Calcutta High Court (Appellete Side)
Amit Mines Private Limited vs Maithan Alloys Ltd. & Anr on 13 March, 2015
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Mr. Justice Subhro Kamal Mukherjee
And
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
F.A.T. No. 607 of 2014
With
C.A.N. No. 789 of 2015
With
C.A.N. 2147 of 2015
Amit Mines Private Limited
Vs.
Maithan Alloys Ltd. & Anr.
For the appellant : Mr. S.K. Kapoor,
Mr. Srijib Chakraborty,
For the plaintiff/ respondent no. 1 : Mr. Probal Mukherjee,
Mr. Suhrid Sur,
Ms. Baisali Basu,
Heard on: - March 11, 2015.
Judgment on: - March 13, 2015.
Ashis Kumar Chakraborty, J.
The application C.A.N. 2147 of 2015 has been filed by the appellant in the above appeal praying for recalling and/ or modification of the orders dated January 13, 2014, January 29, 2014 and February 12, 2015 passed by this Division Bench. The order dated January 29, 2015 was passed in the application C.A.N. 789 of 2015 filed by the respondent/plaintiff. The facts and circumstances in which the aforesaid orders were passed may be stated. The appellant/defendant filed the above appeal against the judgment and decree dated November 05, 2014 passed by the learned Civil Judge (Senior Division), Assansol, in Title Suit No. 32 of 2008 declaring that the plaintiff/respondent is entitled to get and/or refund back the excess money paid to the defendant/appellant in advance and the defendant/appellant is bound to refund the same and appointing an Accounts Commissioner in the matter of accounting the exact amount recoverable by the plaintiff/respondent from the defendant/appellant.
In the above appeal, the appellant/defendant also filed the stay application being CAN 12456 of 2014. By an order dated January 14, 2015, we entertained the appeal and in connection with the said stay application directed that the pendency of the appeal shall not prevent the Accounts Commissioner to proceed with his work and upon completion of the same, to file his report, but the learned Trial Judge shall not pass the final decree without the leave of this Court.
On January 27, 2015, the respondent/plaintiff filed the application, C.A.N. 789 of 2015, stating that on January 06, 2015 the Accounts Commissioner has filed his report before the learned Trial Judge that the respondent/plaintiff is entitled to get a sum of Rs. 5,03,61,544.90/-and prayed for a direction upon the defendant/appellant to deposit the said sum of Rs. 5,03,61,544.90/- with the Registrar General of this Court. In view of the fact that the Accounts Commissioner had already filed his report before the learned Trial Judge that the defendant/appellant was liable to pay the said sum of Rs. 5,03,61,544.90/- to the plaintiff/respondent, we passed an ad interim order dated on January 29, 2015 that if the defendant deposits, without prejudice the rights and contention of the parties, Rs. 4,00,00,000/- only with the Trial Court, the learned Trial Judge shall not pass the final decree till disposal of the said application. It was made clear that in default of the defendant to deposit the said sum of Rs. 4,00,00,000/-, the interim order of stay would stand automatically vacated and the learned Trial Judge would be free to pass the final decree. In spite of direction of filing an affidavit, the appellant has not filed its affidavit-in-opposition in the said application being CAN 789 of 2015. In the said order dated January 29, 2015 although in words the amount ascertained by the Accounts Commissioner was correctly recorded, but in the numerical the said amount was mistakenly mentioned Rs. 5,361,61,544.90/- and as such on February 12, 2015 the matter appeared before this Division Bench for correction of the said amount. When the matter was taken up for hearing the counsel appearing for the respondent/plaintiff produced a certified copy of the order no. 78 dated February 03, 2015 passed by the Trial Judge recording that by consent of the parties, the report of the Accounts Commissioner was accepted. Although the learned advocate appearing for the defendant/ appellant submitted that the appellant/defendant never gave authority to its learned advocate to give consent for acceptance on the report of the Accounts Commissioner and in fact such consent was never given. However, since the said order dated February 23, 2015 passed by the learned Trial Judge recorded the consent of the parties, in view of the pronouncement of the Supreme Court of India, in the case of Bank of Bihar vs. Mahabirlal and Ors reported in AIR 1964 SC 377, we could not interfere with the said finding of the learned Trial Judge that by consent of the parties the report of the Accounts Commissioner was accepted. It also transpired that the defendant/appellant did not deposit the said sum of Rs. 4 crore with the Trial Court. Thus, by an order dated February 12, 2015 we modified the interim orders dated January 13, 2015 and January 29, 2015 and granted liberty to the learned Trial Judge to pass the final decree on the basis of the report of the Accounts Commissioner. However, it was clarified that the said order dated February 12, 2015 would not prevent the learned Trial Judge to dispose of the application stated to have been filed by the defendant/appellant for recalling of the said order dated February 03, 2015.
