[Cites 5, Cited by 0]
Calcutta High Court
Soumitra Sen And Ors vs Indian Oil Corporation Limited on 30 January, 2026
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-3
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
CS/151/2024
IA NO. GA/3/2025, GA/4/2025/ GA/5/2025
SOUMITRA SEN AND ORS.
VS
INDIAN OIL CORPORATION LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date- 30th January, 2026
Appearance:
Mr. Ishaan Saha,Adv.
Mr. Ashok Kumar Awasthi, Adv.
Mr. Aishwarya Kumar Awasthi, Adv.
For plaintiffs
Mr. Amit Kr. Nag, Adv.
Mr. Partha Banerjee, Adv.
For defendant
The Court:- GA/4/2025 is an application, inter alia, to recall the order
dated 6th August, 2025 and restore the application being GA/2/2025 filed in
CS/151/2024 to its original file and number.
The prayers of the application are, however, not happily worded to give a
clear picture of the reliefs claimed.
The application being GA/2/2025 is an application for condoning the
delay in filing written statement and to accept the written statement in the suit.
GA/3/2025 is an application for condoning the delay which according to
the applicant being the sole defendant in the suit is delayed by 133 days.
Although, the application is a simplicitor restoration application but the
facts appear to be very ugly. The suit appeared in the list as an undefended
suit as no written statement was filed within the time period provided in the
writ of summons served on the said defendant. No extension of time was also
applied. The defendant is a public sector undertaking which has its own legal
department with expert advisory. It, therefore, cannot be said that consequence
of non-filing of the written statement was not known to the defendant.
As an undefended suit the plaintiffs' first witness was partly examined-
in-chief in the presence of the defendant. At that stage the defendant sought
for time to take appropriate steps to file the written statement. The matter was,
therefore, adjourned. After lapse of considerable period of time the application
for condoning the delay and to accept the written statement being GA/2/ 2025
was filed.
This application being GA/2/2025 was dismissed for default on 6 th
August, 2025. The suit again appeared in the list on 10 th December, 2025
when the plaintiffs' witness was present for further examination but the matter
was adjourned till 19th December, 2025 since the defendant did not know
about the dismissal of the application being GA 2 of 2025. On 19 th December,
2025 the suit was again adjourned at the instance of the defendant till 30 th
January, 2026. The defendant moved the Vacation Bench with the restoration
application wherein direction for affidavits were given on 31 st December, 2025.
The application is appearing today. The plaintiffs have, however, not used any
affidavits.
An application for recalling of an order and restoring an application is
governed under the provisions of Article 137 of the Limitation Act, 1963
(hereinafter referred to as "the said Act") and not under Article 122 of the said
Act as Article 122 relates to restoration of suit, appeal and application for
review or revision and does not include other applications. Even if the
provisions of Section 141 of the Code of Civil Procedure, 1908 is borrowed to
apply the provisions of Article 122 of the 1963 Act in case of an application for
restoration then also in view of a specific provision under Article 137 for all
applications apart from those specified in Article 122, it is to be considered as
general provision while that under Article 137 has to be considered as a
specific provision for other applications. If the same statute provides for a
general and a specific provision the law is well settled that the specific
provision has to be adhered to. The general provision in this case will stand
eliminated. In this context we may refer to the judgment reported in 2019(5)
SCC 480 which clearly says that if a statute provides for a special provision
and a general provision then the special provision has to be adhered to.
Furthermore Limitation Act 1963 is the substantive provision while the
provisions of CPC are procedural in nature. The provisions of Article 137 will be
applicable in case of an application for recalling of an order to restore an
application other than these specified in the various provisions of 1963 Act.
The application for condonation of delay being GA/3/2025 is, therefore,
disposed of without any order as the same was not required to be filed but may
have been done as and by way of abundant caution.
With regard to the application for recalling of the order and restoration of
the application is concerned, the grounds cited for the absence of the
defendant when the application being GA/2/2025 was dismissed for default on
6th August, 2025 are not only unconvincing but far from being satisfactory.
Furthermore non-appearance of an advocate cannot also be a ground for
restoration. The application also suffers from inherent defect in affirmation.
The reason for non appearance is stated in paragraphs 12, 13, 17, 18, 19 and
20 of the application. Paragraphs 1 to 10 have been affirmed as true to the
knowledge of the deponent which is also based on information while those in
paragraphs 11 to 24 have been affirmed as submission on part of the
defendant. The application is, therefore, liable to be dismissed on that ground
alone.
However, without going into the technical intricacies and for the ends of
justice, the application being GA/2/2025 is restored to its original file and
number by recalling the order dated 6th August, 2025 subject to payment of
cost assessed at Rs.10,000/-. Out of Rs.10,000/-, Rs.5,000/- has to be paid to
High Court Legal Services Committee and the balance Rs.5,000/- to the
plaintiffs. The payment of cost has to be made by 12 th February, 2026.
Let GA/2/2025 appear in the list on 13th February, 2026 along with
C.S/151/2024.
GA/4/2025 is accordingly disposed of.
RE: GA/5/2025
This is an application to recall the order dated 10 th December, 2025 by
which the suit was directed to appear as an undefended suit for witness action
on 19th December, 2025. The defendant apart from filing this application has
also filed an application for recalling of the order dated 6 th August, 2025 by
which the application for condoning the delay in filing the written statement
was dismissed for default on 6th August, 2025. The defendant even on 10 th
December, 2025 did not take any steps to file any restoration application. On
19th December, 2025 when the suit appeared, the same was adjourned on the
prayer of the defendant by reserving the cost of adjournment to be decided at
the final hearing of the suit.
It further appears that the defendant had filed the restoration application
only on 29th December, 2025 before the Vacation Bench for being taken up on
31st December, 2025 although there was no urgency in having a restoration
application heard before the Vacation Bench when the defendant was given
ample opportunity. That apart and in any event the defendant has sufficient
time from between 10th December, 2025 till 24th December, 2025 to file the
application before this Court proceeded for Christmas Vacation. Although, the
conduct of the defendant is not appreciated but the order dated 6 th August,
2025 having been recalled by an order of even date passed in GA/4/2025, this
application has lost its force apart from having become infructuous due to
subsequent events.
This application is, therefore, disposed of without any further order.
(ARINDAM MUKHERJEE, J.)
Sb/
