Calcutta High Court Criticizes Misuse Of Recall Provision, Imposes Cost Of Rs. 5 Lakh In Case Of Abuse Of Live-Streaming

A Calcutta High Court Bench of Justice Harish Tandon and Justice Prasenjit Biswas has criticized the practice of lawyers using procedural formalities as a "circuitous route" to reopen an already decided issue and seek a review of an order under the pretext of recall.

In that context, it was said that, "The manner in which the argument is advanced, it leaves an impression in us that a desperate attempt is made to have the order reviewed in the garb of recall."

Counsel Deepak Khosla appeared for the applicants, while Counsel Sreeboyee Mitra appeared for the Bank.

In this case, the Bench was considering a recall application against an order issued where the Court had rejected the request to initiate contempt proceedings against the respondents, as requested by M/s Odisha Slurry Pipeline Infra Ltd.

The applicants claimed that the respondents had committed "serious fraud" on the Court, resulting in specific findings regarding the pipeline ownership.

The respondents argued that the cause title of the current recall application closely resembled the one used in the contempt proceedings (CPAN 922 of 2022), and therefore, it could not be accepted. They pointed out that the judgment on March 13 had explicitly stated that the applicants were not entitled to bring an application for contempt under the Acts and Rules of the High Court.

Regarding the distinction between the recall of an order/judgment and a review of the order/judgment, the Court noted that the review has to be entertained on a well-defined parameter enshrined under Order XLVII Rule 1 of the Code of Civil Procedure, whereas, the the recall to a contested order has to be decided in a limited sphere and should not be permitted to expand the horizon of the consideration or the points which have been dealt with in a judgment and order passed in pursuit of dispensation of justice and adjudication of rights of the parties. In that context, it was also said that "Neither the review jurisdiction nor an application for recall should be permitted for re-visitation, re-writing and/or re-appreciation of the facts as its applicability is within the limited contour envisaged under the law. The moment the plea of fraud is taken, it admits no ambiguity that the Court always visualized the same as a serious matter as the person who have been instrumental to the commission of the fraud, should not be permitted to reap the benefit thereof."

Subsequently, the Court made observations as to the concept of fraud under the Civil Procedure Code, and held that mere use of the term "fraud" would not be enough to constitute it. In that context, it was further observed that, "The Court should be conscious when a recall is intended on an alleged fraud and would refuse to exercise its discretion if there is lack of element of fraud or the real intention is to invite the attention of the Court to various observations which may sometimes be factually incorrect or arrived erroneously. The moment the element of fraud is lacking and the hidden intention to reopen the entire case in the garb of a socalled fraud by creating an illusory cause of action with the clever draftsmanship, the Court should nip such litigation in the bud".

Regarding the contention regarding the identical cause title, the Court observed that, "The applicants of the contempt application appear to be identical except its representation manifest from the quoted portion as above. In the judgment and order dated 13.03.2023, this Court held that the petitioners of the contempt application cannot maintain the said application in the name of the Trust without the Trustees having impleaded therein. The instant application is filed by the same Trust acting through a shareholder of the Trust having 52% contributory in India Growth Opportunity Fund and Srei Industrial Finance Limited (Srei Infrastructure Finance Limited), acting through a person who claims himself to be the shareholder. A plea is taken that so far as the SIFL is concerned, its dues have been cleared off and there is no due as on the date and, therefore, cannot have any grievance. On the other hand, the applicant says that the interest component has not been paid."

Finally, the Court expressed concern about the practice of prolonged arguments that go beyond the scope of the pleadings. Despite the misuse of live proceedings, the Court emphasized their significance in upholding the sacred nature of court interactions and increasing public awareness of court procedures to ensure fairness and transparency. To discourage frivolous arguments and unnecessary waste of the court's time, the Court imposed substantial costs on the applicants.

In that context, the Court observed that, "Even a live streaming, which has started with the avowed object is being misused and/or abused despite the disclaimer having been shown therein. Every bit of interaction in course of hearing is being taken as sacrosanct and a part of the affirmative stand of the parties. The disclaimer would reveal that no person shall be allowed to record the live streaming, which is primarily aimed to make aware of the common man of the country to understand the mannerism in which the proceedings are dealt by the Court and the procedures adopted. It further aimed to bring transparency and fairness in a journey of dispensation of justice but can never be abused and misused to such extent."

Subsequently, the Court held that it was not a fit case to recall the order. Owing to the conduct of the parties, the Court dismissed the applications with costs of Rs. 5,00,000.

Cause Title: M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. vs Rakesh Sharma & Ors.

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