Manjula W/O. Pundalik Jorapur vs Shri. Basavaraj S/O. Shivaji ...
2022 Latest Caselaw 944 Kant

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 20TH DAY OF JANUARY 2022

                         PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                             AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

           COMMERCIAL APPEAL NO.100023/2021

BETWEEN:

SMT. MANJULA W/O. PUNDALIK JORAPUR,
AGED ABOUT 56 YEARS,
OCC. BUSINESS, R/O.RAGHAVENDRA NIVAS,
NEAR ISHWAR RESORT, OPP. GRBC, LAXMI
EXTENSION, GOKAK, TQ. GOKAK 590001,
BELAGAVI DISTRICT.                         ...APPELLANT

(BY SRI.H.R.GUNDAPPA, ADV.)

AND:

BASAVARAJ S/O. SHIVAJI MENASI,
AGE: 40 YEARS, OCC. BUSINESS,
R/O. K.C.NAGAR, II CROSS,
BAILHONGAL, TQ, BAILHONGAL,
BELAGAVI DISTRICT.                      ...RESPONDENTS

(BY SRI.S.S.BALLOLI, ADV.)

      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1) OF THE COMMERCIAL COURTS ACT, 2015 PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
COMMERCIAL COURT AND THE PRINCIPAL DISTRICT JUDGE,
BELAGAVI AT BELAGAVI, IN COM.O.S. NO.9/2021 DATED
06.09.2021 AND ETC.
                              2



     THIS COMMERCIAL APPEAL COMING ON FOR ORDERS,
THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

This appeal is filed challenging the judgment and

decree passed in Commercial O.S. No.9/2021 in terms of

judgment and decree dated 09.09.2021, wherein the

Commercial Court has decreed the suit for recovery of

money directing the defendant to pay Rs.35,76,666.00

along with interest at the rate of 8% per annum.

2. The defendant has filed this appeal on the

premise that the suit summons was not served upon her

and as such, she could not appear before the Court on the

date fixed for her appearance. It is also urged by the

appellant that because of COVID-19 related restrictions,

she could not appear before the Court. This Court is of the

opinion that the grievance relating to sufficiency of service

of notice to the defendant can be agitated in an enquiry

under petition filed under Order 9 Rule 13 of Code of Civil

Procedure.

3. The learned counsel for the appellant would

submit that he would withdraw the appeal and would seek

liberty to approach the Commercial Court to move an

application under Order 9 Rule 13 of the Code of Civil

Procedure.

Placing the submissions of the learned counsel for

the appellant on record, the appellant is permitted to

withdraw the appeal with liberty to approach the

Commercial Court to file an application under Order 9 Rule

13 of the Code of Civil Procedure. If such application is

filed, the Commercial Court shall consider the application

on merit and pass appropriate orders in accordance with

law.

Registry is directed to refund the admissible Court

fee to the appellant, as provided under Section 66 (2) (c)

of KCF and SV Act.

Sd/-

JUDGE

Sd/-

JUDGE Rsh