S. 5 of Limitation Act can be invoked in requesting Commercial Appellate Court set up under Act 4 of 2016 to condone delay in presenting an appeal

Bombay High Court: While deciding a Notice of Motion for condonation of delay in filing an appeal, a two-Judge Bench comprising of S.C. Dharmadhikari, J. and Vibha Kankanwadi, J. held that Section 5 of the Limitation Act, 1963 can be invoked and applied in requesting the Commercial Appellate Court set up under Act 4 of 2016 to condone the delay beyond the period of sixty days in presenting an appeal before it, provided there is a sufficient cause for the same.

There was a delay of sixty days in filing the appeal directed against an order passed by the learned Single Judge, sitting as a Court of Commercial Division. The appeal was governed by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Act 4 of 2016).

Learned counsel appearing on behalf of the respondent submitted that the Notice of Motion for condonation of delay could not be entertained by the High Court as Section 5 of the Limitation Act which was invoked to condone the delay of sixty days in filing the appeal, was inapplicable.

The question before the High Court was whether Act 4 of 2016 excludes the application of the provisions and particularly Sections 4 to 24 of the Limitation Act, 1963.

The High Court perused various provisions of the above-stated two Acts and also various decisions of the Apex Court as cited before it, and held that Act 4 of 2016 enables creation of Commercial Courts, Commercial Division and Commercial Appellate Division in the High Court. While enacting the said Act, the legislature did not intend to exclude the Limitation Act and particularly the applicable provision, namely, Section 5. If the applicability of the said section was intended to be excluded, 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 sub-section (1) of Section 13 of the Act 4 of 2016.

The High Court, on the basis of the above discussion, held that Section 5 of the Limitation Act was applicable to the instant case. The instant Notice of Motion was maintainable. Accordingly, the delay in filing the appeal was condoned. [Kalpesh R. Jain v. Mandev Tubes (P) Ltd., 2017 SCC OnLine Bom 8882, order dated 23.08.2017]

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