1 AO-COM/27/2026 IN THE HIGH COURT AT CALCUTTA COMMERCIAL APPELLATE DIVISION APPELLATE SIDE Present: The Hon’ble Justice Debangsu Basak And The Hon’ble Justice Aryak Dutt AO-COM/27/2026 IA NO: CAN/1/2026 CAN/2/2026 Union of India represented by Chief Engineer (AF) Shilong Zone Vs. M/s. S Chaturvedi & Co. For the Appellant : Mr. Indrajeet Dasgupta, Advocate Mr. Guddu Singh, Advocate For the Respondent : Ms. Mousumi Bhowal, Advocate Mr. Ishan Bhattacharya, Advocate Hearing & Judgment on : August 25, 2026 DEBANGSU BASAK, J.:- 1. Appeal is directed against Order No.8 dated February 5, 2026 passed in Misc.Judicial Case No.03 of 2025 by the Learned Judge, Commercial Court at Siliguri. 2 AO-COM/27/2026 2. By the impugned order, learned Judge refused to condone the delay in making and filing the application under Order 9 Rule 4 of the Code of Civil Procedure, 1908. 3. Learned advocate appearing for the appellant submits that, a petition under Section 34 of the Arbitration and Conciliation Act, 1996 was filed by the appellant. Such application was dismissed for default due to the non-appearance of the learned advocate for the appellant on March 6, 2025. 4. Learned advocate for the appellant submits that, an application under Order 9 Rule 4 of the Code of Civil Procedure, 1908 along with a petition under Section 5 of the Limitation Act, 1963 were filed. Condonation of delay was signed on behalf of the appellant on April 28, 2025 and filed on September 1, 2025 which was registered as Misc.Judicial Case No.03 of 2025. 5. Learned advocate appearing for the appellant submits that, the application for condonation of delay as also the application for restoration, contains adequate and proper reasons both for condonation of delay and restoration. He submits that, learned 3 AO-COM/27/2026 advocate for the appellant could appear at the hearing on March 6, 2025 as, in his diary, learned advocate noted the old case number while, new case number was assigned. Therefore, said learned advocate missed the matter on March 6, 2025. So far as the application for restoration is concerned, he submits that, appellant took time to authorize the filing of the same. He submits that, the delay was only of 25 days and learned Court erred in not condoning the delay. 6. Learned advocate for the respondent submits that, the appellant did not provide any explanation for the condonation of delay. She refers to the impugned order and submits that, learned Judge found that, the application under Section 5 of the Limitation Act, 1963 was undated. 7. Affidavit-in-opposition filed in IA NO:CAN/1/2026 is taken on record. 8. There is a delay in making and filing the appeal. In IA NO:CAN/1/2026, appellant seeks condonation of such delay. 4 AO-COM/27/2026 Condonation of delay is sought on the ground of delay in receipt of the certified copy of the impugned order. 9. Impugned order is dated February 5, 2026. Application for certified copy was made on February 20, 2026. Certified copy of the impugned order was issued on May 21, 2026. Appeal was filed on May 22, 2026. 10. Delay in issuance of certified copy of the impugned order cannot be foisted on the appellant. Considering the causes shown in the application and in the interest of justice, we deem it appropriate to condone the delay in making and filing the appeal. 11. IA NO:CAN/1/2026 is disposed of. In Re: AO-COM/27/2026 12. The appeal is taken up for hearing on merits. 13. We find from the records that, the disputes and differences between the parties were referred to arbitration. Learned Arbitrator passed an award dated July 27, 2018. Appellant filed a petition under Section 34 of the Act of 1996 on October 9, 2018. 5 AO-COM/27/2026 14. The application under Section 34 of the Act of 1996 was dismissed for default on March 6, 2025. Explanation offered by the appellant is that, the learned advocate noted the old case number of the petition under Section 34 of the Act of 1996 while, the cause list contained new number. Consequently, the learned advocate missed the matter on March 6, 2025. 15. So far as the condonation of delay in making and filing the appeal under Order 9 Rule 4 of the Code of Civil Procedure is concerned, there is a delay of 25 days. Delay is sought to be explained on the ground that the appellant took time to authorize the filing of the petition under Order 9 Rule 4 of the Code of Civil Procedure, 1908 as well as the petition under Section 5 of the Act of 1963. 16. We remind ourselves that while considering an application for restoration as also for condonation of delay, Courts are required to be lenient. In the event, a plausible explanation is offered, the Court should accept the same. The quality of explanation is relevant and not the quantity of time consumed. At the same time, parties should 6 AO-COM/27/2026 not be allowed to render the provisions of law nugatory for filing any frivolous application for restoration or condonation of delay. 17. Applying such principles to the facts and circumstances of the present case, we find that, the appellant offered a plausible ground seeking to explain his absence on March 6, 2025 when the petition under Section 34 of the Act of 1996 was dismissed for default. The petition under Section 5 of the Limitation Act, 1963 contains a plausible explanation also. 18. In such circumstances, we set aside the order impugned. 19. Petition under Section 34 of the Act of 1996 is restored to its original file and number. 20. Misc.Judicial Case No.03 of 2025 is allowed. 21. AO-COM 27 of 2026 is allowed and CAN/2/2026 is disposed of. (Debangsu Basak, J.) 22. I agree. (Aryak Dutt, J.) (CHC) CHINMOY CHAKRABORTY Digitally signed by CHINMOY CHAKRABORTY Date: 2026.08.27 17:55:10 +05'30'