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Judgment
Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):
This Company Appeal (AT) (CH) (INS) No. 82 / 2024 had arisen as against the Impugned Order which was under challenge before this Appellate Tribunal, being the Order dated 31.01.2024, as rendered in CP (IB) No. 212 / 09 / HDB / 2022, being the proceedings which were held under Section 9 of the I & B Code, 2016.
The Appeal in question when it was taken up before this Tribunal, the same was got dismissed as withdrawn, by an Order of 12.03.2024, by Three Members Bench of which, we were a part. The concluding part of the said order of 12.03.2024 is extracted hereunder:
``After arguing the instant Comp. Appeal (AT)(CH)(Ins) No.82/2024, for quite some time the Learned Counsel for the ‘Appellant’ Mr. Srikanth Hariharan, seeks permission from this ‘Tribunal’ to withdraw the instant Comp. ‘Appeal’ (AT)(CH)(Ins) No.82/2024. Acceding to the said request, the instant Comp. Appeal (AT)(CH)(Ins) No.82/2024 is ‘Dismissed as Withdrawn’. No cost. Before parting with the case, this ‘Tribunal’ makes it lucidly quite clear that the instant Comp. Appeal (AT)(CH)(Ins) No.82/2024 will not preclude the ‘Appellant’ to approach ‘Competent Forum’ for redressal of his grievances of the subject matter issue, of course, in the manner known to law and in accordance with law, if the ‘Appellant’ so desires advised, of course within two weeks’ from the date of receipt of the copy of the ‘Impugned Order’.’’
The withdrawal of the Appeal was a conscious decision of the Appellant for the reason being that it was not a simpliciter withdrawal of the Appeal, but rather, an exception was also sought to be left open for the Appellant to approach the Competent Forum for redressal of his grievances, which he intended to resort to.
Today, the Company Appeal is listed on a Recall Application being IA No. 642 / 2024, as preferred by the Appellant contending thereof, that the Counsel who was representing the cause case in the Company Appeal, has acted on his own on the day when it was sought to be dismissed as withdrawn and he, the Appellant had never imparted any instructions to him, to get the Appeal dismissed as withdrawn.
We are of the opinion that such type of a statement being made in the Recall Application raising allegations against the then Counsel that, he did not have the instructions to seek for the Appeal to be dismissed as withdrawn on behalf of the Appellant, is not acceptable by this Tribunal for two reasons:
The Order of 12.03.2024 was not a simpliciter withdrawal of the Appeal.
The order of withdrawal itself reflects that the Appellant has expressed that he intended to, resort to other remedies available under law, the scope of which was left open by the Order and therefore, it would amount to that it was the conscious act of the Appellant himself to get the Appeal dismissed as withdrawn.
The allegations which have been made by the Appellant, is exclusively based upon the allegations pertaining to the conduct of the Counsel, who had sought the Appeal to be dismissed as withdrawn.
However, the contentions which has been raised in the Application, are not substantiated by any independent evidence, and it could not have been substantiated by the Appellant for the reason being that, the learned Counsel for the Appellant was functioning as per the terms of Vakalat which itself provided sufficient power, to act on behalf of the Appellant and the aforesaid power was given to the following effect:
If the true interpretation is given to the aforesaid powers vested by the Vakalatnama executed by the Appellant in favour of the erstwhile Counsel who got their Appeal dismissed as withdrawn, then the powers thus vested is inclusive of his professional powers to seek for any remedy or to resort to any recourse which, in the opinion of the learned Counsel would be in the interest of the Appellant.
Apart from that, the Vakalatnama as executed by the Appellant, the execution of which is not denied, would be treated as to be a legally subsistent contract by a litigant with his professional, to appear in a Court of Law and to defend his cause. Such type of contracts being a justifiable contract within the provisions of the Indian Contract Act, 1872, and under Law, it cannot be said that the Vakalatnama which is not disputed, did not provide the powers vested with the Appellant’s Counsel to function in the manner as it has been reflected in the Order of 12.03.2024.
Since, the execution of Vakalatnama being a contract with consent and it is legally a sustainable contract as per the terms of the provisions of the Indian Contract Act, 1872, the withdrawal of the Appeal by the Counsel with the liberty to resort to the other remedies available to the Appellant under Law would be well within the exercise of powers by the Counsel engaged by the Appellant. Therefore, it cannot be said that, the Counsel who has withdrawn the Appeal had acted beyond the powers which was vested to him, by the Appellant through the Vakalatnama and accordingly, the Recall Application, filed by the Appellant solely on the basis of levelling an allegation against Counsel for his professional misconduct and attempting to justify the same by drawing a proceeding against him before the Bar Council, may not stand the scrutiny of law being an engineered justification for the Recall Application, being filed to bypass the legal obstruction created by his earlier act of withdrawing the Appeal through his Counsel.
