Virkaran Awasty v. Hassad Netherlands B.V. & Ors.

1. This is an application by the petitioner seeking recall of the order dated 30 April 2024, whereby OMP (Comm) 306/2016 has been dismissed for non-prosecution, and for consequent restoration of OMP (Comm) 306/2016.

2. Mr. Samar Kachwaha, learned Counsel for the respondents, vehemently opposes the application. He submits that the petitioner is a proclaimed offender who is settled in London and that the Supreme Court is actively monitoring the extradition process of the petitioner.

3. He also points out that the petitioner was defaulting in appearance on several earlier occasions and that all these factors have been taken into account by the coordinate Bench while dismissing the petition for default.

4. Insofar as the petitioner’s status as a proclaimed offender, his residence in London, or the fact that his extradition process being monitored by the Supreme Court are concerned, they can be of no consequence in considering an application for restoration of the present OMP, by recalling the order dated 30 April 2024.

5. On facts, it is seen that the petitioner has in fact been represented on the last several dates of hearing and that it was after several dates that, on 30 April 2024, the petitioner was represented only by a “proxy counsel”.

6. Para 6 of the order discloses that the said counsel stated that the petitioner had changed counsel.

7. The order opines that, in that event, the said counsel ought to have been present in the court.

8. Thus, it is not as though the petitioner was altogether unrepresented even on 30 April 2024.

9. Mr. Samar Kachwaha cites Jaspal Singh v. State of Punjab and Haryana[1] rendered by a learned Single Judge of High Court of 2011 SCC OnLine P&H 5551 Punjab and Haryana, which is a short order and reads thus: “Present petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of habeas corpus for release of the minor child, named Reet Singh, who is stated to be in the custody of respondent No. 3. Petitioner is father of Reet Singh. He was married with respondent No. 3 and presently the child is in the custody of the mother. On the last date of hearing, i.e., 19.4.2011, Counsel for respondent No. 3 had raised an objection that the petitioner is a proclaimed offender, therefore, he is not entitled to seek indulgence of this Court. Counsel for the petitioner had submitted that the petitioner will surrender in the Court of law and then pursue the present petition. Today, Counsel for the petitioner has submitted that due to circumstances beyond the control of the petitioner, he is not able to come to India. Be that as it may, as on today, right of the petitioner to approach this Court stands eclipsed as he has been declared a proclaimed, offender. At this stage, Counsel for the petitioner states that he be permitted to withdraw the present petition with liberty to renew the prayer made in this petition on the same cause of action as and when the petitioner surrenders before the Court of law and obtains bail. As prayed, dismissed as withdrawn with liberty aforesaid.”

10. The High Court, in the above case, was not even dealing with a restoration application, but was dealing with a writ petition seeking a writ of habeas corpus. The said decision has, therefore, no application to the present case.

11. He next cites Gloria Chemicals v. R.K. Cables[2]. He specifically cites paras 28 and 33 of the said decision, which read thus:

1988 (14) DRJ 39 *****

33. On these facts, there is no escape from the conclusion that the applicants are only interested in delaying disposal of the proceedings in Court. Every act of the applicants is calculated to delay the proceedings. Apparently,. they have tried to take undue advantage of Courts extending protection to innocent litigants from suffering for mistake or inaction of the advocate engaged by them. Goodness of law has been abused by the applicants in this case. Their conduct is far from bonafide. Therefore, IA Nos. 6270 and 6271 of 1986 are dismissed with costs, Counsel's fee Rs. 2,200.”

12. I do not see on facts how the aforesaid paragraphs at all apply in the present case as the petitioner, as already noted, has not been remiss in appearing before this Court on earlier occasions.