M S GOLDMOHAR GRAMODYOG SANSTHAN vs STATE BANK OF INDIA on 10 October 2019

**J U D G M E N T**

The Applicant has filed this M.A. u/s 22(2)(g) of the RDB Act, 1993 on 28.06.2019 for recalling the order dated 10.06.2019, 12.06.2019 and 14.06.2019 passed in Appeal No.06 of 2019 by this Tribunal.

Brief facts of the case are that the Applicant had filed Appeal No.6/2019 before the DRT, Allahabad on 03.06.2019

for setting aside the order dated 04.05.2019 whereby issued possession letter in favour of auction purchasers in respect of immovable property Lot No.B by the learned Recovery Officer in DRC No.496 of 2017 against the premises/property situated at Arazi No.1/2 of Arazi No.503, 504, 505, 509 and 1/2 of Arazi No.507 situated at Village Ludhauri Singhpur Kachhar, Bithoor, Kanpur wherein the Applicant runs its factory since 01.04.2005 under the rent agreement dated 15.03.2005.

The Applicant is neither borrower nor guarantor/mortgagor in the Credit Facilities granted to M/s Dinesh Oils Ltd. By the Respondent No.2, but only has tenancy right over the premises/property situated Arazi No.1/2 of Arazi No.503, 504, 505, 509 and 1/2 of Arazi No.507 situated at Village Ludhauri Singhpur Kachhar, Bithoor, Kanpur wherein the Applicant runs its factory since 01.04.2005.

The appeal filed by the Applicant was listed at DRT, Dehradun on 10.06.2019 along with other Appeal Nos.2/2019, 4/2019 and 5/2019 filed by M/s Dinesh Oil Ltd. as the connected matter, while the Appeal of the Applicant has no concern with the other appeal filed by M/s Dinesh Oil Ltd. And no any direction was issued by the Hon'ble Allahabad High Court in this regard.

The Applicant had no any information that appeal was listed at DRT, Dehradun. Hence, counsel for the Applicant did not seek any adjournment in this appeal by filing any I.A No.1148 of 2019 even not requested from the Tribunal to fix the Appeal at DRT, Allahabad instead of DRT, Dehradun.

Despite having knowledge of 'no adverse order' on the basis of resolution passed by DRT & DRAT Bar Associations, this Tribunal passed adverse order against the Applicant on 10.06.2019 at DRT, Dehradun and listed again on 12.06.2019 at DRT, Dehradun for arguments without giving any information to the Applicant in arbitrary manner as well as without having any territorial jurisdiction for hearing the appeal of the Applicant at DRT, Dehradun.

On 12.06.2019, the Presiding Officer, DRT, Dehradun reserved the judgment after hearing the arguments of the local counsel for the Respondent No.2/Bank without issuing any notices to the respondents on the oral preliminary objection of the Respondent-Bank that Applicant had not paid requisite court fee as per Rule 7 of DRT (Procedure) Rules, 1993 by fixing the dated 14.06.2019 at DRT, Dehradun for pronouncement of order.

Vide order dated 14.06.2019, the Presiding Officer, DRT, Dehradun having additional charge of DRT, Allahabad dismissed the appeal only on the ground that Applicant had not paid requisite court fee as per Rule 7 of the DRT (Procedure) Rules, 1993 as well as without considering the notes of the Registrar, DRT, Allahabad.

The Applicant had filed the aforesaid appeal along with applicable requisite fee and after satisfying from the deposit of court fee, learned Registrar, DRT, Allahabad registered the appeal according to the provisions of law and the objection taken by the Respondent-Bank is not sustainable under the provisions of law.

The Presiding Officer, DRT, Dehradun having additional charge of DRT, Allahabad has no right to pass any adverse order against the Applicant in any manner at DRT, Dehradun because he has no any territorial jurisdiction for hearing the appeal of Applicant at DRT, Dehradun as per the provisions of section 3 of the RDB Act, 1993 even has no right to list the appeal at DRT, Dehradun. Hence, the order date 10.60.2019, 12.06.2019 and 14.06.2019 passed by the Presiding Officer are not sustainable under the provisions of Law. The aforesaid orders were passed without giving any opportunity of hearing to the Applicant on preliminary objection raised by the Respondent No.2/Bank as well as without giving any information regarding listing of case for hearing at DRT, Dehradun as the orders are an ex-parte order against the Applicant hence, are liable to be recalled.

