O-3
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA No. GA/2/2017
(Old No. GA/3298/2017)
In
CS/166/2013
AJAY KUMAR AGARWALA
-VS-
WEST BENGAL STATE SEED CORPORATION LTD.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : January 2, 2023.
Appearance
Mr. Priyankar Saha, Adv.
Mr. Paritosh Sinha, Adv.
Mr. Joydeep Roy, Adv.
...for the petitioner
Mr. Utpal Bose, Sr. Adv.
Mr. Arijit Bhowmick, Adv.
Ms. Pooja Agarwal, Adv.
...for the respondent/plaintiff
The Court : This is an application for recall of a judgment and decree dated August 19, 2015. The decree was passed upon the suit being heard as an undefended suit.
In the present application, the judgment-debtor/defendant/applicant has tried to explain as to why nobody appeared to contest the suit on behalf of the defendant. The case that has been sought to be made out is that a learned advocate from the senior panel was initially engaged. However, apparently the learned advocate was not conversant with the practice and procedure on the Original Side of this Court. Later it transpired at the time of filing of the present application that another learned advocate had been engaged who did not take proper steps in the matter. The defendant was always under the 2 impression that its learned advocates sufficiently protected its interest. The written statement is ready. An opportunity should be given to the defendant to contest the suit.
Mr. Bose, learned senior counsel appearing for the decree- holder/plaintiff points out certain anomalies in the averments made in the present application. He has said and not without justification, that the concerned officer of the defendant kept no track of the suit at all. The plaintiff should not be made to suffer. The Court, while passing the decree, considered the merits of the case and was satisfied with the legitimacy of the plaintiff's claim. The present application should not be allowed.
I have considered the rival contentions of the parties. I agree with Mr. Bose to the extent that the concerned officer of the defendant definitely did not discharge his duties with any degree of diligence. It is not enough just to brief a lawyer and then forget about the case. The defendant is a Corporation. Presumably it has a legal cell. Even otherwise, a competent officer of the Corporation ought to have been in charge of defending the suit on behalf of the Corporation. I am not satisfied that the Corporation took proper steps for defending the suit.
However, for the ends of justice, I allow this application subject to payment of costs by the defendant to the plaintiff assessed at Rs.1 lakh to be paid within three weeks from date. Upon such payment being made, the ex parte decree shall stand recalled. If the payment is not made within the time indicated, this application shall stand dismissed.
I am told that the decree has been put in execution and pursuant to the direction of the executing Court, a sum of Rs.95,09,780/- lying to the 3 credit of the judgment-debtor with the State Bank of India, Bipin Behari Ganguly Street Branch, Gangadhar Babu Lane, Kolkata-700012, stands attached. Learned executing Court has also directed that operation of the concerned account by the judgment-debtor will not be permitted without leaving a sum of Rs.95,09,780/-. If the decree stands recalled in terms of this order, naturally the execution case cannot be proceeded with. However, the order that was passed by the executing Court on August 10, 2017, shall form part of this order in the sense that I pass a direction to similar effect. Such restraint order shall continue till the disposal of the suit, in the event the suit is again heard as a contested suit.
GA/2/2017 (Old No. GA/3298/2017) is accordingly disposed of.
(ARIJIT BANERJEE, J.) sp3