Heard Mr. Soni, learned advocate, for the applicant and Mr. Pahwa, learned advocate, for the opponent.
2. Rule. Mr. Pahwa, learned advocate has waived service of Rule. With consent of learned advocate application is taken up for final decision today.
3. The applicant seeks below mentioned relief in present application:-
"6B Your Lordships may be pleased to recall / review and set-aside the Order dated 9-8-2011 passed by this Hon. Court in the above mentioned Company Petition No.130/2010, and, in the larger interest of justice the Company Petition No.130/2010 maybe heard afresh on merits."
4. Mr.
Soni, learned advocate for the applicant, has relied on the order dated 16.1.2012 to justify the applicant's action of preferring present review application. Mr. Soni also submitted that the Court may grant the request and review the order so that the applicant may place relevant aspects for consideration by the Court and to also request the Court to recall the order of admission of the petition. Mr. Soni, learned advocate for the applicant, however, did not clarify as to how the request for review/recall of the order would come within the purview of "Review" of a judgment or an order or within the purview of Order 47 of CPC.
5. So far as the request for reviewing the order dated 9.8.2011 is concerned, it is necessary and relevant to note that after considering the applicant's case in Company Petition No.130 of 2010, the Court found that present applicant, who is the respondent in Company Petition No.130 of 2010, is unable to pay its debts and it has failed and neglected to discharge its debts and its financial obligations.
5.1 The Court also found that the eventualities contemplated under Section 433 of the Companies Act, 1956 exists and that therefore, the petitioner, i.e. present opponent, is entitled to order of admission of company petition seeking order of winding up.
5.2 Therefore, the Court granted order of admission in the said petition and for the reasons recorded in the order dated 9.8.2011, the petition came to be admitted and provisional liquidator came to be appointed.
5.3 However, considering the request of the respondent to grant more time and afford one more chance to the respondent to demonstrate that it is making attempts to resurrect itself and there are chances to revive it, the petitioner's request for permission to advertise admission of the petition was deferred.
5.4 Thereafter, as mentioned earlier, for considerable time the applicant did not take any action whatsoever including any step to place on record any material so as to justify the request to defer the publication of advertisement.
After having thus gained time, the respondent belatedly filed OJ Appeal and then after withdrawing the appeal, it has now taken out this application.
5.5 At the outset, it is necessary to note that the Division Bench passed the order disposing off the appeal after recording applicant's submission that the applicant desires to prefer application for review of the order on 16.1.2012, whereas present application is filed on 5.3.2012. Thus, even after the order passed by the Division Bench, delay is caused in filing present application. The said delay is over and above the delay caused at the initial stage, i.e. immediately after the order dated 9.8.2011. The applicant did not even prefer application seeking review/recall of the order at the relevant time, much less within prescribed time limit.
5.6 The applicant herein appears to have made the request for permission to withdraw the appeal at the last stage of appeal proceedings and as a last resort and after consuming as much time as it can during said proceedings.
As mentioned above, before preferring the Appeal, any application, on similar or even on any other ground, seeking review of the order, was not preferred. Even after seeking permission to file review application, the applicant caused further delay from 16.1.2012 to 5.3.2012.
All these aspects conjointly demonstrate and conclusively establish and eloquently speak about applicant's intention viz. to delay the winding-up proceedings. All attempts of the applicant are aimed at delaying the main proceedings of the winding up petition.
5.7 Besides this, in present application seeking review/recall of the order, the applicant has failed to demonstrate any apparent error on the face of order dated 9.8.2011.
5.8 It is necessary to mention that the said order dated 9.8.2011 was passed after considering all relevant facts and circumstances and entire material on record of the petition as well as all submissions made by the learned counsel of the respondent (i.e. present applicant) at the time of hearing.
5.9 Before proceeding further, it is relevant to take into consideration the scope and purview of application seeking review of a judgment or order and the extent to which the Court can exercise jurisdiction when requested to review an order or a judgment. The aspect has been considered by the Apex Court.
In the case between M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [AIR 1980 SC 674], the Apex Court held in para-9 of the decision observed thus:-
"....An error apparent on the face of the record exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record".
(emphasis supplied) Then, in para-9 of the decision in the case between Parsion Devi & Ors. v. Sumitri Devi & Ors. [(1997) 8 SCC 715], the Apex Court has observed that :-
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."
(emphasis supplied) Subsequently, in the case between Lily Thomas, etc. v. Union of India & Ors. [AIR 2000 SC 1650], the Apex Court observed, in para 57, thus:-
"57. .....We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting S. 494 amounted violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing in O. 47, Rule 1, C.P.C." must mean "a reason sufficient on grounds at least analogous to those specified in the rule," as was held in Chhajju Ram v. Neki Ram, AIR 1922 PC 112 and approved by this Court in Moran Mar Bassellos Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526...."
(emphasis supplied) The Apex Court in the case between Haridas Das v. Smt. Usha Rani Banik & Ors. [AIR 2006 SC 1634], held as under:-
"13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, [AIR 1964 1372] held as follows:
14. In Meera Bhanja v. Smt. Nirmala Kumari Choudary [AIR 1995 SC 455] it was held that :
"It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations:
15. A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason".
In the decision in the case of Col. Avtar Singh Sekhon vs. Union of India and Ors., [1980 (Suppl.) SCC 562], the Apex Court has observed, in para:12 that;
"12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed : (SCC p.675, para1) A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility..... . The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
Subsequently, while referring to the decision in the case of Col. Avtar Singh Sekhon (supra), the Hon'ble Apex Court in the case between Promoters and Builders Association of Pune vs. Pune Municipal Corporation and ors. reported in (2007) 6 SCC 143, wherein, in para:13, the Hon'ble Court observed thus;
"13.