In view of above, the Applicant has prayed that the aforesaid orders be recalled and case be decided on merit after affording an opportunity of hearing to the Applicant.

I have heard the learned counsel for the Applicant and perused the record.

Instant application u/s 22(2)(g) inter-alia praying for recall of orders dated 10.06.2019, 12.06.2019 & 14.06.2019 are fallacious in law as Section 22(2)(g) of the RBD Act, 1993 is limited to application for restoration of 'applications' having dismissed for 'default'. However, in none of the orders i.e. orders (s) dated 10.06.2019, 12.06.2019 & 14.06.2019 the 'application' has been dismissed in 'default' as the same cannot be and would not be comprehend the instant case. The said statutory provision being expressly, , limited to cases setting aside any order of dismissal of any application for default or any order passed by it ex-parte The phrase 'for default' as used therein has been interpreted to mean 'dismissed for want of prosecution as provided or contemplated in the Code of Civil Procedure' and not dismissed on account of non-payment of requisite court fee.

The settled position of law is that after passing of the judgment, decree or order, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed, the property remedy for the aggrieved party is to file appeal.

In AIR 1973 KERALA 1 (V 60 C 1) "G.K. Prabhakaran, irinjalakuda Vs. David Traders, Trichur Full Bench Coram : 3 T.C. Raghavan, C.J., V.P. Gopalan Nambiyar and G. Viswanantha Iyer, JJ. (Full Bench) held in **Para 3.** that no party has a right to insist on the Court exercising its inherent jurisdiction. This jurisdiction is to be exercised by the Court in very exceptional circumstances for which the code lays down no procedure. The Legislature has made detailed provisions in the Code for various matters. If there are express provisions in the Code covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. The power under the Code need not even be express. It may be implied or can even be implicit from the very nature of the provisions made for covering the contingencies to which they relate.

It in the instant matter the express provision of appeal under Sec 20 of The Recovery of Debts and Bankruptcy Act, 1993 [Act 51 of 1993 – as Amended]. However, the

Applicant despite there being a specific provision of appeal as contained Section 20 of the Act has filed the instant application invoking the inherent jurisdiction of this Tribunal which is not permissible in the eyes of law.

Hon'ble Apex Court in the case law reported in **AIR 2005 Supreme Court 242** "National Institute of M.H. and N.S.V.C. Parameshwara" National Institute of Mental Health and Neuro Sciences, Vs. C. Parameshwara has been pleased to hold that inherent powers – cannot be exercised so as to nullify provisions of Code – Where Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. Smt. Sooraj Devi Vs. Pyare Lal and Anr. **AIR 1981 SC 736**, Hon'ble Apex Court has held "that the inherent power of the Court cannot be exercised for doing that which is specially prohibited by the Code and in the instant case there exists no provisions in Recovery of Debts Due to Bank and Financial Institution Act, 1993 empowering this Hon'ble Tribunal to recall its own order passed in an appeal filed u/s 30 of the Act, 1993.

In **AIR 2007 SUPREME COURT 740** "Deputy Director, Land Acquisition Vs. Malla Atchinaidu" Hon'ble Apex Court has held that the general rule is clear that once an order is passed and entered or otherwise perfected in accordance with the practice of the court, the court which passed the order is functus officio and cannot set aside or alter the order however wrong it may appear to be. That can only be done on appeal....."

**Hon'ble Supreme Court in Parsion Devi & Ors Vs Sumitri Devi & Ors** has also held that ".....It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC.....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 of 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'."

**Hon'ble Rajasthan High Court Judgment in Govind Poojara Vs Mohan LalAndOrs. AIR 1988 (1) WLN 212** has held that ".....the order can be highly erroneous, illegal or wrong, but that is not the scope of review petition".

**Hon'ble SC in Sow Chandra Kanta Vs. Sheik Habib AIR 1975 SC 1500** has held that "..... the Applicants cannot raise new facts in their review application. The Applicants have also failed to demonstrate that they discovered any new point and important matter or evidence which after the exercise of due diligence was not within the knowledge of the Applicant seeking the review or could not be produced by him at the time when the order was made."

**Hon'ble Supreme Court in Meera Bhanja Vs Nirmala Kumari AIR 1995 SC 455** has held that "..... 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 with in 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."

