- 1 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE C M JOSHI COMMERCIAL APPEAL NO. 419 OF 2025 BETWEEN: M/S AEVEXIA WELLNESS PVT. LTD., A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, 1956 REGD. OFFICE ADDRESS: NO.180, STONE HOUSE, 4 'D' MAIN ROAD, MAHALAXMI LAYOUT, BENGALURU-560 086. REP. BY ITS MANAGING DIRECTOR, DR. JAYACHANDRA M. PRESENTLY RECOGNIZED REGISTERED OFFICE BEFORE THE COMPANIES AT NO.11, HMG SOLITAIRE, C.J. D'SOUZA ROAD, RICHMOND TOWER, BENGALURU-560 025. …APPELLANT (BY SRI S.RAJASHEKAR, ADVOCATE) AND: M/S. HMG ASSOCIATED CONSTRUCTION PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, 1956, HAVING ITS OFFICE AT NO.24, 'ZEENATH HOUSE', COWL BAZAAR, BELLARY-583 102. REP. BY ITS AUTHORIZED SIGNATORY MR. SUHAIL AHMED. …RESPONDENT Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 THIS COMAP IS FILED UNDER SECTION 13(1-A) OF COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 07.03.2025 PASSED IN COM.MISC.PET.NO.71/2023 ON THE FILE OF THE LXXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL COURT) (CCH-84) AT BENGALURU AND GRANT SUCH OTHER AND FURTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT AND PROPER UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE) 1. The appellant has filed the present appeal impugning an order dated 07.03.2025 [impugned order] passed by the LXXXIII Additional City Civil and Sessions Judge, Commercial Court, Bengaluru (CCH-84) [Commercial Court] in Com.Misc.No.71/2023. The learned Commercial Court had rejected the appellant's application under Order IX Rule 13 of the Code of Civil Procedure, 1908 [CPC] filed in Commercial Suit bearing Com.O.S.No.26273/2020 [the suit]. - 3 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 2. The appellant had prayed for setting aside an ex-parte judgment and decree dated 27.03.2023 [impugned judgment and decree] passed by the learned Commercial Court in the said suit. 3. The respondent [plaintiff] had filed the said suit for evicting the appellant from the property described as a commercial property comprising of a Basement, Ground, Mezzanine, First, Second and Terrace Floors of commercial building known as HMG SOLITIRE, land bearing Municipal No.11, C.J. D'Souza Road, Off Hayes Road, Richmond Town, Bengaluru - 560 025 [demised premises] as well as for arrears of rent quantified at `52,88,400/- along with interest. 4. Undisputedly, the plaintiff is the owner of the demised premises and the same were leased to the appellant in terms of the lease agreement dated 13.12.2018, which was duly registered. In terms of the said lease agreement, the appellant was required to pay a monthly rent of `5,08,500/- for the period from 01.09.2019 to 31.12.2019. Although the appellant was duly served with the summons of the suit and an advocate engaged by him had also filed his vakalatnama, the appellant failed to file any written statement or appear in the proceedings. - 4 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 5. The learned Commercial Court had examined the evidence led by the plaintiff and the material on record and decreed the suit for a sum of `52,88,400/- along with interest at the rate of 9% per annum till realization. In addition, the appellant was also held liable to pay damages at the rate of `5,33,925/- per month for the use and occupation of the property from the date of institution of the suit till handing over of the vacant possession of the demised premises. 6. The impugned judgment and decree to the extent of eviction of the appellant from the demised premises have been executed. 7. The appellant had filed the application under Order 9 Rule 13 of CPC for setting aside the ex-parte impugned judgment and decree, which came to be dismissed in terms of the impugned order. The said application was also filed after a delay of 150 days. The learned Commercial Court had enquired into the reasons for delay in filing the petition as well as the reasons for failure on the part of the appellant to defend the suit. Admittedly, the appellant had entered appearance through his counsel on 17.11.2021. However, the appellant did not file any written statement within the stipulated period of 120 days. The right to file the written statement - 5 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 was closed on 27.06.2022 and the Court had proceeded to record the evidence ex-parte. 8. It is the appellant's contention that he could not defend the suit on account of various reasons. First, he stated that he had given the instructions to his advocate to file the written statement; and second, he stated that he had been held up in the hospital due to outbreak of COVID-19. He has also stated that non-appearance was on account of wrong advice. The learned Commercial Court was not persuaded to accept that there was sufficient cause, which prevented the appellant from appearing in the said proceedings. We consider it relevant to refer to the following passages from the impugned judgment, which set out the reasons stated by the appellant for not participating in the suit proceedings and the view of the learned Commercial Court in respect to the said reasons: "23. The first contention taken in the petition to explain the non- appearance of the petitioner when the suit was called on for hearing is that, due to wrong advice and miscommunication between the petitioner and his counsel, the petitioner could not appear and file written statement and contest the suit. This contention taken in the petition is to be stated only to be rejected because when admittedly the petitioner was duly served by RPAD in the original suit as reflected in the order sheet dated 27.5.2021 and thereafter petitioner entered appearance through counsel on 17.11.2021, it was the duty of the petitioner to adequately give instructions to his counsel to file written statement and contest the suit. - 6 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 24. In this regard, in the cross-examination of PW1 at paragraph 5, when it is suggested to PW1 that he received the suit summons, he has stated that he has received it "later". He has also admitted that he entered appearance through advocate. He has further stated that he had given Instructions to his advocate to file the written statement. When it is suggested to him that thereafter neither his written statement was filed nor he appeared in the suit, he has stated that he was held up in the hospital due to COVID-19. He has also admitted that there was no impediment for him to instruct his advocate to appear in the case. 25. At paragraph 6 of cross-examination, he has stated that due to restriction of COVID-19, he could not communicate with his lawyer and he was held up in the hospital. It is to be noted that, in same paragraph, he has also admitted that there were no COVID-19-related that due restrictions in the year 2022. 26. The perusal of the order sheet discloses that although the petitioner entered appearance in November 2021, when there was some element of COVID-19 restrictions, the written statement of defendant was taken as not filed only in June 2022, that is on 27/6/2022, and by then there were absolutely no COVID-19 restrictions. It is crucial to note that In cross- examination, PW1 does not lay any blame on his Previous counsel or on any miscommunication but states that he had in fact given instructions to file statement, and there was no impediment for him to instruct his counsel to appear in the case. Therefore, the contention taken in the present petition blaming the previous counsel for wrong advice and miscommunication is purely an afterthought and clearly unacceptable. 29. Apart from COVID-19 and wrong advice and miscommunication between petitioner and his previous counsel, which reasons have already been considered and rejected supra, no other grounds are taken in the petition. Accordingly, I hold that petitioner has miserably failed to show sufficient cause for his non-appearance and contesting the suit when the suit was called on for hearing." 9. The appellant’s reasons for inordinate delay of 150 days in filing the application for setting aside the impugned judgment and - 7 - HC-KAR NC: 2025:KHC:37326-DB COMAP No. 419 of 2025 decree, was also found to be without merit. The appellant claimed that he was busy providing treatment to Dengue patients and had gone to his native place for Ganesha Festival. And, this had resulted in an inordinate delay of 150 days filing the said application. 10. We concur with the view of the learned Commercial Court. The appellant had failed to indicate sufficient cause, which prevented the appellant from defending the suit. The appellant has also failed to provide any credible explanation for the delay of 150 days in filing the application for setting aside the impugned judgment and decree. The present appeal is unmerited and accordingly dismissed. Sd/- (VIBHU BAKHRU) CHIEF JUSTICE Sd/- (C M JOSHI) JUDGE NR/- List No.: 1 Sl No.: 20