The captioned writ petition is filed by the defendant

questioning the order of the Commercial Court passed on a

memo dated 05.07.2022.

2.

The respondent has instituted a recovery suit in

O.S.No.4266/2008. Later the suit was transferred to the

Commercial

Court

and

renumbered

as

Commercial

O.S.No.4266/2018. Pending consideration of suit, it appears

3

that the matter was referred to Lok Adalat and the very

Presiding Officer acting as a Conciliator tried to assist the

parties to arrive at an amicable settlement. Since the same

did not materialize, it appears the matter was sent back to the

Court for adjudication. It is in this background, the present

petitioner filed a memo requesting the Presiding Officer to

place the file before Hon’ble Principal District Judge to allot the

present suit to some other Commercial Court as the Presiding

Officer had participated in conciliation proceedings.

3.

The

learned

Judge

having

examined

the

contentions raised in the memo, was of the view that no

grounds are made out in the memo which would compel the

Presiding Officer to place the present suit before the Principal

District Judge for necessary orders. The learned Judge has

also taken strong objection to the manner in which the counsel

appearing for the defendant has pursued the case by filing a

memo seeking transfer. Learned Judge was of the view that

the counsel who filed the memo representing herself as an

4

Advocate for defendant found that there is no authorisation in

her favour and therefore, learned Judge was of the view that

she was not competent to file the present memo seeking

transfer of the case. Therefore, learned Judge was of the view

that the junior counsel who had moved a memo was one

without any authorisation by the defendant. Therefore, it is in

this background, learned Judge has come to conclusion that

memo needs to be rejected by imposing heavy cost.

Consequently, memo is rejected by imposing a cost of

Rs.25,000/-.

4.

Heard learned Senior Counsel and learned counsel

appearing for the respondent/plaintiff. Perused the order

under challenge.

5.

Insofar as merits of the case are concerned,

learned Senior Counsel would fairly concede, though various

grounds are raised in the present writ petition by placing

reliance on the judgment of the Hon’ble Apex Court in the case

5

of AFCONS Infrastructure Limited and Another vs.

Cherian Varkey Construction Company Private Limited¹.

However, the question that needs to be examined by this

Court is whether the learned Judge while rejecting the memo

was justified in imposing a cost of Rs.25,000/-.

6.

Insofar as the Judge in-charge of the case assisting

the parties for negotiations, the question is whether he can

deal

with

the

adjudication

of

the

matter

to

avoid

apprehensions of bias and prejudice. In the present case on

hand, such a situation would not warrant. In the present case

on hand, the learned Judge found that though the matter was

referred for amicable settlement before the Lok Adalat, the

official appearing on behalf of respondent-Company however

made a submission that he had joined the company recently

and he needs some time to verify with the company in regard

to settlement issue and accordingly, time was sought.

Therefore, even otherwise the material on record does not

1 (2010) 8 SCC 24

6

indicate that parties were relegated for extensive deliberations

with effective assistance with the Presiding Officer as a

Conciliator. Therefore, the judgment cited by the learned

Senior Counsel would not squarely apply to the present case

on hand.

7.

Now coming to the cost imposed by the learned

Judge, though several factors have led to imposing cost by the

learned Judge, however, having regard to the facts and

circumstances of the case on hand, I am of the view that the

cost imposed was unwarranted in the present case on hand.

If the junior member of the Bar who is part of the office, on

instructions, by the counsel on record has moved a memo, she

cannot be found fault with.