Jammu & Kashmir High Court
Reserved On: 12.03.2026 vs M/S Thermax Ltd on 10 April, 2026
Bench: Rajnesh Oswal, Rahul Bharti
2026:JKLHC-JMU:997-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
RFA No. 53/2025
CM No. 7225/2025
Reserved on: 12.03.2026
Pronounced on:10.04.2026
Uploaded on: 10.04.2026
Whether the operative part or full judgment
is pronounced: Full judgment.
M/s HSL Enterprises, Through Its
Proprietor Namely, S. Harvinder Singh Lahri, .....Appellant(s)/Petitioner(s)
Age 57 years, S/o Late Sh. Swaran Singh,
R/o House No. 24-B, Sector 2, Lane No. 3,
Nanak Nagar Jammu.
Through: Mr. Ashish Sharma, Advocate
Vs
1. M/s Thermax Ltd., C/o Wakadewadi Sai
Chamber, 15 Mumbai Pune Road,
411003.
2. UT of Jammu and Kashmir Through Its ..... Respondent(s)
Chief Secretary, Civil Secretariat,
Jammu.
3. Economic Reconstruction Agency
(ERA),Through Its Head Office, Gandhi
Nagar, Jammu.
Through: Ms. Nazia Fazal, Advocate vice
Ms. Monika Kohli, Sr. AAG
Mr. P. D. Singh, Dy. AG
Mr. R. S. Lalotra, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
‘OSWAL-J’
1. The appellant prefers this appeal under Section 13(1-A) of the
Commercial Courts Act, 2015 against an order dated
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19.08.2025 passed by the Commercial Court of the
Additional District Judge, Jammu (for short ‘the trial court’),
in a suit bearing on File No. 434/2025 titled ‘M/s HSL
Enterprises vs. M/s Thermax Ltd.‟.
2. By way of impugned order, which literally amounts to decree,
the trial court has dismissed the appellant’s suit as being
barred by limitation by first rejecting an application for the
exclusion of time sought by the appellant under the umbrage
of Section 14 of the Limitation Act, 1963.
3. The appellant, being aggrieved of the impugned order,
challenges it on the premise that the learned trial court failed
to appreciate the factual genesis of the litigation and, thus,
fell in error of judgment.
4. Upon the respondent No.1’s purported failure to release
alleged pending payments’ claims, the appellant had initially
filed a writ petition-OWP No. 1516/2013 before the learned
writ court.
5. The respondent No. 1 had appeared to contest said writ
petition on the grounds inter alia of maintainability by
asserting that it involved a private contract and, thus, a
dispute not subject to judicial review jurisdiction.
Consequently, the appellant withdrew the writ petition by
seeking liberty to pursue a civil remedy for enforcement of its
claim and consequent recovery.
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6. Consequently, civil suit was filed promptly thereafter, but the
trial court erroneously dismissed it by wrongly concluding
that the appellant lacked due diligence or bona fides in
pursuing the writ proceedings.
7. Mr. Ashish Sharma, learned counsel appearing for the
appellant, asserts that the appellant is entitled to avail benefit
of Section 14 of the Limitation Act, 1963 so as to salvage the
maintainability of its suit. He maintains that the time spent
in prosecuting the writ petition for period ranging from 2013
to 2022 constituted a ‘prior proceeding’ pursued with due
diligence and therefore, the trial court’s finding of lack of bona
fides on the part of the appellant is contrary to the record,
and the dismissal of the suit is unsustainable in law.
8. Mr. R. S. Lalotra, appearing for the respondent No. 1, on the
other hand argues that the exploit of Section 14 of the
Limitation Act, 1963 is unavailable to a litigant who wilfully
pursues a patently non-available legal remedy. He submits
that despite the respondent No.1’s categorical objections to
the writ petition’s maintainability, the appellant continued to
pursue and prosecute the writ petition as misconceived and a
wrong remedy for years at its own risk and costs. Such a
conduct, he argues, disentitles the appellant from claiming
premium of ‘due diligence’. Consequently, the respondent No.
