Bombay High Court
M/S. Shyama Charan Agarwala And Sons, ... vs Union Of India, Thr. Suresh Singh Mehra ... on 5 May, 2025
2025:BHC-GOA:857
2025:BHC-GOA:857
WP 65.2025
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 65 OF 2025
1. M/s Shyama Charan Agarwala
& Sons, Engineers & Builders,
Through its Sole Proprietor,
Shri Mahesh Chandra Agrawal,
Address: S-4, Woodrose Building,
Lokhandwala Complex,
Andheri (West), Mumbai 400053.
2. Shri Mahesh Chandra Agrawal,
Aged about 79 Years, Indian National
Proprietor of M/s Shyama Charan
Agarwala & Sons,
Address: 1101-2, 1A Green Acres,
Lokhandwala Complex,
Andheri (West), Mumbai 400053. ... Petitioners
Versus
1. Union of India,
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
2. Chief Engineer Navy, Kochi
Naval Base Post
KOCHI-682004
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
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WP 65.2025
Vasco Military Engineer Services,
Vasco da Gama, Goa-403802.
3. Commander Works Engineers (Navy),
Mangoor Hills,
Vasco-da-Gama-403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
4. Garrison Engineer (Project) Naval Work,
Mangoor Hills, Vasco-da-Gama-403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
5. Engineer-in-Chief, Army HQ,
ARMY HQ, DHQ PO,
NEW DELHI-110011
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
6. Chief Engineer Southern Command,
HQ Southern Command
Engineers Branch, Pune-411011
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
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WP 65.2025
Vasco da Gama, Goa- 403802.
7. Chief Engineer Navy Mumbai
Chief Engineer Navy
Naval Base Post, Kochi-682004
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years,
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
8. Union of India
Through Chief Engineer Navy Mumbai
Shahid Bhagat Singh Marg, Colaba
Mumbai-400053,
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years,
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
9. Brigadier P.K. Puri,
Chief Engineer Navy
Naval Base Post, Kochi-682004,
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years,
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
10. Shri R. Venkatesalu,
EE DCWE B/R, CWE (N)
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
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Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
11. Capt. K. V. G. K. Rangaraju,
AGE B/R, GE (P) NW
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
12. Shri C. Rajan,
AGE (P)E/M, GE (P) NW
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
13. Shri K. R. Sateesan,
B/R Gde I, GE (P) NW
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
14. Sub A. K. Patil,
E/M Gde I, GE (P) NW
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
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Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802. ... Respondents
15. Shri B. Chikkaputtiah,
AE AGE B/R, GE (P) NW
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
16. Shri C. T. Mathew,
B/R Gde I, GE (P) NW
Vasco-da-Gama - 403802
Through Mr. Suresh Singh Mehra
S/o of late K.S. Mehra, aged 37 years
Garrison Engineer (P),
Vasco Military Engineer Services,
Vasco da Gama, Goa- 403802.
Mr. Shailendra Bhobe with Mr. Pranav Vaze, Advocates for
the Petitioner.
Mr. Raviraj Chodankar, Central Government Standing
Counsel for Respondent No. 1.
CORAM : VALMIKI MENEZES, J.
RESERVED ON : 25th APRIL, 2025.
PRONOUNCED ON : 5th MAY, 2025.
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WP 65.2025
JUDGMENT
1. Heard learned Advocates for the parties.
2. Rule.
3. Rule is made returnable forthwith and with the consent of
the parties; the petition is finally heard and disposed of.
4. The challenge in this petition is to an order dated
26.11.2024, passed by the District Court-3, South Goa at Margao
(the Commercial Appellate Court), condoning delay of 29 days
in filing a Commercial Appeal against the final order dated
04.11.2023 passed by the Commercial Court at Vasco Da Gama
in Commercial Suit No. 3/2022/A; the Commercial Court had
decreed the suit in favour of the present Petitioners/original
Plaintiffs declaring the action of Respondent No. 2 (Original
Defendant No. 2) in cancelling three contracts with the Plaintiffs
to be illegal. The Commercial Court further directed the
Defendants to further pay to the Petitioners a sum of Rs. 11
Crores with interest at 12% per annum from 22.05.1996 and
further amount of Rs. 30,00,000/- as costs with interest thereon
at 12% per annum from the date of the Decree till payment.
5. The Commercial Appellate Court, relying on Esha
Bhattacharjee v. Managing Committee of Raghunathpur
5th May, 2025.
WP 65.2025
Nafar Academy & Ors, reported in (2013) 12 SCC 649, has
condoned the delay of 29 days in a Commercial matter mainly
on the ground that the party seeking to condone delay would not
stand to benefit by remaining absent from the proceedings; it has
further condoned delay on the premise that the right of a party
should not be defeated by a technical consideration due to
indolence of its officers dealing with public money.
6. The main grounds and submissions on which the
Petitioners, represented by Shri. Shailendra Bhobe, Advocate has
assailed the impugned order are the following:
(a) That the proceedings from which the application
arose, was a Commercial suit, hence the normal
indulgence shown in condoning delay in filing
proceedings at the behest of the State would be
misplaced, in the present case.
(b) That the Defendants/Respondents have made sporadic
appearances before this Hon'ble Court, and have
repeatedly sought adjournments, causing undue delay
in the advancement of the proceedings.
(c) That the Defendants/Respondents have failed to file
their written statement within the prescribed time
5th May, 2025.
WP 65.2025
frame, have not produced any evidence in support of
their case, and have elected not to cross-examine or
examine the Plaintiffs' witnesses. As a consequence,
the Plaintiffs/Petitioners, who are the decree holders,
have suffered substantial prejudice and hardship due
to the protracted delay in the adjudication of this
commercial suit.
