AI Structured Summary
Not yet generated for this judgment
Judgment
K.A. Puj, J.—The Appellant - original Respondent i.e. Diamond Jubilee Co-operative Bank Limited has filed this Letters Patent Appeal under Clause 15 of the Letters Patent challenging the judgment and order dated 08.08.2006 passed by learned Single Judge in Misc. Civil Application No. 375 of 2006 in Special Civil Application No. 7039 of 2005 whereby learned Single Judge rejected the said Misc. Civil Application.
This appeal was admitted by this Court on 18.12.2008.
The brief facts giving rise to the present Letters Patent Appeal are that the Appellant Bank filed Summary Lavad Case No. 1214 of 2002 before the Board of Nominees Court, Surat for recovery of an amount of Rs. 2,30,94,594/- against the Respondents. The Board of Nominees Court, Surat on 03.02.2004 passed a judgment and decree on the basis of the settlement arrived at between the Appellant Bank and the Respondents. In the said decree and judgment, certain conditions of settlement were incorporated. In Clause 3, the amount was quantified as Rs. 1,02,40,629/- including interest and as per Clause 4, the Respondents had to deposit 25% of the amount within a period of 45 days and thereafter, the remaining amount of 75% (without interest) was to be paid within a period of two years. The Respondents paid Rs. 26,13,777/- being 25% of the amount as per terms and conditions of the decree. Despite the fact that judgment and decree was passed on the basis of consent arrived at between the parties, the Appellant Bank filed caveat application before the Gujarat State Cooperative Tribunal on 06.02.2004. In or around June 2004, Liquidator was appointed in the Appellant Bank under the provisions of the Gujarat Cooperative Societies Act, 1961. He started demanding the amount more than the decreetal amount and demand was raised to Rs. 1.72 Crores. For enforcing this demand, public advertisement was issued on 28.03.2005 stating therein that if the amount were not paid within 10 days, the properties belonging to the Respondents would be auctioned by the Appellant Bank.
Being aggrieved by the said action of the Appellant Bank, Respondents filed Special Civil Application No. 7039 of 2005. The said petition came to be heard and disposed of by Learned Single Judge of this Court on 11.08.2005. On behalf of Respondents, a schedule of payment was presented before the Court whereby the entire balance payment was to be made on or before February, 2006. In terms of the said payment of schedule, the petition was disposed of.
Subsequent to the aforesaid order passed by Learned Single Judge in Special Civil Application, the Appellant Bank filed Letters Patent Appeal No. 1610 of 2005 before this Court raising the dispute about the correctness of the amount required to be paid by Respondents. It was submitted on behalf of the Appellant Bank that the amount payable by Respondents was not Rs. 1,02,40,629/- but the amount worked out as indicated in the Bank''s letter dated 17.02.2004 was Rs. 1,72,62,098/- as on 17.02.2004. The Court while disposing of the said Letters Patent Appeal vide its order dated 06.12.2005 observed that from the order under appeal, it does not appear that the said issue was raised before Learned Single Judge. In view of that, reserving liberty to the Appellant Bank to move Learned Single Judge for review / modification of the order, the said appeal was disposed of.
Subsequent to the disposal of the said Letters Patent Appeal, the Appellant Bank preferred Misc. Civil Application No. 375 of 2006 for review which came to be rejected on 08.08.2006. The grounds of rejection as observed by Learned Single Judge are reproduced as under:
The present Misc. Civil Application for review filed by the bank alleging that amount of Rs. 1,02,40,629/- which has been shown by mistake or through oversight is not correct because Rs. 1,02,40,629/- have been arrived at after due deliberation, discussion between Petitioners and the bank.
In view of the judgment of the Hon''ble Supreme Court in Lily Thoma''s case (supra) and in the case of Government of Tamil Nadu and Others Vs.M. Ananchu Asari (supra), this Court has very limited jurisdiction, therefore review application is not maintainable at law.
The power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
{Re: M/s. Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. Reported in AIR 2006 SCW 3592 11 on page 3594}.
Since the main contention of applicant that figure of Rs. 1,02,40,629/- have been wrongly stated and instead of that Rs. 1,72,62,098/- to be stated, the said contention was not taken when the earlier order was passed and therefore today the argument of applicant that this Court may consider the figure of Rs. 1,72,62,098/- instead of Rs. 1,02,40,629/-, for that there is no scope for entertaining the said application. The said prayer was not made when the earlier matter was heard. No review petition would lie which would convert rehearing of the original matter.
The applicant has relied upon the letter dated 17.2.2004 but that letter does not take case of bank any further. In fact the Petitioners replied to the same, thereafter the Petitioners have paid the amount and by March 2006 entire amounts have been paid by the Petitioners which the bank has accepted it. Therefore now it does not lie in the mouth of the bank to challenge the settlement at this stage and stated that amount of Rs. 1,02,40,629/- has been wrongly arrived at.