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1 asserts that the trial court rightly held the suit to be barred
by limitation.
9. Heard learned counsel for the parties and perused the record.
10. Before adjudicating upon merits of present appeal, it is
pertinent to observe a procedural necessity which is that with
respect to a civil suit, pleas for exclusion of time under
Section 14 of the Limitation Act. 1963 are meant and should
ideally be pleaded within the plaint itself as against time
barred appeals or applications where condonation of delay is
sought under Section 5 of the Limitation Act, 1963 by an
application to effect but there is no such provision for
‘condonation of delay’ by an application in filing of a civil suit.
Rather, the period spent bona fide in pursuing a remedy
before a legal forum lacking jurisdiction is meant to be
statutorily excluded when computing limitation period for
which a plaint is supposed to bear averments in detail.
11. In the present case scenario, the underlying dispute pertains
to execution of site-enabling works for 30 MLD Sewage
Treatment Plant at Bhagwati Nagar, Jammu. The appellant is
said to have executed these works at the instance of the
respondent No. 1 for which a part payment was released but
balance of ₹96.00 lakhs remained outstanding thereby
prompting the appellant to file writ petition-OWP No.
1516/2013-M/s HSL Enterprises vs. State of J&K & Ors.
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12. Although the Writ Court initially allowed the appellant’s writ
petition on 31.10.2013 but then said order was challenged
by the respondent No. 1 in LPA No. 06/2014.
13. On 02.02.2015, the Division Bench of this Court set aside
the initial order and remitted the matter for a fresh decision
on merits.
14. After a period of pendency, including dismissal on 27.10.2021
and subsequent restoration on 13.04.2022, the Writ Court
finally permitted the withdrawal of the writ petition on
30.05.2022, observing as follows:
“Learned counsel for the petitioner seeks withdrawal of
this writ petition on account of the submission that in
the face of objections raised by respondent Nos. 2 and 3
the adjudication of the claim of the petitioner in the writ
petition may not be an appropriate remedy and for that
present writ petition is an exercise in futility. Learned
counsel for the petitioner seeks to avail other
appropriate legal remedy for the redressal of the claim
of the petitioner. The petitioner is at liberty, dependent
upon the legal advice, to avail the legal remedy, if any
available against the respondents for the alleged money
recovery claim.
In view of the above, the instant petition is dismissed as
withdrawn.”
15. Thereafter, the appellant ventured to lay the suit on
09.07.2022 along with an application seeking condonation of
delay in terms of Section 14 of the Limitation Act, 1963 which
came to be dismissed vide impugned order dated 19.08.2025.
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16. The trial court’s finding of as to ‘lack of diligence’ is based not
on correct and aligned reading and appreciation of the facts.
The trial court has undeservingly penalized the appellant for
2021’s dismissal of its writ petition for non-prosecution,
despite its subsequent restoration. Moreover, the appellant
could not be faulted for continuing the writ proceedings after
with effect from 2016 and pursuing a remedy until a definitive
judicial determination or until seeking liberty to withdraw
same in legitimate exercise of legal recourse. Thus, said
course of action on the part of the appellant does not count
‘lack of bona fides’ under Section 14 of the Limitation Act,
1963.
17. Furthermore, the trial court failed to consider a very vital
aspect that the appellant’s writ petition had, in fact, initially
been allowed before being remitted by the Division Bench.
Subsequent dismissal for non-prosecution in 2021 was a
procedural hiatus that was formally cured by the Writ Court’s
restoration order dated 13.04.2022. Legally, once a matter is
restored, the trial court cannot ‘go behind’ that order to
comment on prior non-prosecution as evidence of lack of
diligence.
18. The appellant cannot be penalized for nine-year’s pendency of
writ petition, as pace and pendency of adjudication is beyond
a litigant’s domain and control. Had the respondent No. 1’s
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2016 raised maintainability objection been decided
expeditiously by the writ Court, the appellant would have
sought and availed available/alternative remedy at that very
stage. To deny benefit of Section 14 of the Limitation Act,
1963 in given set of circumstances now would be to punish
the appellant for this Court’s own docket load in deciding
case even on preliminary objection of maintainability.
