Can the court condone a delay of 399 days in filing of an appeal on the ground of financial crisis?

 As the impugned order has been passed against the

applicant herein who wants to prefer Appeal from Order,

has definitely a legal right to challenge the order of the

trial Court by way of filing Appeal from Order. At this stage

only the point needs to be considered as to whether the

delay occurred in preferring the said Appeal from Order is

well explained or not. Now as the legal settled proposition

which has been set-out here-in-above, considering the

prevalent economy condition of the parties as well as even

of the Country, the financial crisis can be considered to be

one of the grounds for condonation of delay. The pivotal

point of consideration would be whether the parties

concerned has taken dilatory tactics in proceeding with the

matter for initiated any proceedings or whether there is a

malafide on his part or not. If there is a malafide attributed

and established against the party concerned, then

definitely even shortest delay cannot be condoned. It

cannot be presumed that a person against whom an interim

injunction is operating, would adopt dilatory tactics except

in case of compelled circumstances or circumstances out of

his control, he may not be in a position to initiate or

execute or take appropriate immediate steps against the

injunction operating against him. Therefore, it cannot be

presumed that the applicant was not proceeding with the

matter bonafidely or there was dilatory tactics on his part

in initiating the proceedings of Appeal from Order against

the impugned order of injunction which is operating

against him. Therefore, in present case, the applicant has

made out sufficient cause for condonation of delay of 399

days occurred in preferring Appeal from Order. If

application is condoned, no prejudice is likely to be caused

to the other side and the other side would also get

appropriate opportunity if Appeal from Order is preferred.

{Para 14}

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL APPLICATION NO. 941 of 2020

NANDLAL NAMDEV OTWANI Vs VIJAY JAYPRAKASH AHUJA

CORAM:  DR. JUSTICE A. P. THAKER

Date : 15/02/2022

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Bombay HC: Commercial court should not set aside no written statement order by condoning the delay of 103 days in suit transferred from regular court to commercial court

 The issue raised in this petition is, as to "whether a suit transferred from the regular Court to the Commercial Court, in view of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'the Act'), would enable the Commercial Court to set aside the "No WS" Order by condoning delay of 103 days."

15. I find that, section 15(3) reproduced above would clearly indicate that the Commercial Court takes over the commercial suit after transfer and proceeds thereafter under the scheme of the Act. The very purpose and object of establishing the Commercial Courts, was to ensure that, the delay is eliminated and a speedy trial is achieved. There is no provision permitting the Commercial Court to move backwards and revert to an earlier stage for overcoming a legal impediment and then again leap forward. If the Commercial Court is to go backwards to set aside the "No WS" Order and then move forward by taking such a WS on record, it would defeat the very purpose for which the Act was introduced.

 In Mira Gehani, in paragraph No. 89, this Court has concluded that the Apex Court in catena of decisions has held that, considerations of equity cannot be ground/reason/justification not to follow the law, as is laid down by the legislature. In paragraph 91, this Court then concluded that, the aforesaid judgments merely indicate that, no matter, how harsh the result, if a statute stipulates that, an act must be performed within a certain period of time, and provides for no exceptions, then the Courts must not allow such an act to be performed after the expiry of the time mandated by the statute directly or indirectly.

31. In the backdrop of the law, as is settled, if the contentions of the petitioners is accepted, that even if the suit has been transferred, after the "no WS" order is passed and when no application is pending, would not preclude the Commercial Court to set aside the "no WS" order and permit filing of the written statement, this would completely nullify the intent and object of the legislature in introducing the commercial Courts Act. The Commercial Court would then be bestowed with the status of a "non-commercial Court", which is impermissible in law.

32. In view of the above, this Petition, being devoid of merit, is therefore, dismissed.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 7520 of 2019

Decided On: 01.08.2019

Raj Process Equipments and Systems Pvt. Ltd. and Ors. Vs.

Honest Derivatives Pvt. Ltd.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: MANU/MH/3846/2019,2020(2) MHLJ 78.

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