(d) That the statement made by the
Defendants/Respondents in their application for
condonation of delay, asserting that Advocate Raviraj
Chodankar was engaged as of 01.08.2023, is entirely
false and misleading. The trial court record
unequivocally demonstrates that the said Advocate's
associate appeared in the proceedings substantially
earlier, specifically on 30.06.2023.
(e) Furthermore, the claim advanced by the Respondents
that the judgment was discovered by the officer of the
Appellants on 13.01.2024 upon inspection of the file
in Vasco Court is manifestly false, as 13.01.2024 was
a court holiday falling on a second Saturday, and thus,
no such inspection could have been undertaken on that
date. Reliance was placed on an affidavit dated
25.04.2025 on behalf of the Petitioner No. 1 along
5th May, 2025.
WP 65.2025
with an affidavit of the same date of Advocate Mr. E.
O. Mendes, who appeared before the Commercial
Court for the applicant and who, on inspecting the file
of the Commercial Court states that in the inspection
register or files in that Court, there is only one entry
on 12.07.2023 by the Respondents for inspection of
the file and a second entry on 01.08.2024 in the record
room register for inspection of the file. It was
contended that the averment in the application for
condonation of delay, more specifically in paragraphs
3 and 4 of the application are patently false. It was
further submitted that the passing of the Decree on
04.11.2023 was known to the Respondents and the
claim where the Officer checked the Court file on
13.01.2024 (which was a Court holiday) was false.
(f) That the Respondents have displayed a pattern of
prolonged negligence and delay, considering their
failure to file a written statement, not producing
evidence to substantiate their claims and their failure
to cross examine any plaintiff witness. Their conduct
appears to be deliberately negligent, ostensibly with
the intent to prolong the proceedings unjustifiably.
5th May, 2025.
WP 65.2025
(g) That Section 5 of the Limitation Act is inapplicable to
the present case for the purpose of condoning delay,
as this is a suit of a commercial nature. Any appeal
arising therefrom must be filed within a period of sixty
days, as mandated under Section 13(1-A) of the
Commercial Courts Act. Being a subsequent and
special enactment, the provisions of the Commercial
Courts Act shall prevail over the general limitations
prescribed under the Limitation Act.
7. The Learned Advocate for the Petitioners relied on the
following judgments to support his contentions:
(i) Maniben Devraj Shah v. Municipal
Corporation of Brihan Mumbai, (2012) 5 SCC
(ii) Union of India v. Jehangir Byramji Jeejeebhoy,
2023 SCC OnLine SC 489
(iii) H. Guruswamy v. A. Krishnaiah, 2025 SCC
OnLine SC 54
(iv) State of Maharashtra v. Borse Bros. Engineers
& Contractors (P) Ltd., (2021) 6 SCC 460
(v) M/s Ridha Fashions & Ors. v. M/s Nandi
Fabrics, RFA(COMM) 11/2025, Delhi High
Court
5th May, 2025.
WP 65.2025
8. Per Contra Learned Advocate shri. Raviraj Chodanakr for
the Respondents submits that the Commercial Appellate Court
has exercised a discretion in favour of the Respondents, which in
normal course, should not be easily interfered by this Court in its
supervisory jurisdiction under Article 227 of the Constitution of
India. He submits that even though there may be some mistake
in the dates, the delay of only 29 days which is negligible; it was
further contended that the Court has exercised discretion under
Section 5 of the Limitation Act in terms of the Judgment of the
Supreme Court in Esha (supra), which holds that in matters
where the State seeks condonation of delay, the approach of
Courts exercising discretion should be liberal.
9. The point which falls for my determination in this petition
is whether, considering the conduct of the Respondents during
the course of the Commercial case, and immediately after its
disposal, and for the reasons contained in the application for
condonation of delay, the impugned order granting condonation
can be sustained.
10. In considering the point for determination, it would be
apposite to consider the case law on the parameters set down in
these Judgments on which applications for condonation of delay
should be allowed in Appeals arising from Commercial Suits.
5th May, 2025.
WP 65.2025
11. In Maniben Devraj Shah v. Municipal Corporation of
Brihan Mumbai (supra), the Supreme Court has considered a
case where the High Court has condoned delay in filing an
Appeal at the behest of the Municipal Corporation where the
reasons for condoning delay were concocted and the application
suffered from total absence of any explanation as to why there
was a delay in filing the Appeal. Considering these facts, it has
held as under:
"24. What colour the expression "sufficient cause"
would get in the factual matrix of a given case would
largely depend on bona fide nature of the explanation. If
the court finds that there has been no negligence on the
part of the applicant and the cause shown for the delay
does not lack bona fides, then it may condone the delay.
If, on the other hand, the explanation given by the
applicant is found to be concocted or he is thoroughly
negligent in prosecuting his cause, then it would be a
legitimate exercise of discretion not to condone the
delay.
25. In cases involving the State and its
agencies/instrumentalities, the court can take note of the
fact that sufficient time is taken in the decision-making
process but no premium can be given for total lethargy
or utter negligence on the part of the officers of the State
and/or its agencies/instrumentalities and the
applications filed by them for condonation of delay
cannot be allowed as a matter of course by accepting the
plea that dismissal, of the matter on the ground of bar of
limitation will cause injury to the public interest."
12. In Union of India v. Jehangir Byramji Jeejeebhoy (supra),
which is more recent pronouncement of the Supreme Court on
the very same question, where a single Judge of this Court
declined to condone the delay by the Union of India, in filing a
5th May, 2025.
