Judgment:
1 ORDER
SHEET APO No.80 of 2014 AP No.483 of 2010 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE NIRANJAN LAL TODI Versus NANDLAL TODI & ORS BEFORE: The Hon'ble JUSTICE BANERJEE The Hon'ble JUSTICE ASIM KUMAR MONDAL Date : 24th March, 2014.
Appearance: Mr.Jay Saha, Ms.Rakhi Shroff and Ms.Debjani Ghosal, ld.
Advocates For the appellant.
Mr.Reetobroto Mitra, Mr.Manik Das and Mr.Rudrajit Sarkar, ld.
Advocates for respondent no.1 Mr.Samit Talukdar, Sr.Advocate with Mr.Ranjan Bachawat,Mr.Shaunak Mitra And Mr.Vivek Jhunjhunwala, ld.
Advocates For the respondent nos.2 and 3.
The Court :- This appeal would show how lackadaisical a litigant could be.
On August 25, 2010 the appellant filed an application under sections 14 and 15 of the Arbitration and Conciliation Act, 1996, inter-alia, asking for revocation of the authority of the Arbitrator.
According to the appellant, the Arbitrator did not hold any sitting in fiRs.six months and thereafter held only three sittings in two and half years time.
He passed interim award in the absence of the appellant.
Mr.Talukdar, appearing for the respondent, would strenuously object to such submission of Mr.Saha.
According to Mr.Talukdar, the Arbitrator was helpless as the appellant was absconding.
On a query made by this Court, we have come to know, the appellant does not carry on any business in India.
He had two finance companies that went in liquidation; misfeasance proceedings are pending against him.
He is now residing at Dubai.
Mr.Dipayan Chowdhury was his Advocate-on-Record.
The appellant obtained change from Mr.Chowdhury on March 18, 2011 and engaged Ms.Debjani Ghosal, learned Advocate.
The learned Single Judge dismissed the application on January 05, 2012 as neither the appellant nor his Counsel or Advocate-on-Record was present in Court when the same was called on for hearing.
The appellant filed an application for restoration on August 8, 2013.
The learned Judge rightly set out paragraphs 7,8 and 9 that would speak of the so-called inability of the appellant-petitioner in appearing before the learned Single Judge when it was called and dismissed.
From the paragraphs quoted in the judgment and order impugned, we come to know, on July 18, 2013 the appellant told his Delhi based son to enquire about the order.
Initially, Ms.Ghosal always assured him, the matter would be looked into.
His son rushed to Kolkata and came to know, it was dismissed.
To support such contention, the appellant produced the enquiry Coincidentally, the slip Apex dated Court August dismissed 1, one 2013.
of his applications in connection with a collateral proceeding on July 31, 2013.
Mr.Saha, learned Counsel appearing for the appellant, while elaborating his submission would inform us, the appellant did have various family property and/or business along with his other brotheRs.Initially, he filed a comprehensive suit for partition, one of his brothers applied for stay of the suit on the ground of pendency of the arbitration.
The same learned Judge stayed the hearing of the suit that gave rise to a Special Leave Petition at the instance of the appellant that got dismissed on the day mentioned above.
The learned Judge observed, the appellant was hoping to get desired relief from the Apex Court, once he was unsuccessful he rushed to Calcutta High Court for activating his application for removal.
His Lordship dismissed the application by observing, it was nothing but a deliberate act.
Mr.Talukdar, learned Senior Counsel appearing for the respondent, while opposing the appeal, would refer to the application for restoration to show, none of the grounds mentioned in the application would deserve recall of the order for dismissal for default.
According to Mr.Talukdar, on the own showing of the appellant, the learned Counsel briefed in the matter was aware of the matter being listed.
He, however, did not appear in the absence of instruction.
We do not blame Mr.Talukdar as the paragraph was not clear.
However, it would not be fair to come to a definite conclusion as to what the appellant wanted to say in the said paragraph.
The conduct of the appellant is deplorable.
We, however, wish to give them one more opportunity.
Although we are not fully impressed with the grounds, for interest of justice we allow this appeal and set aside the judgment and order dated February 28, 2014.
We allow the application for restoration and recall the order dated January 5, 2012 and restore AP No.483 of 2010 to be listed for hearing on merits before the learned Single Judge subject to His Lordship’s pre-occupation and convenience.
The appellant would pay cost of this appeal as well as the restoration application assessed at Rs.60,000/out of which the appellant would pay Rs.40,000/- to the respondent in equal share, being the respondent no.1 on one hand and the respondent Nos.2 and 3 on the other hand, and the balance sum of Rs.20,000/- to the High Court Legal Services Committee.
The order of restoration would be conditional upon payment of cost, photostat copy of the receipts must be filed in this Court within one week from date.
In default, this order would stand recalled and the appeal would stand dismissed.
(BANERJEE, J.) (ASIM KUMAR MONDAL, J.) dg/