Commercial Courts Act Does Not Exclude Application Of Section 5 Limitation Act

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Case: Government of Maharashtra vs Borse Brothers Engineers and Contractors Pvt Ltd.

Coram: Justices RF Nariman, BR Gavai and Hrishikesh Roy

Case No: [CA 995 OF 2021]

Court Observation: Unlike the scheme of the Central Excise Act relied upon in Hongo (supra), there are no other provisions in the Commercial Courts Act which provide for a period of limitation coupled with a condonation of delay provision which is either open-ended or capped. Also, the period of 180 days provided was one indicia which led the Court to exclude the application of section 5 of the Limitation Act, as it was double and triple the period provided for appeals under the other provisions of the same Act. Section 13(1A) of the Commercial Courts Act, by way of contrast, applies an intermediate period of 60 days for filing an appeal, that is, a period that is halfway between 30 days and 90 days provided by Articles 116 and 117 of the Limitation Act.

For all these reasons we reject the argument made by Shri Georgethat the application of section 5 of the Limitation Act is excluded given the scheme of Commercial Courts Act”, the judgment said.

The bench also clarified that the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. “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 Articles 116 and 117 of the Limitation Act or section 13(1A) 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”, the court added.


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