Ramasamy & CO. vs B. Ashok Kumar

V. Dhanapalan & M. Duraiswamy, JJ.—The Respondents 2 to 5 in the above Writ Petition have filed the above Review Application to review the Order dated 15.3.2013 passed in the Writ Petition. The Respondents 5 to 8 were the Respondents 1, 6 to 8 in the Writ Petition. The Writ Petitioners filed the Writ Petition challenging the Order dated 28.2.2012 passed by the Debt Recovery Appellate Tribunal, Chennai, the Fifth Respondent herein in R.A.(SA) No.57 of 2011.

The case of the Respondents 1 to 4 in the Writ Petition is that the First Review Applicant is a Partnership Finn, which availed certain loan facilities from the Seventh Respondent-Bank by mortgaging the property in question. Since default was committed in repayment of the said loan, the account had become Non-Performing Asset (NPA) and the Seventh Respondent-Bank had filed O.A. No.440 of 2001, which was re-numbered as O.A. No.174 of 2007 on the file of the Debt Recovery Tribunal-II, Chennai. The said O.A. was decreed and, a Recovery Certificate was also issued and thereafter, the Seventh Respondent-Bank had initiated proceedings under the Sarfaesi Act and issued Notice under Section 13(2) of the Sarfaesi Act on 21.10.2002. Thereafter, issued Notice under Section 13(4) on 1.1.2007 of the Act and the said Notice was challenged by the borrowers in S.A. No.65 of 2007 on the file of the Debt Recovery Tribunal-II, Chennai, which was also dismissed by the Tribunal. Against the Order passed by the Tribunal, the borrowers did not file any Appeal and therefore, the Order had become final.

Thereafter, the Bank had issued Notice dated 25.8.2009 calling for an auction of the mortgaged property on 29.9.2009. The borrowers filed S.A. No.101 of 2009, questioning the said Sale Notice. Certain family members of the Mortgagor also filed S.A. No.97 of 2009 before the Debt Recovery Tribunal-II, Chennai, questioning the said sale-cum-auction Notice and they also sought for stay of the proposed sale on 29.9.2009. By Order dated 24.9.2009, the Debt Recovery Tribunal-II, Chennai, rejected the stay Petition. Questioning the said Order of refusal to grant stay, the family members of the Mortgagor, who filed S.A. No.97 of 2009, filed a Writ Petition in W.P. No.19873 of 2009 and the said Writ Petition was also dismissed by this Court. As against the dismissal of the Writ Petition, no Appeal was filed. Therefore, according to the Respondents 1 to 4, the Bank was free to proceed with the auction, which was scheduled to be held on 29.9.2009.

According to the Respondents 1 to 4, the sale was concluded in favour of them on 29.9.2009, since they were the highest bidders, confirmation to that effect was also done and the Petitioners had also paid the entire amount and Sale Certificate was issued by the Seventh Respondent. In favour of the Respondents 1 to 4 on 29.10.2009. On 6.10.2009, the borrowers gave a Letter to the Bank expressing their willingness to pay the entire outstanding amount. The property was sold for a stun of Rs. 22,32,00,000/- and a full satisfaction. Memo was also tiled before the Tribunal on 4.1 2.2009. The Review Applicants, instead of questioning the sale, have filed I.A. No.279 of 2010 on 31.5.2010 seeking to amend the prayer questioning the confirmation of the sale in favour of the Respondents to 4 and they also filed an Application in I.A. No.280 of 2010 seeking to implead the auction purchasers. On 19.1 0.2010. the Debt Recovery Tribunal-II, Chennai, dismissed I.A. No.279 of 2010 seeking for amendment of the prayer and by the said Order S.A. No.101 of 2009 was also dismissed by the Tribunal.

The Review Applicants filed an Appeal before the Debt Recovery Appellate Tribunal in R.A.(SA) No.57 of 2.011 challenging the Order passed in S.A. No.101 of 2009 and also filed M.A.(SA). No.185 of 2011, challenging the Order passed in I.A. No.279 of 2010, seeking amendment of the prayer. By Order dated 28.2.2012, the Appellate Tribunal allowed the main Appeal and remanded the matter back to the Debt Recovery Tribunal-II, Chennai for fresh consideration. The amended S.A. No.101 of 2009 was re-numbered as S.A. No.349 of 2012. A Clarification Petition praying to clarify the Order passed in M.A.(SA) No.185 of 2011 was presented to the Debt Recovery Appellate Tribunal on 10.12.2012. However, the Tribunal refused to entertain the said Petition on the ground that the Petitioners therein are not parties to M.A.(SA) No.185 of 2011. Challenging the Order of the Tribunal, the Respondents 1 to 4 have filed the Writ Petition.

According to the Review Applicants, they were not aware of the sale that took place on 29.9.2009 and even on 6.10.2009, they had deposited a sum of Rs. 225,00,000,- and that was also accepted by the Seventh Respondent-Bank and as such, the sale, which took place on 29.9.2009 was not brought to their Notice and only on 4.5.2010, the particulars of the auction purchasers were given to them. Thereafter, they immediately filed Interlocutory Applications viz., I.A. Nos.279 & 280 of 2010. Since they had the Knowledge of the sale only on 4.5.2010, the steps taken by them have to be construed as within the period of limitation prescribed.

