Climax Syntheties P.Ltd vs Food Corporation Of India

The present application has been preferred by the plaintiff seeking condonation of a delay of 1186 days in approaching the Court for recall of the order dated 24th November, 2022, whereby C.S. No. 534 of 1990, Climax Synthetics Pvt. Ltd. v. Food Corporation of India, was dismissed for default, and for restoration of the said suit to its original file and number.

The suit, instituted in the year 1990, carries a monetary claim of Rs.23,27,422.16 p., besides the alternative relief of an enquiry into damages and/or compensation, interest at the rate of 21 per cent per annum, appointment of Receiver, injunction, attachment, costs and other consequential reliefs. In the course of the proceedings, pursuant to orders dated 15th May, 1991 and 4th June, 1991, the plaintiff furnished a bank guarantee of Rs.14,00,000/- in favour of the Zonal Manager, Food Corporation of India. The said guarantee was renewed from time to time and was last extended on 19th June, 2025, with its expiry fixed on 24th June, 2026.

The explanation for the delay proceeds upon a somewhat unusual circumstance. The suit had been conducted on behalf of the plaintiff through Mr. S.K. Kundu, Advocate, instructed by L.P. Agarwalla & Co. Mr. Kundu died on 28th October, 2018. The plaintiff asserts that the records and correspondence relating to the suit remained in his custody and that the plaintiff, which was stationed in Gujarat, was not apprised of either his demise or the subsequent course of the proceedings. The plaintiff has further referred to the disruption occasioned during the Covid period and the consequent loss of effective communication. It is the plaintiff's specific case that it came to know of the dismissal only upon receipt of the defendant's letter dated 10th March, 2026, referring to the impending expiry of the bank guarantee and proposing its invocation on the premise that the suit had already been dismissed for default.

Learned Advocate appearing for the applicant submits that the plaintiff cannot be charged with deliberate abandonment of its substantive claim merely because the advocate entrusted with the conduct of the proceeding died during its pendency. It is submitted that the plaintiff was situated outside West Bengal, that its conducting advocate belonged to the solicitor firm through which the litigation was being handled, and that the intervening Covid period further impaired communication. Reliance has been placed upon Inder Singh v. State of Madhya Pradesh, Civil Appeal No. ____ of 2025 arising out of SLP (Civil) No. 6145 of 2024, decided on 21st March, 2025, particularly paragraph 14 thereof, and Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.

Learned Advocate appearing for the respondent, Food Corporation of India, opposes the application. It is submitted that the plaintiff had its registered office at Kolkata and could not have remained wholly oblivious of the proceedings. The death of Mr. Kundu, according to the respondent, could not constitute a sufficient explanation since the solicitor firm remained on record and had other advocates who could have monitored the progress of the suit. The respondent further contends that the plaintiff has failed to explain the entire period of 1186 days and that the prolonged interval reflects lack of vigilance. Reliance is placed upon the policy underlying limitation, the rights which the respondent claims to have acquired by lapse of time and the prejudice which, according to it, would attend revival of a suit instituted as far back as in 1990.

The rival submissions bring into focus the true ambit of the expression “sufficient cause” occurring in Section 5 of the Limitation Act, 1963. The provision does not prescribe a mechanical formula by which every period of delay is to be measured. The Court is required to examine the explanation in the setting of the particular litigation and to determine whether the conduct disclosed carries the character of deliberate inaction, mala fides or a calculated attempt to gain time.

In Inder Singh v. State of Madhya Pradesh, the Supreme Court, in paragraph 14, reiterated that delay cannot be condoned in the absence of sufficient cause, but emphasised that where the merits of a matter warrant examination, adjudication should not be scuttled merely on the ground of limitation. The principle thus recognises the need to preserve the discipline of limitation while ensuring that a substantive controversy is not foreclosed solely by a procedural lapse where the circumstances otherwise justify consideration of the cause shown.

The decision in Esha Bhattacharjee furnishes a more comprehensive statement of the governing principles. The Supreme Court recognised that each case has to be assessed on its own facts and circumstances and that a liberal, pragmatic and justice-oriented approach is warranted, while gross negligence, deliberate inaction and lack of bona fides remain relevant considerations against condonation.

The respondent's contention that the plaintiff ought to have remained in continuous communication with its solicitors cannot be brushed aside. A litigant does bear a responsibility to maintain a reasonable degree of vigilance. Yet, the Court must distinguish between culpable indifference and a breakdown of communication occasioned by circumstances beyond the immediate control of the litigant. The death of the advocate personally conducting the litigation is a circumstance of considerable relevance. It assumes greater significance where the plaintiff asserts that the relevant records were in the deceased advocate's custody and that the plaintiff was operating from another State.

The fact that the solicitor firm had other advocates is certainly a circumstance which could have enabled more active supervision. It does not, however, inexorably lead to the conclusion that the plaintiff deliberately chose to abandon a substantive claim pending since 1990. There is no material placed before the Court demonstrating that the plaintiff had knowledge of the dismissal order dated 24th November, 2022 and consciously elected to permit it to attain finality.

The subsequent conduct of the plaintiff also assumes significance. According to the materials placed, the plaintiff claims to have learnt of the dismissal through the defendant's letter dated 10th March, 2026, and thereafter made enquiries, discovered the death of Mr. Kundu and entrusted the available papers to another advocate for taking steps for restoration. The application was thereafter brought before the Court. The chronology, though not free from an element of lapse, does not, on the material presently available, disclose a calculated attempt to prolong the litigation.