19. Hon’ble Supreme Court of India in a case titled, ‘Madhavrao
Narayanrao Patwardhan vs. Ramakrishna Govind Bhanu
and ors.’ in 1959 SCR 564 has laid down the following
conditions, to be satisfied for invoking Section 14 of the
Limitation Act, 1963:-
“(i) Both prior and subsequent proceedings were civil
proceedings prosecuted by same party.
(ii) Prior proceedings had been prosecuted with due
diligence and in good faith.
(iii) The failure of prior proceeding was due to defect of
jurisdiction or other causes of like nature.
(iv) Prior proceeding and subsequent proceedings must
relate to same matter in issue.
(v) Both proceedings were in a court.”
20. In ‘Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi‘,
(1975) 4 SCC 628, the Hon’ble Apex Court has observed as
under:
“27. Certainly, Section 14 is wide enough to cover
periods covered by execution proceedings. After all
Section 47 itself contemplates transmigration of souls as
it were of execution petitions and suits. The
substantial identity of the subject-matter of the lis
is a pragmatic test. Moreover, the defects that willRFA No. 53/2025 Page 7 of 9
2026:JKLHC-JMU:997-DBattract the provision are not merely jurisdictional
strictly so called but others more or less
neighbours to such deficiencies. Any circumstance
legal or factual, which inhibits entertainment or
consideration by the Court of the dispute on the
merits, comes within the scope of the section and
a liberal touch must inform the interpretation of
the Limitation Act which deprives the remedy of
one who has a right [See India Electric Works
Ltd. v. James Mantosh, AIR 1971 SC 2313,]. In the
Associated Hotels case (i. e. the very lis in its earlier
round on the execution side) this Court pointed out
[Associated Hotels of India Ltd. v. R.B. Jodhu Mal
Kuthalia, AIR 1961 SC 156, 163] that the question was
one of initial jurisdiction of the Court to entertain the
proceedings. Thus in this very matter, the obstacle was
jurisdictional and the exclusionary operation of Section
14 of the Limitation Act was attracted.
(emphasis added)
21. In view of the settled legal position, we find that the appellant
is held to have satisfied the requirements of section 14 of the
Limitation Act, 1963. The expression ‘other cause of a like
nature’ is wide enough to cover the appellant’s bona fide, even
though ultimately related to a misdirected litigation before the
writ court. Given that the appellant acted with due diligence
and without any bad faith, the period consumed in writ
proceedings ought to have and must be excluded, and the
trial court’s contrary finding cannot be sustained.
22. In „Purni Devi & Anr. Vs. Babu Ram & Anr.‘, 2024 INSC
259, the Hon’ble Supreme Court of India has held as under:
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“38. We do not find the reasoning given by the learned
High Court in paragraph 9 while rejecting the plea for
exclusion of time to be sustainable. On a perusal of the
record, it is apparent that the Plaintiff has pursued the
matter bonafidely and diligently and in good faith before
what it believed to be the appropriate forum and,
therefore, such time period is bound to be excluded
when computing limitation before the Court having
competent jurisdiction. All conditions stipulated for
invocation of Section 14 of the Limitation Act are
fulfilled.”
23. Upon a careful examination of the impugned order, we find
that the trial court has paddled a hyper-technical approach
failing to appreciate the matter in its true perspective and,
thus, missing the woods for trees. Such a constructive
understanding and interpretation of Section 14 of the
Limitation Act, 1963 frustrates and fails ends of justice.
24. Consequently, the impugned order is found to be legally
unsustainable and is hereby set aside. The appeal is allowed.
The matter is remitted to the trial court for disposal of suit on
its merits in accordance with the observations made
hereinabove and the settled principles of law. The parties to
appear before the learned trial court on 24.04.2026.
25. Disposed of.
26. Record, if received in original, be sent back forthwith.
(RAHUL BHARTI) (RAJNESH OSWAL)
JUDGE JUDGE
Jammu
10.04.2026
Neha-II
Whether the order is speaking: Yes.
Whether the order is reportable: Yes
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