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2015 DIGILAW 365 (CAL)

Maithan Alloys Limited v. Amit Mines Pvt. Ltd.

2015-04-22

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. This revisional application is directed an Order No. 82 dated 19th February, 2015 passed by the learned Civil Judge (Senior Division), 1st Court, Asansol in Title Suit No. 32 of 2008 by which an application for recalling the order dated 3rd February, 2015 is allowed. 2. Both the parties are not ad idem to the recording of the happening of events before the Trial Court and have taken a divergent views by making statements and counter statements in the application. 3. Before proceeding to deal with the core issue involved in the instant case, the salient features of facts are adumbrated herein below: 4. The plaintiff-petitioner filed a suit for appointment of the Account Commissioner for settling the accounts and passing a final decree for money in terms of the report of the Account Commissioner. The petitioner claimed to be the manufacturer of Ferro Alloys and the defendant used to supply the Manganese Ore which is used for production of the final products. The purchase order clearly stipulated the inspection by a third party on the quality of the supplied material. It is stated that advances were made on the good faith that the supplied materials are of specified quality as agreed by the parties. Subsequently it appears that the supplied goods do not confirm with the specific issue and was found to be of inferior quality which was intimated to the defendant/opposite party no.1 from time to time. Since the Goods do not contain the requisite quality and was of inferior grade, the petitioner claimed the differential amount from the opposite party no.1 as per the report of the independent analyst after appointing the Account Commissioner. The opposite party no.1 disputed the claims made in the said plaint and put a counterclaim for money which the petitioner is liable to pay under the contract. It is specifically denied that the Goods supplied to the petitioner was on inferior grade. The Trial Court decreed the suit in preliminary form on November 5, 2014 and simultaneously rejecting the counterclaim of the opposite party no.1. The Trial Court further appointed the Account Commissioner to ascertain the exact amount recoverable by the petitioner from the opposite party no.1 on the basis of the documents available on the record and directed the said Commissioner to submit the report. The Trial Court further appointed the Account Commissioner to ascertain the exact amount recoverable by the petitioner from the opposite party no.1 on the basis of the documents available on the record and directed the said Commissioner to submit the report. The Opposite Party No.1 challenged the said decree before the High Court in FAT 607 of 2014. In the said appeal, an application for stay was filed which came up before the Division Bench of this Court on January 13, 2015, which was disposed of directing the Account Commissioner to proceed with the work but restrained the Trial Judge from passing the final decree without the leave of the High Court. Admittedly, the Account Commissioner proceeded with the commission work and it appears from the record that the same was conducted ex parte as the opposite party no.1 did not appear before the Account Commissioner despite notice. 5. It is bone from the record that before the order dated 13 January, 2015, could be passed by the Division Bench of the High Court, the Account Commissioner completed the Commission Work and submitted the report before the Court bearing the date as 06.01.2015. On the date when the application for stay was taken up by the Division Bench, the Trial Court by order no. 77 dated 13th January, 2015, recorded the filing of the Commissioner's report and fixed 16.02.2015 for hearing regarding the Commissioner's report and directed the written objection to be filed, if any, in the meantime. The Commissioner in his report opined that the opposite party no.1 is liable to pay Rs. 5,0361,544.90/-. 6. The matter was mentioned before the Division Bench on 29 January, 2015 and the parties apprised the Court that the Account Commissioner have directed the opposite party no.1 to pay the aforesaid amount. The Division Bench modified the order of stay to the extent that the Trial Court shall not pass the final decree for a period of 4 weeks for the present within which the opposite party no.1 shall deposit a sum of Rs. 4 Crores with the Trial Court. In the event, the said amount is deposited within the time indicated above, the interim order shall continue till the disposal of the application. 7. 4 Crores with the Trial Court. In the event, the said amount is deposited within the time indicated above, the interim order shall continue till the disposal of the application. 7. On 3rd February, 2015, the Trial Court took up the record on the basis of a put up petition filed by the petitioner which was served on the learned Advocate of the opposite party no.1 and proceeded with an application for acceptance of the Commissioner's report. 