UNION BANK OF INDIA vs Asia Rubber Industries and Anr on 5 March 2019

1. M/s Asia Rubber Industries

2. Gurvinder Singh

Review Applicants

Versus

Union Bank of India & Ors. Respondent Bank.

AND

(RA No.Nil /2017) In TA No. 03/2016

Ajay Kumar Chalana Review Applicant

Versus

Union Bank of India & Ors. Respondent Bank. (ORDER) (05.03.2019)

1. By way of this common order, I shall hereby disposed off both the matters as similar prayer and facts involved in both the Review Applications. Review Application No.Nil/2017

2. The Review Applicant No.1 & 2/CD No.1 & 2 prayed that additional documents submitted alongwith this RA be taken on record; Recovery Certificate issued on 16.10.2018 be stayed; Order dated 16.10.2017 be recalled; Account of defendant No.1 & 2 be declared NPA as per the RBI, Prudential Norms of Income Recognition as

SC submitted alongwith WS; the Benefit of OTS be permitted as per M/s Sardar Associates Vs. Punjab and Sind Bank; AIR 2010 SCC 218 be allowed and the RC issued against CD No.3, Sh. Ajay Kumar be recalled and he may be discharged. Review Application No.Nil/2017

3. By way of the said review application, the Review Application/CD No.3 prayed to review the judgment and final order dated 16.10.2017 passed by this Tribunal and discharged him in the present matter

4. It is stated by Review Applicants/CD No.1 & 2 is that the respondent bank filed the TA No.03/2016 which was disposed off by this Tribunal vide order dated 16.10.2017 however, while passing the impugned order, some very important documents and legal citations filed with written submissions as well as prayer of the Applicants/CD No.1 & 2 in Written Statement have not been considered by this Tribunal. Thus, the same is mistake apparent on the face of record itself. It is also stated that this Tribunal has not consider the One Time Settlement, what is NPA and other issues as regards the account of the Applicants/CD No.1 & 2 and the documents Exb.DW1/15 to Exb.DW1/20 and most important document Exb.DW1/18 where the account of the applicants/CD No.1 & 2 was declared as NPA, therefore, it is stated that present Review Application may be allowed and review the final order dated 16.10.2017.

5. In support of Review Application, the applicants/CD No.1 & 2 relied upon the judgments of Hon’ble Supreme Court in the matter of Rajender Singh Vs. Lt. Governor; Andaman & Nicobar Islands and others., AIR 2008 SC 75; Board of Control for Cricket, India Vs. Netaji Cricket Club, AIR 2005 SC 592; Amrit Lal Goverdhan Lalan (dead) by

SC his legal representative Vs. State Bank of Travancore and others, AIR 1968 SC 1432; The State Bank of Saurashtra, Vs. Chitranjan Rangnath Raja and another, AIR 1980 SC 1528; Syndicate Bank Vs. Channaveerappa Beleri & Ors, AIR 2006 SC 1874. It is also relied upon the judgment of Hon’ble Karnataka High Court in the matter of H. Mohamed Khan (deceased by L.Rs.) and others, Vs. Andhra Bank Ltd. and others, AIR 1983 Karnataka 73. Further, the Judgment of Bombay High Court in the matter of M/s M. Ramnarain Pvt. Ltd. and another Vs. The State Trading Corporation of India Limited, AIR 1988 Bombay 45;

6. The Review Applicant/CD No.3 has stated that the respondent bank has not filed any document to establish that applicant/CD No.3 was ever asked to be consider by CD No.1 & 2 as surety or to establish that the bank had ever considered Review Applicant herein as surety while granting credit facilities to CD No.1 & 2. It is also stated that the sanction letters, terms and condition letters by the bank and request letters by CD No.1 & 2 have no mention of the applicant/CD No.3 as surety. Even in the OA, the applicant/CD No.3 has not been named as Guarantor. It is also stated that the guarantee deed has not been signed by the applicant/CD No.3. It is also stated that the net effect would be that the applicant/CD No.3, does not get any rights of subrogation, in the event of payments made in terms of the final order in TS, therefore, it is stated that the present Review Application may be allowed and applicant/CD No.3 may be discharged, and recovery certificate issued against the applicant/CD No.3 be recalled.

7. Notices of both the Review Applications were issued to the bank. The respondent bank has filed its reply and raised objection that in the review application, the Tribunal has very limited power to the extent any mistake or error apparent on the face of record only. It is

SC stated that in the garb of Review, the parties are not allowed to raise all the objection/contentions which has already been dealt with and also the court has already taken a view on the documents available. Further, it is stated that the Review by no means an Appeal in disguise and also an appeal has already been preferred by the respondent before the Hon’ble DRAT, Delhi which is still pending adjudication therefore, since an appeal is pending thus, the review applications is to be rejected on this ground also.

