GA No. 1465 of 2011
APOT No. 218 of 2011
AP No. 236 of 2008
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
M/S. MARCONET (ACCOUNT VEGETABLE)
Versus
THE WEST BENGAL ESSENTIAL
COMMODITIES SUPPLY CORPORATION LTD.
BEFORE:
The Hon'ble JUSTICE SENGUPTA
AND
The Hon'ble JUSTICE SYAMAL KANTI CHAKRABARTI
Date: 19th May, 2011
Mr. P. K. Das, Adv. with
Mr. Raja Basu Chowdhury, Adv.
..for the appellant
Mr. Sanjay Saha, Adv. with
Mr. Subhamay Bhattacharya, Adv.
..for the respondent
Let there be an order in terms of prayer (a) of the application.
Mr. Saha Roy, learned Advocate appearing for the
respondent/award-holder does not want to file any affidavit-in-
opposition. He submits that the statement and averment made in the
application for interim relief is reproduction of the statements and
averments made in the supplementary affidavit filed before the learned
Trial Judge as regards the cause for non-filing of the application within
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the prescribed period of limitation. Before the Learned Trial Judge
statement was made on oath that the petitioner’s father was treated in
Velore. When document was asked for by the Learned Trial Judge,
supplementary affidavit was filed wherein it was stated that his father
was not treated in Velore, he was shifted to Mumbai. Now, in the stay
petition it is stated that the petitioner’s father was neither treated in
Velore nor in Mumbai and those statement before the learned Trial
Judge are now abandoned and it appears in this petition that the
petitioner’s father was treated all along in Kolkata.
We find that this kind of frequently changing stand with regard
to the explanation of delay always generates suspicion in the mind of
the Court to accept the story. We therefore find, as rightly submitted by
Mr. Saha Ray, the Learned Trial Judge was not unjustified to refuse to
condone the delay howsoever time is sought.
We, going by the reasoning of the Learned Trial Judge, do not
think that the Learned Trial Judge passed any improper order. But, we
are of the view that dismissal on that ground does not destroy the
petitioner’s right altogether and it is always open to the litigant to come
up with true and correct fact later on with supporting document before
the Court. The real explanation is the illness of the father, who later lost
his voice despite treatment, the documents are annexed to support the
case of treatment. The venue of the treatment was not correctly
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disclosed before the Court, hence the case of illness was rendered
unbelievable and unacceptable altogether.
Therefore, we think that when the real story has been brought
at a later stage we cannot destroy the right of the appellant for good to
challenge the order under Section 34 of the Arbitration and Conciliation
Act, 1996.
Mr. Saha, of course, while opposing strenuously this
application expressed doubt whether this kind of submission can be
accepted by Court or not. We think that considering the health of the
father of the petitioner, who lost his voice unfortunately, we accept that
explanation of illness. Therefore, we set aside the impugned judgment
and order and condone the delay.
This order, however, is passed subject to payment of cost
assessed at Rs.10,000/- to be paid to the contesting respondent within
a fortnight from the date of receipt of a copy of this order. Once this cost
is paid, the aforesaid order will revive, failing which, this order will
stand recalled and the application in the appeal will stand dismissed.
In the event costs is paid, the Hon’ble Trial Judge will proceed
with the hearing of the matter on merit as affidavits are completed in
this matter. We desire that the application should be heard out within a
period of three months from the date of communication of this order.
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Leave is granted to the parties to take proper direction, as they
will be advised and it will be open for the Learned Trial Judge to
consider such prayer.
The appeal and the application both stand disposed of
dispensing with all formalities.
Urgent certified photocopy of this order be made available to
the parties, if applied for, upon compliance with all requisite formalities.
(SENGUPTA, J.)
(SYAMAL KANTI CHAKRABARTI, J.)
AKGoswami