Calcutta High Court
Mihijam Vanaspati Ltd. & Anr vs Shining Vyapar Pvt. Ltd. & Ors on 3 August, 2018
Author: I. P. Mukerji
Bench: I. P. Mukerji
OD-3 GA No. 939 of 2017 with CS No. 332 of 2012 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION Mihijam Vanaspati Ltd. & Anr.
Versus Shining Vyapar Pvt. Ltd. & Ors.
Before:
The Hon'ble Justice I. P. MUKERJI Date: 3rd August 2018 Appearance:
Mr. Aniruddha Mitra, Advocate Mr. Bipin Ghosh, Advocate for the plaintiffs Mrs. Manju Agarwal Advocate Mr. Biswanath Chatterjee, Advocate Ms. Swapna Choubey, Advocate Mr. Aritra Basu, Advocate for the defendants The Court: The plaintiff has made this application for the following reliefs:
"(a) The decree dated 15th December, 2014 passed by the Hon'ble Justice I. P. Mukerji in C. S. No. 332 of 2012 be recalled and/or set aside;
(b) Leave be given to the plaintiff/petitioner to file additional written statement to the counter claim filed by the defendant no.1 within a period of four weeks;
(c) Liberty be granted to the plaintiff/petitioner to disclose necessary documents in support of its defence to the counter claim of defendant no.1 within a period of four weeks;
(d) Stay of the execution proceeding being EC No.903 of 2015 filed by the defendant no.1 before this Hon'ble Court.2
(e) Interim orders in terms of prayers above;
(f) Such further order/s and/or direction/s be passed as this Hon'ble Court may deem fit and proper."
The facts are quite extra-ordinary. One does not come across a similar situation often.
In the suit the first defendant had a counter-claim. On 11th July 2014 becaue of non-compliance by the plaintiffs with an order for inspection and discovery of documents this Court struck out their defence to that counter-claim. On 11th December 2014 the plaintiffs' claim in the suit was dismissed for default on the ground of non- appearance of their learned counsel. on 15th December 2014, the counter-claim was decreed on the ground that the plaintiffs' defence had been struck off.
Thereafter the plaintiffs made an application, GA No. 886 of 2016 was to set aside the ex parte decree. On 6th December 2016 this Court ruled that as no steps were taken by the plaintiffs to set aside the order dated 11th July 2014, this Court being the Court of coordinate jurisidction could not grant them leave to defend the suit. However, the claim of the plainiffs in the suit was restored.
Thereafter the situation as on 6th December 2016 was that the suit stood for consideration with a decree already having been made in respect of the counter-claim.
The plaintiffs made an application before Mr. Justice Sen (GA No. 433 of 2017). On 27th February 2017, his Lordship set aside his order dated 11th July 2014.
Now, the plaintiffs have preferred the present application. Between 11th and 15th December 2014, the suit had been decreed. It took the plaintiffs nearly two years to obtain an order in an application made in 2016 restoring the suit but without setting aside the decree with regard to the counter-claim. Another almost three months' time was 3 taken by the plaintiffs to obtain an order from Mr. Justice Sen vacating the order dated 11th July 2014.
The cumulative effect of all this was that the paintiffs lost the right to defend the counter-claim on 11th July 2014 and acquired the right to defend it almost three years later on 27th February 2017. By that time the suit had been long decreed between 11th and 15th December 2014.
If the suit had been decreed ex parte on the ground that the defence of the defendant was struck off, what is the effect of restoration of that right to defend the suit three years after the decree is passed?
It does not fit into any one of the grounds for review of a decree under Order 47 Rule 1 of the Code of Civil Procedure. The Court did not commit any error on the face of the record. There were no new facts which were undiscovered at the trial or discovered later or any other ground connected with them. It is simply an event subsequent. I have not been addressed on that point. So this Court really does not know whether the remedy of the plaintiffs' remedy lay in an appeal or filing another proceeding based on the subsequent cause of action that their right to defend the claim had accrued again by the order of 27th February 2017. But certainly not by way of this application.
Now suppose the suit goes to trial. The claim of the plaintiffs is a negative declaration that they are not entitled to make any payment to the defendant no.1 of the amount counter-claimed. If the suit goes to trial the ex parte decree would stare on the face of the plaintiffs as res judicata preventing them from proceeding with the suit, in my prima facie opinion.
The plaintiffs are not entitled to any order on the application. Looking at the practical side of the matter the defendant no.1 had a claim of Rs.16 lakhs against the plaintiff. Further to the orders passed by the Supreme Court the plaintiffs have already paid about Rs. 10 4 lakhs. About Rs. 6 lakhs are lying deposited with the Registrar, Original Side.
Mrs. Agarwal submits that the first defendant has a further claim on account of interest.
In my opinion, this dispute between the parties is hanging fire for a very long time and ther is a possibility of settlement between the parties. It ought to be referred to mediation.
In those circumstances, I appoint Mr. Pradip Sancheti, Advocate of I. C. Sancheti & Company, Advocates as the Mediator. This matter is referred to the Secretary of the Mediation Committee of this Court to initiate the mediation process. The Mediator will be paid consolidated fees of Rs. 75,000/- in accordance with the existing rules. The learned Mediator is requested to file his report in this Court by 11th October 2018 and circulate copies thereof to the parties.
Liberty to mention or apply in the suit after receiving of the report. This application is accordingly disposed of. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) R. Bose