Calcutta High Court Refuses To Recall Order Dismissing Commercial Suit Over Non-Appearance, Says Advocate Duty Bound To Make Alternative Arrangement

The Calcutta High Court on Monday refused to recall its order of dismissal of a commercial suit and interlocutory application on the ground that plaintiff had not been diligent in proceeding as it did not appear before the court for three months after filing of the suit.

The single judge bench of Justice Ravi Krishan Kapur observed:

“No litigant is relieved of his or her duties and obligations on the ground that an Advocate had been engaged. A party to a suit is not at liberty to proceed with the suit or the interlocutory application at its pleasure. The repeated defaults of non-appearance are unacceptable. I find no reason nor explanation which constitutes any cause far less sufficient cause to recall the order. In my view, the purpose and object of the Commercial Courts Act, 2015 cannot be thwarted by such indolent conduct on the part of any litigant or their Advocate.”

The plaintiff had filed a suit before the High Court after obtaining dispensation under Section 12A (Pre-Institution Mediation and Settlement) of the Commercial Courts Act, 2015. The plaintiff further filed an application before the court seeking interlocutory reliefs.

However, the plaintiff remained absent when the suit and the interlocutory application were listed on four different occasions – July 18, July 25, July 28 and July 29 in 2022. The court on August 22, 2022, dismissed the suit and the interlocutory application on the ground that the plaintiff had not been diligent in proceeding the same.

The court further revoked the dispensation which was granted under Section 12A of the Act on the ground that there could have been no possible urgency in this matter in view of the repeated defaults in appearance of the plaintiff as the plaintiff did not appear before the court on four instances and there was no adjournment sought by the plaintiff on any of the above-mentioned dates.

The plaintiff filed an application for recalling the impugned order dated August 22, 2022 on the ground that that the Advocate appearing for the plaintiff had left the country on July 8, 2022, for more than a month and after her return there was delay in joining office because she was ill and was undergoing treatment.

It was further contended by the plaintiff that there is no power provided under the Commercial Courts Act, 2015 by which the Court can suo moto reject the plaint without giving the plaintiff an opportunity of being heard.

The court relied upon the judgments of the Apex Court in SCG Contracts India Pvt Ltd. v. K.S Chamankar Infrastructure Pvt Ltd & Ors. (2019) 12 SCC 210; Desh Raj v. Bal Kishan (2020) 2 SCC 708; Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP (2010) 15 SCC 585 where in it has been laid down that the Commercial Courts Act, 2015, contemplates strict and mandatory timelines and if the provisions of the Act are interpreted liberally, the object of providing fast track and speedy resolution of commercial disputes would be defeated and the object of the Act would be frustrated.

The court further relied upon the judgment of the Supreme Court in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 wherein it has been held that "the requirement of Pre-Institution Mediation as contemplated under section 12A of the Act is mandatory and the power to reject the suit filed in violation of the mandate under section 12A can also be exercised suo moto by the Court."

The bench noted that the plaintiff simply disappeared for three months after filing of the suit. It further observed that there is no absolute proposition that the fault of an Advocate should always be considered with latitude.

“Ordinarily, an Advocate is duty bound to make some alternative arrangement in case of non appearance. In this case, no adjournment was also sought for on any of the dates when the matter had appeared,” it added.

The court further remarked that the medical certificate produced by the concerned advocate with regard to her illness was unconvincing and does not justify any reason for the repeated non-appearance of the plaintiff.

“The callous manner in which the suit and the interlocutory application have been proceeded with do not warrant any exercise of discretion in favour of the plaintiff. After having obtained dispensation under section 12A of the Act on the ground of the need for urgent interim reliefs, the plaintiff deserves no leniency even in the name of ‘interests of justice’ or ‘justice oriented approach’,” the bench observed.

Hence, the court held that there are no grounds to recall the impugned order dated August 22, 2022 and accordingly, dismissed the petition.

Case Title: Optimum Infratel Pvt. Ltd. v. Torus Buildcon Pvt. Ltd. & Ors.

Citation: 2023 LiveLaw (Cal) 73

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