Works Private Limited v. Counsel for

petitioners and Shri Amit Mittal, in person, Director of the respondent no. 1.

2. The instant petition has been filed for setting aside the impugned order dated 25.08.2025 passed by the Judge, Commercial Court No. 2, Gautam Buddha Nagar in Case No. 2112 of 2023; thereby, rejecting the recall application dated 26.07.2024 filed by the petitioners – defendants for recall of the order dated 04.08.2016.

3. Learned counsel for the petitioner submits that as per the mutual understanding between the plaintiff – respondent and the petitioners – defendants, the plaintiff – respondent supplied goods 2 Matters U/A 227 No. 10967 of 2025 to the petitioners – defendants for manufacture of its products under the provisions of loan licences with terms that the payment of such goods will be made by M/s Bengal Chemicals & Pharmaceutical Limited, Kanpur (hereinafter referred to as, 'BCPL') to the respondents – plaintiffs. He further submits that BCPL was a loan licensee to manufacture medicinal and pharmaceutical preparations premises situated at Biogenetic Drugs Private Limited, Baddi, District – Solan (HP), for which BCPL obtained drugs licenses in order to manufacture and do marketing of the medicinal and pharmaceutical preparations specified in Schedule C & C (1) under the provisions of Drugs & Cosmetic Act, 1940, read with Drugs & Cosmetic Rules, 1945. The petitioners had to analyze all raw materials and every batch of finished goods manufactured by the BCPL under the loan licence agreement on behalf of the BCPL. The defendants were maintaining register of raw material, finial product and analyze of raw material and finished product on their behalf. The petitioners were not liable for making payment to the plaintiff – respondent. He further submits that the petitioners were simply providing manufacturing unit with technical staffs to the BCPL and as such, were doing job-work in respect of the goods supplied by the respondents at the instance of BCPL. In other words, the respondents supplied the goods to the petitioners on behalf/on account of BCPL to manufacture its product under the provision of loan licensee with terms that the payment of such goods would be made by BCPL. Accordingly, invoices were issued in the name of BCPL. Purchase orders were very clear that the payment shall be made by the BCPL and the orders were placed on its account and therefore, the petitioners are not liable for any payment.

4. Learned counsel for the petitioners further submits that the respondent – plaintiff instituted a suit for recovery, before the Civil Judge (Senior Division), Ghaziabad, which was transferred 3 Matters U/A 227 No. 10967 of 2025 to the court of District & Sessions Judge, Ghaziabad, where the proceeding was pending from 2013 to 2022, in which the petitioners – defendants filed written statement in the year 2014 and the matter was fixed for 04.08.2016 for proceeding ex parte. On 21.03.2018, ex parte proceeding took place and matter was fixed for evidence stage. However, the petitioners – defendants moved a recall application on 09.02.2021, which was dismissed on 13.05.2022 without appreciating the material available on record.

5. Thereafter, after establishment of Commercial Court, the matter was transferred to the Commercial Court, Gautam Buddha Nagar, which was re-registered as Case No. 2112/2023, where the petitioners came to know that the earlier counsel engaged by them at Ghaziabad never acted in consonance with their ties and therefore, the petitioners changed its counsel and filed another recall application against the order dated 04.08.2016, which has been dismissed vide impugned order dated 25.08.2025 for absolutely no reason.

6. Learned counsel for the petitioners submits that the matter has been fixed on 09.09.2025 for further proceeding ex parte. He further submits that even though the recall application was filed duly supported by an affidavit, but the same was never taken into consideration and as such, the impugned order dated 25.08.2025 deserves to be set aside. He further submits that since after the matter was transferred from Ghaziabad to the Commercial Court at Gautam Buddha Nagar the petitioners changed their earlier counsel, therefore, the recall application for recall of the order dated 04.08.2016 was ought to have been allowed, which has been passed against the principles of natural justice. In support of his submissions, he has placed reliance on the judgement of the Madhya Pradesh High Court in M/s Tricon Energy UP Limited 4 Matters U/A 227 No. 10967 of 2025 Vs. M/s Kriti Industries (India) Limited [AC No. 60/2024, decided on 16.06.2025].

7. Learned counsel for the petitioners further submits that the petitioners may not suffer on the fault of their counsel as the counsel did not appear on the date fixed on accounting of noting an incorrect date at Ghaizabad. In support of his submissions, he has placed reliance on the judgement of the Apex Court in Ram Kumar Gupta Vs. Har Prasad [(2010) 1 SCC 391].

8. Per contra, Shri Amit Mittal, in person, Director of the respondent no. 1 supports the impugned order and submits that the present petition is not maintainable as no sufficient cause has been shown for recalling the order dated 04.08.2016 and therefore, the impugned order has rightly been passed. He further submits that similar application containing similar averments, which were made in the application filed at Ghaizabad, has been filed at Gautam Buddha Nagar also. The petitioners are adopting delaying tactic for delaying the disposal of the matter. In support of his submissions, he has placed reliance on the judgement of the Apex Court in Shivamma (Dead) by LR's Vs. Karnataka Housing Board & Others [Civil Appeal No. 11794 of 2025], decided on 12.09.2025].

