SHRI NENSHI LADHABHAI SHAH vs STATE BANK OF INDIA on 25 November 2019

**O R D E R**

1. 1) This order of mine will dispose of Review Application No.10 of 2019 filed by the applicants in respect of final order passed by this Tribunal on 01.10.2019 in S.A. No.71 of 2019.

2. 2) Briefly stated facts of the case are that the borrower company namely, M/s Euro Ceramics Limited availed various financial assistance from the consortium members bank known as 'SBI Consortium', wherein the Respondent Bank no.1 acted as the lead bank against the personal guarantee of the applicant no.1 to 15 and Mr. Pravin Dharamshi Gala, Mr. Hirji Panchalal

Shah & Smt. Nirmala Nitesh Shah and Corporate guarantee of M/s Euro Decor Private Limited and against creation of security interest over the movable and immovable properties of the borrower company/applicants. After availing the aforesaid credit facilities, the borrower company could not maintain the financial discipline, as agreed and thereby the account of the borrower company was classified as Non-Performing Asset on 01.04.2009 in accordance with the directions/guidelines relating to assets classification issued by the Reserve Bank of India and subsequently issued Demand Notice dated 08.11.2013 under Section 13(2) of the Securitization Act, 2002 demanding Rs.4,30,48,80,508.75Ps together with further interest, expenses and cost.

1. 3) The applicants also raised their representation/objections against the Demand Notice issued by the bank under Section 13(3A) of the SARFAESI Act, 2002 on 13.01.2014, which was also replied by the Respondent Bank on 30.01.2014. Thereafter, one of the consortium member bank i.e. respondent no.2 also issued notice under Section 13(2) of the SARFAESI Act, 2002 dated 02.01.2014 against the borrowers/applicants, against which also the applicants have filed their objections/representation dated 02.01.2014. The respondent no.2 also replied the said representation on 04.04.2014.

2. 4) Thereafter the respondent no.1 issued notice under Section 13(4) of the SARFAESI Act, 2002 to the applicants on 27.05.2014 & 16.09.2015 and subsequently took the possession of the properties on 24.09.2015 and accordingly the possession notice was also published in daily newspaper. The applicant/borrower approached the respondent bank for OTS which was accepted by the bank but on failure to pay amount as per OTS, bank again proceeded under SARFAESI Act, 2002 as per terms of OTS on the process already initiated. Thereafter, Respondent also filed an application under Section 14 of the SARFAESI Act, 2002 before the Ld. Chief Metropolitan Magistrate, Mumbai and accordingly, the Ld. Chief Metropolitan Magistrate passed orders dated 07.02.2019, whereby appointing Court Commissioners to take the physical possession of the property in question. Thus, the applicants being aggrieved and dissatisfied with the actions/measures taken by the Respondent Bank filed Securitisation Application No.71 of 2019 on the various grounds as mentioned in the Securitisation Application and same was dismissed by this Tribunal vide order dated 01.10.2019 and this Review Application has been preferred qua order dated 01.10.2019 on various grounds. I feel fair to say that both the parties have given their detailed grounds in their written submissions, so to avoid repetition I am not narrating pleading of Review Application and reply thereto.

1. 5) Upon notice issued by this Tribunal, the respondent bank appeared and filed its affidavit in reply denying all the contentions and allegations raised in the Review Application.

6) At the time of hearing, the counsel for the parties orally argued and in support of their oral arguments thereafter filed written submissions which are reproduced as under:- **Written Submissions on behalf of the applicants:**

1. 1. *The main ground for fling review is that although in the main SA No.71 of 2019, the Applicants at length argued and advanced submissions on 43 relevant, material, vital and important issues and referred to and relied upon catena of judgments and also filed written arguments which has been reproduced at page no.7 to 15 in order dated 01/10/2019 passed in above SA, the fact remains that the above submissions, issues and case laws has remained totally untouched, non considered and undecided and the SA has been dismissed purely on hyper technical issue of limitation based on mixed question of facts & law which is also suo motu raised by the Ld. DRT. Be that as it may, even the issue of limitation is wholly mis-placed in view of the Judgment dated 05/12/2013 in Appeal No.283 of 2013 in the case of Sahebrao M. Patel v/s Dr. Annasaheb Chougule Urban Cooperative Bank Limited passed by the Honble Appellate Tribunal (DRAT) Mumbai which is binding upon the DRT Ahmedabad.*

