ARGUMENTS TO BE ADVANCED IN FURTHERANCE TO PRELIMINARY

OBJECTION

That the applicant has filed an Application under section 5 of the limitation act, for the
Condonation of delay in filing the original suit in The Court of Commercial Court,
Greater Noida Courts, Gautam Budh Nagar, Uttar Pradesh but it is pertinent to
mention here that as bare provision of section 5 limitation act states that :-

5. Extension of prescribed period in certain cases. — Any appeal or any application,

other than an application under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had sufficient cause for not
preferring the appeal or making the application within such period.

It is important to note here that the wordings itself says that “any appeal or
application” while the meaning of suit stated in the act under section 2(l) which states
that:

2(l) “suit” does not include an appeal or an application;

It is settled proposition of law that section 5 of limitation act would not be applicable
to the original suit i.e. institution of suit, this has been clarified by the hon’ble
Supreme Court and hon’ble Allahabad High Court in catena of judgements placing
reliance in this submission on the judgement given by Hon’ble Supreme Court in
Sunil Kumar Maity v. State Bank of India and another (2022 SCC OnLine SC 77)

12. The National Commission therefore has grossly erred in observing in the
impugned order that the appellant-complainant would be at liberty to seek remedy in
the competent Civil Court and that if he chooses to bring an action in a Civil Court,
he is free to file an application under Section 5 of the Limitation Act, 1963, recording
the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if
action is brought by the complainant in a Civil Court. Such an observation/order
passed by the National Commission is in utter ignorance of the provisions of the
Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the
institution of civil suit in the Civil Court. Be that as it may, the impugned order passed
by the National Commission solely relying upon the suo-moto report called for from
the respondent-bank during the pendency of the revision application, being highly
erroneous, deserves to be set aside and is accordingly set aside. The order passed by
the State Commission is restored. The appeal stands allowed accordingly.

Similarly, the Supreme court has reiterated its stance in F. LIANSANGA & ANR. V.
UNION OF INDIA & ORS. where the hon’ble Supreme Court has validated the order
of the Gauhati High Court stating:-

The High Court held rightly that the Limitation Act was applicable in the State of
Mizoram and that a perusal of Section 5 of the Limitation Act, 1963 clearly showed
that Section 5 did not apply to suits, but only to appeals and to applications except for
applications under Order XXI of the Civil Procedure Code.

Also the Hon’ble Supreme Court in Popat Bahiru Govardhane & Others vs. Special
Land Acquisition Officer & Anr. reported in (2013) 10 SCC 765, on which reliance has
been placed by the High Court, it is settled law that limitation may harshly affect a
particular party, but it has to be applied with all its rigour when the statute so
prescribes. The Court has no power to extend the period of limitation on equitable
grounds, even though the statutory 5 provision may sometimes cause hardship or
inconvenience to a particular party. The Court has no choice, but to enforce it giving
full effect to the same.