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Judgment
This is an application filed by the plaintiff for recalling an order dated 7th may, 2018 and for restoration of the suit to its original file.
By the above order, the suit filed by the plaintiff had been dismissed on the ground of the plaintiff not being represented on that day. It had also been observed in the said order that the plaintiff has failed to lodge the writ of summons and that the time for such had expired. It was further recorded that despite the aforesaid, the plaintiff had not filed any application for extension of time to lodge the writ of summons in the suit. His lordship, Hon'ble Justice Soumen Sen was accordingly of the view that the plaintiff was not interested in proceeding with the suit any further.
Learned counsel for the plaintiff/applicant submits that by a later order dated 13th June, 2018 and on the prayer of counsel appearing for the plaintiff, leave was given to use a supplementary affidavit to disclose the grounds for the plaintiff being unable to lodge the writ of summons within the time stipulated under the Original Side Rules of this Court. Counsel relies on the grounds disclosed in the supplementary affidavit pursuant to the aforesaid order which primarily centres around three changes in advocates representing the plaintiff and their individual laches in either filing of Vokalatnama or giving no objection subsequently. The plaintiff has admitted in the supplementary affidavit that no steps were taken in the suit for the purpose of lodging the writ of summons. The other grounds revolve around the plaintiff pursuing several other proceedings including in the Company Law Board and the National Company Appellate Tribunal, orders of which have been annexed to the supplementary affidavit.
Learned counsel appearing for the defendant no.1 opposes this application on the ground that this application is not one of restoration simpliciter and that there have been several admissions made by the plaintiff that it has not shown any diligence in proceeding with the suit. Counsel relies on the supplementary affidavit to submit that the grounds are wholly insubstantial and cannot absolve the plaintiff for not taking any steps pursuant to filing of the suit.
Having considered the submissions of counsel appearing for the plaintiff and the defendant no.1, it is evident that the order passed on 7th May, 2018 was considerably diluted by the order passed on 13th June, 2018 whereby the plaintiff was given an opportunity to explain its conduct by way of a supplementary affidavit. It is clear therefore that the learned Judge who had passed the earlier order did not intend to completely shut out the plaintiff for all times to come. Even though the grounds made out in the supplementary affidavit cannot really be said to be sufficient to explain the laches on the part of the plaintiff, not recalling the order dated 7th May, 2018 will have the effect of denying the opportunity to the plaintiff which had been given by the learned Single Judge by the order dated 13th June, 2018.
In view of the above GA No. 1300 of 2018 is allowed in terms of prayers (a) and (b).
The plaintiff is granted a week's time to take the required steps in lodging the writ of summons.
Having regard to the utter lack of diligence on the part of the plaintiff, this is a fit case where the plaintiff should put to terms. The plaintiff is directed to pay costs of Rs.50,000/- to Helpage India within a period of a fortnight from date, in default of which the defendant no.1 will be at liberty to mention for appropriate orders.
The application is disposed of accordingly.