Calcutta High Court
Limited vs Angelo Brothers Limited (In on 15 November, 2017
Author: Soumen Sen
Bench: Sambuddha Chakrabarti, Soumen Sen
APO No.361 of 2017
ACO No.81 of 2017
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
BENNETT COLEMAN & COMPANY
LIMITED
-Versus-
ANGELO BROTHERS LIMITED (IN
LIQN.) & ANR.
Appearance:
Mr. Joydeep Kar, Sr. Adv.
Mr. Nirmalya Dasgupta, Adv.
Mr. S. Nigam, Adv.
Mr. Arya Chatterjee, Adv.
...for the appellant.
Mr. Deepak Khosla, Adv.
Ms. Fatema Nissa, Adv.
Ms. Mahanaz Parveen, Adv.
...for the respondent no. 2.
Mr. S. C. Prasad, Adv.
...for the O/L. BEFORE:
The Hon'ble Justice DR. SAMBUDDHA CHAKRABARTI, And The Hon'ble Justice SOUMEN SEN Date: 15th November, 2017.
The Court : This appeal along with the application was assigned to us by the then Hon'ble Acting Chief Justice.
On November 14, 2017 when this matter appeared before us under the heading "To be mentioned" Mr. Khosla, 2 learned Advocate for the respondent no. 2 took a 'preliminary objection' to the composition of this Bench as one of us (Soumen Sen, J), in a similar matter, had taken a view which would hamper "in presenting effective arguments" on such issue "which is certain to come up in the present APO also and which is intended to be raised by the Respondent no.2 company in order to seek the dismissal of the appeal in limine". The other reservation was that Justice Sen had before elevation been frequently briefed by the same firm of solicitors as an Advocate and he had appeared in a matter relating to Turner Morrison Ltd. which claims to be the parent holding company of Angelo Brothers Ltd. The aide memoire dated 14th November, 2017 where such objections have been raised on an order passed in C.S.No.29 of 2004 (Calcutta Stock Exchange Ltd. vs. Turner Morrison Ltd.) dated March 8, 2011 has been disclosed to show participation of Justice Sen as an Advocate in such proceeding.
After hearing Mr. Khosla for sometime on the issue we thought he would not press such objection and rather would address us on merits and accordingly with the consent of the parties, we directed the appeal itself to be taken up for hearing. Learned Advocates for both the 3 parties consented to that and the appeal was taken up. Mr. Kar, learned Senior Counsel for the appellant made and concluded his submission.
Today i.e. November 15, 2017 was fixed for further hearing of the appeal although the matter had inadvertently published in the list under the heading "To be mentioned". At the very outset we clarified that the appeal would be taken up for hearing itself.
In course of hearing Mr. Khosla has produced in Court a written notes of submission containing his argument, counter-argument and various documents. It appears that Annexure - I to the said compilation of documents is the aide memoire of November 14, 2017. In paragraph 9 (at p.14 of the compilation) it has been specifically mentioned that the relevance of mentioning the name of the solicitors is that the Counsel for the respondent no. 2 had been given to understand and which he thoroughly believes to be true that Hon'ble Justice Soumen Sen before His Lordship's elevation to the Bench was briefed quite frequently by the same firm of solicitors and also acted in a manner relating to Turner Morrison Limited which claims to be the holding company of the respondent company. The next paragraph i.e. paragraph 10 refers to an 4 order passed by this Court on March 8, 2011 in CS No. 29 of 2004 which showed Mr. Sen appearing as an Advocate in those proceedings prior to His Lordship's elevation to the Bench.
The written submission contained in pages 1 to 12 which form part of the compilations handed over to Court at the beginning of the hearing, however, does not contain any such reservation and when we started hearing the matter, we thought that the preliminary objections raised at the initial stage of the argument yesterday have been abandoned and Mr. Khosla wants to argue the matter on merits. However, surprisingly in Annexure-1 to the written submission, aide memoire dated 14th November, 2017 is annexed which contains the same preliminary objections. This, however, was not expected having regard to the fact that Mr. Kar has concluded his submission and Mr. Khosla, in fact, had started addressing us on merits on the previous day. While going through the notes we noticed the said annexure. We put a pointed question to Mr. Khosla as to whether he would continue to maintain his preliminary objection with regard to the composition of this Bench or he wants to a decision on merits of the matter.
