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Judgment
Ananya Bandyopadhyay, J.:-
The plaintiff seeks condonation of delay of 90 days in filing the present application being GA No.3 of 2026 and recall of the order dated 2nd December, 2025 whereby CS No.280 of 2010, i.e., MMTC Ltd., Vs. M/s. Pinkto Chemicals and Ors. was dismissed for default.
The suit instituted for recovery of Rs.1,09,50,906/- together with interest and consequential reliefs arising from an alleged breach of contract relating to supply of prime virgin mercury is a contested suit. The defendants have entered appearance and filed their written statement. The suit was listed on 2nd December, 2025 when neither party was represented and the suit was dismissed for default. The plaintiff attributes such absence to the medical condition of the Advocate-on-Record representing the plaintiff. The erstwhile Advocate-on-Record had ceased to represent the plaintiff after issuing ‘No Objection’ on 26th of November, 2025. The present Advocate-on-Record was thereafter engaged. On 27th November, 2025, the present Advocate-on-Record was diagnosed with severely elevated blood pressure and hypertension and was advised medical care with strict restriction upon movement and outdoor activities. The medical prescriptions dated 27th November, 2025, 15th December, 2005 and 27th January, 2026 have been placed on record.
The medical condition of the Advocate-on-Record as aforesaid persisted through December 2025 and January 2026. The present Advocate-on-Record obtained the vakalatnama on 28th January, 2026 and filed it before the Registry on the same date. The vakalatnama came on record on 7th of March, 2026. Upon inspection of the case status, the order dated 2nd December, 2025 came to his knowledge following which the present application was filed without further delay.
The explanation furnished for the absence on 2nd December, 2025 and for the subsequent delay is supported by the medical documents and the chronology of change of representation. The circumstances disclose neither abandonment of the suit nor a deliberate omission to prosecute it. The plaintiff has all along asserted its intention to pursue a substantive claim which remains to be adjudicated. Order IX Rule IX of the Code of Civil Procedure permits restoration of a suit dismissed for default upon sufficient cause being shown for the plaintiff’s non-appearance. Section 5 of the Limitation Act, 1963 permits condonation of delay upon sufficient cause being established. The discretion under both provisions must serve the adjudication of the lis rather than terminate a contested claim for a procedural lapse satisfactorily explain.
The defendants will suffer no prejudice incapable of protection in the course of the suit if the matter is restored. Refusal of restoration, however, will foreclose adjudication of the claim on merits solely by reason of the absence on 2nd December, 2025. The prayers in (a), (b), (c) of Notice of Motion are hereby allowed.
The delay of 98 days in filing the present application is condoned.
The order dated 2nd December, 2025 passed in CS No.280 of 2010 (MMTC Ltd. Vs. M/s. Pinkto Chemicals) is dismissing the suit for default is recalled.
CS No.280 of 2010 is restored to its original final number. However, during the course of considering the materials on record for passing necessary orders in the instant application, this Court notices that the dispute between the parties relate to commercial transaction and, accordingly, the Registry is directed to place the case record of the instant suit being CS No.280 of 2010 before the Court of competent jurisdiction.