In view of the subsequent development that when Petitioners have already paid the entire amount, even if review application is entertained, the same is futile, because the bank has waived its right and acquiesced in this proceedings.
It is this order which is under challenge in the present Letters Patent Appeal.
Mr. Dharmesh V. Shah, learned advocate appearing for the Appellant Bank has submitted that learned Single Judge has committed grievous error in coming to the conclusion that the amount of Rs. 1,02,40,629/- was due and payable by the Respondents to the Appellant Bank, which has been decided by the parties as per the settlement purshish submitted before the Board of Nominees Court at marks 57 & 58 as well as schedule of payment submitted before learned Single Judge in Special Civil Application. He further submitted that so far as purshish at mark 57 submitted before the Board of Nominees is concerned, the endorsement made on behalf of the Appellant Bank was to the effect that "Received. Order be passed as per the guidelines of RBI." The said fact has also been recorded by the Board of Nominees in its order dated 30.12.2003 passed below the said purshish. He further submitted that on purshish mark 58 submitted by the Respondents, endorsement made on behalf of the Appellant Bank was "Received Copy" and the Board of Nominees recorded in its order dated 05.01.2004 that "............................... for award, as per order dated 30.12.2003 made below purshish mark 57." He has, therefore, submitted that the Appellant Bank agreed for settlement of disputes between the parties as per the RBI guidelines and after endorsement on the purshish, the Board of Nominees decreed the suit in favour of the Appellant Bank on 03.02.2004. The Board of Nominees Court has directed the Bank to calculate the amount due and payable by Respondents as per the guidelines of one time settlement of RBI. He has, therefore, submitted that the Appellant Bank never agreed for an amount of Rs. 1,02,40,629/- but it agreed that the amount be determined as per RBI guidelines.
Mr. Shah further submitted that the Appellant Bank vide letter dated 17.02.2004 made calculation and informed Respondents that the amount which was due and payable by the Respondents to the Appellant Bank was Rs. 1,72,62,098/- which was to be paid by the Respondents in 24 installments. It is further submitted that learned Single Judge has not considered that the Respondents are claiming rate of 12% interest from 01.04.1999. Mr. Shah has, therefore, submitted that the impugned order passed by learned Single Judge in review petition deserves to be quashed and set aside and the prayer made in the present Letters Patent Appeal as well as the review petition deserve to be granted.
Mr. Shirish Joshi, learned advocate appearing for the Respondents, on the other hand, supported the order passed by the Board of Nominees Court in Lavad suit on the basis of consent as well as the orders of Learned Single Judge passed in main petition as well as in review petition. He further submitted that when the petition was disposed of, no objection was ever raised by learned Counsel appearing for the Appellant. Hence, it is now not open to raise this dispute and demand more amount than what was agreed before the Board of Nominees as well as Learned Single Judge. He has, therefore, submitted that the appeal deserves to be dismissed with cost.
Having heard learned Counsel appearing for the parties and having considered their rival submissions in light of the facts and circumstances of the case and the scope of review, the Court is of the view that learned Single Judge has rightly rejected review petition filed by the Appellant Bank. The Appellant Bank has dragged the Respondents in number of litigations even after agreeing before the Board of Nominees for an amicable settlement. On the basis of such settlement, decree and judgment was passed by the Board of Nominees Court. It is very unfortunate that though the decree was passed on the basis of settlement arrived at between the parties, the Appellant Bank has filed caveat application before the Gujarat State Cooperative Tribunal. This shows the intention of the Appellant Bank that the Bank was acting contrary to the terms of settlement. Even if settlement was arrived at on the basis of RBI guidelines and amount determined was not in accordance with those guidelines, the Bank should have approached the Board of Nominees who has passed the decree. Instead of doing that, the Appellant Bank straightway made an attempt to enforce recovery of about Rs. 1.72 Crores by taking coercive measures. When this action of the Bank was challenged before learned Single Judge of this Court in a writ petition, the amount offered by Respondents was accepted without any protest or without making any submission. It is not open thereafter for the Appellant Bank either to file Letters Patent Appeal or Misc. Civil Application challenging the said order of learned Single Judge. Even after earlier Letters Patent Appeal was disposed of, the Appellant Bank filed review petition which came to be dismissed. Instead of accepting the said order of learned Single Judge, present Letters Patent Appeal is filed by the Appellant Bank. The order and judgment passed by learned Single Judge in review petition, elaborately dealt with all the submissions and recorded correct finding which is not required to be interfered with while exercising appellate powers under Clause 15 of the Letters Patent. The present Letters Patent Appeal has no merit and it is accordingly dismissed with no order as to costs.