- 1 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE C.M. POONACHA COMMERCIAL APPEAL NO. 62 OF 2024 BETWEEN: 1. KOTAK MAHINDRA BANK LIMITED HAVING ITS REGISTERED OFFICE AT 27BKC, C-27, G BLOCK BANDRA KURLA COMPLEX BANDRA (E), MUMBAI - 400 051 REP. BY ITS SENIOR MANAGER AND BOARD RESOLUTION HOLDER MR. MURALI M.R. ALSO AT: F1603, 16TH FLOOR AMBADEEP BUILDING 14 KASTURBA GANDHI MARG CONNAUGHT PLACE NEW DELHI - 110 001 ALSO AT: 7TH FLOOR, PLOT NO.7 SECTOR 125, NOIDA UTHAR PRADESH Digitally signed by PRABHAKAR SWETHA KRISHNAN Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 ALSO AT: NO.59, SHREE COMPLEX CHSCT CLOCK BANASHANKARI 3RD STAGE BENGALURU - 560 085 …APPELLANT (BY SRI MANOJ K., ADVOCATE FOR SRI MAHABALESHWAR CHITRIGEMATH, ADVOCATE) AND: 1. SMT. RENUKAMBA P W/O B NANJUNDAIAH AGED ABOUT 50 YEARS 2. B. NANJUNDAIAH S/O LATE BHADRAIAH AGED ABOUT 75 YEARS BOTH ARE RESIDING AT NO.509/418 NEW BEL ROAD BENGALURU - 560 054 3. CITICORP FINANCE (INDIA) LIMITED (FORMERLY KNOWN AS CITI FINANCIAL CONSUMER) FINANCE INDIA LIMITED 3 LSC PUSHP VIHAR, NEW DELHI -110 062 ALSO AT: 8TH FLOOR, FFIC C-54 AND C -55 G BLOCK, BANDRA KURLA COMPLEX BANDRA EAST, MUMBAI - 400 051 - 3 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 ALSO AT: NO.1, RAHEJA CHANCERY 133, BRIGADE ROAD BENGALURU - 560 025 ALSO AT: C/O CITICORP SERVICES INDIA PVT LTD. BRIGADE MAGNUM 4TH FLOOR B WING, AMRUTHAHALLI, NH7 INTERNATIONAL AIRPORT ROAD BENGALURU - 560 092 REPRESENTED BY ITS MANAGING DIRECTOR …RESPONDENTS (BY SRI NARASIMHAGOWDA S.N., ADVOCATE FOR C/R-1 & 2) THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13 (1-A) OF THE COMMERCIAL COURTS ACT, 2015 PRAYING TO SET ASIDE THE JUDGMENT DATED 14/07/2023 PASSED BY HON'BLE LXXXVI ADDL. CITY CIVIL & SESSIONS JUDGE AT BENGALURU (CCH-87) IN COM.A.S.NO.157/2019 & ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE) 1. The appellant has filed the present application―I.A.No.1/2024 seeking condonation of delay of 156 days in filing the above captioned appeal. 2. The affidavit accompanying the application does not set out any reasons for explaining the delay. It merely states that the appellant has a good case on merits and therefore, the delay may be condoned. 3. In absence of any explanation whatsoever, this Court is unable to accept that the appellant was prevented by sufficient cause from filing the appeal. 4. Notwithstanding the above, we examine the merits of the present appeal. - 5 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 5. The above captioned appeal is filed under Section 13(1A) of the Commercial Courts Act, 2015 [CC Act], impugning an order dated 14.07.2023 passed by the learned Commercial Court in Com.A.S.No.157/2019. The respondents had filed the said application to set aside the arbitral award dated 25.09.2019. 6. The learned Commercial Court had noted that in terms of Arbitration Clause 10.7(h) of the agreement dated 29.01.2009, the sole arbitrator was to be appointed by the lender (the appellant). The appellant had unilaterally appointed an arbitrator who conducted the arbitral proceedings. The Learned Commercial Court found that the arbitral proceedings were vitiated as the unilateral appointment was not permissible in view of the decision of the Supreme Court in Perkins Eastmen Architects DPC v. HSCC India Limited (2020) SCC 760 and in TRF Limited v. Energo Engineering Projects Limited (2017) 8 SCC 377. 7. It is the appellant's case that since the respondents have not raised any objection at the material time, they are precluded from raising the same under Section 34 of A&C Act. The appellant relies on Section 4 of the A&C Act, which reads as under: - 6 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 "4. Waiver of right to object.—A party who knows that— (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object." 8. It is well settled that Section 4 of the A&C Act is not applicable if the arbitrator is ineligible under Section 12(5) of the A&C Act. The proviso to Section 12(5) expressly provides that the right under Section 12(5) may be waived. However, the same can be waived only subsequent to the disputes having arisen between the parties, by an express agreement in writing. It is clearly an exception to the provisions of Section 4 of the A&C Act. 9. The issue involved is no longer res integra in view of the authoritative decision of the Supreme Court in Bhadra International (India) Private Limited and others v. Airports Authority of India (2026) INSC 6. - 7 - HC-KAR NC: 2026:KHC:1607-DB COMAP No. 62 of 2024 10. The appeal is accordingly dismissed both on account of the delay as well as on merits. 11. Pending application stands disposed of. Sd/- (VIBHU BAKHRU) CHIEF JUSTICE Sd/- (C.M. POONACHA) JUDGE KPS List No.: 2 Sl No.: 6