WP 65.2025
restoration application, the following observations have been
made on how the jurisdiction is to be exercised:
"24. In the aforesaid circumstances, we made it very
clear that we are not going to look into the merits of the
matter as long as we are not convinced that sufficient
cause has been made out for condonation of such a long
and inordinate delay.
25. It hardly matters whether a litigant is a private party
or a State or Union of India when it comes to condoning
the gross delay of more than 12 years. If the litigant
chooses to approach the court long after the lapse of the
time prescribed under the relevant provisions of the law,
then he cannot turn around and say that no prejudice
would be caused to either side by the delay being
condoned. ....
26. 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. From the
tenor of the approach of the appellants, it appears that
they want to fix their own period of limitation for
instituting the proceedings for which law has prescribed
a period of limitation. 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 plea for
condonation of delay, the court must not start with the
merits of the main matter. The court 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.
27. We are of the view that the question of limitation is
not merely a technical consideration. The rules of
limitation are based on the principles of sound public
policy and principles of equity. We should not keep the
'Sword of Damocles' hanging over the head of the
respondent for indefinite period of time to be determined
at the whims and fancies of the appellants."
5th May, 2025.
WP 65.2025
The upshot of this decision is that in matters where exercise
of discretion of a Court is called, where the State is a party, no
special indulgence need be shown to such party. Further, the
court owes a duty to first ascertain the bona fides of the
explanation offered by the party seeking condonation. The rules
of limitation are based on the principles of sound public policy
and principles of equity. We should not keep the 'Sword of
Damocles' hanging over the head of the respondent for indefinite
period to be determined at the whims and fancies of the
appellants.
13. In H. Guruswamy v. A. Krishnaiah (supra), the Supreme
Court considered a Judgment of the High Court condoning delay
in filing an application for recall of a Decree under Order 9 Rule
13 without considering several pertinent facts. The relevant
paragraphs of the Judgment are quoted below:
"13. We are at our wits end to understand why the filing
the application for recall itself. High Court overlooked
all the aforesaid aspects. What was the good reason for
the High Court to ignore all this? Time and again, the
Supreme Court has reminded the District judiciary as
well the High courts that the concepts such as "liberal
approach", "Justice oriented approach", "substantial
justice" should not be employed to frustrate or jettison
the substantial law of limitation.
14. We are constrained to observe that the High Court
has exhibited complete absence of judicial conscience
and restraints, which a judge is expected to maintain
while adjudicating a lis between the parties.
5th May, 2025.
WP 65.2025
15. The rules of limitation are not meant to destroy the
rights of parties. They are meant to see that the parties
do not resort to dilatory tactics but seek their remedy
promptly."
Thus, the Supreme Court holds that the Court considering
the application stating grounds for condonation for delay cannot
overlook all the circumstances which laid to the application, or
condone delay ignoring these facts; it then held that the concepts
such as "liberal approach", "Justice oriented approach",
"substantial justice" should not be employed to frustrate or
jettison the substantial law of limitation.
14. In State of Maharashtra v. Borse Bros. Engineers &
Contractors (P) Ltd. (supra), the Supreme Court was deciding
how an application under Section 5 of the Limitation Act is to be
considered in the light of the scheme of the Commercial Court
Act and the Arbitration Act. The relevant paragraphs of the
Judgment are:
"34. The vexed question which faces us is whether, first
and foremost, the application of Section 5 of the
Limitation Act is excluded by the scheme of the
Commercial Courts Act, as has been argued by Dr
George. The first important thing to note is that Section
13(1-A) of the Commercial Courts Act does not contain
any provision akin to Section 34(3) of the Arbitration
Act. Section 13(1-A) of the Commercial Courts Act only
provides for a limitation period of 60 days from the date
of the judgment or order appealed against, without
further going into whether delay beyond this period can
or cannot be condoned.
....
58. Given the object sought to be achieved under both
the Arbitration Act and the Commercial Courts Act, that
is, the speedy resolution of disputes, the expression
5th May, 2025.
WP 65.2025
"sufficient cause" is not elastic enough to cover long
delays beyond the period provided by the appeal
provision itself. Besides, the expression "sufficient
cause" is not itself a loose panacea for the ill of pressing
negligent and stale claims.
.....
62 Also, it must be remembered that merely because
sufficient cause has been made out in the facts of a given
case, there is no right in the appellant to have delay
condoned. This was felicitously put in Ramlal v. Rewa
Coalfields Ltd.77 as follows: (SCR p. 771: AIR p. 365,
para 12)
"12. It is, however, necessary to emphasise that even
after sufficient cause has been shown a party is not
entitled to the condonation of delay in question as a
matter of right. The proof of a sufficient cause is a
condition precedent for the exercise of the discretionary
jurisdiction vested in the court by Section 5. If sufficient
cause is not proved nothing further has to be done: the
application for condoning delay has to be dismissed on
that ground alone. If sufficient cause is shown then the
Court has to enquire whether in its discretion it should
condone the delay. This aspect of the matter naturally
introduces the consideration of all relevant facts and it
is at this stage that diligence of the party or its bona fides
may fall for consideration; but the scope of the enquiry
while exercising the discretionary power after sufficient
cause is shown would naturally be limited only to such
facts as the Court may regard as relevant. It cannot
justify an enquiry as to why the party was sitting idle
during all the time available to it. In this connection we
may point out that considerations of bona fides or due
diligence are always material and relevant when the
Court is dealing with applications made under Section
14 of the Limitation Act. In dealing with such
applications the Court is called upon to consider the
effect of the combined provisions of Sections 5 and 14.
Therefore, in our opinion, considerations which have
been expressly made material and relevant by the
provisions of Section 14 cannot to the same extent and in
the same manner be invoked in dealing with applications
which fall to be decided only under Section 5 without
reference to Section 14."