9. After hearing learned counsel for the parties, the Court has perused the records.

10. The application filed for recalling of the order dated 04.08.2016 by the petitioners – defendants clearly states that due to mistake of their counsel for noting an incorrect date, the petitioners should not be suffered.

11. The Apex Court in the case of Ram Kumar Gupta (supra) has held as under:- 5 Matters U/A 227 No. 10967 of 2025 “5. We have heard the learned counsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the writ petition for non-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Sh. Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits. As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and latches. But on a perusal and on proper examination of the record of this case, we find that no delay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non appearance of the learned counsel for the appellants at that time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq & Anr. vs. Munshilal & Anr. [1981 (2) SCC 788 [LQ/SC/1981/239] ], this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application.”

12. Similar view has been taken by this Court in Ajanta Arts Vs. CST [1987 ATJ 112] and S/s Tulsyan Coal Company Vs. CCT [STRE No. 465 of 2017 dated 20.11.2014]. 6 Matters U/A 227 No. 10967 of 2025

13. Since, there was sufficient cause for not appearing on 04.08.2016 that the counsel noted an incorrect date of hearing, therefore, the petitioners should not suffer on account of fault on the part of lawyer. Therefore, the judgement cited by the respondent will be of no held to him.

14. Learned counsel for the petitioners, on instructions from his client, states that the petitioners will not take any unnecessary adjournments.

15. In view of the aforesaid facts & circumstances of the case as well as the law laid down by the Apex Court in Ram Kumar Gupta (supra), the impugned order dated 25.08.2025 passed by the Judge, Commercial Court No. 2, Gautam Buddha Nagar in Case No. 2112 of 2023 cannot be sustained in the eyes of law. The same is hereby set aside.

16. The petition is, accordingly, allowed, subject to payment of cost of Rs. 20,000/- by the petitioners, which shall be paid to the plaintiff – respondent within a period of one week from today.

17. The matter is remanded to the court concerned for deciding the issue de novo after granting due opportunity of hearing to all the stake holders, expeditiously, if possible, within a period of three months from the date of receipt of a certified copy of this order.

18. It is made clear that no unnecessary adjournments shall be granted to the petitioners and in case any adjournment is sought on behalf of the petitioners, the same shall be granted after imposing cost of Rs. 500/- per adjournment with direction to deposit the same by the next date fixed. October 10, 2025 Amit Mishra (Piyush Agrawal,J.) AMIT KUMAR MISHRA High Court of Judicature at Allahabad

petitioners and Shri Amit Mittal, in person, Director of the respondent no. 1.

2. The instant petition has been filed for setting aside the impugned order dated 25.08.2025 passed by the Judge, Commercial Court No. 2, Gautam Buddha Nagar in Case No. 2112 of 2023; thereby, rejecting the recall application dated 26.07.2024 filed by the petitioners – defendants for recall of the order dated 04.08.2016.

3. Learned counsel for the petitioner submits that as per the mutual understanding between the plaintiff – respondent and the petitioners – defendants, the plaintiff – respondent supplied goods 2 Matters U/A 227 No. 10967 of 2025 to the petitioners – defendants for manufacture of its products under the provisions of loan licences with terms that the payment of such goods will be made by M/s Bengal Chemicals & Pharmaceutical Limited, Kanpur (hereinafter referred to as, 'BCPL') to the respondents – plaintiffs. He further submits that BCPL was a loan licensee to manufacture medicinal and pharmaceutical preparations premises situated at Biogenetic Drugs Private Limited, Baddi, District – Solan (HP), for which BCPL obtained drugs licenses in order to manufacture and do marketing of the medicinal and pharmaceutical preparations specified in Schedule C & C (1) under the provisions of Drugs & Cosmetic Act, 1940, read with Drugs & Cosmetic Rules, 1945. The petitioners had to analyze all raw materials and every batch of finished goods manufactured by the BCPL under the loan licence agreement on behalf of the BCPL. The defendants were maintaining register of raw material, finial product and analyze of raw material and finished product on their behalf. The petitioners were not liable for making payment to the plaintiff – respondent. He further submits that the petitioners were simply providing manufacturing unit with technical staffs to the BCPL and as such, were doing job-work in respect of the goods supplied by the respondents at the instance of BCPL. In other words, the respondents supplied the goods to the petitioners on behalf/on account of BCPL to manufacture its product under the provision of loan licensee with terms that the payment of such goods would be made by BCPL. Accordingly, invoices were issued in the name of BCPL. Purchase orders were very clear that the payment shall be made by the BCPL and the orders were placed on its account and therefore, the petitioners are not liable for any payment.

4. Learned counsel for the petitioners further submits that the respondent – plaintiff instituted a suit for recovery, before the Civil Judge (Senior Division), Ghaziabad, which was transferred 3 Matters U/A 227 No. 10967 of 2025 to the court of District & Sessions Judge, Ghaziabad, where the proceeding was pending from 2013 to 2022, in which the petitioners – defendants filed written statement in the year 2014 and the matter was fixed for 04.08.2016 for proceeding ex parte. On 21.03.2018, ex parte proceeding took place and matter was fixed for evidence stage. However, the petitioners – defendants moved a recall application on 09.02.2021, which was dismissed on 13.05.2022 without appreciating the material available on record.

