The appellant who is the defendant before the trial

court has assailed the judgment and decree passed in

Commercial O.S.No.3/2021 dated 19.03.2021 whereby the

suit of the plaintiff came to be decreed in part with costs.

It was declared that the defendant was liable to pay a sum

of Rs.9,09,67,869/- along with interest at 18% per annum

from 31.03.2018 till the date of realization.

2.

The parties are referred to by their ranks

before the trial court for the purpose of convenience.

3

3.

The suit for recovery came to be decreed as

above stated. The admitted facts being that the defendant

was placed exparte in the proceedings before the trial

court.

4.

The plaintiff is stated to be a Company

registered under the Companies Act and the defendant is a

Partnership Firm. The defendant is stated to have been

awarded contract by Mysore Minerals Limited (now

renamed as Karnataka State Minerals Corporation Limited)

for excavation of Iron Ore at Subbarayanahalli Iron Ore

Mines. The defendant vide work order dated 09.12.2014

awarded the sub-contract of deployment of Heavy Earth

Moving Machinery on hire basis for different periods of

time in favour of the plaintiff company. It is submitted

that disputes arose relating to the said contract and for the

present purpose, no other details regarding facts would be

of relevance as the only relief sought for in the appeal is to

set aside the exparte judgment and decree while affording

an opportunity to the defendant to appear before the trial

court and file their written statement and contest the suit.

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5.

It is not in dispute that summons sent to the

defendant through RPAD was duly served and as the

defendant has remained exparte without putting any

representation, the trial court after placing the defendant

exparte has decreed the suit.

6.

The present appeal has been filed seeking for

an opportunity of re-opening of the proceedings and in the

appeal memorandum, it is submitted that reasons for the

defendant not having filed the written statement was as a

result of difficulties associated with Covid-19 Pandemic.

7.

It is submitted that the defendant was carrying

on its business at Kolhapur and in light of Second Wave

Covid-19 Pandemic, there were several travel restrictions

placed by the State of Karnataka and State of Maharashtra

on Inter-District and Inter-State travel.

8.

Reliance is placed on the judgment of the Apex

Court in the case of Prakash Corporates v. Dee Vee

Projects Limited reported in AIR 2022 SC 946 and it is

contended that in light of the observation made by the

5

Apex court, period of limitation to file the written

statement would also start from the expiry of the order

passed by the Apex Court in Suo Motu Writ Petition (C)

No.3/2020.

9.

The learned counsel for respondent however

submits that the judgment of the Apex Court was a case

wherein defendants had put in appearance and had sought

extension of time to file the written statement and

accordingly, such facts if taken note of, the judgment of

the Apex Court could be distinguished.

10.

Heard both sides.

11.

The point for consideration is as follows:

Whether

case

is

made

out

by

the

appellant/defendants to set aside the exparte judgment

and decree in light of the inconvenience arising due

Covid-19 Pandemic which would be sufficient cause for

reopening the proceedings and to permit the defendant to

participate in the trial ?

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12.

It is not in dispute that the defendant having

been served with the notice has failed to put in

appearance. Accordingly, the trial court having placed the

defendant exparte has concluded the proceedings. What

also ought to be noticed is that the suit was instituted on

30.01.2021 and the date of evidence was fixed on

08.03.2021 and the judgment was passed on 19.03.2021.

13.

It is the contention of the defendant that even

though the defendant was placed exparte, if the trial court

had deferred the proceedings till the time available under

law to file the written statement unde