The respondent's reliance upon the antiquity of the suit and the possible prejudice arising from revival is also a legitimate consideration. Yet, the suit was dismissed for default, and not upon an adjudication of the plaintiff's substantive claim. Restoration would consequently revive the lis for adjudication; it would not confer upon the plaintiff any decree or substantive entitlement. The respondent shall retain every defence available to it in law and on facts.

There is another circumstance which cannot be overlooked. The litigation concerns a substantive monetary claim and a bank guarantee of Rs.14,00,000/-, which has continued to be renewed pursuant to orders of this Court and was last extended on 19th June, 2025. The defendant's letter dated 10th March, 2026 seeks to draw legal consequence from the dismissal of the suit for default. In such circumstances, allowing the dismissal to operate as the final determination of the plaintiff's claim, without an adjudication on merits, would carry consequences substantially disproportionate to the procedural lapse which occasioned the dismissal.

The respondent has also urged that, in proceedings on the Original Side of this Court, a separate application for condonation of delay was mandatory and that the prayer for condonation could not be incorporated in the application for restoration itself. The submission cannot be accepted as laying down a rule of inflexible statutory necessity. Section 5 of the Limitation Act, 1963 does not prescribe that condonation can be sought only through a separately captioned application. The relevant enquiry is whether the Court is furnished with the facts constituting the cause of delay and a prayer inviting the exercise of jurisdiction under Section 5.

The position has been considered by the Calcutta High Court in Atlanta Global Advisors Private Limited v. Sanjib Kumar Jain & Ors., C.O. 3819 of 2022, decided on 12th October, 2023, where, in the context of an application for restoration under Order IX Rule 9 CPC, it was held, upon consideration of Sesh Nath Singh v. Baidyabati Sheoraphuli Cooperative Bank Ltd., (2021) 7 SCC 313, that Section 5 does not itself make a formal written application an indispensable pre-condition for exercise of the power of condonation. The Court recognised that, though filing a formal application is the general practice, there is no statutory bar upon the Court considering the cause disclosed in the restoration application and exercising discretion under Section 5.

The same principle has subsequently been articulated by the Calcutta High Court in Sri Kallol Das v. Smt. Sipra Bose, C.O. 1397 of 2024, decided on 25th April, 2025, where it was expressly observed that, in the case of an application, the explanation for delay may be incorporated in the application itself or furnished through a separate application; Section 5 contains no mandate requiring a separate application for condonation. The Court further noticed that the Original Side Rules of this Court do not prescribe a separate application for condonation, though the delay must be explained and a prayer for condonation must be made.

The distinction between an appeal and an application is material. Where an appeal is presented beyond limitation, the memorandum of appeal ordinarily contains no occasion for setting out the factual foundation for delay, and a separate application may therefore be required in accordance with the applicable procedural regime. In an application for restoration, however, the position is otherwise where the application itself narrates the circumstances occasioning the delay and expressly seeks condonation. The present application does precisely that. The respondent, therefore, cannot defeat a substantive consideration of the prayer merely on the ground that a separate paper bearing the caption of an application under Section 5 has not been filed.

Nor does the Original Side jurisdiction warrant a different result. Procedural rules regulate the manner in which jurisdiction is invoked; they are not ordinarily intended to convert a curable procedural formality into a substantive bar where the statute itself contains no such prohibition. What is material is that the opposite party has had notice of the cause shown, an opportunity to contest its sufficiency and that the Court records its satisfaction before condoning the delay. Those requirements stand fulfilled in the present proceeding. The prayer for condonation is therefore capable of being considered along with the prayer for restoration.

Upon a cumulative assessment of the circumstances, this Court is satisfied that the explanation furnished by the plaintiff constitutes sufficient cause within the meaning of Section 5 of the Limitation Act. The explanation is not of such character as would warrant an inference of deliberate abandonment or mala fide delay. The death of the conducting advocate, the plaintiff's location outside the State, the asserted disruption of communication during the Covid period, the custody of the litigation records with the deceased advocate and the plaintiff's stated discovery of the dismissal only upon the defendant's communication constitute circumstances which, taken together, provide a credible explanation for the delay.

The delay of 1186 days is, no doubt, substantial. Length of delay, however, is not by itself decisive. The quality of the explanation and the conduct of the party are the governing considerations. It also bears consideration that the respondent can be protected against such prejudice as may arise from restoration by appropriate terms, whereas refusal of restoration would foreclose adjudication of the plaintiff's substantive claim solely on account of a default dismissal.

The principle enunciated in paragraph 14 of Inder Singh and the principles reiterated in Esha Bhattacharjee therefore operate in favour of permitting the controversy to proceed to adjudication, while preserving the respondent's right to contest the suit on every available ground.

Accordingly, the application succeeds.

The delay of 1186 days in filing the application is condoned.

The order dated 24th November, 2022, passed in C.S. No. 534 of 1990, Climax Synthetics Pvt. Ltd. v. Food Corporation of India, dismissing the suit for default, is recalled and set aside.

C.S. No. 534 of 1990 is restored to its original file and number.

The restoration shall, however, be subject to the plaintiff paying costs of Rs.25,000/- at the Office of the Member Secretary, State Legal Services Authority, High Court at Calcutta, considering the length of the delay and the inconvenience occasioned thereby. Such costs shall be paid within two weeks from date.

The restoration of the suit shall not prejudice any defence available to the respondent, nor shall any observation contained in this order be construed as an expression of opinion on the merits of the substantive controversy.

The parties shall take all consequential steps for expeditious progress of the suit.

The application is, accordingly, allowed.

Next date be fixed on 21^st September, 2026 for hearing of the suit being CS/534/1990.