63. Given the aforesaid and the object of speedy disposal
sought to be achieved both under the Arbitration Act and
the Commercial Courts Act for appeals filed under
Section 37 of the Arbitration Act that are governed by
5th May, 2025.
WP 65.2025
Articles 116 and 117 of the Limitation Act or Section
13(1-A) of the Commercial Courts Act, a delay beyond
90 days, 30 days or 60 days, respectively, is to be
condoned by way of exception and not by way of rule. In
a fit case in which a party has otherwise acted bona fide
and not in a negligent manner, a short delay beyond such
period can, in the discretion of the court, be condoned,
always bearing in mind that the other side of the picture
is that the opposite party may have acquired both in
equity and justice, what may now be lost by the first
party's inaction, negligence or laches."
What is held in Borse Brothers (supra) is the
following:
(a) Merely because sufficient cause has been
made out, there is no right in the Appellant
to have delay condoned, and at this stage,
diligence of the party and its bonafides
may fall for consideration.
(b) Given the object to be achieved by the
Commercial Courts Act, including
Appeals filed under it, is of speedy
disposal, delay beyond 90 days, 30 days or
60 days, respectively, is to be condoned by
way of exception and not by way of Rule.
(c) In a fit case, in which a party has otherwise
acted bonafide and not in a negligent
manner, a short delay beyond such period
can in the discretion of the Court be
condoned.
5th May, 2025.
WP 65.2025
15. In M/s Ridha Fashions & Ors. v. M/s Nandi Fabrics
(supra), the Delhi High Court was considering a matter
concerning condonation of delay in filing a Appeal under the
Commercial Courts Act, and has concluded thus:
"9. It is apparent from above that the question of
condoning the delay in commercial disputes cannot be
considered liberally. The court has to evaluate the
reasons for the delay and the same can be condoned only
where the court is satisfied that there is sufficient cause
that prevented the appellant to file the appeal within the
stipulated time. In the present case, there is no credible
explanation for the inordinate delay of six hundred and
five days in filing the present appeal."
The Delhi High Court, after considering the Judgments of
the Supreme Court in Borse Bros. (supra) has held that in matters
of condoning delay in proceedings under the Commercial Courts
Act, cannot be decided with a liberal approach.
16. More recently in State of Madhya Pradesh v. Ramkumar
Choudhary (supra), the Supreme Court, after referring to
Jahangir Jeejeebhoy (supra) and Basavraj (supra) has taken
notice of the fact that a trend has set in, whenever an Appeal for
condonation of delay is made, it is sought to be explained right
from the time, limitation starts. With reference to what requires
to be considered, the Supreme Court has held thus:
"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 instance of a private
5th May, 2025.
WP 65.2025
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 1 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. (See: Ajit Singh Thakur Singh v. State of
Gujarat, (1981) 1 SCC 495: AIR 1981 SC 733)"
In line with what is laid down above, the Appellate
Commercial Court as also this Court, would be required to
consider, whether the party seeking condonation has explained
what came in is way that made it unable for the party to institute
the proceedings/the Appeal between the 1st and the 60th day
within limitation, and if it allows limitation to expire, the
sufficient cause must establish that because of some event and
circumstance arises before the limitation expired, it was not
possible to file the Appeal within time.
5th May, 2025.
WP 65.2025
17. In Esha (supra), the Supreme Court has laid down the
following broad principles whilst exercising discretion in
condoning delay.
" 21. From the aforesaid authorities the principles that
can be broadly culled out are:
21.1 (i) There should be a liberal, pragmatic, justice-
oriented, non- pedantic approach while dealing with an
application for condonation of delay, for the courts are
not supposed to legalise injustice but are obliged to
remove injustice.
21.2 (ii) The terms "sufficient cause" should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms are
basically elastic and are to be applied in proper
perspective to the obtaining fact- situation.
21.3 (iii) Substantial justice being paramount and
pivotal the technical considerations should not be given
undue and uncalled for emphasis.
21.4 (iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of
the counsel or litigant is to be taken note of.
21.5 (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6 (vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the courts are required to be vigilant so
that in the ultimate eventuate there is no real failure of
justice.
21.7 (vii) The concept of liberal approach has to
encapsule the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay
and a delay of short duration or few days, for to the
former doctrine of prejudice is attracted whereas to the
latter it may not be attracted. That apart, the first one
warrants strict approach whereas the second calls for a
liberal delineation.
5th May, 2025.
WP 65.2025
21.9 (ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant factors
to be taken into consideration. It is so as the fundamental
principle is that the courts are required to weigh the
scale of balance of justice in respect of both parties and
the said principle cannot be given a total go by in the
name of liberal approach.
21.10 (x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the courts
should be vigilant not to expose the other side
unnecessarily to face such a litigation.
21.11 (xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
21.12 (xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
21.13 (xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude."
These broad principles though, not laid down in a case
governed by the Commercial Courts Act, do consider that lack
of bonafide imputable to a party seeking condonation is a
significant and relevant factor.
18. Recently in Jharkhand Urja Utpadan Nigam Ltd. & anr
V/s Bharat Heavy Electricals Limited in Special Leave to
Appeal (c) No. 9580/2025 the Supreme Court, after
consideration of the scheme of the Commercial Courts Act, and
5th May, 2025.
WP 65.2025
the issue of condonation of delay in filing an Appeal under that
Act, and further after considering the observations in Borse
Bros. (supra) has held as under:
"28. The extent of applicability of Section 5 of the
Limitation Act, 1963 to cases falling under the Commercial
Courts Act, 2015 fell for consideration of the Supreme
Court in Government of Maharashtra (2 supra).
