liberal approach while dealing with the application for condonation of delay as ordinarily a litigant does not stand to benefit by lodging an appeal late and refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. 7. It is further submitted that there has been no negligence on the part of the applicant nor have they accepted the judgment of the learned Single Judge as is evident from the fact that they have approached the Arbitral Tribunal to pursue their claims. However, due to the application filed by the respondent under Section 11 read with Section 151 of the CPC, the need has arisen to prefer an appeal challenging the judgment and order dated 23.06.2023 passed by the learned Single Judge, otherwise the arbitration proceeding would be invalidated. Having regard to the above- mentioned facts and circumstances, the learned senior counsel prays that the delay of 835 days in filing the connected writ appeal may be condoned towards securing the ends of justice. 8. The learned counsel for the respondent, by filing affidavit in opposition, has strongly objected to the prayer of the applicant stating that the present case is one of gross delay and complete lack of diligence on the part of the applicant inasmuch as the appeal has been filed after more than 800 days from the date of the impugned judgment dated 23.06.2023 and the entire sequence of events clearly shows that the applicant had consciously elected not to challenge the impugned judgment and rather accepted the same. Page No.# 6/11 9. It is stated by the learned counsel for the respondent that the only explanation put forth by the applicant in the instant application is that the present appeal has been filed as it was necessitated after the respondent raised an objection of res judicata in the arbitral proceedings, which explanation, on the face of it, does not even attempt to explain the delay within the prescribed period of limitation. It is stated that the applicant has failed to disclose any circumstance whatsoever which prevented it from filing the appeal within the statutory period and has instead relied upon developments that occurred almost one year later. The applicant’s own pleadings show that the appeal has been filed as a measure of abundant caution which itself demonstrates that there was no genuine inability to file the appeal within the period of limitation, and the present application is merely an afterthought arising out of a litigation strategy. 10. Learned counsel for the respondent has also submitted that the applicant by its conduct has clearly attempted to defer the filing of the writ appeal until such time it was found convenient in the light of developments in the arbitration proceedings which is impermissible and contrary to settled principles of law. 11. It is the further contention of the respondent that the conduct of the applicant clearly shows that the applicant had accepted the finality of the impugned judgment, inasmuch as the applicant proceeded on the basis of termination, sought payments and invoked arbitration and therefore the applicant cannot be permitted to reopen the same issue after an inordinate delay. In fact, the explanation given by the applicant for the delay is not only insufficient but also self-contradictory as the applicant itself states that the plea of res judicata raised by the respondent is not Page No.# 7/11 maintainable and yet relies upon the same as the basis for filing the writ appeal. The respondent therefore submits that the instant application deserves to be dismissed with costs as the applicant has failed to show any sufficient cause, much less a bona fide or reasonable cause for not filing the writ appeal within the prescribed limitation period. 12. The learned counsel for the respondent has relied on the following authorities in support of his submissions i) State of Madhya Pradesh v. Ramkumar Choudhury, 2024 SCC Online SC 3612; ii) Basawaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81; iii) State of Assam and others v. Naresh Chandra Das and Another, 1981 SCC Online GAU 26; iv) Union of India and another v. Jahangir Byramji Jeejeebhoy (D) through his LRs, 2024 SCC Online SC 489 and v) Ajay Dabra v. Pyare Ram and others, 2023 SCC Online SC 92. 13. 13. We have duly considered the submissions of the learned counsel for the parties and perused the pleadings and also the authorities as discussed hereinabove. The proposition of law as laid down in the case of Ramkumar Choudhary (supra) would show that the cause of the delay must have occurred before the limitation period expired. The sufficient cause must be traced to circumstances arising within the limitation period and not subsequent thereto. Any circumstances or events that arise after the time limit expires can never be used as a valid excuse to condone the delay. The Hon’ble Supreme Court in the said case went on to state that: “ 7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the Page No.# 8/11 instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1st day and the 90th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation”. 14. In the case of Naresh Chandra Das (supra), it was held that the explanation has to cover the entire period of delay and the applicant should not easily be permitted to take away a right which has accrued to his adversary by lapse of time. In Jahangir Byramji (supra) also the Supreme Court held that the length of the delay is a relevant matter which the Court must take into consideration while considering whether the delay should be condoned or not and once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the application for condonation of delay, the court must not start with the merits of the main matter. The court Page No.# 9/11 owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay. 15. It has also been consistently held by the Supreme Court that it is the cause of delay and the sufficiency of the explanation that matters rather than the length of delay. Even a delay of several years can be condoned if valid and acceptable causes are shown while a short delay may be rejected if left unexplained. 16. Upon consideration of the pleadings of the applicant and the submissions made by the learned senior counsel for the applicant we have noted that the applicant was fully aware that the issue of res judicata could be a defence taken by the respondents as the termination of the contract was upheld by the learned Single Judge. However the facts about the dismissal of the writ petition vide judgment dated 23.06.2023 was never brought to the notice of the Arbitral Tribunal by the applicant. It can be gathered from the conduct of the applicant that the applicant never intended to file any appeal against the impugned judgment dated 23.06.2023 and it was only when the respondent filed the application and raised the plea of res judicata the applicant took a chance and filed the connected writ appeal as an afterthought and as a “measure of abundant caution” in the words of the applicant. 17. In the instant case the only ground taken by the applicant as a reason for the delay is that the applicant was constrained to file the writ appeal because the respondent objected to the arbitral proceedings taking the Page No.# 10/11 plea of res judicata. This reason, by no stretch of the imagination, can be taken to constitute sufficient cause for the delay. A plain reading of paragraphs 13 and 14 of the instant application reveals that the applicant decided to file the writ appeal only because the respondents invoked the plea of res judicata. It is apparently clear that before the said objection was raised by the respondent the applicant did not have any intention of filing an appeal against the impugned judgment dated 23.06.2023. It is a pertinent factor that the plea of res judicata was raised by the respondents only on 12.09.2025. By this time more than two years had lapsed since the judgment dated 23.06.2023 was passed. Hence the decision to file the appeal was taken by the applicant only after 12.09.2025. 18. It is settled law that the court has to take a pragmatic approach in the matter of condonation of delay. Prolonged inaction without bona fides can be a good reason to reject the condonation application. In recent times the Hon’ble Supreme Court jurisprudence on condonation of delay has undergone a paradigm shift. It has been held that the entire limitation period must be explained and not just the post-expiry delay. Substantial justice still matters but only with bona fide, cogent explanation. The instant case is one glaring example of prolonged inaction without bona fides. The applicant consciously elected to abandon the filing of a writ appeal and pursued the arbitration. It was a deliberate choice and not a bona fide mistake and the delay reflects a conscious litigation strategy in our opinion. 19. In view of the above discussion, we find that the delay was not caused by any inability to file the appeal but by a deliberate decision not Page No.# 11/11 to do so. The applicant has not been able to show sufficient cause for the delay of 835 days in filing the accompanying writ appeal and accordingly, the application is dismissed. 19. Before parting with the records, we feel it necessary to observe that our observations and findings are strictly limited to the adjudication as to whether the applicant was able to show a sufficient cause for condoning the delay of 835 days while preferring the writ appeal. Under such circumstances our observations and findings would be limited to the present adjudication and would not prejudice any of the parties before the learned Arbitral Tribunal and adjudicating the intense disputes between the parties herein. JUDGE JUDGE Comparing Assistant