Time spent in bona fide and diligent prosecution of writ petition, despite jurisdictional defect, excludable under Section 14 of Limitation Act when filing subsequent civil suit for same claim.

JUDGMENT :

RAJNESH OSWAL, J.

1. The appellant prefers this a ppeal under Section 13(1-A) of the Commercial Courts Act, 2015 against an order dated 19.08.2025 passed by the Commercial Court of the Additional District Judge, Jammu (for short ‘the trial court’), in a suit bearing on File No. 434/2025 titled ‘M/s HSL Enterprises vs. M/s Thermax Ltd.'.

2. By way of impugned order, which literally amounts to decree, the trial court has dismissed the appellant’s suit as being barred by limitation by first rejecting an application for the exclusion of time sought by the appellant under the umbrage of Section 14 of the Limitation Act, 1963.

3. The appellant, being aggrieved of the impugned order, challenges it on the premise that the learned trial court failed to appreciate the factual genesis of the litigation and, thus, fell in error of judgment.

4. Upon the respondent No.1’s purported failure to release alleged pending payments’ claims, the appellant had initially filed a writ petition-OWP No. 1516/2013 before the learned writ court.

5. The respondent No. 1 had appeared to contest said writ petition on the grounds inter alia of maintainability by asserting that it involved a private contract and, thus, a dispute not subject to judicial review jurisdiction. Consequently, the appellant withdrew the writ petition by seeking liberty to pursue a civil remedy for enforcement of its claim and consequent recovery.

6. Consequently, civil suit was filed promptly thereafter, but the trial court erroneously dismissed it by wrongly concluding that the appellant lacked due diligence or bona fides in pursuing the writ proceedings.

7. Mr. Ashish Sharma, learned counsel appearing for the appellant, asserts that the appellant is entitled to avail benefit of Section 14 of the Limitation Act, 1963 so as to salvage the maintainability of its suit. He maintains that the time spent in prosecuting the writ petition for period ranging from 2013 to 2022 constituted a 'prior proceeding' pursued with due diligence and therefore, the trial court’s finding of lack of bona fides on the part of the appellant is contrary to the record, and the dismissal of the suit is unsustainable in law.

8. Mr. R. S. Lalotra, appearing for the respondent No. 1, on the other hand argues that the exploit of Section 14 of the Limitation Act, 1963 is unavailable to a litigant who wilfully pursues a patently non-available legal remedy. He submits that despite the respondent No.1's categorical objections to the writ petition’s maintainability, the appellant continued to pursue and prosecute the writ petition as misconceived and a wrong remedy for years at its own risk and costs. Such a conduct, he argues, disentitles the appellant from claiming premium of 'due diligence'. Consequently, the respondent No. 1 asserts that the trial court rightly held the suit to be barred by limitation.

9. Heard learned counsel for the parties and perused the record.

10. Before adjudicating upon merits of present appeal, it is pertinent to observe a procedural necessity which is that with respect to a civil suit, pleas for exclusion of time under Section 14 of the Limitation Act. 1963 are meant and should ideally be pleaded within the plaint itself as against time barred appeals or applications where condonation of delay is sought under Section 5 of the Limitation Act, 1963 by an application to effect but there is no such provision for 'condonation of delay' by an application in filing of a civil suit. Ra