8. In the order of the even date, the Court recorded the no objection to acceptance of the report by the learned Advocate of the opposite party no. 1 and accepted the same. The opposite party no. 1 again approached the Division Bench of this Court pointing out that there was no authority given to the learned Advocate appearing for the opposite party no.1 to give consent for acceptance of the report of the Account Commissioner and prayed for the modification of the order dated January 13, 2015, and January 29, 2015. The Division Bench declined to accept the submission of the opposite party no. 1 that there was no consent for acceptance of the report but permitted the said opposite party to approach the Trial Court with substantive application agitating the same plea. 9. Subsequently an application under Section 151 of the Code is filed by the opposite party no.1 for recalling the order dated 3rd February, 2015 alleging that no authority was given to the learned Advocate who represented the opposite party no.1 to accept the Commissioner's report with categorical observation that the authority to represent the opposite party no.1 by the said Advocate was withdrawn on 28th January, 2015. The averments made in the said application shall be dealt with in extenso later as well as the stand of the petitioner in the written objection. However, the Trial Court held that if the learned Advocate had no authority to give consent, the order based on consent cannot sustain and recalled the order dated 3rd February, 2015. The petitioner has assailed the said order in this revisional application. 10. The learned Advocate for the petitioner submits that once the order is passed on consent, the Court cannot recall the said order merely on the basis of allegation or the statement made at the bar. The petitioner has assailed the said order in this revisional application. 10. The learned Advocate for the petitioner submits that once the order is passed on consent, the Court cannot recall the said order merely on the basis of allegation or the statement made at the bar. It is further submitted that the consent was given by the said Advocate which had been recorded correctly by the Trial Court. The recording of the events by the Court should not be treated as the wrong statement of facts. It is strenuously submitted that subsequent change of opinion does not ipso facto invite the Court to recall its order without expressly recording that the statement of facts recorded in the order was, in fact, wrong. By relying the various paragraphs of an application under Section 151 of the Code, the learned Advocate for the petitioner submits that those are afterthoughts and it is unbelievable that the member of the bar shall submit something without an authority. According to the learned Advocate for the petitioner, the sequel of statements recorded in the said application are self-contradictory and the Court should not have recalled the order by which the Commissioner's report was accepted on consent of the parties. 11. To counter the aforesaid submission, the learned Advocate for the opposite party no.1 submits that the authority of the erstwhile Advocate was withdrawn on 28th January, 2015 and another Advocate was engaged to represent the said Opposite Party and, therefore, the erstwhile learned Advocate had no authority either to represent the said opposite party or to give consent for acceptance of the Commissioner's report. It is audaciously submitted that the said learned Advocate subsequently issued a letter dated 13th February, 2015 stating that though the copy of the put up petition was accepted by him but he was reluctant to appear before the Court on the date when the application for acceptance of the Commissioner's report was taken up by the Court. He further submits that the erstwhile learned Advocate in the said letter dated 13th February, 2015 in explicit terms recorded that he was called by the learned Judge to appear before him and he intimated to the Court that he had no instructions from his client to represent in the said suit. 12. He further submits that the erstwhile learned Advocate in the said letter dated 13th February, 2015 in explicit terms recorded that he was called by the learned Judge to appear before him and he intimated to the Court that he had no instructions from his client to represent in the said suit. 12. He, therefore, submits that the Trial Court accepted the statement of the erstwhile Advocate recorded in its letter dated 13th February, 2015 and recalled his order dated 3rd February, 2015 and the High Court in exercise of power conferred under Article 227 of the Constitution should not interfere with such discretionary order. Lastly he submits that no interference is called for with the impugned order and the revisional application should be dismissed. 