IMPORTANT POINTS
(1) Section 5 of Limitation Act, 1963 can be invoked and applied to condone delay under Commercial Courts Act, 2015.
(2) Law of Limitation is for general welfare that a period be put to litigation – Rules of Limitation are not meant to destroy rights of parties, rather idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

JUDGMENT

Heard.

2. The applicant is the original plaintiff whose commercial suit being No.22/2017 came to be dismissed vide judgment and order dated 06.05.2022 passed by the District Judge-2, Nagpur. The suit pertains to the recovery of amount of Rs.1,70,16,342/-.

3. The original defendant has preferred counter claim and the same was also dismissed. As a sequel thereof, the defendant has preferred Commercial Appeal No. 13 of 2022 under Section 13 of the Commercial Courts Act, 2015 (for short, the Act of 2015).

4. As far as appeal preferred by the original plaintiff-the applicant herein is concerned, there appears delay of 156 days which is sought to be justified on the ground of voluminous record, time consumed in comprehending the order and judgment from such voluminous record, the resignation of the then Law Officer, who was handling the case, etc.

5. Mr. Dharmadhikari, learned counsel appearing for the original defendant-non-applicant herein would oppose the prayer on the ground that Section 13 of the Act of 2015 does not confer express power to condone the delay.

6. As against above, Mr. Bodalkar, learned counsel appearing for the original plaintiff-applicant herein submits that in such an eventuality, the Court is required to take recourse to the provisions of the Limitation Act, 1963 (for short, the Act of 1963). He would draw support from the provisions of Section 29 of the Act of 1963. He would urge that in absence of powers to condone the delay under the principal statute i.e. the Commercial Courts Act, particularly Section 13, and there being absence of embargo to apply the provisions of the Act of 1963, the provisions of Sections 4 to 24 of the Act of 1963 shall apply to the case in hand. That being so, the Court has every power to condone the delay. He would also draw support from the judgment of the Kerala High Court in the case of Muhammedshafeek vs. M/s. Tasty Nut Industries and three others, decided on 17.10.2023.

7. We have appreciated the rival claims.

8. The Law of Limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time (Brijesh Kumar Versus State of Haryana, [(2014) 11 SCC 351]. In view of the provisions of Section 29 of the Act of 1963, it has to be inferred upon plain reading of the provisions of Section 13 of the Act of 2015 the power to condone delay can be exercised even in absence of express provision to that effect in the Act of 1963. Section 5 of the Act of 1963 can be invoked and applied to condone the delay under the Act of 2015. The same view has been elucidated by the Coordinate Bench of this Court in the case of Kalpesh R. Jain and Others Versus Mandev Tubes Private Limited [2017 SCC OnLine Bom 8882], paragraphs 25 and 32 of the said case read as under:

“25. We do not see as to how when there are preexisting courts which were already dealing with the suits and appeals pertaining to commercial disputes in their ordinary original civil jurisdiction or their appellate jurisdiction and not ruling out the applicability of section 5 of the Limitation Act, 1963, the appeals arising out of such suits, then, the Act 4 of 2016 intended to exclude section 5 of the Limitation Act, 1963. That would mean a pre-existing Appellate Court like the High Court whether on its appellate side or its Commercial Appellate Division is helpless and cannot entertain an appeal merely because it is filed beyond the period of limitation prescribed by subsection (1) of section 13 of the Act 4 of 2016. Pertinently, it being an appeal, it is open to the appellant to point out that there was sufficient cause which prevented him from filing the appeal within the prescribed period and by invoking section 5 of the Limitation Act, the said delay be condoned.

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