As was observed by this Court in Col.
Avtar Singh Sekhon v. Union of India review is not a routine procedure. A review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of judgment in a case is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility........ The stage of review is not a finality.
This view has been reiterated in Devender Pal Singh v State, NCT of Delhi (SCC para 16). This being the legal position, there is absolutely no ground for review of the judgment and order dated 5-5-2004. The review petitions are, therefore, liable to be dismissed."
(emphasis supplied) In para:3 of the decision in the case of Aribam Tuleshwar Sharma (supra), the Apex Court has observed that:-
" ....
It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made;
it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal."
(emphasis supplied) While dealing with the issue as to when the power of review can be exercised and what would constitute error apparent on face of order/record, the Full Bench of this Court in case Gujarat University v. Miss Sonal P. Shah & Ors. [1982 (1) GLR 171] observed thus:-
" 33.
The review applications are quite incompetent as what is sought by them is to practically set aside the order of the Division Bench and remodulate the reliefs so as to meet the alleged exigencies of the situation, as according to the review petitioners the decision has an engulfing effect on the careers and asperations of the students who are already promoted of course without examination. This is nothing but an attempt to circumvent the path of approaching the Supreme Court by way of an appeal for which leave is already granted. Though the Plenary jurisdiction of this Court in review is not very much circumscribed there are definitive limits as held in Shivdeo Singh's case (AIR 1963 SC 1909). Of course, this judgment was prior to the amendment of Civil Procedure Code by which under sec.141, the provisions of Civil Procedure Code are not made applicable to the proceedings under Article 226 of the Constitution of India. The restrictions under Order 47 of the Civil Procedure Code are not directly applicable, and this Court can exercise the powers on a wider canvass on any analogous ground; still the scope for review has it s own restrictions and may not be exercised in the manner in which the powers can be exercised in an appeal.
34. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments cannot create a ground for 'review' (vide Krishna Iyer, J., AIR 1975 SC 1500-Sow. Chandra Kanta v. Sheik Habib). Hence, these review applications have no scope."
6. Present case and the point urged by the applicant do not demonstrate any error apparent on the face of the record/order.
On the other hand, the merits of the order can be examined only in Appeal, and the Appeal has been withdrawn.
6.1 Besides this, the details and facts mentioned in the order dated 9.8.2011, particularly in para 6.3 to 6.5 and para 7 are sufficient to establish that the respondent company has lost its net worth and the company has lost its capacity to discharge financial obligation and to pay its debts. Therefore, application for review/recall of the order is not maintainable.
6.2 In present application, without claiming and establishing that the deponent himself was present at the time of hearing of the petition, the deponent of the application has made allegation that during the course of hearing of OJ Appeal, submissions about legality of the Deed of Assignment have not been recorded. It is claimed in the application that since there was no finding on the said issue in the order dated 9.8.2011, the applicant has withdrawn the OJ Appeal with a view to filing present review/recall application.
6.3 Actually, at the time of hearing of the petition before the said order came to be passed, the submissions on behalf of the applicant i.e. the respondent in the petition were restricted only to the applicant's assertion about the lease rights and the claim that the said lease rights were still alive and in operation and the respondent i.e. present applicant was trying to revive the petition with help of lease rights. The respondent wanted to demonstrate that lease right were still alive, and therefore, it had requested for time to place it on record which is evident from conjoint reading of order dated 2.8.2011 and 9.8.2011 (para-5, para-6 and para-6.1 with para-6.2 to para-7). It is pertinent that any submission on the strength of Deed of Assignment and its legality or otherwise were not raised and/or urged either on 2.8.2011 and/or 9.8.2011 at the time of hearing of the petition.
6.4 The submissions made by the learned counsel for the petitioner on the strength of lease rights have been recorded in para 5, 6.1 to 7 of the said order dated 9.8.2011, any other contentions on the basis of Deed of Assignment or any contention questioning its legality were not raised and that therefore, there was no question or occasion of recording, much less considering, alleged submission and/or dealing with such submissions.
6.5 Under the circumstances, the applicant now cannot be allowed to raise the said fresh contention in present review application and/or to support the request for review/recall of the said order dated 9.8.2011.
6.6 As mentioned by the Apex Court in the above mentioned decisions, the Court cannot consider fresh contentions in review application, which, though available, were not urged at the time of hearing of the main petition. In this context, reference should be made to the decision in the case between U.P.S.R.T.C. v. Imtiaz Hussain [AIR 2006 SC 649] wherein in para - 8 the Apex Court observed that:-
"8. ......
in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification or mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case."
(emphasis supplied) 6.7 Therefore, the applicant's attempt to raise the said contention and attempt to make reference of the grievance regarding legality of the Deed of Assignment cannot be considered at this stage and on that basis, the request for review/recall of the order cannot be entertained.
6.8 It appears that the applicant's attempt is only to delay further proceedings and/or orders and to while away time.
7. On overall consideration of the facts, circumstances and submissions by learned counsel for the applicant and for the foregoing reasons, it has to be held that the applicant has failed to make out a case that there is any error apparent on the face of the order / record and that the request and the application fall within the circumstances contemplated under Order 47 of C.P.C. or principles analogues to those contemplated under order any cause for review/recall of the order is not made out. Hence, the application for review/recall of the order dated 9.8.2011 passed in Company Petition No.130 of 2010 is rejected. Rule is discharged.
(K.M.Thaker, J.) kdc Top