29. The Supreme Court in Paragraph 19 of it's judgment in
Government of Maharashtra (2 supra) discussed the
statement of objects and reasons behind enacting of the
Commercial Courts Act, 2015 and held that period of
limitation must always to some extent be arbitrary and may
result in some hardship, but this is no reason as to why they
should not be strictly followed.
In paragraph 32, it held that the condonation of delay under
Section 5 of the Limitation Act, 1963 has to be seen in the
context of the object of speedy resolution of the dispute.
In paragraph 58, the Supreme Court held that given the
object sought to be achieved under the Commercial Courts
Act, 2015 i.e., the speedy resolution of the disputes,
expression "sufficient cause" in Section 5 of the Limitation
Act, 1963 is not elastic enough to cover long delays beyond
the period provided by the appeal provision itself; and that
the expression "sufficient cause" is not itself a loose
panacea for the ill of pressing negligent and stale claims.
In other words, the Supreme Court indicated that in exercise
of power under Section 5 of the Limitation Act, 1963 a delay
beyond the period of 60 days from the date on which the
appeal could have been filed can be condoned (i.e., below
120 days from the date of pronouncement of the judgment)
by invoking Section 5 of the Limitation Act, 1963, but where
there is negligence, inaction or lack of bona fides, such
power ought not to be exercised.
It went further in para 59 by observing that merely because
the Government is involved, a different yardstick for
condonation of delay cannot be laid down.
(This rule would thus apply equally to
instrumentalities of Government like the applicants
herein).
5th May, 2025.
WP 65.2025
It held in para 62 that merely because sufficient cause has
been made out in the facts of a given case, there is no right
in the applicants or the appellants to have the delay
condoned.
It concluded in para 63 as under:
"63. Given the aforesaid and the object of speedy disposal
sought to be achieved both under the Arbitration Act and
the Commercial Courts Act, for appeals pled under section
37 of the Arbitration Act that are governed by Articles 116
and 117 of the Limitation Act or Section 13(l-A)of the
Commercial Courts Act, a delay beyond 90 days, 30 days
or 60 days. respectively, is to be condoned by way of
exception and not by way of rule. In a fit case in which a
party has otherwise acted bona fide and not in a negligent
manner, a short delay beyond such period can, in the
discretion of the court, he condoned, always bearing in
mind that the other side of the picture is that the opposite
party may have acquired both in equity and justice, what
may now be lost by the first party's inaction, negligence or
laches."
(emphasis supplied)
30. Thus, the Supreme Court in Government of
Maharashtra (2 supra) permitted condonation of delay
beyond 60 days in a case falling under the Commercial
Courts Act only by way of exception and not by way of rule.
If the applicants for condonation of delay had not acted
bona fide and had acted in a negligent manner as in the
instant case, the delay is not liable to be condoned.
32. We may also point out that the applicants were
represented before the Commercial Court, Ranchi by
counsel and the judgment was obviously pronounced in the
presence of the counsel.
Though the order was pronounced on 09.10.2023 it appears
that the application for issuance of certified copy was made
on 30.08.2024, it was made ready on 07.09.2024, and the
appeal was filed on 04.10.2024.
If the Commercial Court had not communicated the copy of
its judgment to the applicants within the reasonable time, it
was incumbent on the part of the counsel for the applicants
or the employees in the Legal Department of the applicants
to apply for issuance of certified copy from the Commercial
Court, but they have failed in their duty to apply for it when
they did not receive it within a reasonable time.
5th May, 2025.
WP 65.2025
Their negligence resulted in the inordinate delay of
301 days in filing this appeal.
34. They also cannot take advantage of the negligence of
the counsel engaged by them in not informing the
applicants about the judgment of the Commercial Court.
This is because the applicants have a Legal Department
and employees engaged by the applicants in that
department have a duty to monitor what is happening in the
cases to which the applicants are parties, keep track of the
progress of the said cases and the decisions therein, and
ensure that applications for issuance of certified copy are
made to the concerned court so that the appeals, if required,
can be preferred within the period of limitation prescribed
by law."
19. It is in the background of the aforementioned principles that
the Commercial Appellate Court ought to have decided the
application for condonation of delay, and this Court in its
supervisory jurisdiction, would have to assess the correctness
and legality of that order on the same lines.
20. Before applying the aforementioned principles to the fact
of this case, the following facts which arise from the record
would require consideration:
(i) The Petitioners initially instituted a Special Civil
Suit No. 41/1996/A on the 22.05.1996.
Subsequently, the said suit was transferred to the
jurisdiction of the Commercial Court at Vasco da
Gama, whereupon it was re-registered as a
Commercial Suit in accordance with the
5th May, 2025.
WP 65.2025
provisions of the Commercial Courts Act, 2015,
and assigned the new designation Commercial
Suit No. 3/2022/A.
(ii) According to the Roznama records, the
Respondent (the Union of India) had, during the
pendency of proceedings before the District
Judge-2, South Goa, Margao, filed an application
under Section 8 of the Arbitration and Conciliation
Act, 1996. The said application was dismissed by
the said Court on 04.11.2015. Aggrieved by this
order, the Respondent (Union of India) instituted a
Writ Petition before this Court, being Writ Petition
No. 155/2016, filed on 01.02.2016. The said
petition was subsequently dismissed on
16.06.2016, upon the request of the Counsel for
the Union of India, who sought to withdraw the
petition on instructions.
(iii) As can be seen from the Roznama records, the
Respondents were afforded multiple opportunities
to submit a written statement in the Commercial
Suit, spanning from 15.01.2016 to 29.01.2021
(5 years). Despite these repeated opportunities, the
Respondents failed to file their written statement;
5th May, 2025.