2. 2. *The suo motu reliance placed by the Ld. DRT Ahmedabad on judgment passed by Ld. DRAT in Appeal No.28/2019 in the case of Aditya Birla Finance Ltd. v/s Manglesh C. Gandhi while dismissing the SA No.71 of 2019 is already quashed and set aside by the Honble Gujarat High Court & hence the same is non est in law.*

3. 3. *The order dated 01/10/2019 also suffers from the vice of total departure and inconsistency from various final orders passed in other SAs by the Ld. DRT Ahmedabad holding that limitation aspect would not be hurdle in the case of basic material irregularity in the process by the Bank.*

1. 4. It is trite law that every issue raised, submissions made and case laws cited before the Ld. Tribunal is required to be considered and decided by giving reasons. However, the Applicants suffered the order dated 01/10/2019 due to total not considering and not deciding any of the above referred issues, submissions and case laws by the Ld. DRT while dismissing the SA No.71 of 2019. Hence the order dated 01/10/2019 has been passed on manifest errors of law and facts on the face of the record and based on misconception of law which warranted the Applicants to approach the Ld. DRT by way of present review application.

2. 5. During the course of submissions, the Advocate for Applicants have relied upon, cited and tendered following judgments on the various issues raised in the matter.

1. i. *Transcore v. Union of India (2008) 1 SCC 125.*

2. ii. *Manglesh C Gandhi v. Aditya Birla Finance Limited, Decided by Honourable Gujarat High Court on 07/10/2019 in SCA 15765/2019.*

3. iii. *Sahebrao M Patil v. Dr. Annasaheb Chougule Urbank Co-op Bank, Decided by Ld. DRAT-Mumbai on 05/12/2013 in Appeal No.283/2013.*

4. iv. *Indian Overseas Bank v. Rajshekharan, Decided by Hon'ble Division Bench Madras High Court on 21/02/2008 in Writ Appeal No.283/2013.*

5. v. *Smt. Bhavna v. Corporation Bank, Decided by Ld. DRT Ahmedabad on 09/01/2019 in SA No.412/2018.*

6. vi. *M/s Yashasvi Yarns Ltd. V. SBI, Decided by Ld. DRT Ahmedabad on 24/09/2019 in SA No.290/2019.*

- vii. *Jay Maruti Industries vs Punjab National Bank* Deicded by Ld. DRT Ahmedabad on 11/10/2018 in SA No.92/2017.

- viii. *Manjudevi R Somani v. Union of India*, Decided on 25/11/2013 by Hon'ble Division Bench of Gujarat High Court in SCA No.10038/2013.

- ix. *Chandradhoja Sahu v. State of Orissa* (2012) 13 SCC 419.

- x. *Ravi Yashvant Bhoir v. District Collector* (2012) 4 SCC 407.

- xi. *BCCI v. Netaji Cricket Club* (2005) 4 SCC 741.

6. The Ld. Advocate representing the Opponent during the course of his arguments has conveniently escaped to answer and deal with the above submissions and issues.

7. It is therefore requested to consider the above issues, submissions & case laws and to allow the review in the interest of Justice so that SA can be heard and decided on merits.

**Written Submission on behalf of the Bank:**

- 1. At the outset, Respondent No.1 submits that the Respondent No.1 has already filed reply and Respondent No.1 sticks to the averments made therein and categorically denies the allegations and interpretation made contrary thereto.

**PRELIMINARY OBJECTION REGARDING** **MAINTAINABILITY OF REVIEW OBJECTION**

- 2. The Respondent No.1 submits that the Hon'ble Tribunal has disposed of the S.A. vide Order dated 01/10/2019 with cost of Rs.2.00 Lakhs. The Respondent No.1 further submits that thereafter the applicant had filed an

application to waive cost and also to stay implementation and operation of said order dated 01/10/2019. The Respondent No.1 further says that the Hon'ble Tribunal had passed further Order on the said application and had restrained the Respondent No.1 Bank from taking physical possession for next 15 days. However, the Hon'ble Tribunal has not stayed implementation and operation of the Order with regard to payment of cost of Rs.2.00 Lakhs. The Respondent No.1 says and submits that admittedly the applicants have not complied with the said Order and have not deposited amount of cost. Thus, present Review Application is not at all maintainable and applicants can not be heard on merits in view of such non-compliance and the Review Application can be dismissed on this count alone.

