Back
2025 Supreme(Online)(KAR) 4285
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
MR JUSTICE V KAMESWAR RAO, MR JUSTICE S RACHAIAH, JJ
Anod Plasma Spray Limited – Appellant
Versus
Matcon Hicoats Pvt. Ltd., – Respondent
COMMERCIAL APPEAL NO. 91 OF 2024
Advocate Appeared:
For the Appellant :SRI.VARUN MATHUR ALONG WITH SRI.VIVEK M S., ADVOCATE
For the Respondent:SRI.THANOJ KUMAR, ADVOCATE FOR SRI.BHARGAV N., ADVOCATE
The court held that a delay of 671 days in filing an appeal against an ex-parte decree cannot be condoned due to negligence and lack of sufficient cause.
Headnote:(A) Commercial Courts Act, 2015 - Section 13(1A) - Limitation period for filing appeals - Appeal against ex-parte decree - Delay of 671 days in filing appeal not condoned due to lack of sufficient cause and negligence in pursuing the case - The court emphasized that the responsibility lies with the litigant to ensure diligent representation and timely action. (Paras 3, 7)
(B) Condonation of Delay - The court reiterated that the explanation for delay must arise within the limitation period, and subsequent events cannot justify the delay. (Paras 5, 6)
Facts of the case:
The appellant challenged an ex-parte decree passed against them in a commercial suit, claiming they were unaware of the judgment until notified by the executing court. They sought to condone the delay in filing the appeal, attributing it to their counsel's negligence.
Findings of Court:
The court found that the delay was excessive and bordering on negligence, thus dismissing the application for condonation.
Issues: The main issues were whether the delay in filing the appeal could be condoned and the responsibility of the litigant in ensuring timely representation.
Ratio Decidendi: The court ruled that the delay of 671 days could not be condoned due to the appellant's negligence and failure to provide a satisfactory explanation for the delay within the limitation period.
Result: Appeal and pending applications dismissed.
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)
This is an appeal filed by the appellant challenging the judgment and decree dated 04.10.2021 in Com.O.S.144/2019, whereby the learned LXXXIX Additional City Civil and Sessions Judge (CCH-90) has decreed the suit filed against the appellants herein, by the respondent, by stating as under:-
“The suit filed by the plaintiff is hereby decreed with costs.
The Defendant No.1 represented by Defendant No.2 is liable to pay Rs.16,74,157/- (Rupees Sixteen Lakhs Seventy Four Thousand One Hundred and Fifty Seven only) together with interest at 18% p.a., on outstanding liability of Rs.16,74,157/- from the date of invoice (28.06.2017) till the Date of realization).
The plaintiff is directed to pay deficit Court fee of Rs.23,716/- within 15 days from the date of this Order.
Draw decree accordingly.”
2. The appeal is accompanied by an application seeking condonation of delay of 671 days in filing the appeal. The reasoning given in the application/affidavit seeking condonation of delay is the following:-
4. I state that on 26.09.2022 we came to know of the Order dated 04.10.2021 passed in Com.O.S.No.144 of 2019 by the Hon’ble Court of LXXXIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU (CCH-90) only when we received the notice from the executing court at Kanpur.
5. I state that we came to know that the an adverse judgement and decree was passed against the Appellant only on 26.09.2022 when the notice from the learned Commercial Court at Kanpur Nagar in vide Misc. Case No.182 of 2022 was served on us. I state that when the said notice was served, we were shocked to notice that a judgement and decree dated 04.10.2021 was passed by the Hon’ble LXXXIX ADDL. CITY CIVIL & SESSSONS JUDGE, BENGALURU (CCH- 90) in Com (OS) No.144/2019 against the Appellant company without hearing us. I state that despite our best diligence we were unable to reach the local counsel who had taken up the matter and was unable to know what the status of the case was until we received the notice from the executing court at Kanpur, Uttar Pradesh, as the same was also not brought to our knowledge by the counsel earlier. I state that we trusted that the matter is being represented and that the progress of the case would be intimated.
6. That the instance I was apprised of the initiation of execution proceedings by the Respondent before the Commercial Court Kanpur Nagar. Subsequently, I sought legal representation from our counsel in Kanpur, who duly filed his Vakalatnama and commenced litigation proceedings in Kanpur. In the course of the said legal pursuit in Kanpur, it came to my attention that the Commercial Suit initiated by the Respondent bearing Com.O.S.No.144 of 2019, had been decreed Ex-parte.
7. I state that as soon as we came to know of the judgement and decree dated 04.10.2021 was passed by the Hon’ble LXXXIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU (CCH-90) in Com (OS) No.144/2019 we sought for certified copies of documents from the Hon’ble Court and from the said records we were shocked to notice that we were not adequately represented and the counsel had not appeared in the case to file our defense by way of written statement and had also not represented us in the subsequent hearings as well.
8. That thereafter we immediately applied for the certified copy of the Plaint in Com (OS) No.144/2019, and Upon receipt of the said certified copy, I filed a Petition under Order 9 Rule 13 of CPC for the annulment of the aforementioned Ex-parte order. Regrettably, this petition was dismissed by the Commercial Court. Following the dismissal of the said petition, the Appellant sought further Clarification through the procurement of additional certified copies of documents. Hence the present Appeal.
9. That it is further important to note herein, that I am a senior citizen aged 71-year-old having various ailments. As I was incapacitated to travel to Bengaluru, Karnataka, when the case was filed by the Respondent against Appellant c
