Calcutta High Court
Nirmal Kanodia And Ors vs Umadevi Agarwalla And Ors on 17 February, 2025
Author: Soumen Sen
Bench: Soumen Sen
OD-3
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APOT/411/2024
WITH
CS/264/2012
IA NO: GA/1/2024
NIRMAL KANODIA AND ORS
VS
UMADEVI AGARWALLA AND ORS
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE BISWAROOP CHOWDHURY
Date : 17th February, 2025
Appearance:
Mr. Sukrit Mukherjee, Adv.
Mr. Tanuj Kakrania, Adv.
Mr. Karanjeet Sharma, Adv.
... for the appellants.
Mr. Sabyasachi Chowdhury, Sr. Adv.
Ms. Urmila Chakraborty, Adv.
Mr. Amit Meharia, Adv.
Ms. Paramita Banerjee, Adv.
Mr. Sayan Dey, Adv.
... for the respondents.
1. Apart from good grounds shown for non-maintainability of the appeal,
we are also of the view that the judgment passed by the learned Single
Judge does not call for any interference having regard to the fact that
the case sought to be made out by way of recalling of the witness was
not the case made in the original written statement.
2. The respondents are the plaintiffs in CS no. 124 of 2011. The said
plaintiffs filed this suit for a decree for Rs.6,61,50,520/- on account of
loss and damage as stated in paragraph 23 for Rs.5.51 crores and
interest of rupees 1.10 crores by reason of wrongful repudiation of the
MOU on 20th September, 2010. The cross suit was filed by the
plaintiffs being CS no. 264 of 2012 claiming money decree for
Rs.1,32,05,480/- . In the subsequent suit the present appellants were
the plaintiffs in cross suit. It was alleged that the original
Memorandum of Understanding was entered into between the plaintiff
nos. 1, 2 and 3 as the purchasers and the original defendant nos. 1
and 2 as the vendors for sale of the majority shareholding of the
original defendant nos. 1 and 2 and the proforma defendant no.3 to
the plaintiff nos. 1, 2 and 3 on the terms and conditions.
3. In the written statement filed by the appellants they disputed the sale
of the shares and contended that the shares were sold without notice
and hence they are not liable. Both the suits proceed on the aforesaid
pleadings, issues were framed. Now, it is after the conclusion of
evidence and the arguments of the respondents in respect of both the
suits that an application was filed for production of certain
documents in order to show that the defendants continue to remain
as shareholders and as such there was no sale of shares at all.
However, this was never the plea taken in the original written
statement or in the course of hearing of the suits. The application for
recalling of the witness was filed almost after 5 months after the
learned Advocate for the respondents concluded his submissions.
The learned Counsel for the appellants have submitted that there are
good reasons for allowing such prayer for effective adjudication of the
disputes between the parties, the said evidence is essential is
relevant. However, we are unable to accept the said submissions
having regard to the fact that the said issues were never raised and
the defence of the present appellants was quite different from what is
now sought to be canvassed. The appellants of the said cases want to
make out a new case apart from the aforesaid decision of the Hon'ble
Supreme Court in Salem Advocate Bar Association, T.N. v. Union
of India reported in 2003(1) SCC 49 taking note of the deletion of
Order XVIII Rule 17A by Amendment Act of 2002. It was held that
Order XVIII Rule 17A did not create any right but only clarified the
position that the party in spite of due diligence was unable to produce
the evidence earlier and thereafter the said deletion would not
disentitle production of evidence at a later stage on a party satisfying
the court that after exercise of due diligence that evidence was not
within his knowledge or could not be produced at the time the party
was leading evidence.
4. The learned Counsel has relied upon the judgment in K.K. Velusamy
v. N. Palanisamy reported in 2011(11) SCC 275 to argue that it is a
fit case for seeking clarification. In this regard we may refer to
paragraph 9 and 10 of the said decision which has clearly stated that
Order XVIII Rule 17A is an enabling provision for the court to clarify
any issue or doubt by recalling any witness either suo motu or at the
request of any party so that the Court itself can put questions and
elicit answers. In the instant case there was no need for clarification
having regard to the clear statement of the appellant that the entire
procedure adopted by the plaintiff, who are the respondents of the
appeal was without notice to them. They had never disputed the MOU
but had questioned the manner in which the shares were sold. This
would be evident from the written statement produced in course of
hearing. Moreover, the basic requirements of establishing due
diligence in respect of the documents which are now intended to be
produced has not been satisfied.
5. The Court cannot exercise the power under Order XVIII Rule 17A of
the Code of Civil Procedure unless the Court is of the view that having
regard to the nature of the dispute, the Court needs some clarification
on the evidence already adduced. It is the requirement of the Court
which can be exercised suo motu or on the basis of an application
filed by a party. The application filed by the party at a much belated
stage after the arguments in respect of both the suits insofar as the
plaintiff is concerned was concluded, was an attempt to raise certain
issues that was not originally pleaded.
6. The learned Single Judge was absolutely justified in rejecting the said
application.
7. Accordingly, the appeal being APOT No.411 of 2024 and the
connected application being IA No.GA/1/2024 stand dismissed.
8. However, there shall be no order as to costs.
(SOUMEN SEN, J.)
(BISWAROOP CHOWDHURY, J.)
S. Pal/mg
