Calcutta High Court
Central Bank Of India & Anr vs Casyab Private Ltd on 17 May, 2010
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
APOT No. 180 of 2010
APO No.99 of 2010
G.A.No.1286 of 2010
G.A.No.297 of 2010
C.S.No.115 of 2006
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
CENTRAL BANK OF INDIA & ANR. .. Appellants
Versus
CASYAB PRIVATE LTD. .. Respondent
BEFORE:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE The Hon'ble JUSTICE HARISH TANDON Date : 17th May, 2010.
The Court : This appeal is directed against an order dated 23rd February, 2010 when court refused to pass an order for recalling of an order dated 4th September, 2009 closing the evidence of Mr. Rakesh Kashyap. It appears from the fact that after conclusion of the examination-in-chief, no one was present to cross-examine the said witness and accordingly, the court closed the evidence of the said witness.
We have also been informed by the learned Advocate for the respondent that thereafter the suit was proceeded with and, in fact, examination of another witness has already been concluded. Subsequent thereto, this application has been filed for recalling of the order dated 4th September, 2009. It is also to be noted that the witness of the defendant is now in the box, which is also not disputed, as submitted on behalf of the parties. Paragraphs-8 and 9 of the petition so filed by the petitioner for recalling of the said are reproduced hereunder:
"8. Mr. V. Raja Rao thereafter obtained a change and is representing your petitioners. As the papers pertaining to the suit was not available with 2 Mr. Rao, the said Advocate for the applicant requested the plaintiff's Advocate to forward all the documents pertining to the instant suit. The plaintiff Advocate forwarded some of the papers.
9. Thereafter the matter appeared before Hon'ble Justice Maharaj Sinha on 11.01.2010 when the applicant was represented by its Advocates. At the time of hearing, it transpired that by the order dated 4th September, 2009 the Hon'ble Justice Indira Banerjee was pleased to close the evidence of Mr. Rakesh Casyab, the witness of the plaintiff after the examination in chief of the said witness was concluded. It appears from the said order that though the erstwhile advocate of the defendants was present, however, the said Advocate did not cross examine Mr. Rakesh Casyab, despite having been given an opportunity to do so. Your petitioners were not aware of the same".
It is evident from the said averment made by the appellant herein that the matter appeared before the court on 11th January, 2010 and the applicant was represented by its Advocate at that point of time. It would be further evident from the records which has been placed before us on behalf of the respondent by Mr. Mitra, learned Senior Advocate appearing for the respondents that on 9th November, 2009 the Advocate-on-Record of the respondent by letter dated 9th November, 2009 duly informed the present Advocate-on-Record, Mr. V. Raja Rao, which was received by his office on 9th November, 2009 as would be evident from the receipt of the said letter and from the said letter it would be evident that the following documents were furnished.
a. Copy of plaint;
b. Written Statement;
c. Order and judgment of the Hon'ble Justice Indira Banerjee dated 22nd
March, 2007;
d. Order of Hon'ble Justice Pinaki Chandra Ghose and the Hon'ble
Justice Sankar Prasad Mitra dated 2nd August, 2007; 3 e. Order of Hon'ble Justice Pinaki Chandra Ghose and the Hon'ble Justice Sankar Prasad Mitra dated 6th December, 2007; f. Order of Hon'ble Justice Tarun Chatterjee and Hon'ble Justice Aftab Alam dated 14th July, 2008;
g. Vacating letter of Central Bank dated 30th May, 2009;
h. Complete Deposition of the plaintiff;
i. Order of Hon'ble Justice Indira Banerjee dated 4th September, 2009;
and
j. Valuation Statement of Talbot & Co.
From the said letter dated 9th November, 2009 it appears that the aforesaid documents were duly received Mr. V. Raja Rao, Advocate, which has also not been denied before us by the learned Advocate appearing on behalf of the appellant. It is further evident that the order passed by the court on 4th September, 2009 was also within their knowledge on 9th November, 2009. Therefore, the statement which has been made in paragraphs-8 and 9 of the application of the appellant for recalling of the said order also cannot be accepted at all.
In our considered opinion, the appellant herein have tried to suppress the material facts from this Hon'ble Court to obtain an order by not disclosing the fact that they had knowledge of the order dated 4th September, 2009 passed by this Hon'ble Court.
In these circumstances, when a party comes before a court and suppress facts from the court only to get an order, it is difficult for the court to pass any order except dismissing such application on the ground of suppression of material facts.
Hence, this application is dismissed.
The appeal is also dismissed on the above terms.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
4
Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PINAKI CHANDRA GHOSE, J.) (HARISH TANDON, J.) km