Karnataka High Court
M/S Sreenivasa Constructions vs M/S Gsg Ready Mix Concrete Pvt Ltd on 12 February, 2025
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NC: 2025:KHC:6390-DB
COMAP No. 69 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE S RACHAIAH
COMMERCIAL APPEAL NO. 69 OF 2023
BETWEEN:
M/S. SREENIVASA CONSTRUCTIONS,
NO.30/106, 11TH 'B' CROSS,
11TH MAIN, MALLESHWARAM,
BANGALORE-560 003.
REP. BY ITS PROPRIETOR MR. SREENIVAS.
PRESENT ADDRESS,
M/S. SREENIVASA CONSTRUCTIONS,
NO.30, MANJUSHA NILYA,
Digitally NEW BEL ROAD, RMV 2ND MAIN ROAD,
signed by K G BANGALORE-560 094.
RENUKAMBA REP. BY ITS PROPRIETOR MR. SREENIVAS.
Location: ...APPELLANT
High Court of
Karnataka (BY SRI.RAM MOHAN A., ADVOCATE)
AND:
M/S. GSG READY MIX CONCRETE PVT LTD.,
NO.03 AND 4, 3RD FLOOR,
1ST CROSS, SNEHANAGARA,
AMRUTHAHALLI MAIN ROAD,
BYATRAYANAPURA,
BANGALORE-560 092.
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NC: 2025:KHC:6390-DB
COMAP No. 69 of 2023
REP. BY ITS DIRECTOR,
MR.C.SONNEGOWDA.
...RESPONDENT
(NOTICE TO RESPONDENT SERVED)
THIS COMAP IS FILED UNDER SECTION 13 (1A) OF THE
COMMERCIAL COURTS ACT, 2015, PRAYING THAT THIS
HONB'LE COURT BE PLEASED TO SET ASIDE THE JUDGMENT
AND DECREE PASSED BY THE COURT OF LXXXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE COMMERCIAL COURT CCH-
88 AT BENGALURU, IN COM.O.S.NO.482/2019 ON 01/07/2022
AND TO CALL FOR RECORDS IN COM.O.S.NO.482/2019, AND
DISMISS THE SUIT COM.O.S.NO.482/2019, ETC.
IA No.1/2023 IS FILED UNDER SECTION 5 OF THE
LIMITATION ACT PRAYING TO CONDONE THE DELAY OF 146
DAYS IN FILING THIS APPEAL.
THIS APPEAL COMING ON FOR ORDERS ALONG WITH IA
NO.1/2023 AND IA NO.2/2023 THIS DAY,
THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
AND
HON'BLE MR JUSTICE S RACHAIAH
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)
This appeal has been filed challenging the judgment/
decree 01.07.2022 in Com.O.S. No.482/2019 with a delay of
146 days over and above 60 days, which is prescribed period
under Section 13(1-A) of the Commercial Courts Act, 2015.
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2. On the last date of hearing, Mr. Ram Mohan A.,
learned Advocate for the appellant had sought time to file an
additional affidavit explaining the delay. The same has been
filed. The contents thereof reads as under:-
"Additional Affidavit in support of Condonation of
Delay
I, Sreenivas managing partner M/s Sreenivas
constructions No.30, Manjusha Nilya, New BEL Road,
RMV 2nd Main Road, Bangalore -560 094 do solemnly
affirm and state on oath the following additional
affidavit in support of my application to condone the
delay of 146 days in filing the above Appeal.
My sickness during the month of July and August
2022 was so serious my family thought that I would
die. Added to that I suffered Corona, fever and loose
motion. Though I was in bed during August and
September 2022 I could not resume my normal work
because of the after effects of Corona.
My financial position became so bad I was not
able to meet my families bare minimum expenses. My
business was dull during the entire period of Corona
and I could not make any money. Added to this I had
to pay my staff's. Whether I make profit or not
payments to my staff cannot be stopped. I had to
borrow lot of money to clear payments to my staff
and to my suppliers. Since I was burdened with the
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above problems I could not meet my Advocate as I
was out of Bangalore for mobilization of funds.
To mobilize Court fee itself I was struggling.
With much difficulty I mobilized the Court fee and
immediately contacted my Advocate.
I respectfully submit it is for the above reasons
and other reasons the delay of 146 days happened. It
was not deliberate or intentional.
I respectfully pray that on the basis of this
additional affidavit and the affidavit already filed, the
delay of 146 days may kindly be condoned. If the
delay is not condoned my family and I would suffer a
lot and we may not be able to come out of the
financial strain we may have to face.
Wherefore I respectfully pray that this Hon'ble
Court on the basis of this additional affidavit allow the
accompanying application and condone the delay in
filing the appeal in the interest of justice and equity.
I state what is stated above is true to the best of
my knowledge, information and belief and this is my
name and the signatures put to this affidavit are
mine."
3. The explanation sought to be given for the delay of
146 days is that, the Managing Partner of the appellant-
Organisation was seriously sick during the month of July and
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August 2022 and the same situation continued in the month of
September as well. It is stated that, as his financial position
was bad, he was unable to bear minimum expenses and as
such, could not approach this Court.
4. We are not convinced with the aforesaid
explanation sought to be given to seek condonation of delay of
146 days.
5. The Hon'ble Supreme Court, in the case of Govt.
of Maharashtra (Water Resources Department) Rep. by
Executive Engineer -Vs.- Borse Bros. Engineers &
Contractors (P) Ltd. [(2021) 6 SCC 460], has settled the
position of law in respect of condonation of delay, more
particularly, in commercial appeals. The relevant paragraph
reads as under:
"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
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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."
6. In view of the settled position of law, since the
delay is 146 days, which is over and above 60 days is a large
period and we are not convinced with the reasoning given by
the appellant, the delay of 146 days cannot be condoned in the
facts of this case. Resultantly, the IA No.1/2023 is rejected.
Consequently, the appeal also stands dismissed.
7. In view of dismissal of the appeal, IA No.2/2023 for
stay, stands dismissed as infructuous.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
KGR*