8. It is also stated that the evidences has already been considered and even otherwise, in the review the matter could not be considered on merits thus, it is prayed that the present Review Applications may be dismissed with cost. The bank also relied upon the judgment of Hon’ble Supreme Court in the matter of M/s Tungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commericial Taxes, Anantapur, AIR 1964 SC 1372 and judgment of Hon’ble Bombay High Court in Tukaram Nathuji Sonkusare Vs. Dayanlnath Duddhanath Mishra (1985 Mah LJ 38:19085 Mah LR 438 at pp, 440, 441).

9. Having considered the rival submissions and gone through the record.

10. The power of review has been provided under Rule 5A of the DRT Rules 1993, for convenience, same is extracted herein below: “(1) Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake or error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order.”

11. Thus, a review application is maintainable only in case of any mistake or error apparent on the face of record. In the present matter, the applicants has mainly raised three issue that whether the CD No.3

SC was a guarantor or not, the NPA was wrong and also OTS was not considered by the bank. The issues which are raised in the present RAs are as such is not maintainable as the same has already been taken care in the final order dated 16.10.2017, even otherwise, adjudication of these issues are required a long drawn process of reasoning which has already been declined by the Hon’ble Supreme Court in Smt. Meer Bhanja v. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455, and observed that “the Review Court should not act as Appellate Court and the error apparent on the face of the record contemplates that genre of errors which strikes one on a mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions.”

12. Similarly, the Hon’ble Supreme Court in Parsion Devi and Others v. Sumitri Devi and Others, 1997(8) SCC 715 held that: “a mistake or error apparent on the face of the record is one which is self-evident and does not require a process of reasoning; distinct from an erroneous decision. A rehearing in the matter for detecting an error in the earlier decision and then correcting it does not fall within the ambit of review jurisdiction.”

13. Hon’ble High Court of M.P. in the matter reported in 2003 (2) MPLJ 499 has expressed the same view after relying on the decision of Hon’ble Apex Court reported in AIR 1964 SC 1372 in which it was held that: “A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”

14. Therefore, the issues which has already been decided and even otherwise, a long wrong reasoning is required, could not be heard by way of a review. Even otherwise, the issue whether CD No.3 was guarantor or not is a issue pertaining to the merits of the matter, which could not be gone through in a review application. Further, the issue of

SC the NPA is not relevant for an application under Section 19 of the RDDBI&FI Act, 1993. Nevertheless, this Tribunal has already considered the defaults in the impugned order. So far as OTS is concerned, it is only between the parties. Therefore, the applicants/CD No.1 to 3 did not raise any error or mistake apparent on record in the present RA.

15. The Applicants/CD No.1 & 2 has filed the certain additional documents however, the said documents cannot be considered in the Review Application.

16. In support of his contention, the Review Applicants/CD No.1 & 2 has relied upon certain judgments however, same are also not applicable in the present matter.

17. The judgment of Rajender Singh (supra) which is relied upon by the applicant of RA, is concerned, this judgment is not applicable since all the important issues has already been taken care in the final order dated 16,10.2017.

18. The Judgment of Board of Control for Cricket, India (supra) is concerned, the said judgment is also not applicable as the said judgment on the point that a review application is maintainable even on account of misconception of law and fact by court and advocate.

19. The judgment of Amrit Lal Goverdhan Lalan (supra) is pertains to a case where the right of the surety and the creditor are involved however, since this Tribunal has already passed a decree against the CD No.3/defendant No.3 thus, the said judgment also do not hold water in the present matter.

20. The judgment of State of Saruashtra (supra) is also not applicable as in the said matter pledges woods were lost however, this

SC is not a case loss of any hypothecated assets thus, the said judgment is also do not support to the review applicants.

21. The judgment of Channaveerappa Beleri (supra) is concerned, I find that this judgement is not applicable in the present matter as the issue of limitation has already been decided by this Tribunal in the final order dated 16.10.2019 and in the review application, the matter could not be heard on merits.

22. The judgement of H. Mohamed Khan (supra) is concerned, this judgment is also not applicable in the present matter as in the review the Tribunal has very limited power and also in the final order on the basis of the documents, the liability of CD No.3/defendant No.3 was considered.

23. The judgement of M/s M. Ramnarain (supra) do not give any benefit to the review applicants as in the recovery matter, the parties are jointly and severally liable to be dues of the bank.

24. For the foregoing reasons, both the Review Applications are hereby dismissed.

25. File be closed and consigned to record room. Copy of this order be sent to the parties.

(Dr. REKHA G. DHAKAR) PRESIDING OFFICER DRT-I, DELHI