**Hon'ble Supreme Court in the case of Kamlesh Verma Versus Mayawati and others** reported in 2013 AIR SC (Civil) 2473 held as under:

*A. Civil Procedure Code, Section 114 - Civil Procedure Code, Order 47 Rule 1 - Review of Judgment - Application for review on ground that there was error in judgment - Held :-*

*(i) 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 of review.*

*(ii) The mere possibility of two views on the subject is not a ground for review.*

*(iii) Review is not re-hearing of an original matter - The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. 1997(4) RCR (Civil) 458, 2000(3) RCR (Civil) 252, 2006(3) RCR (Civil) 601, relied.*

*[Paras 11, 12, 13 and 14]*

*B. Civil Procedure Code, Order 47 Rule 1(1) - Constitution of India, Article 32 - Supreme Court Rules, 1966, Order 40 Rule 1 - Civil Procedure Code, Section 114 - Taj Corridor Project - Enquiry into a matter entrusted to CBI by Supreme Court - CBI conducting the enquiry beyond the directions of Supreme Court and registering FIR - FIR quashed being unwarranted*

**ON FACTS**

*Taj Corridor Project - A sum of L 17 crores released for Taj Corridor project without sanction - Supreme Court directed the CBI to interrogate and verify the assets of the persons concerned with regard to outflow of L 17 crores which was alleged to have been released without proper sanction - Investigation conducted by CBI with regard to utilization said amount - CBI however making investigation with regard to*

*disproportionate assets of the accused and registered another FIR - Second FIR quashed by Supreme Court being unwarranted and without the direction of Supreme Court - Review petition filed against the order Supreme Court - Review petition dismissed - Law summed up when the review was maintainable and when not.*

[Paras 19 to 22 and 16]

*C. Civil Procedure Code, Order 47 Rule 1(1) - Constitution of India, Article 137 - Supreme Court Rules, 1966, Order 46 Rule 1 - Civil Procedure Code, Section 114 - Review of judgment - Review when maintainable and when not maintainable - Law summed up :-*

*When the Review will be maintainable :-*

*(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;*

*(ii) Mistake or error apparent on the face of the record;*

*(iii) Any other sufficient reason.*

*(iv) The words "any other reason" mean "a reason sufficient on grounds at least analogous to those specified in the rule". 1955(1) SCR 520, relied.*

*When the review will not be maintainable:-*

*(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.*

*(ii) Minor mistakes of inconsequential import.*

*(iii) Review proceedings cannot be equated with the original hearing of the case.*

*(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.*

*(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.*

*(vi) The mere possibility of two views on the subject cannot be a ground for review.*

*(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.*

*(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.*

[Para 16]

*D. Constitution of India, Article 32 - Enforcement of rule of law - It is the duty of the judiciary to enforce the rule of law and to guard against erosion of the rule of law. 1998(1) RCR (Crl.) 357, relied.*

[Para 19]

*E. Civil Procedure Code, Order 47 Rule 1(1) - Constitution of India, Article 137 - Supreme Court Rules, 1966, Order 40 Rule 1 - Review of judgment - Scope of - Jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record - A judgment cannot be reviewed where there are minor mistakes of inconsequential import are obviously insufficient. 1975(1) SCC 674, relied.*

[Paras 5 to 8]

*F. Criminal Procedure Code, Section 362 - Supreme Court Rules, 1966, Order 40 Rule 1 - Constitution of India, Article 137 - Review of judgment in criminal proceedings - Held :-

(i) In a criminal proceeding, review is permissible on the ground of an error apparent on the face of the record - A review proceedings cannot be equated with the original hearing of the case.*

*(ii) Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.*

*(iii) 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 of review. 1980(2) SCC 167, 1980 (Supp) SCC 562, relied.*

*[Paras 9 and 10]*

**The Hon'ble Supreme Court in the case of Surendra Koli Versus State of U.P. and others as reported in 2015(3) SCC(Cri) 592 held as under:-**

*A. Civil Procedure Code, Section 96 - Constitution of India, Article 137 - Scope of Review petition before Supreme Court - Held:-*

*(i) Scope of review petition under Article 137 Constitution is very limited and cannot be equated to that of an appeal - The review petitions can be allowed only on the ground that there is an error apparent on the face of the record and finality of the judgment delivered by the Court will not be reconsidered on the aforesaid ground unless the court is satisfied that a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. 2013(4) RCR (Crl.) 75 : 2013(5) Recent Apex Judgment (RAJ) 62, relied.*

