Karnataka High Court
Anod Plasma Spray Limited vs Matcon Hicoats Pvt Ltd on 12 February, 2025
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NC: 2025:KHC:7127-DB
COMAP No. 91 of 2024
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. 91 OF 2024
BETWEEN:
1. ANOD PLASMA SPRAY LIMITED,
103-104, UPTRON ESTATE,
PANKI INDUSTRIAL AREA,
KANPUR-208 022, UTTAR PRADESH,
REPRESENTED BY ITS
MANAGING DIRECTOR MR.R.K.TANDON.
2. MR.R.K.TANDON,
MANAGING DIRECTOR,
ANOD PLASMA SPRAY LIMITED,
103-104, UPTRON ESTATE,
Digitally PANKI INDUSTRIAL AREA,
signed by K G
KANPUR-208 022, UTTAR PRADESH.
RENUKAMBA
...APPELLANTS
Location: High
Court of (BY SRI.VARUN MATHUR ALONG WITH
Karnataka SRI.VIVEK M S., ADVOCATE)
AND:
MATCON HICOATS PVT. LTD.,
NO.6, VINAYAKA NAGAR, HEBBAL,
BENGALURU-560 024, REPRESENTED BY ITS
MANAGING DIRECTOR DR.R.GOPALAKRISHNAN.
...RESPONDENT
(BY SRI.THANOJ KUMAR, ADVOCATE FOR
SRI.BHARGAV N., ADVOCATE)
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NC: 2025:KHC:7127-DB
COMAP No. 91 of 2024
THIS COMAP IS FILED UNDER SECTION 13(1A) OF THE
COMMERCIAL COURTS ACT, 2015, PRAYING THAT THIS HONB'LE
COURT MAY BE PLEASED TO CALL FOR TRIAL COURT RECORDS IN
COM.O.S.NO.144 OF 2019 FROM LXXXIX ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-90) AND SET ASIDE THE
AFORESAID IMPUGNED JUDGEMENT AND DECREE DATED
04.10.2021 PASSED BY THE LEARNED LXXXIX ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU IN COM.O.S.NO.144 OF
2019, AND IN THE ALTERNATIVE REMAND THE MATTER BACK TO
THE LXXXIX ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-90) IN COM.O.S.NO. 144/2019 TO CONSIDER
AFRESH THE MATTER IN ACCORDANCE WITH LAW ETC.
THIS APPEAL COMING ON FOR ORDERS ALONG WITH
IA.NO.1/2024 FOR CONDONATION OF DELAY, IA.NO.4/2024 FOR
EXTENSION OF TIME AND IA NO.5/2024 FOR DEPOSIT OF TITLE
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
HON'BLE MR JUSTICE V KAMESWAR RAO
CORAM: AND
HON'BLE MR JUSTICE S RACHAIAH
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.
-3- NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 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 -4- NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 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.
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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 company due to COVID- related restrictions and therefore to ensure the vigilant representation of the case, being the -6- NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 resident at Kanpur, Uttar Pradesh we engaged a legal counsel in Kanpur, who subsequently enlisted the services of an Advocate in Bangalore. It regrettably stated that the appointed counsel in Bangalore failed to appear before t he Ld. Commercial Court during the schedule hearing of the matter which resulted in an Ex-partie decree against the Appellant / defendants and due to which we are facing grave hardship."
3. Suffice to state that, the judgment and decree is dated 04.01.2021. The case of the appellant is that the judgment and decree has come to the notice of the appellant only in the month of September 2022. It is stated, after the receipt of notice from the Commercial Court in Kanpur, on enquires, it transpired that the suit - Com.OS.14/2019 filed in Bangalore has been decreed ex-parte. Pursuant thereto, an application under Order IX Rule 13 of CPC was filed before the Trial Court in Bengaluru, as the judgment and decree was ex-
parte against the appellants herein. Suffice to state, the date of filing of the application under Order IX Rule 13 of CPC has not been disclosed. Even otherwise, the said application was rejected on 08.12.2023, whereas the appeal has been filed before this Court only on 27.03.2024, which is after the expiry -7- NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 of 60 days prescribed limitation period for filing of an appeal under the Commercial Courts Act, 2015.
4. Noting the position of law as laid down by the Hon'ble Supreme Court in Govt. of Maharashtra (Water Resources Department) Rep. by Executive Engineer -Vs.-
Borse Bros. Engineers & Contractors (P) Ltd. [(2021) 6 SCC 460] the delay cannot be condoned. The relevant paragraph of the judgment 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 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 -8- NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 be lost by the first party's inaction, negligence or laches."
(Emphasis supplied)
5. In Union Of India vs Jahangir Byramji Jeejeebhoy (D) through his legal heir [2024 SCC online SC 489], the Supreme Court after referring to various decisions on the issue of limitation, has stated as under:
24. In the aforesaid circumstances, we made it very clear that we are not going to look into the merits of the matter as long as we are not convinced that sufficient cause has been made out for condonation of such a long and inordinate delay.
25. It hardly matters whether a litigant is a private party or a State or Union of India when it comes to condoning the gross delay of more than 12 years. If the litigant chooses to approach the court long after the lapse of the time prescribed under the relevant provisions of the law, then he cannot turn around and say that no prejudice would be caused to either side by the delay being condoned. This litigation between the parties started sometime in 1981. We are in 2024. Almost 43 years have elapsed. However, till date the respondent has not been able to reap the fruits of his decree. It would be a mockery of justice if we condone the delay of 12 years and 158 days and -9- NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 once again ask the respondent to undergo the rigmarole of the legal proceedings.
26. The length of the delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.
6. We further refer to the Judgment of the Supreme Court in the case of State of Madhya Pradesh Vs. Ramkumar Choudhary Special Leave Petition (C) Diary
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NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 No. 48636 of 2024 decided on 29.11.2024], wherein the Supreme Court has in Paragraph- 7 has stated as under:
7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1st day and the 90th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing
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NC: 2025:KHC:7127-DB COMAP No. 91 of 2024 of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. (See: Ajit Singh Thakur Singh and Another v. State of Gujarat, AIR 1981 SC 733).
(Emphasis supplied)
7. In this case, no doubt the blame is sought to be put on the Advocates, who were pursuing the litigation, but at the same time a litigant cannot absolve himself from not being diligent in pursuing with the Advocates the progress of the case from time to time. No averments have been made in that regard in the affidavit. The case in hand is a commercial suit governed by Section 13(1A) of the Commercial Courts Act, 2015, wherein limitation period is clearly prescribed. The Supreme Court has laid down the circumstances under which the delay of over and above 60 days can be condoned. It is clear that, the 671 days delay of which condonation sought, is a very large period and surely bordering negligence, as such cannot be condoned. The application for condonation is dismissed. Consequently, the appeal and pending applications are dismissed.
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8. At this stage, Mr. Bhargav, the counsel appearing for the respondent makes a request that, the amount as deposited by the appellants be released to the respondent.
9. Noting the said submission, we direct release of the amount as deposited by the appellants pursuant to the order dated 28.03.2024 of this Court, after expiry of six weeks from today with accrued interest if any, in the presence of the counsel for the respondent, upon identification.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(S RACHAIAH) JUDGE KGR* List No.: 1 Sl No.: 29