Allowed

Ulink Agritech Pvt. Ltd. v. Sml Ltd. and Others

Himachal Pradesh HC12 Jul 2024CMP.M/319/2024

Case brief

AI extract

What is this about?

This bench allowed an application under Section 5 of the Limitation Act, 1963 to condone the delay in filing an appeal. The court held that the delay, caused by winter vacation and difficulties in engaging counsel and coordinating meetings, constituted a sufficient cause.

What did the court decide?

Delay in filing the appeal is condoned; the appeal is registered and listed for hearing on 25th July, 2024.

Ulink Agritech Pvt. Ltd. Vs Sml Ltd… — Civil Procedure and Limitation | Himachal Pradesh HC (2024)

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Ulink Agri Tech Private Ltd. vs. SML Limited and others.

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CMP(M) No. 319 of 2024.

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12.07.2024 Present: Ms. Devyani Sharma, Senior Advocate, with Mr. Vipul Sharda, Advocate and Mr. Ankit Virmani, Advocate for the applicant/appellant.

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Mr. Vinay Kuthiala, Senior Advocate, with Dr. Sanjay Kumar, Ms. Arpita Sawhney, Mr Atul Jhingan and Mr. Priyansh Sharma, Advocates, for respondent No.1.

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This application is filed under Section 5 of the Limitation Act, 1963 by the applicant herein to condone the delay in filing the appeal.

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The impugned ex-parte ad interim injunction order had been passed by the learned Single Judge on 12.01.2024 which was the last day before the winter vacation of this Court. 3. It is contended by the applicant that the copy of the said order was received by the applicant only on 18.01.2024; that the applicant is based in Pune, Maharashtra and it took some time to find an Advocate to be engaged by it in Shimla; then it had to arrange meetings between their technical team situated at Pune, Maharashtra and their Advocates; that they got drafted the appeal from the lawyers in Delhi and filed it on 20.03.2024.

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Though the period of delay is mentioned as 73 days, it is contended by the applicant that since the Court had been closed for winter vacation from 13.01.2024 to

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25.02.2024; only urgent matters were being taken up in the vacation by the Court; on account of the difficulty which the applicant faced on account of the fact that the applicant was based in Pune while the case had to be contested in Shimla, the delay in filing the appeal is liable to be condoned.

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We agree with contention of counsel for the applicant. We are of the opinion that filing of the appeal on 20.03.2024 cannot be said to be unduly delayed in th facts and circumstances narrated by the applicant.

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Also it is not in dispute that the applicant had received only notice under Order 39, Rule 3 of the CPC on 18.01.2024 and court notice was received on 02.03.2024 and the delay has to be counted from the date of service of court notice on 02.03.2024 and it cannot be computed from the date when the applicant received the notice under Order 39, Rule 3 of the CPC.

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Learned Senior counsel for respondent No.1 vehemently opposed the condonation of delay by citing judgment of the Hon’ble Supreme Court in SCG Contracts (India ) Private Limited. vs. K.S. Chamankar Infrastructure Private Ltd. and others¹ , where the Hon’ble Supreme Court has held that the timelines for filing written statement in suits under Commercial Courts Act, 2015 are mandatory and need to

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1 (2019)12 SCC 210

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be adhere to. In the said judgment no doubt the Supreme Court has held, as stated by the learned senior counsel for the respondents, having regard to the scheme of the Commercial Courts Act, but even the said decision indicates that ordinarily a written statement is to be filed within a period of 30 days from the date of service of summons on defendant; and on failure to file written statement within the said period, a grace period of further 90 days is granted under the CPC to file the written statement which the court may employ for reasons to be recorded in writing and on payment of such costs by defendant as the court deems fit; but on expiry of 120 days from date of service of summons on defendant, it shall forfeit the right to file writ written statement and court must not allow written statement to be taken on record. It also referred to the provisions of Order 8 Rule 10 of the CPC for holding that the court has no further power to extend the further time beyond 120 days.

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The instant case is not one where the written statement is sought to be filed by applicant beyond 120 days from the date of service of summons. Also admittedly the High Court had been closed for vacation from 13.01.2024 till 25.02.2024. Therefore, there are sufficient reasons which are bonafide to explain the delay furnished by the applicant in the application for condonation of said period of delay.

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The learned senior counsel for respondent No.1 also cited the decision of the Supreme Court in Maji Sannemma alias Sanyasirao vs. Reddy Sridevi and others² in support of his submission that the delay in the instant case should not be condoned. In the said case, the High Court had condoned a huge delay of 1011 days in preferring a Second appeal by respondents no.1 and 2 before the High Court and the Supreme Court interfered with the said order and set it aside.

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10 By no stretch of imagination it can be said that the time gap between 26.02.2024 (when the High Court reopened after the winter vacation) and 20.03.2024 ( when the appeal was filed by the applicant) is inordinate. Therefore, the said judgment is not applicable.

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The learned senior counsel for the applicant then placed reliance upon para-58 of the decision of the Supreme Court in Government of Maharashtra (Water Resources Department) represented by Executive Engineer vs. Borse Brothers Engineers and Contractors Private Limited³ . The Supreme Court in the said para had stated as under:-

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“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

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“sufficient cause” is not elastic enough to cover long

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(2021)18 SCC 384

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3 (2021)6 SCC 460

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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. ...” (emphasis supplied)

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Thus, the Supreme Court had emphasised the speedy resolution of disputes under Arbitration Act and the Commercial Courts Act and held that the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. It also observed that the expression “sufficient cause” is not itself a loose panacea for the ill of pressing negligent and stale claims.

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The statute under Section 13 permits the appeal to be filed within 60 days from the date of judgment or order unless the judgment and order is not communicated to the party the said limitation would not commence.

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In the instant case, the the notice from the Court was served upon the applicant on 2^nd March, 2024 and there was a court vacation from 13.01.2024 till 25.02.2024. So it cannot be said that delay is unduly long as the appeal was filed on 20. 3.2024.

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