The Respondent-Bank submitted that they had received a sum of Rs. 225,00,000/- on 6.10.2009 and the same was kept in no lien account, besides, by Letter dated 24.10.2009, it was brought to the notice of the Review Applicants about the sale of the property in auction held on 29.9.2009 to the successful bidders and they were requested to collect the said sum of Rs. 25,00,000/- and the post-dated cheque dated 31.12.2009. Taking into consideration the case of the respective parties, this Court set aside the Order passed by the Debt Recovery Appellate Tribunal. Chennai in R.A.(SA) No.57 of 2011 and allowed the Writ Petition.

The borrowers, who were the Respondents 2 to 5 in the Writ Petition have filed the above Review Application.

Heard Mr. S. Sethuraman, learned Counsel appearing for the Review Applicants, Mr. Jayesh B. Dolia, learned Counsel appearing for the Respondents 6 to 8 and Mr. Guberan, learned Counsel appearing for the Respondents 1 to 4.

The learned Counsel appearing for the Review Applicants mainly contended that the Writ. Petitioners had filed only one Writ. Petition and not three Writ Petitions challenging the Order passed in the Interlocutory Applications, in these circumstances, this Court should not have set aside the Order dated 28.2.2012 passed by the Debt Recovery Appellate Tribunal, Chennai in R.A.(SA) No.57 of 2011. This Court, while setting aside the Order passed in R.A.(SA) No. 57 of 2011, took into consideration the Order passed by the Debt Recovery Appellate Tribunal, which would reveal that by a common Order, the three Interlocutory Applications have been set aside, challenging the said common Order, the Respondents 1 to 4/Writ Petitioners have filed the Writ Petition. The Order passed by the Debt Recovery Appellate Tribunal, Chennai, which was also extracted in Paragraph No.11 of the Order passed in the Writ Petition, reads as follows:

"(a) The Order of learned Presiding Officer dated 19.10.2010 in S.A. No.101 of 2009 insofar as it relates to the dismissal of S.A. No.101 of 2009, I.A. No. 735/2009, I.A. No.279/2010 and A. No.280/2010 is hereby set aside.

(b) The Appellants are permitted to amend the prayer as prayed for in. I.A. No.279/2010 and the Auction Purchasers are impleaded as Respondents Nos.4, 5 & 6 in S.A. No.101 of 2009.

(c) The learned Presiding Officer is directed to take up S.A. No.101/2009 for hearing afresh after giving due Notice to all the parties and dispose of the same as expeditiously as possible.

(d) Each and every I.A. shall be taken up separately for hearing after due notice to all the parties by the learned Presiding Officer and the Orders therefor shall be passed by separate and distinct Orders.

(e) The dismissal of I.A. No.323/2013 passed in the Order of the Tribunal below dated. 19.10.2010 in S.A. No.101/2009 is confirmed.

(f) The Sale proceedings taken up by the Authorised Officer shall be subject to the result of the S.A.

(g) The Authorised Officer shall await the outcome of the S.A. before proceeding any further under the provisions of the Sarfaesi Act and the Rules made thereunder."

Therefore, from the above, it is clear that by a common Order, the Orders passed in the three Applications were set aside by the Appellate Tribunal. Therefore, this Court came to the conclusion that filing a Single Writ Petition is sufficient. This Court also took into account that though the Review Applicants had the right to challenge the sale under Section 17 of the Sarfaesi Act, they did not choose to question the sale.

In Meera Bhanja v. Nirmala Kumari Choudhury, AIR 1995 SC 455, the Apex Court held that the Review Court cannot re-appreciate the entire evidence and reverse the finding of Appellate Court. Further, the finding given by the Appellate Court cannot be reviewed even though it was erroneous.

In Lily Thomas, etc. v. Union of India and others, AIR 2000 SC 1650, the Apex Court held that the power of Review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The Review cannot be treated as an Appeal in disguise. The mere possibility of two views on the subject is not a ground for Review. Further, once a Review Petition is dismissed, no further Petition to review can be entertained.

It is settled position that the power of Review under Order 47, Rule 1 of the Civil Procedure Code can be exercised by a Court of Law for correction of mistakes and not to substitute the view already taken. The re-hearing of the matter in Review is impermissible in law. It is also settled position that review of the Order is permitted only within the provisions of Order 47 and Section 114 of the Civil Procedure Code. The Order can be reviewed only in case of mistake or error apparent on the face of the record, requiring review of the Order. The Review provision constitutes an exception to the general rule that once an Order is signed or pronounced, it should not be altered. It is also settled position that erroneous finding is not a ground for review. Similarly, improper consideration of evidence available on record and overlooking important evidence are not sufficient grounds for Review. Reappraisal of evidence to come to a different conclusion would amount to exercise of Appellate jurisdiction and not Review jurisdiction. In Review Applications, the Court does not sit on Appeal over its own Judgments. The Review cannot be treated as an Appeal in disguise.

The Review proceedings are not by way of an Appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the Civil Procedure Code. An error on the face of the record must be such an error which must strike one on mere looking at the record and would require any long drawn process of reasoning on the points where there may be conceivable be two opinions. The Review Applicant cannot re-argue the matter on merits and in such case, the remedy available to the Review Applicant is to file an Appeal and not review, when the findings in the Appeal are adverse to them.

When this Court has clearly took into consideration the case of the respective parties and come to the conclusion that the Order passed by the Debt Recovery Appellate Tribunal, Chennai in R.A.(SA) No.57 of 2011 is liable to be set aside, the present Review Application does not come within the purview of Order 47, Rule 1 of the Civil Procedure Code warranting review of the Order. We are of the considered view that there is no error apparent on the face of the record, warranting review of the Order.

In these circumstances, the Review Application is devoid of merits and the same is liable to the dismissed. Accordingly, the Review Application is dismissed. No costs.