13. The first and foremost point evolved from the respective submissions for the learned Advocate is whether the High Court should interfere with the order of the Trial Court based on the recording of the events happened before it. 14. The opposite party no.1 suffered a preliminary decree and further assailed the same before the High Court in a regular first appeal. Though the decree was passed in preliminary form on 5th November 2014 but was listed before the Division Bench on December 24, 2014 when the Division Bench found that the appeal did not contain the Requisite Court Fees and directed the opposite party no.1 to put in the Deficit Court Fees by January 6, 2015 and further directed the matter to be listed on January 7, 2015. In absence of any order of restraint, the Account Commissioner proceeded with the Commission Work and it appears from the report that the notice was sought to be served on the learned Advocate for the opposite party no.1 who declined to accept the same. The Commissioner, as it appears from the said report, sent the notice to the opposite party no.1 by registered post intimating the date of the Commission Work but on the date so fixed, there was no representation on his behalf. The Commissioner proceeded with the Commission Work and submitted the report dated 06.01.2015 before the Trial Court. When the matter appeared before the Division Bench on an application for the stay filed therein, none of the parties apprised a Division Bench that the Commissioners have already submitted the report; at least it does not appear from the order dated 13th January, 2015. When the matter appeared before the Division Bench on an application for the stay filed therein, none of the parties apprised a Division Bench that the Commissioners have already submitted the report; at least it does not appear from the order dated 13th January, 2015. Undisputedly the Court disposed of the said application directing the Accounts Commissioner to continue with the Commission Work but restrained the Trial Judge from passing the final decree without the leave of the High Court. Simultaneously the Trial Court on the said date passed an order which on meaningful reading reveals the filing of the Commissioner's report and fixed 16.02.2015 for hearing regarding the said report and invited the parties to file written objection if any. It is pertinent to record that the said order no. 77 dated 13.11.2015 passed by the Trial Court was passed in absence of the opposite party no.1. 15. Subsequently, an application was taken out by the petitioner on 27.01.2015 before the Division Bench of this Court indicating that the Commissioners have submitted the report in the Trial Court wherein the petitioner was found entitled to receive a sum of Rs. 5 Crores and odd and, therefore, the opposite party no.1 should be directed to deposit the said sum with the Registrar General of the High Court and should not continue to enjoy the blanket order of stay. The story proceeds in the said application that immediately upon receipt of the copy of the said application, the erstwhile learned Advocate, Mr. Uday Chand Mukherjee was approached on 28th January, 2015 who informed that the Account Commissioner sought to serve the notice on him which he declined and requested the Commissioner to intimate the opposite party no.1 directly. It is further alleged that the said learned Advocate did not inform the opposite party no.1 or its representative that the notice was sought to be tendered on him and he declined to accept the same. The story further proceeds that on the said date, the opposite party no. 1 appointed another Advocate, Ms. Chandana Acharya attached to the chamber of Sri Ashim Kumar Ghatak and instructed her to apply for the certified copy of the order passed subsequent to the delivery of the preliminary decree. The story further proceeds that on the said date, the opposite party no. 1 appointed another Advocate, Ms. Chandana Acharya attached to the chamber of Sri Ashim Kumar Ghatak and instructed her to apply for the certified copy of the order passed subsequent to the delivery of the preliminary decree. When the matter appeared before the Division Bench on 29th January, 2015, the Division Bench modified the order directing the opposite party no.1 to deposit a sum of Rs. 4 Crores within four weeks from date and passed an unconditional order of stay for the said period, with further direction that in the event, the deposit is made within the time indicated therein, the stay shall continue till the disposal of the application. In Paragraph 14 of an application, the opposite party no.1 asserts that the said Mr. Uday Chand Mukherjee, the erstwhile learned Advocate was again approached on 31st January, 2015 and was informed that another Advocate has been appointed and the Vokalatnama to that effect has been filed on 28th January, 2015 and further requested not to act any further on its behalf. 