5. Thereafter, after establishment of Commercial Court, the matter was transferred to the Commercial Court, Gautam Buddha Nagar, which was re-registered as Case No. 2112/2023, where the petitioners came to know that the earlier counsel engaged by them at Ghaziabad never acted in consonance with their ties and therefore, the petitioners changed its counsel and filed another recall application against the order dated 04.08.2016, which has been dismissed vide impugned order dated 25.08.2025 for absolutely no reason.

6. Learned counsel for the petitioners submits that the matter has been fixed on 09.09.2025 for further proceeding ex parte. He further submits that even though the recall application was filed duly supported by an affidavit, but the same was never taken into consideration and as such, the impugned order dated 25.08.2025 deserves to be set aside. He further submits that since after the matter was transferred from Ghaziabad to the Commercial Court at Gautam Buddha Nagar the petitioners changed their earlier counsel, therefore, the recall application for recall of the order dated 04.08.2016 was ought to have been allowed, which has been passed against the principles of natural justice. In support of his submissions, he has placed reliance on the judgement of the Madhya Pradesh High Court in M/s Tricon Energy UP Limited 4 Matters U/A 227 No. 10967 of 2025 Vs. M/s Kriti Industries (India) Limited [AC No. 60/2024, decided on 16.06.2025].

7. Learned counsel for the petitioners further submits that the petitioners may not suffer on the fault of their counsel as the counsel did not appear on the date fixed on accounting of noting an incorrect date at Ghaizabad. In support of his submissions, he has placed reliance on the judgement of the Apex Court in Ram Kumar Gupta Vs. Har Prasad [(2010) 1 SCC 391].

8. Per contra, Shri Amit Mittal, in person, Director of the respondent no. 1 supports the impugned order and submits that the present petition is not maintainable as no sufficient cause has been shown for recalling the order dated 04.08.2016 and therefore, the impugned order has rightly been passed. He further submits that similar application containing similar averments, which were made in the application filed at Ghaizabad, has been filed at Gautam Buddha Nagar also. The petitioners are adopting delaying tactic for delaying the disposal of the matter. In support of his submissions, he has placed reliance on the judgement of the Apex Court in Shivamma (Dead) by LR's Vs. Karnataka Housing Board & Others [Civil Appeal No. 11794 of 2025], decided on 12.09.2025].

9. After hearing learned counsel for the parties, the Court has perused the records.

10. The application filed for recalling of the order dated 04.08.2016 by the petitioners – defendants clearly states that due to mistake of their counsel for noting an incorrect date, the petitioners should not be suffered.

11. The Apex Court in the case of Ram Kumar Gupta (supra) has held as under:- 5 Matters U/A 227 No. 10967 of 2025 “5. We have heard the learned counsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the writ petition for non-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Sh. Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits. As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and latches. But on a perusal and on proper examination of the record of this case, we find that no delay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non appearance of the learned counsel for the appellants at that time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq & Anr. vs. Munshilal & Anr. [1981 (2) SCC 788 [LQ/SC/1981/239] ], this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application.”

12. Similar view has been taken by this Court in Ajanta Arts Vs. CST [1987 ATJ 112] and S/s Tulsyan Coal Company Vs. CCT [STRE No. 465 of 2017 dated 20.11.2014]. 6 Matters U/A 227 No. 10967 of 2025

13. Since, there was sufficient cause for not appearing on 04.08.2016 that the counsel noted an incorrect date of hearing, therefore, the petitioners should not suffer on account of fault on the part of lawyer. Therefore, the judgement cited by the respondent will be of no held to him.

14. Learned counsel for the petitioners, on instructions from his client, states that the petitioners will not take any unnecessary adjournments.

15. In view of the aforesaid facts & circumstances of the case as well as the law laid down by the Apex Court in Ram Kumar Gupta (supra), the impugned order dated 25.08.2025 passed by the Judge, Commercial Court No. 2, Gautam Buddha Nagar in Case No. 2112 of 2023 cannot be sustained in the eyes of law. The same is hereby set aside.

16. The petition is, accordingly, allowed, subject to payment of cost of Rs. 20,000/- by the petitioners, which shall be paid to the plaintiff – respondent within a period of one week from today.

17. The matter is remanded to the court concerned for deciding the issue de novo after granting due opportunity of hearing to all the stake holders, expeditiously, if possible, within a period of three months from the date of receipt of a certified copy of this order.

18. It is made clear that no unnecessary adjournments shall be granted to the petitioners and in case any adjournment is sought on behalf of the petitioners, the same shall be granted after imposing cost of Rs. 500/- per adjournment with direction to deposit the same by the next date fixed. October 10, 2025 Amit Mishra (Piyush Agrawal,J.) AMIT KUMAR MISHRA High Court of Judicature at Allahabad