Mr. Khosla wanted to clarify the position saying that he had merely retained it in the written notes but has 5 not drawn our attention to the same today which we consider to be all the more inappropriate inasmuch as it could have very easily escaped our attention. Mr. Khosla has also produced the order dated March 8, 2011 passed by a learned Single Judge of this Court in CS No.29 of 2004.
Mr. Khosla, explained that since Justice Sen had asked Mr. Khosla to produce the order he had done it and it could not be done without the context. Paragraph 18 of the aide memoire forming Annexure -I to the written submission refers to the preliminary objections what Mr. Khosla argued yesterday and which we thought had been abandoned yesterday. We had discussed amongst ourselves and decided to recuse from the case as the involvement of one of us has been repeatedly brought to the fore. We were a little surprised that after the hearing of the appeal had started yesterday Mr. Khosla would produce the written notes of submission retaining the aide memoire.
The raising of the preliminary objections at this final stage was not only inappropriate but uncalled for having regard to the fact that Mr. Khosla had addressed us yesterday on merits and today almost for an hour. We feel that insistence for inclusion of the said paragraphs or to keep the said aide memoire dated 14th November, 2017 on 6 record is for some other purpose and we record our strong dislike and discontent in the manner in which Mr. Khosla has proceeded in this matter. We were of the firm opinion that the insistence was to have recusal of one of us (Soumen Sen, J.) from the Bench on filmsy ground as the nature of the proceedings of which Mr. Khosla has referred to and relied upon cannot have any bearing on the issues involved in this appeal.
The reasons for our decision to recuse ourselves from the case was that once any doubt is entertained by a Counsel about the presence even one of us on the Bench, it is best that that Bench should not hear the matter lest it may give a wrong impression to the litigants and the world at large. It is immaterial whether Justice Sen had appeared in any matter in which Turner Morrison was a party or whether the issue involved in ACR no.5 of 2007 is also an issue likely to come up in this appeal as apprehended, although we are of the firm opinion that these preliminary objections are baseless and raised with oblique motive. In Turner Morrison (supra) Justice Sen had appeared against Turner Morrison inasmuch as the issue in ACR NO.5 of 2007 is different from the issue to be decided in this appeal. 7
When we were in the midst of the order Mr. Khosla expressed apology and he said that paragraph 9 and 10 might be ignored but not paragraphs 11 to 18 which he decided to rely on.
When we dictated upto this part of the order, Mr. Khosla submitted that he has agreed to give a go-bye to paragraphs 9 to 18 of the aide memoire. He said that he has confidence in both of us while dispensing justice. He further agreed not to press paragraph 9 to 18 without prejudice to his right to adjudicate the said issue before a superior Court in case he loses here. He explained it saying that in case the order which we would pass goes against him, he is going to be deprived of a point of law before the superior forum.
Even if Mr. Khosla has expressed his confidence in us, we have reasons to believe that this is not a submission without reservation. A learned Judge in connection with a matter may take certain view. In a similar matter when it comes before him, the learned Advocate may always try to persuade him to take a different view. If he is persuaded, the matter may still be referred to a larger Bench and moreover Justice Sen had passed the 8 order sitting singly and this matter is being heard before the Division Bench.
Both of us in our fairly long tenure at the bar or on the Bench never had come across a situation where recusal is sought for of a Judge or one of the Judges forming the Bench on the ground that the concerned Judge in a matter had taken a view and hence the learned Judge should recuse himself from the subsequent matter although in the instant case nothing of that sort has actually happened but still such insinuations have been made against one of us. We fail to appreciate how the orders of which reference has been made in the note would hamper in making effective argument by Mr. Khosla.
No matter if any verbal confidence in us is expressed by the learned Counsel, after the learned Counsel for a party puts it on record and and then subsequently only in a qualified manner submits not to press it, it would not be just and proper for us to proceed with the hearing of the appeal after it has been put on record and placed before us that the respondent would be hampered in presenting effective arguments. Mr. Kar has repeatedly submitted that he does not wish this Bench to recuse from the hearing of the appeal as he might lose the valuable 9 time, But in view of what have been recorded above we are not inclined to hear the appeal.
For the reasons aforesaid, we consider that we should not hear this appeal and the connected application. We recuse ourselves from taking up the appeal and the connected application being APO No.361 of 2017 and ACO No.81 of 2017.
We direct the office to place the matter before the Hon'ble Acting Chief Justice for appropriate order.
(DR. SAMBUDDHA CHAKRABARTI, J.) (SOUMEN SEN, J.) A/s.