- 1 - 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, NEW BEL ROAD, RMV 2ND MAIN ROAD, BANGALORE-560 094. REP. BY ITS PROPRIETOR MR. SREENIVAS. …APPELLANT (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. Digitally signed by K G RENUKAMBA Location: High Court of Karnataka - 2 - 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. - 3 - NC: 2025:KHC:6390-DB COMAP No. 69 of 2023 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 - 4 - NC: 2025:KHC:6390-DB COMAP No. 69 of 2023 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 - 5 - NC: 2025:KHC:6390-DB COMAP No. 69 of 2023 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 - 6 - NC: 2025:KHC:6390-DB COMAP No. 69 of 2023 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* List No.: 1 Sl No.: 27