Bombay High Court
Fit (Earlier Known As M/S. France ... vs Parag Milk Foods Pvt. Ltd.,(Earlier ... on 2 January, 2024
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2024:BHC-AS:209-DB
18.IA.20301.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.20301 OF 2022
IN
COMMERCIAL FIRST APPEAL (STAMP) NO.21111 OF 2022
FTI (Earlier known as
M/s. France International Trade) .... Applicant
IN THE MATTER BETWEEN
FTI (Earlier known as
M/s. France International Trade) .... Appellant
Versus
Parag Milk Foods Ltd. .... Respondent
Mr. G.S. Godbole, Senior Advocate i/b. Mr. Shivraj R. Patne &
Mr. Shan D. Gadgil, Advocates for Applicant/Appellant.
Mr. Kayval Shah, Advocate for Respondent.
CORAM : B. P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
DATE : JANUARY 02, 2024
P. C.
1. The above Interim Application is filed seeking a condonation
of delay of 102 days in filing the above Appeal. The above Appeal
challenges the order dated 15th March, 2022 passed by the Court of
District Judge-2, Pune in Special Civil Suit No.73 of 2016. This suit
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18.IA.20301.2022.doc
was originally filed under Section 9 of the Code of Civil Procedure,
1908 and thereafter on an objection being raised that the present
dispute is a commercial dispute, was transferred to the Commercial
Court. By the impugned order, the suit filed by the plaintiff was
dismissed.
2. Mr. Godbole, the learned Senior Counsel appearing on behalf
of the Applicant/Appellant submitted that the impugned judgment is
dated 15th March, 2022 and a certified copy was applied for on 2 nd
June, 2022. The certified copy was made available on 14 th June,
2022 and the above Appeal was lodged on 25 th August, 2022. He
submitted that the delay has taken place because the
Applicant/Appellant is a foreign entity and does not have any
permanent establishment in India. He, therefore, submitted that
there is sufficient explanation for the delay as more particularly set
out in the Interim Application and the same ought to be condoned.
3. On the other hand, the learned Advocate appearing on behalf
of the Respondent submitted firstly that there is no power to
condone the delay as Section 5 of the Limitation Act, 1963 will not
apply to Appeals filed under the Commercial Courts Act, 2015. Even
otherwise he submitted that no sufficient cause has been made out in
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18.IA.20301.2022.doc
the above Interim Application to condone the delay. It is on these
two grounds that the above Interim Application was opposed.
4. We have heard the learned counsel for the parties and have
also perused the papers and proceedings in the above Interim
Application. As far as the first argument canvassed on behalf of the
Respondent, namely, that Section 5 of the Limitation Act, 1963 will
not apply to appeals filed under the provisions of the Commercial
Courts Act, 2015, we find that the same is squarely answered by a
decision of the Hon'ble Supreme Court in the case of Government of
Maharashtra (Water Resources Department) Represented by
Executive Engineer Vs. M/s. Borse Brothers Engineers & Contractors
Pvt. Ltd. [(2021) 6 SCC 460]. In this decision, the Hon'ble Supreme
Court has clearly held that the Commercial Courts Act, 2015 does not
exclude the applicability of Section 5 of the Limitation Act, 1963.
Once this is the case, we find absolutely no merit in the first
contention canvassed by the learned counsel appearing on behalf of
the Respondent. As far as no sufficient cause being shown, we have
carefully gone through the Interim Application. We find that the
delay is not inordinate and the explanation given in the Interim
Application commends to us for condoning the delay. In these
circumstances, the Interim Application is allowed and the delay of
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102 days in filing the present Appeal is condoned.
5. Now that the delay is condoned, the Registry shall proceed to
number the above Appeal subject to the Appellant/Applicant
removing all other office objections within a period of four weeks
from today, failing which the above Appeal shall stand dismissed
without further reference to the Court.
6. The above Interim Application is accordingly disposed of.
However, there shall be no order as to costs.
7. This order will be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
[SOMASEKHAR SUNDARESAN, J.] [B.P. COLABAWALLA, J.]
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