A Court cannot recall an order based on consent merely on the basis of allegation or statement made at the bar without recording that consent was, in fact, given on the said date or not.

Harish Tandon, J.

This revisional application is directed an Order No. 82 dated 19th February, 2015 passed by the learned Civil Judge (Senior Division), 1st Court, Asansol in Title Suit No. 32 of 2008 by which an application for recalling the order dated 3rd February, 2015 is allowed.

2. Both the parties are not ad idem to the recording of the happening of events before the Trial Court and have taken a divergent views by making statements and counter statements in the application.

3. Before proceeding to deal with the core issue involved in the instant case, the salient features of facts are adumbrated herein below:

4. The plaintiff-petitioner filed a suit for appointment of the Account Commissioner for settling the accounts and passing a final decree for money in terms of the report of the Account Commissioner. The petitioner claimed to be the manufacturer of Ferro Alloys and the defendant used to supply the Manganese Ore which is used for production of the final products. The purchase order clearly stipulated the inspection by a third party on the quality of the supplied material. It is stated that advances were made on the good faith that the supplied materials are of specified quality as agreed by the parties. Subsequently it appears that the supplied goods do not confirm with the specific issue and was found to be of inferior quality which was intimated to the defendant/opposite party no.1 from time to time. Since the Goods do not contain the requisite quality and was of inferior grade, the petitioner claimed the differential amount from the opposite party no.1 as per the report of the independent analyst after appointing the Account Commissioner. The opposite party no.1 disputed the claims made in the said plaint and put a counterclaim for money which the petitioner is liable to pay under the contract. It is specifically denied that the Goods supplied to the petitioner was on inferior grade. The Trial Court decreed the suit in preliminary form on November 5, 2014 and simultaneously rejecting the counterclaim of the opposite party no.1. The Trial Court further appointed the Account Commissioner to ascertain the exact amount recoverable by the petitioner from the opposite party no.1 on the basis of the documents available on the record and directed the said Commissioner to submit the report. The Opposite Party No.1 challenged the said decree before the High Court in FAT 607 of 2014. In the said appeal, an application for stay was filed which came up before the Division Bench of this Court on January 13, 2015, which was disposed of directing the Account Commissioner to proceed with the work but restrained the Trial Judge from passing the final decree without the leave of the High Court. Admittedly, the Account Commissioner proceeded with the commission work and it appears from the record that the same was conducted ex parte as the opposite party no.1 did not appear before the Account Commissioner despite notice.

5. It is bone from the record that before the order dated 13 January, 2015, could be passed by the Division Bench of the High Court, the Account Commissioner completed the Commission Work and submitted the report before the Court bearing the date as 06.01.2015. On the date when the application for stay was taken up by the Division Bench, the Trial Court by order no. 77 dated 13th January, 2015, recorded the filing of the Commissioner's report and fixed 16.02.2015 for hearing regarding the Commissioner's report and directed the written objection to be filed, if any, in the meantime. The Commissioner in his report opined that the opposite party no.1 is liable to pay Rs. 5,0361,544.90/-.

6. The matter was mentioned before the Division Bench on 29 January, 2015 and the parties apprised the Court that the Account Commissioner have directed the opposite party no.1 to pay the aforesaid amount. The Division Bench modified the order of stay to the extent that the Trial Court shall not pass the final decree for a period o