Allahabad High Court | Condonation of Delay Under Section 5 Limitation Act | Appeal Cannot Be Dismissed As Time-Barred Where Identical Challenge Pending On Merits
Sanchayita Lahkar
The Allahabad High Court Division Bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra has allowed an application seeking condonation of delay in filing a commercial appeal under Section 13(1-A) of the Commercial Courts Act, 2015. The Bench recorded that the applicant demonstrated sufficient cause for the delay, supported by medical records and subsequent discovery of the impugned order upon engagement of new counsel. The court consequently condoned the 154-day delay and directed that the appeal be allotted a regular number and listed along with a connected matter for hearing.
The proceedings arose from a commercial appeal filed against the order dated 19 September 2024 passed by the Commercial Court, Kanpur Nagar, in Commercial Suit No. 3 of 2020. The Commercial Court had returned the plaint under Order VII Rule 10 of the Code of Civil Procedure. The appeal was reported to have been filed beyond the statutory limitation period by 154 days. An application under Section 5 of the Limitation Act was filed seeking condonation of the said delay.
In support of the application, the appellant stated that the proprietor, Mr. Jay Kumar, had been suffering from serious health issues, including uneasiness, stomach disorders, and other ailments, for which he was under treatment at Pratha Hospital, Kanpur. It was submitted that on account of his illness, the business operations of the appellant were adversely affected and he was unable to keep track of the pending litigation. The appellant further contended that the local counsel did not inform him of the passing of the impugned order dated 19 September 2024. Upon partial recovery of health in February–March 2025, the proprietor changed counsel in all three pending matters before the Kanpur Court. During this transition, the newly engaged counsel informed the appellant that while two matters were still pending, the third matter had already been decided by the order dated 19 September 2024, leading to the present appeal being filed in April 2025.
In the counter affidavit, the respondent opposed the application, stating that the plea of ailments and ignorance was misleading. It was argued that in another matter, Original Suit No. 31 of 2023, pending before the same Commercial Court, the appellant had made regular appearances even after the judgment dated 19 September 2024. The respondent pointed out that an affidavit dated 10 January 2025 was filed by the proprietor in the said proceedings, which demonstrated that he was active in litigation. It was further stated that the new counsel, Mr. Anil Kumar Sahu, was engaged by January 2025 itself, which left sufficient time to file the appeal within limitation. According to the respondent, the limitation period would have expired on 10 March 2025, and therefore, the appeal filed in April 2025 was barred and the explanation unsustainable.
In rejoinder, the appellant clarified that the proprietor was not personally appearing in the proceedings and that his counsel was conducting the litigation. The filing of an affidavit dated 10 January 2025 in another matter was argued not to be indicative of his fitness or ability to pursue appellate remedies in a different case. The appellant stated that his medical condition was genuine and supported by medical evidence. It was further submitted that upon changing counsel, the status of pending cases was discovered, and it was then revealed that the impugned order had already been passed in September 2024. Thus, the delay was bona fide and not deliberate.
The Bench observed the legal principles governing condonation of delay. Referring to the judgment in Ummer v. Pottengal Subida (2018) 15 SCC 127, the court recorded that “the earlier view that a litigant is required to explain delay of each day till date of filing the appeal has since been diluted by the later decisions of the Apex Court, the same remains no longer a good law and ‘sufficient cause’ within the meaning of Section 5 of the Limitation Act should be liberally considered.” The Division Bench noted that in Ummer, delay was condoned where the ground was physical ailments.
The court also considered the respondent’s reliance on Jharkhand Urja Nigam Ltd. v. Bharat Heavy Electricals Limited, decided on 15 April 2025, where the Supreme Court declined to condone a 301-day delay in an appeal under the Arbitration and Conciliation Act, 1996. It observed that the judgment, read with Government of Maharashtra v. Borse Brothers Engineers and Contractors Pvt. Ltd. (2021) 6 SCC 460, clarified the distinction between delay in appeals under the Arbitration Act, 1996 and under the Commercial Courts Act, 2015. The Bench recorded: “It was held that in appeals filed under both the Acts, the facts and circumstances of each case must afford sufficient ground to enable the court to exercise its discretion judiciously and the applicant must satisfy the court that he was prevented by any ‘sufficient cause’ from prosecuting his case.”
The Division Bench further observed: “In the present case, admittedly, in between the same parties, identical matters were contested and plaints of two suits, i.e., Suit Nos. 3 of 2020 and 31 of 2023, have been returned to the applicant. Whereas, the present appeal arising out of order dated 19.09.2024 passed in Suit No. 3 of 2020 is beyond time, the connected appeal arising out of identical order dated 29.03.2025 passed in Suit No. 31 of 2023 has been filed within time and, therefore, it does not appear to be justified that, in one matter, validity of the order returning the plaint is examined on merits and, in another matter, challenge laid to exactly an identical order on identical grounds is discarded only on account of delay having occurred in filing the appeal.”
On the appellant’s plea of illness, the Bench stated: “The medical prescriptions and reports appended to the application seeking condonation of delay cannot be ignored nor can it be said, for want of specific denial with supporting material, that the plea as regards sufferance of the proprietor of the appellant from physical ailments is utterly false.”
Regarding knowledge of the impugned order, the Bench recorded: “The stand taken to the effect that when Shri Anil Kumar Sahu was subsequently engaged as counsel, he made inquiries and found that two out of three matters were pending, whereas the third one, i.e., Commercial Suit No. 3 of 2020, had been decided in terms of the order impugned, appears to be cogent and worth believing.”
The court also noted that the filing of an affidavit in January 2025 in another matter was not determinative of knowledge of the present order. “Mere filing of affidavit dated 10.01.2025 in another suit, i.e., Commercial Suit No. 31 of 2023, though before the same Court, is, in itself, not sufficient to form a conclusive opinion regarding previous knowledge of passing of order in different suit.”
Having considered the rival contentions and legal precedents, the Division Bench concluded: “In view of above discussion, we find that the applicant has successfully made out a case for condonation of delay in filing this appeal.” Accordingly, the application under Section 5 of the Limitation Act was allowed. The Bench ordered: “The delay in filing the appeal is hereby condoned.”
The Bench further directed the office to allot a regular number to the appeal. The matter was ordered to be listed on 13 August 2025, along with connected Commercial Appeal No. 18 of 2025, as fresh.
Advocates Representing the Parties
For the Appellant: Shri Govind Singh, Senior Advocate assisted by Shri Imran Syed and Shri Anil Sahu
For the Respondent: Shri Devansh Misra and Shri Anup Shukla
Case Title: M/s Jay Chemical Works v. M/s Sai Chemicals
Case Number: Commercial Appeal Defective No. 1 of 2025
Bench: Chief Justice Arun Bhansali; Justice Kshitij Shailendra