WP 65.2025
None of the defendants remained present before
the Court during this period.
(iv) The opportunity to file a written statement not
having been taken for 5 years, the Court, on
23.02.2021, directed the Plaintiff to lead evidence
through its first witness to be examined on
08.03.2021 and the second witness on 09.03.2021.
(v) On 08.03.202, none remained present for the
Defendants/Respondents herein, on which the suit
proceeded ex-parte, on 09.03.2021 evidence was
recorded of the Plaintiff's witness and further
evidence was recorded on 12.08.2021 and
24.08.2021 on which dates, none remained present
for the Defendants. The matter was then adjourned
to 08.10.2021.
(vi) On 05.10.2021(before the next date), the learned
counsel representing the Defendants/Respondents
Nos. 1 to 6 appeared before the Court and stated
that she would obtain instructions to move an
application for setting aside the order setting the
Defendants ex-parte. None remained present for
the Defendants until 26.10.2021 when they filed
an application under Order IX Rule 9 of the Civil
Procedure Code to recall the order setting the
5th May, 2025.
WP 65.2025
Defendants ex-parte. This application was
registered as Exhibit D-131 before the Trial Court.
(vii) Even after filing such an application (Exhibit D-
131), the Defendants remained absent on
30.10.2021 and after an adjourned date was fixed
on 08.11.2021, Defendants appeared in the
afternoon session of the Court session. Thereafter,
several adjournments were sought by the
Defendants on 08.11.2021, 10.11.2021,
20.11.2021, 27.12.2021, 04.01.2022, 12.01.2022,
and written arguments came to be filed
29.01.2022, apart from arguments on Exhibit D-
130 and D-133 having been concluded.
(viii) At this stage, on 11.02.2022, the matter was
transferred to the Principal District Court at
Margao for the purpose of allotment to the
appropriate Commercial Court; between the
period 07.04.2022 and 21.12.2022, the Defendants
remained absent. An opportunity was given on
21.12.2022 to the Defendants to file written
arguments on Exhibit D-133, which was not filed
on 13.01.2023 when the Defendants remained
absent and ultimately on 21.01.2023, Exhibit D-
130 and Exhibit D-133 were dismissed.
5th May, 2025.
WP 65.2025
(ix) On the adjourned date i.e. on 16.02.2023, the
Defendants remained absent and on the Plaintiffs'
completing recording evidence of PW1, the
deposition of PW2/Jayant and of PW3, the
Plaintiffs closed their evidence; the matter was
adjourned for final arguments to 04.04.2023; the
Final Arguments were heard on that date with the
Defendants/Respondents remaining absent. The
matter was then fixed for Judgment on 06.05.2023,
on which date none appeared for the Defendants
and thereafter on 30.06.2023, again for
pronouncing Judgment.
(x) On 30.06.2023, Adv. Chodankar filed a Memo of
Appearance on behalf of Defendant No. 1 and the
matter was adjourned to 01.08.2023, when a
Vakalatnama was filed by the Advocate
representing Defendant No. 1. On 08.09.2023, the
said Advocate for the Defendants requested for an
adjournment to enable perusal of the case file and
to take appropriate steps in the matter.
There is no record of what steps were
taken to challenge the order dated 21.01.2023
dismissing Exhibit D-133;
5th May, 2025.
WP 65.2025
(xii) On 20.10.2023, when the matter was taken up for
pronouncing Judgment, none was present for the
Defendants and the Judgment was ultimately
pronounced on 04.11.2023 decreeing the suit in
part in favour of the Plaintiffs/Petitioners, again
with the Defendants remaining absent.
(xiii) According to the pleadings in paragraph 3 of the
application for condonation of delay, it is the
Respondent's case that it was only when the
concerned Officer checked the file of the said suit
in the Vasco Court on 13.01.2024, that they were
made aware of the Decree dated 04.11.2023. The
application states in paragraph 4 thereof that the
Officer checked the file in the Vasco Court on
13.01.2024(which incidentally was a second
Saturday, when the Court was closed) and claims
that on that date, he gained knowledge of the
Decree dated 04.11.2023, after which, he
addressed a letter dated 13.01.2023 to the
Advocate for the Respondents, who sought a
briefing and parawise comments from the
Respondents.
(xiv) The application claims at paragraph 6 that the
certified copy of the Judgment and Decree was
5th May, 2025.
WP 65.2025
applied for on 18.01.2024, ready on 20.01.2024
and delivered on 23.01.2024. The application nor
the Memo of Appeal states the date given by the
Court for collection of the certified copy.
(xv) The Appeal was filed on 02.02.2024 and the
Memo of Appeal as also application for
condonation of delay is silent as to what steps were
taken between 23.01.2024, when the certified copy
was obtained on 02.02.2024 when the Appeal was
lodged.
21. The events pertinent to this matter have been delineated in
chronological sequence in a tabular form, as provided below:
DATE EVENT
22.05.1996 Special Civil Suit No. 41/1996/A Filed
15.01.2016 to The Respondents failed to file the Written
23.02.2021
Statement during a period of more than 5
years.
08.03.2021 The Commercial Court decides to proceed ex-
parte and post the matter for recording
evidence between 09.03.2021 and 08.09.2021;
the Defendants did not appear during this
period.
5th May, 2025.
WP 65.2025
05.10.2021 to Advocate for Defendant Nos. 1 to 6 appears
21.01.2023
and states that she would take instructions to
set aside the order to proceed ex parte.
