Judgment:
ORDER
SHEET GA No.3118 of 2012 With CS No.500 of 2002 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE In the matter of: JUGAL KISHORE SORDA Versus FLENDER LTD.BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date :
26. h February, 2013.
Appearance: Mr.Rupak Ghosh, Adv.M.Arindam Sinha, Adv.The Court: The suit instituted by the plaintiff was dismissed for default.
An application was filed for recalling of the said order dated 7th June, 2011 along with the prayer for condonation of delay.
The learned Single Judge of this Court after hearing the submission of the respective parties recalled the said order upon payment of cost of 1000 GMs to be paid by the plaintiff to the defendant.
The learned Judge recorded that in couRs.of hearing Mr.Arindam Sinha learned Counsel representing the defendant made over a copy of an order dated 16th March, 2010 showing that the defendant company had merged with Siemens LTD.on the date of recall, Siemens was not brought on record, although Siemens in for all practical purposes appeared and contested the said proceeding.
Consequent upon such disclosure being made the plaintiff has taken out an application for amendment of plaint.
The said amendment is formal in nature and has become necessary in view of the order dated 16th March, 2010 which was disclosed by the plaintiff only on 17th October, 2012.
In view thereof let there be an order in terms of prayer (a).The department is directed to carry out the order.
Leave to reverify the amended plaint within two weeks from the date.
The plaintiff is directed to serve the copy of the amended plaint upon the defendant.
Mr.Arindam Sinha learned Counsel appearing on behalf of the Siemens India LTD.submits that any consent to such order would mean participation in the proceeding and such participation may disentitle Siemens India LTD.to challenge the order passed by the learned Single Judge on 17th October, 2012 by which the suit was restored to file.
Siemens India LTD.in fact wants to prefer an appeal against the said order recalling dismissal of the suit and has filed an application being GA No.334 2013 for leave to give requisition for drawing up and completion of the order dated 17th October, 2013.
In view of the order already passed in GA No.334 of 2013 such objection is not sustainable.
In fact Siemens has not taken any steps in the suit for substitution since it is within the special knowledge of Siemens that by virtue of the order of amalgamation the assets and liabilities of Flender LTD.had devolved upon Siemens.
This order, however, will not prevent Siemens India LTD.from taking appropriate steps in accordance with law.
The plaintiff may tender the costs assessed at 1000 GMs to the learned Advocate representing Flender LTD.who is also not being instructed to represent Siemens.
It appears that the plaintiff tendered the cost on 19th November, 2012, much before the returnable date of the suit which was 13th December, 2012.
The said cost was not accepted.
It would be open for the plaintiff to re-tender the said costs to the present Advocate on Record of Siemens namely Khaitan & Co.within two weeks from date.
In the event the said cost is not accepted, in so far as the earlier direction as regards payment of costs is concerned, the same would stand recalled.
GA No.3118 of 2012 is thus disposed of.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(SOUMEN SEN, J.) SP/