No. 6/05.05.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Revision Petitioner through Mr. R. K. Choumal and O.P. Nos. 1 & 2 through Mr. Prabir Basu, the Ld. Advocate are present.  Both file BNA.  O.P. Nos. 3, 4, 5 & 6 enter appearance by filing Vokalatnama through Mr. Tapas Chakraborty, the Ld. Advocate.  Heard Mr. Choumal appearing for the Revisionist and Mr. Basu, for the O.P. Nos. 1 & 2.  Other O.Ps are not represented at the time of hearing.  Mr. Choumal contends that by the impugned order the maintainability application has been decided holding the complaint to be maintainable and that too upon referring various findings on various issues which are required to be decided in the complaint after recording of evidence.  Mr. Basu appearing for the O.P. Nos. 1 & 2 contended that none of the said observations are actually final conclusion as alleged but are on prima facie satisfaction in the facts available at that stage in the pleading. 

We have considered the impugned order and we find that findings have been recorded in respect of various issues including issue of limitation, issue of maintainability on the ground of fraud and so on.  In our opinion the observation might be on prima facie satisfaction but that not having been recorded in the order may create some confusion at the stage which may prejudice the O.P.  In this connection we refer to the law laid down in the case of Smt. Kovi Ajitha & Anr. – vs. – Phillip Medical Systems India Ghosh Ltd. in Original Petition No. 91 of 2004 by Hon’ble National Commission on 23.11.2005.  Respectfully agreeing with the said view.  We also hold that the objection raised in the Forum are also required to be decided after recording of evidence.  In the above circumstances the impugned order is set aside and we direct the Forum to consider the application for maintainability at the time of hearing of the complaint at the final stage.