The learned Counsel for the Appellant / Applicant to the Recall Application has referred to 2023 SCC Online NCLAT Page 2191 - Union Bank of India V. Dinkar T. Venkatasubramanian.
In fact, the basic vertebra of the aforesaid Judgment is to lay down as to what would be the scope of exercise of power of recall by the Tribunal of its own Order, which has been passed by it.
As far as the ratio propounded therein, deals with the sustainability of the Recall Application by the Tribunal, that may not be a question, which would be required to venture into, at this stage, when the recall itself is being considered on its own merits and it is not being dismissed or rejected on the ground of maintainability.
Passing of an Order on the merits of a Recall Application itself will go in consonance to the Judgment of the Union Bank of India (Supra) which has been relied with by the learned Counsel for the Applicant to the Recall Application.
The other Judgment which, the learned Counsel for the Appellant has relied upon is that, as reported in 2023 Live Law SC Page 587 Ashok Kumar v. New India Assurance Co. Ltd.
The wider principle which is the subject matter for consideration is contained in Para 8 of the said Judgment which is extracted hereunder, is from the perspective that a litigant should not be made to suffer on account of an act and conduct of an Advocate.
``8. In view of the foregoing, it has to be reiterated that the Complaint No. 515 was filed after theft due to non-settlement of claim by the Insurance Company. The repudiation of the claim was made during the pendency of the said complaint, purportedly due to breach of condition no. 1 and 5. The said complaint was withdrawn by the advocate of the complainant on the pretext of the case being prolonged by the advocate of the Insurance Company, without having express instructions for withdrawal of the said complaint. However, for the fault of the advocate, the complainant cannot be made to suffer. Finally, the dismissal of the complaint was made by the National Commission under the wrong pretext that the earlier complaint had challenged the order of repudiation. Thus, in our view, the complaint cannot be thrown out on the threshold of Order XXIII Rule (1)(4) CPC and in the peculiar facts, it requires consideration on merits. In the facts of the present case, the main question that falls for consideration is; Whether the delay of 6 days in intimating the Insurance Company about the theft comes within the purview of breach of Condition No. 1 and also whether on facts there was breach of condition No. 5 of the insurance policy to justify the rejection of the claim in toto?’’
In a nutshell, if the above Paragraph is taken into consideration, there cannot be any dispute with regards to the said preposition, but the implications of the same would be limited to the cases where there is a professional and intentional dereliction on part of the Counsel, in exercising his due diligence in conducting the case on behalf of the litigant. But, in the instant case, the conduct of the Counsel remains is bona fide, though in, in case of Ashok Kumar (Supra), before the Hon’ble Apex Court, as the proceedings drawn by the Complainant therein, remain pending for a sufficient long time, the bona fide of Counsel was kept at cloud.
The inference drawn in Para 8 may not be made applicable in the instant case for the reason being that it was based upon a different factual circumstances altogether. There is another reason as to why the principle laid down above, is not to be accepted herein, the reason being that had the Order sought to be recalled been a simpliciter Order of Withdrawal, the ratio of Para 8 could have been attracted. However, in the instant case, while withdrawing the Appeal, the Appellant has consciously reserved his rights to resort to an appropriate remedy for the redressal of his grievances, and it will mean that it was a conscious decision of the Appellant not a dereliction of duty by his earlier Counsel. As he himself has solicited to resort to the other remedies as available to him under Law, as observed in Paragraph 3 of the Order dated 12.03.2024, thus, the ratio of Para 8 will not be applicable to the circumstances of the instant case.
The learned Counsel for the Appellant has further placed reliance on the Judgment reported in 2024 SCC Online SC Page 1878 Mool Chandra V. Union of India & Anr. and has made specific reference to Paras 22 & 23. But factually, the reference made to Para Nos. 22 & 23, since being altogether a distinct aspect which has got no relevance for the purposes of considering the Recall Application, the same will not be attracted to the instant case.
Owing to the above, we are of the considered view that the Recall Application being IA No. 642 / 2024, deserves to be rejected for the reason being that;
The Counsel who sought the Appeal to be dismissed as withdrawn on 12.03.2024 was acting in good faith and fully conscious of his duties, based upon the authority vested with him under the Vakalatnama, executed by the Appellant / Applicant.
The execution of Vakalatnama, and its contents are not disputed.
Since the Order of 12.03.2024, was not being a simpliciter order of withdrawal and rather, it was opening yet another avenue for the Appellant to resort to another proceeding as available to him under law, it will have to be presumed that the Appellant has chosen to solicit other proceedings rather than pressing upon the Appeal.
Hence, no intentional misconduct or negligence can be levelled against the Counsel where the Appellant himself has sought to resort to other remedies and accordingly, the Recall Application loses its basis. The supporting Condone Delay Application being IA No. 643 / 2024 for the reasons given therein above, would stand condoned.
In view of the above, we are not inclined to interfere in the IA No. 642 / 2024. The same is accordingly rejected.