1 2025:HHC:42029 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Commercial Appeal No.4 of 2025 Decided on: 02.12.2025 M/s. Shilpa Medicare Limited ....appellant Versus M/s. Salus Pharmaceutical & anr. ....Respondents Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting?1 Yes For the appellant : Ms. Shradha Karol and Mr. Kapil Kumar, Advocates. For the respondents : Ms. Rajeshwari H and Mr. Jyotirmay Bhatt, Advocates. G.S. Sandhawalia, Chief Justice(Oral) OMP(M) No.137 of 2025 Application for condonation of delay of 3 months and 16 days in filing the present Commercial Appeal against the order of learned Single Judge dated 27.11.2024 in OMP No.921 of 2024 in COMS No.5 of 2024 has been preferred by the plaintiff and the same has been opposed by filing a reply and also vehemently contested by the counsel for the respondents. 2. Perusal of the application would go on to show that sufficient cause sought to be made out for the purpose of 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2025:HHC:42029 condonation of delay is that the appeal was initially filed on 27.12.2024 inadvertently under wrong nomenclature as First Appeal against Order (FAO), instead of correct nomenclature, i.e., Commercial Appeal. On an objection having been raised on 4.1.2025, the situation was rectified by refiling the appeal and it is thus submitted that delay caused is entirely inadvertent and has been caused due to an oversight without malice and the delay is sought to be condoned. 3. In reply filed to this application, the respondents- State have admitted that the defective appeal was filed by the appellant on 27.12.2024 and limitation for filing appeal had ended thereafter on 25.2.2025. The chart, as such of the relevant dates, drawn in the reply, is reproduced as under:- S.No. DATES EVENTS 1 27.11.2024 Impugned Order was passed 2 12.12.2024 Caveat filed by the Respondents 3 27.12.2024 Defective Appeal filed by the Appellant 4 25.02.2025 Limitation of filing Appeal ended 5 13.03.2025 Respondents’ caveat expired 6 01.04.2025 Alleged communication from registry 7 26.04.2025 Appeal was finalized and notarized 8 20.05.2025 Present Appeal came to be filed 3 2025:HHC:42029 4. Perusal of the above chart would go on to show that even Caveat filed by the respondents eventually also expired on 13.3.2025. It is thus being averred that there is mala fide intention and sufficient cause is not made out. It is also submitted that the appeal was filed after 49 days from the alleged date of communication from the Registry. 5. As per the counter affidavit filed, there is no justifiable reason to condone the delay in filing the appeal and the only reason mentioned is that the delay has occurred on account of the wrong nomenclature of the appeal. 6. In such circumstances, counsel for the respondents has relied upon the judgment passed in SLP(C) No.9580 of 2025 titled as Jharkhand Urja Utpadan Nigam Ltd. & anr. Vs M/s. Bharat Heavy Electrical Limited to contend that law has been laid down by the Apex Court is that in Commercial matters, a strict approach, as such, is to be followed. Therefore, there was gross negligence and inaction on the part of the appellant in not taking suitable remedies/steps to rectify the appeal by filing the correct nomenclature at the earliest and, therefore, the delay should not be condoned. 7. We have gone through the said judgment, in which there was delay of 301 days in filing the main appeal under Section 13(1-A) of the Commercial Courts Act, 2015, wherein 4 2025:HHC:42029 the argument, as such, was that the period of limitation would start after the copy of the judgment is provided to the party concerned through any mode, as provided in law, which argument was not accepted by the Apex Court keeping in view the fact that only eight months after the pronouncement of the said order and after the expiry of the limitation period, the realization suddenly dawned upon the appellants therein to apply for the certified copy. In such circumstances, the Apex Court came to the conclusion that the appellants there were negligent, as such and as there was lack of bona fides, and it, therefore, upheld the order of the High Court, which declined to condone the delay. It is thus in the facts and circumstances that the judgment was passed, rather the Apex Court has also highlighted the core tenets of the law of limitation which is to enthuse diligence amongst parties as to their rights. 