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2025 DIGILAW 152 (TS)

Canbank Factors Limited v. ICOMM Tele Limited

2025-03-20

B.R.MADHUSUDHAN RAO, MOUSHUMI BHATTACHARYA

body2025
JUDGMENT : Moushumi Bhattacharya, J. 1. Learned counsel appearing for the respondent Nos.2 to 4 makes a specific submission that the respondent Nos.2 to 4 have received the costs in terms of the Trial Court’s order dated 25.10.2022 in I.A.No.250 of 2021 in C.O.S.No.6 of 2017. 2. To clarify matters, I.A.No.250 of 2021 in C.O.S.No.6 of 2017 was the restoration petition filed by the appellant herein for setting aside the order of dismissal of the Suit filed by the appellant on 24.08.2021, i.e., the appellant’s Suit was dismissed on 24.08.2021 due to non-prosecution. 3. The appellant thereafter filed I.A.No.250 of 2021 in IA.SR.No.1807 of 2022 in C.O.S.No.6 of 2017 to restore the Suit at the stage of its dismissal for default on 24.08.2021. I.A.No.250 of 2021 in C.O.S.No.6 of 2017 was allowed by the Trial Court on 16.03.2022, subject to the appellant making payment of Rs.3,000/- to the respondents. 4. I.A.No.250 of 2021 in C.O.S.No.6 of 2017 was dismissed by reason of the appellant’s non-compliance. 5. The appellant thereafter filed I.A.No.640 of 2022 in I.A.S.R. No.1807 of 2022 for condonation of delay of 4 days in filing I.A.S.R. No.1807 of 2022. I.A.S.R.No.1807 of 2022 was filed to restore I.A. No.250 of 2021, as I.A.No.250 of 2021 was dismissed on account of the appellant’s failure to pay costs of Rs.3,000/-. 6. On 25.10.2022, the appellant’s I.A.No.640 of 2022 in C.O.S.No.6 of 2017 was allowed by the Trial Court and I.A.No.250 of 2021 in C.O.S.No.6 of 2017 was restored. 7. The only controversy raised before us arise out of the impugned order dated 08.01.2024, where the Trial Court has recorded that the appellant failed to pay costs of Rs.3,000/- and the order dated 16.03.2022 was not complied with. 8. Learned counsel appearing for the appellant however placed a docket order of 25.10.2022 in I.A.No.250 of 2021 in C.O.S.No.6 of 2017 which contains a specific endorsement that the costs were received, as endorsed on the docket in I.A.No.640 of 2022. Therefore, counsel contends that the records reveal a clear contradiction in terms of the appellant making payment of Rs.3,000/- to the respondents (the Trial Court does not specify the respondent number). 9. We have heard learned counsel including learned counsel appearing for the respondent Nos.2 to 4 on this issue. 10. Therefore, counsel contends that the records reveal a clear contradiction in terms of the appellant making payment of Rs.3,000/- to the respondents (the Trial Court does not specify the respondent number). 9. We have heard learned counsel including learned counsel appearing for the respondent Nos.2 to 4 on this issue. 10. Learned counsel appearing for the respondent Nos.2 to 4 does not have any submissions to make on this ground save and except contentions on the merits of the matter. 11. As recorded in the order passed by us on 17.03.2025 and 19.03.2025, the respondent Nos.1 to 3 have been admitted to CIRP. This is not disputed by learned counsel appearing for the respondent Nos.2 to 4. 12. Learned counsel appearing for the respondent Nos.2 to 4, in fact, makes a specific submission that costs of Rs.3,000/- have already been received by the respondents. 13. In view of such a submission, nothing further remains to be adjudicated on the issue which is been raised before us. 14. If the respondents have received Rs.3,000/-, the Trial Court’s recording in paragraph 8 of the impugned order is clearly erroneous. 15. We are not inclined to go to the merits of the matter. We accordingly set aside the impugned order dated 08.01.2024 and direct the Trial Court to restore C.O.S.No.6 of2017 to the list. 16. The appellant shall be at liberty to proceed with the Suit. The Trial Court shall decide the Suit along with all connected applications as expeditiously as possible and without granting adjournments to any of the parties before it. 17. C.O.M.C.A.No.18 of 2024 is accordingly allowed. All connected applications are disposed of. Interim orders, if any, shall stand vacated. There shall be no order as to costs.