Application to set aside order to proceed ex
parte against the Defendants, filed on behalf of
Defendant Nos. 1-6 (EXHT. 130) on
26.10.2021. thereafter, Defendants remained
absent till the application was dismissed on
21.01.2023.
16.02.2023 to Plaintiffs evidence was completed (3
06.05.2023
witnesses) and final arguments heard, matter
placed for Judgment.
30.06.2023 Advocate R. Chodankar files Memo of
Appearance for Defendant No. 1. (EXHT.
D/142) and files Vakalatnama for defendant
No. 1 on 01.08.2023.
08.09.2023 Advocate R. Chodankar, representing
Defendant No. 1 seeks time to peruse the file
and take steps. Matter was fixed for Judgment
on 20.10.2023. Suit partly decreed in favour of
the Petitioners on 04.11.2023.
13.01.2024 The Officer for the Applicant claims he had no
knowledge and he checked the file on
5th May, 2025.
WP 65.2025
13.01.2024 (on the day when the Court was
closed), after which certified copy was applied
for on 18.01.2024 and delivered on
23.01.2024.
02.02.2024 Commercial Appeal filed by the Respondents
before the Commercial Appellate Court, South
Goa, Margao- Goa
03.02.2024 Application for Condonation of Delay (Civil
Misc. Application No. 61/2024) filed before
the Court of District Judge-3, South Goa, At
Margao by Union of India
02.04.2024 Registration date of the Civil Misc.
03.09.2024 Petitioners filed Affidavit in Reply to Civil
Misc. Application No. 61/2024
22. What is noticeable from the conduct of the Respondents
during the pendency of this suit was that for a period of almost
20 years, from 24.05.1996 when they were served with the
summons of the suit till 21.01.2015, the Defendants agitated the
question of jurisdiction through an Appeal before the High Court
claiming that adjudication could be only under the Arbitration
5th May, 2025.
WP 65.2025
Act. Having failed in that endeavour, on 04.11.2015, after
rejection of an application under Section 8 of the Arbitration Act,
Defendants were directed to file their written statement on
15.01.2016. Written statement was not filed from 2016 to 2021(5
years). On 23.02.2021, opportunity to file written statement was
closed and the matter posted for evidence on 08.03.2021. The
Defendants did not appear on that date, for 7 months, letting the
matter proceed ex-parte until 05.10.2021. During the above
mentioned period, evidence of 3 Plaintiff's witnesses came to be
recorded with cross examination being closed as Defendants
remained absent. On 26.10.2021 the Defendants appeared
through their Advocates and late an application under Order 9
Rule 9 CPC.
23. Even thereafter, one more year was spent by the Defendants
to argue its application under Order 9 Rule 9 CPC, which was
ultimately dismissed on 21.01.2023. This order was also not
challenged and has attained finality. The Defendants remained
absent on 21.01.2023, when this order was pronounced. The
matter was then posted between 16.02.2023 and 30.06.2023 for
final arguments, which were heard in the absence of the
Defendants. On 30.06.2023, a Memo of appearance came to be
filed by the Advocate of the Defendants, after which on
08.09.2023, the said Advocate sought an adjournment to go
through the file to take steps on behalf of the Defendants. No
5th May, 2025.
WP 65.2025
steps were taken and none appeared thereafter when the
Judgment was pronounced on 04.11.2023.
24. What is clear from this fact is that even on 30.06.2023 and
08.09.2023 the Defendants were represented, but took no steps
in the matter and they are presumed to be full knowledge of the
fact that all stages in the suit had been completed and the matter
was listed for Judgment on 20.10.2023. They chose to remain
absent on that day and Judgment was pronounced on 04.11.2023.
clearly therefore, the Defendants cannot take a stand in their
application for condonation of delay such as the one taken in
paragraph Nos. 2, 3 and 4 of the application, where they state that
the final orders were not known to the Applicant and that they
were not aware of the matter to be able to brief their advocate, or
the Advocate for the Applicant could not do much in the matter,
hence restrained himself from appearing in the matter. The facts
stated in the Roznama, bear a completely different story; the
Defendants were fully aware of the matter atleast until
20.10.2023, which date was to their knowledge and the date of
Judgment ought to have been within their knowledge since their
Advocate did attend the matter on 08.09.2023.
25. Apart from the above facts, which shows that the
statements made in the application are contrary to the record, the
application goes on to state that the Officer of the Respondent
No. 1 checked the file of the Commercial Court on 31.01.2024
5th May, 2025.
WP 65.2025
and gained knowledge on the inspection of the file that it had
been decreed on 04.11.2023. It is a matter of common knowledge
that 13.01.2024 was a second Saturday when the Courts are
closed in state of Goa; the statement is therefore untrue. That
apart, an affidavit came to be filed before this Court of the
Petitioner supported by the affidavit of the Advocate appearing
for the Plaintiffs in the suit, stating that an application was filed
before the Trial Court to inspect its records on 21.04.2025, and
after obtaining an order of the concerned Court granting
inspection, only two entries for inspection was seen on the record
of 12.07.2023 and 01.08.2024, which coincide with the
statements made by the Advocate for the Defendants recorded in
the Roznama on 01.08.2023. The record of inspection of the file
by the Defendants on 01.08.2024 is during the pendency of the
application for condonation of delay two months prior to the
same day granted on 26.11.2024. The statement in the
application for condonation of delay that inspection of the file
was taken on 13.01.2024, also appears to be false on contrary to
the record. This statement does not disclose the name of the
officer nor does it disclose the name of the officers who were
newly transferred to Goa as referred to in paragraph No. 2.
Considering and applying the various guidelines laid down by
the Supreme Court in the Judgments referred to above, the
bonafides of the application are in serious doubt and the
5th May, 2025.
