Dismissed

Sri. a Nagaraja v. M/S Solomon David Holdings Private Limited

Karnataka HC1 Feb 2024MFA/6471/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka considered an application to condone a 246-day delay in filing a Miscellaneous First Appeal. The Court found the affidavit bald, noting no explanation for the delay between the impugned order and obtaining the certified copy in February, and the further delay from February to September after obtaining the copy. Consequently, the condonation application and the appeal we

What did the court decide?

The application for condonation of delay (I.A. No.1/2023) is rejected; the Miscellaneous First Appeal is dismissed.

Sri. a Nagaraja Vs M/S Solomon David Holdings… — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:4625 MFA No. 6471 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 6471 OF 2023 (CPC)

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BETWEEN:

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SRI. A NAGARAJA AGED ABOUT 67 YEARS, S/O LATE ANNAYAPPA, RESIDING AT OLD NO.13, NEW NO.179, NEAR SRIRAMA TEMPLE, CHALLAGATTA, YEMLUR POST, BENGALURU-560037

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…APPELLANT (BY SRI. CHANDRA MOHAN K., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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M/S. SOLOMON DAVID HOLDINGS PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT 1ST FLOOR, EMBASSY PINT, NO.150, INFANTRY ROAD, BENGALRU-560008.

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…RESPONDENT

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(BY SRI. MANEESHA KONGOVI, ADVOCATE)

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THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 14.10.2022 PASSED ON I.A.NO.1 IN MISC.NO.1054/2022 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU SCCH-5, DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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2 - NC: 2024:KHC:4625 MFA No. 6471 of 2023

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JUDGMENT

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Heard the learned counsel for the appellant and also

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the learned counsel for the respondent on I.A.No.1/2023 for condoning the delay of 246 days in filing the present appeal.

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There is a delay of 246 days in filing the present appeal. Having perused the affidavit sworn to in support of application for condonation of 246 days delay in filing the appeal, except stating that after the retirement of his advocate, he has engaged the present advocate and he verified the case papers and found already an order has been passed and advised him to challenge the said order nothing is stated regarding delay. It is also stated that after getting the opinion, the certified copy was applied on 03.02.2023. The copy was ready on the very same day and delivered the same on next day i.e., 04.02.2023. After getting the opinion, the appeal is prepared and filed. From October 2022 till he engaged new Advocate and he had no legal assistance from anybody. Under such circumstances,

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3 - NC: 2024:KHC:4625 MFA No. 6471 of 2023

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he could not pursue the remedy and hence delay may be condoned.

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The counsel appearing for the appellant also re-iterates the grounds stated in the affidavit. The counsel appearing for the respondent filed statement of objections to I.A. No.1/2023 and categorically contended in the statement of objections that the appellant has not approached the Court with clean hands and he is guilty of supressio veri and suggestio falsi and hence the appellant is not entitled for any relief as claimed. It is also contended that order was passed on 14.10.2022 and the appellant ought to have filed the appeal on or before 14.01.2023. The counsel also would submits that in the Trial Court the counsel argued the matter and after hearing both the parties only an order has been passed. The counsel also submits that the appeal was filed on 15.09.2023 and there is no any explanation with regard to non filing of appeal immediately and even after obtaining certified copies, since in the affidavit itself he has stated

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4 - NC: 2024:KHC:4625 MFA No. 6471 of 2023

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that the certified copy was obtained on the very next day itself i.e., on 04.02.2023. No explanation has been given from the month of February to September for non filing of the appeal even after having the knowledge and after obtaining certified copy. The counsel also would submits after having both, the impugned order has been passed, caveat petition was also filed, the same was also renewed in the month of January and the second caveat was also expired in the month of March and no explanation for the same. In the absence of explanation with regard to delay in filing the appeal, this Court cannot condone the delay.

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Having heard the appellant’s counsel and also the counsel appearing for the respondent, having perused the application filed under Section 5 of Limitation Act, the very affidavit filed by the appellant is very bald. No explanation from the date of passing of order till applying the certified copy. Even after obtaining the certified copy in the month of February also, not filed the appeal immediately and only stated that after retirement of Advocate, he has engaged

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the new Advocate, the same is not stated in the affidavit. When the order has been passed by giving an opportunity to both the sides, i.e., on 14.10.2022, no explanation for non filing of present appeal for a period of 11 months i.e., from 14.10.2022 to 15.09.2023. The appellant has to explain each day delay to condone the delay and also the affidavit is very bald. The counsel for respondent also brought to notice of this Court that the appeal is filed belatedly and no reasons has been assigned in the affidavit also. The appellant even having the knowledge of impugned order in the month of February also, that too he has already obtained the certified copy within one day, but no steps are taken to file the appeal and no explanation has been given with regard to the same from February to September. When such being the case, I do not find any ground to condone the delay of 246 days in filing the present appeal. Hence, the application I.A.No.1/2023 is rejected and consequently, the Miscellaneous First Appeal is also dismissed .

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NC: 2024:KHC:4625 MFA No. 6471 of 2023

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In view of dismissal of the appeal, I.As., if any

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do not survive for consideration, the same stands disposed

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of.

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Sd/JUDGE

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RHS List No.: 1 Sl No.: 23

Sri. a Nagaraja v. M/S Solomon David Holdings Private Limited

Case brief

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Sri. a Nagaraja v. M/S Solomon David Holdings Private Limited

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