HINDUSTAN MOTOR LTD Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) WE have heard the learned Counsel for the parties. We have perused the order of reference. A perusal of the reference order would tend to show that the Division Bench considered the entire matter on merits. The Division bench also specifically took note of the submissions made by the learned counsel for the parties. The Division Bench also expressed its opinion on the legal issues that have been raised by the writ petitioner as well as the respondent. Ultimately the Division Bench examined the propriety of the judgment of the learned Single Judge which was in appeal and, thereafter, observed as follows : "considering the above, we feel that the appeal should be allowed. However, the appellant must be penalized for their latches and the defendant should be compensated with costs which is assessed by us at Rupees fifty thousand. "

(2.) AFTER thus expressing a final opinion the Division Bench proceeded to record as follows : "we, however, feel that the matter should be referred to a larger bench as the judgment and order of the learned Single Judge was followed by two other Division Bench decisions in which His lordship was a party being APO No. 16 of 2008 [steel Authority of india v. M. M. Company Ltd. and Anr. ] dated February 20, 2008 and srikant Mantri and Ors. v. Radheshyam Chotia and Ors (supra ). Let this appeal be placed before the Hon'ble Chief Justice for constitution of a larger Bench to decide whether the defendant had acquired any valuable right due to delayed service of the writ of summons and whether the Court in the given circumstances was entitled to condone such delay. "

(3.) MR. Anindya Mitra, learned senior Counsel with Mr. Abhrajit Mitra, submits that the appeal having been allowed by the Division Bench the reference was clearly incompetent. On the other hand, Mr. Soumen Sen, learned Counsel appearing on behalf of the respondent submits that the opinions expressed by the Division Bench are only prima facie and have been recorded for the purposes of making a reference. They cannot be treated as a final expression of opinion.