WP 65.2025
statements made therein appear to be patently false and contrary
to the record. In any event the entire conduct of the Defendants
in letting the suit go without contest, with no written statement
being filed, any cross examination being conducted, or even
throwing challenge to the refusal to recall the order setting the
matter ex-parte, itself demonstrates that the Defendants were
neither serious about contesting the matter or putting sporadic
appearances only to delay the proceedings, is also considered to
be with lack of bonafides.
26. Again, applying the observations made in the Judgments
referred above, one sees that the Respondents have not explained
in the application why they were prevented from applying for the
certified copy immediately on gaining knowledge of the Decree
(According to the affidavit, on 13.01.2024) and instead applied
for a certified copy only on 18.01.2024. Further no reasons are
assigned as to why, the Appeal was not filed even after having
received the copy of the impugned Decree on 23.01.2024, but
was filed only on 02.02.2024. In fact the record reveal that the
application for condonation of delay (CMA No. 61/2024) was
filed on 03.02.2024, after the Memo of Appeal was lodged on
02.02.2024 and was registered only on 02.04.2024.
27. Clearly therefore, none of the facts referred to above would
entitle the Respondents to an order exercising discretion under
5th May, 2025.
WP 65.2025
Section 5 of the Limitation Act in their favour. Perusal of the
impugned order of the District Court would show that none of
these facts have been considered. The District Court has only
referred to Esha (supra) and in a single paragraph concluded that
there would be no benefit to the Respondents by remaining
absent from the Commercial proceedings. It further holds that
the delay is only 29 days and since an Appeal is valuable right of
the party, the Respondents could be compensated with costs of
Rs. 3000/-(Rupees Three Thousand only). The order has been
passed in contravention of the principles laid down by the
Supreme Court in the matters to be considered whilst deciding
an application for condonation of delay in filing of a Commercial
Appeal. The order has been passed without considering the
bonafides which are required to be shown by the Applicant, both,
in prosecuting the suit and in obtaining certified copies and filing
the Appeal diligently. The impugned order being devoid of these
considerations and contrary to the principle settled by this Court
and the Supreme Court referred to above, render it unsustainable.
The same is therefore quashed and set aside.
28. At this stage, it is submitted by Mr. Raviraj Chodankar,
learned Advocate appearing for Respondent No.1 that the
Commercial Suit itself was not maintainable and consequently,
the present Writ Petition is also not maintainable, since it has
been filed in the name of original Plaintiff (M/s Shyama Charan
5th May, 2025.
WP 65.2025
Agarwala & Sons), which is a proprietorship concern.
According to him, the plaint discloses that Plaintiff No. 1 to be a
proprietorship concern while Plaintiff No. 2 is its sole proprietor.
He submits that according to the Special Execution Application
No. 01/2025/A which was produced before this Court wherein,
Decree Holder is shown as Agarwal Family Trust, through its
trustee Manish Agarwal who is son of Plaintiff No. 2, proprietor
of Plaintiff No.1. He has taken me to the application dated
30.01.2025 which he has now placed on record, a Trust Deed
dated 15.04.2016 executed by the Decree Holder wherein a
family Trust was formed. The application seeks leave to allow
the said Trust to pursue execution proceedings by virtue of the
assignment of the Decree under the Trust Deed dated 15.04.2016.
He has also taken me to the various clauses of the Trust Deed,
more particularly recital (b), which states the purpose for which
the Trust was formed in schedule 4 of the Trust Deed which
specifies Civil Suit No. 41/1996 which is registered as
Commercial suit No. 3/2022/A as one of the assets of Plaintiffs
No.2 which is now vested as Trust property in the said Trust. For
all these grounds he submits that the Writ Petition is filed at the
behest of the M/s Shyama Charan Agarwala & Sons (Plaintiff
No.1) and Mahesh (Plaintiff No. 2) is not maintainable.
29. The suit at the time the Decree was passed was in favour of
Shyama Agarwala and Sons. None of these objections appeared
5th May, 2025.
WP 65.2025
to have been raised as grounds of the Appeal before the
Commercial Appellate Court, nor are they pleaded in the
application for condonation of delay before the Commercial
Court. Further, even the Respondents have challenged the
original Civil Court's Decree before the Commercial Appellate
Court on the premise that it was the present Petitioners, who are
the Decree Holders in whose favour the Commercial Suit was
finally Decreed. It appears that these objections are now being
raised notwithstanding the fact that none of these objections have
been taken has grounds of a Appeal before the Appellate Court,
nor have been stated in the application for condonation of delay.
These grounds could not be considered for the purpose of
deciding the application for condonation of delay. The question
of locus standi ought to be founded on the facts which were
before the Commercial Appellate Court when the application for
condonation of delay was decided and not on the basis of some
extraneous documents produced before this Court today. Even
the ground of locus standi of the Petitioners otherwise requires
to be rejected, since these objections were not before the
Commercial Appellate Court whilst condoning the delay. The
preliminary objections and objections in locus standi stands
rejected.
30. For the above reasons, this petition will have to be allowed.
Consequently, the impugned order dated 26.11.2024, passed by
5th May, 2025.
WP 65.2025
the District Judge-3, South Goa acting as the Commercial
Appellate Court, condoned the delay and allowing Civil Misc.
Application No. 61 of 2024, stands quashed and set aside.
Consequently, Civil Misc. Application No. 61 of 2024 stands
dismissed. If any Commercial Appeal has been registered, as a
consequence of the impugned order, the same shall be considered
as dismissed, in view of this order.
31. Rule is made absolute in terms of prayer clause (b) of the
petition. No costs.
VALMIKI MENEZES, J.
5th May, 2025.