16. When the Trial Court on 13th January, 2015 fixed the matter on 16th February, 2015 for hearing on the Commissioner's report what prompted the petitioner to take out the put up petition on 3rd February, 2015 and moved the Court for acceptance of the Commissioner's report is a matter to be taken note of. The put up petition from its meaningful reading does not contain any ground of urgency for taking up the matter before the fixed date when the parties were hotly litigating before the Division Bench. It is a matter of great concern that the Commissioner's report were accepted on consent given by the learned Advocate of the opposite party no.1 when his authority to represent the said opposite party is alleged to be taken away on 28th January, 2015 or at least on 31st January, 2015. Precisely for such reason, this Court at the time of admission of the instant revisional application directed the service of notice upon the said Advocate and directed him to appear before this Court. Precisely for such reason, this Court at the time of admission of the instant revisional application directed the service of notice upon the said Advocate and directed him to appear before this Court. The learned Advocate on being asked said in open Court that he appeared as the learned Judge of the Trial Court wanted his appearance before him and have categorically submitted before the Court that he has no authority to represent any larger on behalf of the said opposite party. He corroborates the statements recorded in his letter dated 13th February, 2015. The Trial Court appeared to have proceeded simply on the basis that once the learned Lawyer have written a letter to his client intimating that he did not give consent on 3rd February, 2015 and did not appear when the application under Section 151 of the Code is taken out indicates foul play for which a litigant should not suffer. 17. Even without recording that consent was, in fact, given on the said date or not, the Court simply proceeded to recall the order dated 3rd February, 2015 on the basis of the letter of the Advocate who stated that no consent was given on the said date. 18. The issue before the Trial Court was whether, in fact, a consent was given by the learned Advocate or not and not an issue whether such consent was given without any authority. The erstwhile learned Advocate was bold enough to say that he never gave consent on 3rd February, 2015 which amounts to a wrong recording of the event by the learned Judge and it is a said learned Judge who can say whether the consent was, in fact, given or not. The Trial Court appears to have proceeded by drawing an adverse inference against non-appearance of the said learned Advocate as he is keeping track of the matter without directing the said Advocate to appear and disclose the facts on affidavits. 19. The Trial Court appears to have proceeded by drawing an adverse inference against non-appearance of the said learned Advocate as he is keeping track of the matter without directing the said Advocate to appear and disclose the facts on affidavits. 19. The reference can be conveniently made to a judgment of the Supreme Court in case of Bank of Bihar v. Mahabir Lal & Ors; reported in AIR 1964 SC 377 wherein the Apex Court held " Where a statement appears in the judgment of a Court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous". 20. The main issue before the Trial Court was whether the recording of the consent was correctly made or there was an erroneous recording of the said statement and not that the Lawyers subsequently stated in the letter that he had no authority to represent the said parties. The impugned order is silent on the above aspect though the Trial Court records that " it is understandable that the consent on 03.02.2015 was a fuss". If the Court is of the firm opinion that the consent of the learned Lawyer of the Opposite Party no.1 was correctly recorded than the other issue whether he had an authority to give consent would arise. In such event, it should be relevant whether there was any foul play by the learned Advocate of the said opposite party on which there should be a definite finding which is required to be recorded. 21. Since the Trial Court has not considered the relevant aspect as indicated above, this Court is unable to sustain the findings recorded in the impugned order. 22. The order impugned is thus set aside. 23. The Trial Court is directed to consider the application under Section 151 of the Code filed by the Opposite Party No. 1 afresh in the light of the observations made herein above. 24. It is expected that the Trial Court shall fix a date for hearing of the said application within a week from the date of the communication of this order and shall make efforts to dispose of the said application within a week thereafter. 25. 24. It is expected that the Trial Court shall fix a date for hearing of the said application within a week from the date of the communication of this order and shall make efforts to dispose of the said application within a week thereafter. 25. With these observations, the revisional application is disposed of. 26. However, there shall be no order as to costs. 27. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.