8. As noticed, in the present case, the appeal was filed within its prescribed period but only on account of wrong nomenclature, as such, the issue had arisen regarding refiling of the appeal. It is also to be noticed that it is settled principle that rules of procedures are handmaids of justice and the parties are not to be thrown out on the technical grounds, as such. 9. The table drawn above would go on to show that it is an admitted fact that the appeal was filed within prescribed 5 2025:HHC:42029 period, much before the expiry of limitation. It is also common knowledge that this Court closes for winter vacation and only opens in the last week of February and it is a matter of fact that the appellant is based at Hyderabad and the affidavit, as such, of the authorized representative was also attested at Hyderabad on 26.04.2025. These facts would go on to show that time was duly taken on account of the procedural delay and the logistic aspect. 10. Therefore, we are of the considered opinion that keeping in view the law laid down in case titled as Esha Bhattarcharjee Vs Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649, there should be a liberal, pragmatic, justice-oriented, non-padantic approach and injustice is not to be legalized. Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled emphasis. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play and, therefore, we have to balance the factor of inordinate delay and a delay of short durations. The conduct, behaviour and attitude of a party relating to its inaction or negligence are also relevant factors to be taken into consideration. If the explanation offered is concocted, the Courts have to be vigilant not to expose the other side and it is 6 2025:HHC:42029 also to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 11. Thus overall, the conception of the present dispute arising on account of patent infringement and keeping in view the fact that the Apex Court in case titled as Sheo Raj Singh (deceased) through LRs Vs Union of India 2023 (10) SCC 531 has also held that brief look at the facts should be necessary. Thus, we are of the considered opinion that it would be highly unjust to the appellant, if in such circumstances, delay is not condoned. Resultantly, since sufficient cause has been made out, therefore, the instant application deserves to be allowed. 12. Accordingly the application is allowed and the delay is condoned subject to cost of Rs.20,000/- to be deposited by the appellant in the “Poor Patient Treatment Fund” (A/c No. 34256228603, IFSC SBIN0004054, at SBI IGMC, Shimla), at Indira Gandhi Medical College (IGMC), Shimla. Application stands disposed of. Commercial Appeal No.4 of 2025 13. Consideration is sought of the impugned order dated 27.11.2025 passed by learned Single Judge in OMP No.921 of 2024 in COMS No.5 of 2024 titled as M/s. Shilpa Medicare Limited Vs M/s. Salus Pharmaceuticals and another 7 2025:HHC:42029 on account of the fact that the said application filed under Order VII Rule 11 read with Section 151, CPC by the defendants/respondents herein was allowed. The primary ground for rejection of the plaint as such was that the plaintiff had filed the suit without following the procedure of Pre- Institution Mediation and Settlement in terms of Section 12-A of the Commercial Courts Act, 2015 and resultantly, the learned Single Judge was of the considered opinion that while discussing the factual matrix, no steps had been taken from 26th September, 2023 till February, 2024 and, therefore, held that the remedy of Pre-Institution Mediation and Settlement has not been resorted to. 14. Counsel for the appellant has relied upon a recent judgment of the Apex Court in Civil Appeal arising of the SLP(C) No.2753 of 2025 titled as Novenco Building and Industry A/S Vs Xero Energy Engineering Solutions Private Ltd. & anr., decided on 27.10.2025, which also emanated from this Court. 15. It is submitted that the judgment in case titled as Patil Automation Pvt. Ltd. Vs Rakheja Engineers Pvt. Ltd. (2022) 10 SCC 1, relied upon by the learned Single Judge, has been also noticed by the Apex Court, apart from the judgment in Dhanbad Fuel (P) Ltd. Vs. Union of India (2025) SCC Online SC 1129. 8 2025:HHC:42029 16. It is thus submitted that the Apex Court in Novenco Building and Industry (supra) has now upheld that the subject matter of action is the continuing infringement of intellectual property and each act of manufacture, sale or offer for sale of the infringing product constitutes a fresh wrong and is a recurring cause of action and, therefore, mere delay in bringing an action does not legalise an infringement and the urgency cannot be negated by the infringer, who continues to profit under the protection of procedural formality. The relevant paragraphs of the judgment read as under:- “22. The subject matter of the present action is continuing infringe- ment of intellectual property. Each act of manufacture, sale, or offer for sale of the infringing product constitutes a fresh wrong and recur- ring cause of action. It is well settled in law that mere delay in bring- ing an action does not legalise an infringement and the same cannot defeat the right of the proprietor to seek injunctive relief against the dishonest user. The appellant has pleaded that Xero Energy, its for- mer distributor, has dishonestly appropriated its proprietary designs and patents to manufacture and market identical fans under decep- tively similar name. The accompanying material demonstrates that such infringing activity is continuing and causing immediate and ir- reparable harm to the appellant’s business reputation, goodwill and proprietary rights. 