ORDER
The suit of the plaintiffs is decreed with cost.
The defendant is hereby directed to pay
decreetal amount of Rs.7,11,133/-- with
interest at the rate of 18% from January 2020
till it's realization."
2. The appeal is accompanied by an application
seeking condonation of delay of 434 days in filing the appeal.
2. I submit that in order to avoid the repetition of
facts the grounds urged in my appeal may
kindly be read as part and parcel of this
affidavit.
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3. I state that the above appeal is filed by me
challenging the judgment and decree dated
28.11.2022 passed by the Learned Judge
Principal Senior Civil Judge, Mangalore before
the Hon'ble Trial Court under Com. OS. No.
465/2022 in decreeing the suit in favour of the
Respondent herein. The judgment passed by
the Commercial Court is wholly illegal and not
sustainable for the various grounds urged in
the memorandum of first appeal.
4. I further submit that I was undergoing personal
and business hardships during and after the
COVID 19 pandemic. I was also not aware of
the limitation aspects in filing the appeal. All
these problems jointly contributed to delay.
5. The delay in filing the appeal is neither
intentional nor deliberate but for the bona fide
reasons stated above. If the delay of filing this
appeal is not condoned, I will be put to great
hardship and loss. Therefore the delay in filing
the appeal may kindly be condoned.
Wherefore it is most humbly and respectfully
prayed before this Hon'ble Court that the above
application may kindly be allowed and the delay in
filing the appeal may kindly be condoned in the
interest of justice and equity."
3. The prescribed period of limitation being 60 days
in filing the appeal and in view of the position of law laid down
by the Hon'ble Supreme Court in the case of Govt. of
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Maharashtra (Water Resources Department) Rep. by
Executive Engineer -Vs.- Borse Bros. Engineers &
Contractors (P) Ltd. [(2021) 6 SCC 460] wherein in
paragraph No.63, the Supreme Court has stated as under; the
delay cannot be condoned.
"63. Given the aforesaid and the object of speedy
disposal sought to be achieved both under the
Arbitration Act and the Commercial Courts Act, for
appeals filed under Section 37 of the Arbitration Act that
are governed by Articles 116 and 117 of the Limitation
Act or Section 13(1-A) of the Commercial Courts Act, a
delay beyond 90 days, 30 days or 60 days, respectively,
is to be condoned by way of exception and not by way
of rule. In a fit case in which a party has otherwise
acted bona fide and not in a negligent manner, a short
delay beyond such period can, in the discretion of the
court, be condoned, always bearing in mind that the
other side of the picture is that the opposite party may
have acquired both in equity and justice, what may now
be lost by the first party's inaction, negligence or
laches."
4. The delay of 434 days is a large delay and not a
small delay and also the only reasoning given by the appellant
as can be seen from the above is in view of hardship faced by
the appellant because of covid complications, the appellant
could not approach this Court would not be a sustainable
NC: 2025:KHC:6031-DB
ground in view of the law laid down by the Hon'ble Supreme
Court in the aforesaid judgment.
5. Accordingly, we are of the view, condonation of
delay sought for 434 days cannot be allowed. The application
I.A No.1/2024 is dismissed and consequently, the appeal and
also the application for stay are dismissed.
6. It is noted that the appellant had deposited an
amount of Rs.3,60,054/- in this Court. The counsel for the
appellant states the said amount need to be released in
favour of the respondent herein.
7. In view of the above submission of the counsel for
appellant, the amount of Rs.3,60,054/- with accrued interest,
if any, shall be released in favour of the respondent herein in
the presence of the counsel upon proper identification.
The appeal is dismissed.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
