Calcutta High Court
Vijendra Kumar Goel vs J. H. Industrial Corporation on 17 April, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee, Supratim Bhattacharya
OD-2 & 3 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
IA NO. GA/2/2024
In
RVWO/31/2023
WITH
APDT/2/2018
CS/58/2014
VIJENDRA KUMAR GOEL
Vs
J. H. INDUSTRIAL CORPORATION
IA NO. GA/3/2024
In
RVWO/31/2023
WITH
APDT/2/2018
CS/58/2014
In
VIJENDRA KUMAR GOEL
Vs
J. H. INDUSTRIAL CORPORATION
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
The Hon'ble JUSTICE SUPRATIM BHATTACHARYA
Date: 17th April, 2025.
APPEARANCE:
Mr. Shuvasish Sengupta, Adv.
Mr. Subrata Bhattacharya, Adv.
Mr. Balarko Sen, Adv.
Ms. Dipa Bhattacharya, Adv.
For appellant/Review Applicant
Mr. Sourojit Dasgupta, Adv.
Mr. S.G. Muskara, Adv.
For respondent
RE: GA/3/2024
GA/3/2024 is an application by the review applicant for recalling of the
order dated 18th August, 2023 by which the review application with the
application for condonation of delay in filing the review application being
GA/1/2023 were dismissed for default and restoration of the review along with
the said application for condonation of delay to its original file and number.
GA/2/2024 is an application for condonation of delay in filing the said
restoration application.
The matter has a chequered history.
The review applicant is the defendant in a suit being CS No.58 of 2014.
The review applicant suffered a decree on 7th January, 2016. Contending that
the said decree is an ex parte decree, the review applicant challenged the same
under the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'CPC'). The said application being GA/61/2017 was
dismissed by an order dated 13th April, 2017. The said order was challenged in
an appeal which was dismissed on 19th June, 2017. Challenging the said
appellate order a Special Leave Petition was filed which was dismissed on 27 th
October, 2017. After dismissal of the Special Leave Petition, the review
applicant filed a regular appeal challenging the decree dated 7 th January, 2016
with a prayer for condoning the delay in preferring the appeal. The application
for condoning the delay in preferring the appeal was numbered as GA No.237
of 2018. The said application for condonation of delay in preferring the appeal
was dismissed by a judgment and order dated 6 th December, 2018 and as such
the appeal was not taken up for consideration on merit.
The present review application is for review of the said judgment and
order dated 6th December, 2018. The review application along with the
application for condoning the delay to file the review application came up
before this Bench on 14th July, 2023 when the review applicant remained
unrepresented.
The matter was, therefore, adjourned till 18 th August, 2023 with a
direction upon the respondent to serve a notice to the review applicant. On 18 th
August, 2023, the respondent filed an affidavit of service wherefrom it appeared
that the notice in terms of the order dated 14 th July, 2023 was issued by the
respondent on 17th July, 2023 and was received by the review applicant on 19 th
July, 2023. On 18th August 2023 the review applicant remained unrepresented
and as such the review application along with the application for condonation
of delay in filing the review were dismissed for default.
The review applicant in this application for recalling of the order dated
18th August, 2023 as also in the application for condonation of delay has stated
that in connection with a criminal case under the Customs Act, 1962, the
review applicant was arrested on 17th July, 2023 and was enlarged on bail on
4th September, 2023 subject to certain conditions. The review applicant fulfilled
such conditions and is, therefore, on bail since 4 th September, 2023. The
review applicant, therefor, could not appear before the Court on 18 th August,
2023. The application being GA No.2 of 2024 and GA No.3 of 2024 have been
filed on 24th January, 2024.
The applications being GA No.2 of 2024 and GA No.3 of 2024 came up
before this Bench on 26th April, 2024. Direction for filing of affidavits were
given. The respondent/decree holder has affirmed an affidavit in GA No. 2 of
2024 which is taken on record. It is the case of the respondent-decree holder
that the delay from 4th September, 2023 till 24th January, 2024 remains
unexplained. The review applicant is now pursuing the restoration application
with an aim to stall the execution case filed by the respondent/decree holder.
After hearing the parties and considering the materials on record, we find
that the main objection raised by the respondent-decree holder is the
unexplained delay in filing the application between 4 th September, 2023 and
24th January, 2024 as also the apprehension of the execution proceedings
being stalled.
After taking note of such objection in the context of the grounds cited by
the review applicant being unable to represent himself on 18 th August, 2023
when the review application along with connected applications were dismissed,
we are satisfied that the review applicant was prevented by sufficient cause
from not appearing before this Court on 18 th August, 2023 being in custody.
Although, the explanation given for the delay in filing the application between
4th September, 2023 and 24th January, 2024 is not convincing, yet for the ends
of justice, we overrule the objection raised by the respondent-decree holder.
We, therefore, recall the order dated 18 th August, 2023 and restore the
application being GA No.1 of 2023 along with review application to its original
file.
The application being GA No.3 of 2024 is, accordingly, disposed of.
RE: GA/2/2024
The application for condonation of delay is disposed of without passing
any effective order therein as an application for recalling of the order is
governed by the provisions of Article 137 of the Limitation Act, 1963 wherein
the limitation period is three years from the date of the order sought to be
recalled.
In the instant case, the order dismissing the review application and
connected applications was passed on 18 th August, 2023. This application has
been made on 24th January, 2023 and, as such, there is no delay in filing the
application. The application for condonation of delay appears to have been
made by the review applicant either on a mis-reading of the provisions of
Article 122 of the Limitation Act, 1963 which on a plain reading appears to be
applicable in case of restoration of a suit or appeal or application for review or
revision dismissed for default or by way of abundant caution.
The application being GA No.2 of 2024 is, accordingly, disposed of.
RE: GA/1/2023
RVWO/31/2023
GA No. 1 of 2023 along with the review application being RVWO No.31 of
2023 are treated as on day's list by consent of the parties and the application
for condonation of delay is taken up for hearing on merits.
The review applicant has advanced his argument in support of the
application for condoning the delay in filing the review application, however,
due to paucity of time the arguments could not be concluded.
It is, however, made clear that unless the delay in filing the review
application is condoned, the review application does not enter the records of
the Court for being considered on merit. The recalling of the order dated 18 th
August, 2023 and taking up the application for condonation of delay in filing
the review application for hearing should not be construed in any manner as a
stay in any pending proceedings between the parties including the execution
case.
Let GA/1/2023 and RVWO/31/2023 appear in the list on 14 th May,
2025.
(ARINDAM MUKHERJEE,J)
(SUPRATIM BHATTACHARYA,J.)
Sb/
