ASHUTOSH GAYEN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By the present application the applicants-defendant nos. 2 and 3 prayed as follows.

(2.) The applicants contend as follows. The plaintiff-respondent filed a suit for declaration that the imposition of liquidated damage is illegal and void ab initio and contrary to the terms of the contract and not binding on the plaintiff; declaration to the effect that the purported retention of power to terminate the contract by party to contract is void; decree for Rs.71,90,911.00 and decree for refund of bank guarantee bond of Rs.7,00,000.00 and interest along with consequential reliefs. In the said suit, the applicants-defendant nos. 2 & 3 entered appearance and filed written statement along with a counter-claim of an amount of Rs.3,64,281.00. In support of his case, the plaintiff adduced his evidence which was completed. The plaintiff did not adduce any further witness. The examination-in-chief of the defence witness namely Sk. Mohammed Hossain commenced on 16/12/2019 and continued on 9/1/2020 and 12/2/2020 but was not concluded. Due to Covid Pandemic, the hearing of the suit was adjourned, however, in the meantime, the said witness retired from service on 31/7/2023. The applicants-defendant nos. 2 & 3 requested the witness to resume his evidence. However, due to various ailments the said witness could not attend the hearings and resume his evidence in order to conclude the same. In the said backdrop, the applicants-defendant nos. 2 & 3 have made a prayer as indicated in paragraph no.1 hereinabove.

(3.) The aforesaid application had been keenly contested by the respondent-plaintiff by filing affidavit-in-opposition denying, inter alia, the pleadings of the applicants and contending as follows. The defendants had a prior knowledge that the said witness would retire on superannuation on 31/7/2023 and, therefore, it ought to have taken proper steps for resuming the evidence of the said witness for its conclusion. It is the duty of the defendants to produce its witnesses and instead of doing the same, the defendants have cooked up the story of ailment of the said witness as a ground for not examining the said witness. Neither any scrap of paper has been produced nor disclosed pertaining to the kind of ailment the said witness is suffering. Thus, with ulterior motive to stop his examination the present application has been filed which is not at all tenable in the eye of law. On such score, the respondent-plaintiff sought for dismissal of the application.