In M/s Balmer Lawrie & Co. Ltd v. Ruia Chemicals Pvt. Ltd. & Anr. (AO-COM 39 of 2026, application CAN 4 of 2026, decided 12 November 2026), a Division Bench of the Calcutta High Court’s Commercial Division — Debangsu Basak and Ajay Kumar Gupta JJ. — refused to recall its order of 2 September 2026 dismissing a commercial appeal in the respondent’s absence. The short order carries a long lesson for appellate practice: a recall application stands on the quality of the explanation, and an explanation the record does not bear out is no explanation at all.
The case in one view
| Case | M/s Balmer Lawrie & Co. Ltd v. Ruia Chemicals Pvt. Ltd. & Anr., AO-COM 39 of 2026 with CAN 4 of 2026 |
|---|---|
| Court | Calcutta High Court, Commercial Division (Appellate Side) — Debangsu Basak and Ajay Kumar Gupta JJ. |
| Decided | 12 November 2026 |
| Background | Commercial appeal arising from an order of 8 May 2018 of the Alipore court in a Section 34 proceeding that had modified an arbitral award; appeal dismissed on 2 September 2026 in the respondent’s absence |
| Outcome | Recall application dismissed; no costs; merits questions expressly left undecided |
How the appeal was lost — twice
The appeal had already been dismissed once, on 2 September 2026, when it was called and the respondent’s side did not appear. The recall application was the attempt to undo that. Its foundation was a single assertion: counsel were engaged before other Benches at the relevant time.
The Division Bench tested the assertion against its own record. The order of 2 September recorded the absence; it recorded nothing about the reason, because no reason had been communicated to the court that day. The explanation of engagement elsewhere came from outside the record — “information from other sources,” as the Bench put it. And the surrounding history made the assertion harder, not easier, to accept: the applicant had changed its advocate-on-record, listings had been intimated by SMS and telephone on several dates, and the matter had already consumed multiple adjournments. The conclusion was terse: “the explanation offered is not sufficient.”
The merits that never got heard
The discipline of the order lies in what it refused to examine. The applicant had substantive arguments waiting — that the trial court’s order in the Section 34 proceeding was not truly a “modification” of the arbitral award, and that Section 31(7)(b) of the Arbitration and Conciliation Act permitted what was done. The Bench expressly declined to decide them. A recall application puts one question in issue: was there sufficient cause for the absence? The strength of the absent party’s case is not a substitute for an answer.
Building a recall application that survives
The client-care dimension
Orders like this one are ultimately about the client, who loses an appeal without anyone deciding it. Litigants engaging counsel in high-volume commercial lists should insist on written listing-tracking protocols and named fallback counsel. And where a dismissal in absence does occur, the honest advice is the one this order enforces: the recall window is narrow, evidentiary and unforgiving — and the alternative route, a challenge to the main order itself, must be evaluated at once before limitation runs.
Frequently Asked Questions
What explanation was offered for the absence?
That the applicant's counsel were engaged before other Benches when the appeal was called. The Bench noted that the records showed only the absence of counsel, not the reason for it — the engagement elsewhere was information drawn from other sources, not from the record — and held the explanation insufficient.
Did the prior conduct of the case matter?
Substantially. The applicant had changed its advocate-on-record and had been informed of listings by SMS and telephone on several dates, after multiple adjournments. Against that history, a bare assertion of engagement elsewhere could not discharge the burden of showing sufficient cause.
Were the merits of the appeal considered?
No — and deliberately so. The Court expressly declined to decide the applicant's merits arguments, including whether the trial court's order was truly a "modification" of the arbitral award and the scope of Section 31(7)(b) of the Arbitration and Conciliation Act. A recall application is decided on the explanation for absence, not on how good the absent party's case might have been.
What is the practical safeguard against such dismissals?
Diary discipline and fallback arrangements: a proxy counsel briefed to seek a pass-over, a written request placed on record when engagement conflicts are known in advance, and immediate mention the same day if a matter is dismissed in absence. The further in time the recall application, the heavier the burden.