*[Para 7]*

*B. Legal Services Authorities Act, 1987, Section 21 - Indian Penal Code, Section 302 - Legal aid sought by accused during trial - District Judges while assigning the defence counsel, especially in case where legal aid is sought for by the accused person, must preferably entrust the matter to a counsel who has an expertise in conducting the Sessions Trial - Such assignment of cases would not only better preserve the right to legal representation of the accused person but also serve in the ends of ensuring efficient trial proceedings.*

*[Para 10]*

*C. Indian Penal Code, Section 302 - Constitution of India, Article 137 - Death sentence awarded to accused in murder case - Death sentence upheld by Supreme Court - Review petition against the order dismissed - Held :-*

*(i) No case is made out within the meaning of Article 137 of the Constitution requiring reconsideration of the impugned judgment and order and therefore, this Court in its appellate jurisdiction has not committed any error, whatsoever, which would persuade us to review the same.*

[Para 9]

Moreover, None-Appearance on account of Bar Resolution is not a valid ground [DRTC 2016 (1) 270]. Further, the notification conferred jurisdiction on the Presiding Officer to Act as a Presiding Officer for other tribunal also without any restrictions in cases brought before the person appointed as a Presiding Officer at his original tribunal and place. Section 4 was amended by substituting 4(2) to enlarge the scope with the purport and objective behind the amendment which were reflected.

The Report of the Lok Sabha Joint Committee qua the Amendment sets out the background to the amendment as follow: "On the issue of pendency of cases in various DRTs, the Committee has been apprised by the Department of Financial Services that approximately 70,000 court cases pending in DRTs involving more than Rs. 5 Lakh Crore. One of the reasons mentioned in the memoranda submitted by various stakeholders for the pendency of cases is vacancies in various DRTs/ DRATs. A number of suggestions in this regard have been made by the stakeholders. After detailed deliberations on the issue, the Committee decide(d) to insert the following new provision/substitute some of the provisions under the RDDB & FI Act...."

Similarly, the Statement of Objects and Reasons to the amendment inter alia notes: "The Recovery of Debts due to Banks and Financial Institutions Act, 1993 and the

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, were enacted for expeditious recovery of loans of banks and financial institutions. Presently, there are approximately seventy thousand cases pending in Debts Recovery Tribunals. Though the Recovery of Debts due to Banks and Financial Institutions Act provides for a period of 180 days for disposal of recovery applications, the cases are pending for many years due to various adjournments and prolonged hearings. In order to facilitate expeditious disposal of recovery applications, it has been decided to amend the said Acts and also to make consequential amendments in the Indian Stamp Act, 1899 and the Depositories Act, 1996." (emphasis supplied).

In order to fulfill the aforesaid objective of reducing the arrears and tackle the issue of pendency of cases in various Debt Recovery Tribunals, 'purposive interpretation' is to be given.

In Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. & Ors. Hon'ble Apex Court explained this principle in the following manner:

"33. Interpretation must depend on the text and the context. They are the bases of Interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place....."

In view of above, I have considered the grounds taken in Miscellaneous Application and orders dated 10.06.2019, 12.06.2019 and 14.06.2019 passed in Appeal No.06 of 2019 by this Tribunal and after giving my thoughtful consideration to the issues raised as discussed in forgoing para of this order I am of the opinion that grounds and averments so taken do not fall within the ambit of recall or review. It appears that Miscellaneous Application has been filed by the Applicant before this Tribunal under the garb of present recall application as an appeal against order passed by this Tribunal and it is a settled proposition of law that a court cannot sit as appellate authority against its own judgment and in view of above referred judgments passed by Hon'ble Supreme Court the Applicant is not entitled to any relief in this case. The scope of recall/review is limited and cannot be equated with appeal if Act provides specific remedy of appeal litigant cannot invoke provisions of recall/review to challenge the findings given on merits. The Applicant could avail other efficacious remedy of appeal instead of filing this recall/review application to assail the order of this Tribunal on merits by filing this Recall Application under the garb of Miscellaneous Application.

In view of the above, I find no merits in the arguments advanced on behalf of the Applicant/ex-parte Defendant nor found any apparent error or mistake or sufficient cause to set aside the order passed in Appeal No.06 of 2019 by this Tribunal.

Accordingly, the Misc. Application is devoid of any merits and hence dismissed with no order as to costs.

The pending I.As, if any, also dismissed accordingly.

The order is pronounced and signed in the open court. The copy of this order be supplied to all concerned parties as per rules. After due compliance, the file be consigned to record.

**Dated: 10.10.2019**

Presiding Officer DRT, Allahabad Additional Charge