It appears that the learned Trial Judge has allowed the application of the defendant/appellant and by order no. 82 dated February 19, 2015 recalled the said order dated February 03, 2015 and thereafter the defendant/petitioner has filed the instant application.
Mr. S.K. Kapoor, learned Senior Advocate appearing in support of the prayer of the defendant/appellant for modification/recalling of the said three orders urged two grounds. First, the report of the Accounts Commissioner is vitiated by various errors. Second, that in any event since the said order dated February 03, 2015 passed by the learned Trial Judge accepting the report of the Accounts Commissioner stands recalled. According to him on these two grounds all the said orders dated January 13, 2014, January 29, 2014 and February 12, 2015, should be recalled and the operation of the decree dated November 05, 2014 passed by the learned Trial Judge by stayed. So far as the prayer for stay of all proceeding before the Trial Court, Mr. Kapoor urged that the proceeding before the Trial Court is not being conducted a proper manner. Per contra, Mr. Probal Mukherjee, learned Senior Advocate appearing for the plaintiff/respondent submitted that challenging the said order dated February 16, 2015 passed by the learned Trial Judge a revisional application has already been filed before this Court and the same is pending disposal before a Hon'ble Single Judge. He further submitted that in any event only the order accepting the report of the Accounts Commissioner has been recalled but the fact remains that subsequent to the passing of the said order dated January 13, 2015 by us, the Accounts Commissioner has filed his report that a sum of Rs. 5,03,61,544.90/- is payable by the defendant/appellant to the plaintiff, and as such there is no scope for recalling of the order dated January 29, 2015. According to Mr. Mukherjee, the defendant/appellant neither challenged the said order dated January 29, 2015 before Supreme Court nor deposited the money with the Trial Judge in terms of the said order.
We have considered the submissions made on behalf of both the defendant/appellant and the respondent/plaintiff. When we passed the order in the appeal on January 13, 2015, the Accounts Commissioner had not filed any report before the learned Trial Judge.
However, subsequently, when the Accounts Commissioner filed his report before the learned Trial Judge that Rs. 5,03,61,544.90/- was payable by the defendant/appellant to the respondent/plaintiff, we passed the said order dated January 29, 2015 that if the defendant/appellant deposits, without prejudice to the rights and contention to the parties, Rs. 4,00,00,000/- (Rupees Four Crore) with the Trial Court, there would an interim order that the learned Trial Judge shall not pass the final decree. The defendant/appellant did not challenge the said order dated February 12, 2015 nor deposited Rs. 4,00,00,000/- with the Trial Court. Thus, on February 12, 2015 when the said order dated February 03, 2015 passed by the learned Trial Judge accepting the report of the Accounts Commissioner was produced before us, we modified the interim orders granted on January 13, 2015 and January 29, 2015 and granted liberty to the learned Trial Judge to pass the final decree on the basis of the report of the Accounts Commissioner. Although, the said order dated February 03, 2015 accepting the report of the Accounts Commissioner by the learned Trial Court, now stands recalled but the fact remains that the Accounts Commissioner has already filed his report before the learned Trial Court and the circumstances existing on the date of passing of the said order dated January 29, 2015 have revived. At this stage, when the report of the Accounts Commissioner is pending consideration before the learned Trial Court, we cannot deal with the contentions raised by Mr. Kapoor about any defect/error in the said report. In these circumstances, we are unable to recall the said order dated January 29, 2015. However, since the learned Trial Judge has recalled the said order dated February 03, 2015 accepting the report of the Accounts Commissioner, we recall our order dated February 12, 2015 granting liberty to the learned Trial Judge to pass the final decree on the basis of the report of the Accounts Commissioner. The time to deposit Rs. 4,00,00,000/- (Rupees four crore) by the appellant/defendant with the Trial Court is extended for a period four weeks from date. So far as the prayer for stay of all further proceeding in said Title Suit No. 32 of 2008 before the Trial Court, we could not convince ourselves to find any merit in such prayer. With the aforesaid observations the application being C.A.N. No. 2147 of 2015 stands disposed of. Since, after disposal of the application C.A.N. 2147 of 2015 by this order, nothing further remains to be decided in the plaintiff's/respondent's application being C.A.N. 789 of 2015, the same also stands disposed of without any further order.
However, there shall be no order as to costs.
[Ashis Kumar Chakraborty, J.] Subhro Kamal Mukherjee, J.
I agree.
[Subhro Kamal Mukherjee, J.]