23. From the standpoint of the appellant, each day of continuing in- fringement aggravates injury to its intellectual property and erodes its market standing. The urgency, therefore, is inherent in the nature of the wrong and does not lie in the age of the cause but in the per- sistence of the peril. The court cannot be unmindful of the fact that intellectual property disputes are not confined to the private realm. When imitation masquerades as innovation, it sows confusion among consumers, taints the market place and diminishes faith in the sancti- ty of the trade. The public interest, therefore, becomes the moral axis upon which the urgency turns. Therefore, the public interest element, need to prevent confusion in the market and to protect consumers from deception further imparts a colour of immediacy to the reliefs sought. 9 2025:HHC:42029 24. The appellant’s prayer for injunction cannot be characterised as mere camouflage to evade mediation. It is a real grievance founded on the continuing nature of infringement and irreparable prejudice likely to be caused by the delay. The court must look beyond time lag and evaluate the substance of the plea for interim protection. The insistence of pre-institution mediation in a situation of ongoing in- fringement, in effect, would render the plaintiff remediless allowing the infringer to continue to profit under the protection of procedural formality. Section 12A of the Act was not intended to achieve such kind of anomalous result. 25. The learned Single Judge as well as the Division Bench of the High Court erred in construing the test for urgent relief enumerated in Section 12A of the Act, in as much as the courts have proceeded to examine the entitlement of the appellant to urgent relief based on the merits of the case rather than looking at the urgency as is evident from the plaint and the documents annexed thereto from the stand- point of the plaintiff. The High Court has proceeded on the premise that lapse of time between the appellant’s discovery of infringement and filing of suit negated the element of urgency. Such an approach, in our considered view, is contrary to the principles laid down by the decisions of this Court. The High Court has also failed to take into account that the present action is one of the continuous infringement of intellectual property.” 17. It is in such circumstances that the Apex Court set aside the judgment dated 28.8.2024 of learned Single Judge of this Court in Commercial Suit No.13 of 2024 and the judgment dated 13.11.2024 of the Division Bench of this Court in Commercial Appeal No.1 of 2024 and restored the Commercial Suit No.13 of 2024 with directions to proceed with on merits. 18. In the present case, it is also to be noticed that the grouse, as such, of the plaintiffs is that the defendants are manufacturing, distributing, selling or offering for sale the infringing product as such, which is a medication for cancer treatment and the plaintiffs have patent for it, on the basis of 10 2025:HHC:42029 which, they have the cause of action and approached the Court. 19. In such circumstances, principle, as such, laid down by the Apex Curt, was sought to be distinguished by the counsel for the respondents, while placing reliance on the judgment passed by the Apex Court in Deepak Bajaj Vs State of Maharashtra & anr. (2008) 16 SCC 14 that the factual matrix is to be seen and the judgment mechanically would not be applicable. 20. As apparently noticed by the Apex Court, the recurring cause of action and the continuing aspect in the matter has to be adjudicated on merits. Accordingly, we are of the considered opinion that in view of the law laid down, the order of the learned Single Judge is not sustainable, as it has not been decided on the basis of principle of law laid down by the Apex Court and, therefore, the binding precedent of the Apex Court has not been applied in this case and it cannot be allowed to stand. 21. Resultantly, we set aside the said order and remand the matter for consideration on merits by the learned Single Judge. Let the parties put in appearance on 23.12.2025 before the learned Single Judge. 22. Needless to say that since we have decided the appeal on the basis of the law laid down by the Apex Court, 11 2025:HHC:42029 therefore, all contentions to be raised by the defendants will be taken for consideration by the learned Single Judge at the relevant point of time. ( G.S. Sandhawalia ) Chief Justice December 02, 2025 (mamta) ( Jiya Lal Bhardwaj) Judge