1. 3. Without prejudice to what is stated above, the Respondent No.1 further submits that law regarding Review is well settled. The Respondent No.1 further says that this Hon'ble Tribunal is not sitting in Appeal over the Order dated 01/10/2019 passed by the Hon'ble Tribunal in S.A. No.71 of 2019 and if at all applicants are aggrieved by the said Order, the applicants have to approach the Hon'ble Appellate Tribunal by filing an Appeal under Section 18 of SARFAESI Act. It is crystal clear that in order to avoid pre-deposit, the applicants have filed present Review Application with ulterior motive and malafe intention and same is nothing but gross abuse and misuse of process of law.

2. 4. The Respondent No.1 categorically denies that order dated 01/10/2019 suffers from any error or mistake of facts and / or law apparent on the face of the record and that Judgment is required to be corrected and rectified to prevent any miscarriage of justice as contended. The Respondent No.1 specifically submits that after hearing the parties at length, the Hon'ble Tribunal has dismissed the S.A. on merits. It is categorically denied that the said order dated 01/10/2019 is erroneous and that S.A. No.71 of 2019 was required to be allowed as prayed in **Para 10(B)** of present Review Application. The Respondent No.1 submits that under the guise of Review Application, applicants want rehearing of S.A., which is not permissible. The Respondent No.1 submits that law regarding scope of Review Application is well settled and the Respondent No.1 has relied upon the following Judgment of Hon'ble Apex Court as under;-

1. (1) Kamlesh Varma V/s. Mayawati and Others and Reported in (2013) & SCC 320.

2. (2) Sunil Vasudeva and Others V/s. Sunder Gupta (Para 15 and 28)

3. (3) Sadi(D) Through Lear Heirs V/s. Aravin Dakshan Nayer (Para nos.5 to 9).

4. (4) Yashwant Sinha and Others V/s. CBI (Para Nos.23, 24, 30, 35, 36, 37, 41, 42 and 43)

5. The Respondent No.1 further submits that the Respondent No.1 had taken Symbolic Possession on 24/09/2015 and 09/10/2015 whereas said S.A. was filed only on 19/03/2019. Moreover, after taking of Symbolic possession, applicants and borrower had approached for OTS and same was accepted by the Respondent No.1 Bank and even application filed under Section 14 of SARFAESI Act was withdrawn in view of such settlement. The Respondent No.1 further says that the applicants had accepted the terms and conditions of the OTS, which clearly provides that in case non-compliance of said Consent Terms, Respondent No.1 shall be entitled to proceed under SARFAESI Act. The Respondent No.1 submits that thus, applicants were fully aware about the action initiated by the Bank under SARFAESI Act. Moreover, the applicants had also filed Appeal before DRT at Mumbai, which was signed by the applicant no.14. The Respondent No.1 further submits that since OTS had failed the Respondent No.1 Bank had filed fresh application under Section 14 of SARFAESI Act and same is allowed. The Respondent No.1 submits that by not filing S.A. within prescribed period of limitation, applicants have waived and relinquished their right and applicants are estopped from raising any grievances in respect of said measures. Without admitting anything in any manner whatsoever, the Respondent No.1 submits that no Delay Condonation Application was also filed and even no request for Condonation of Delay was made. It is, thus, crystal clear that stand taken by the applicants in the present Review Application is nothing but an after thought on the part of the applicants. The Respondent No.1 reiterates that the applicants have waived and relinquished their right and are not entitled to make any grievance in respect of the said measures in question.

1. 6. The Respondent No.1 reiterates that thus, law regarding scope of Review Application is well settled and Respondent No.1 submits that as the Hon'ble Apex Court in the matter of Jain Studio V/s. Shin Satellite Public Co.Ltd. and Reported in (2006) 5SCC 501 on Para 11 held that once prayer sought in the main matter has been refused, no review petition lies which would convert rehearing of original matter. It is settled law that power of Review cannot be confused with Appellate Power which Enables superior court to correct all errors committed by Subordinate Court. The Respondent No.1 reiterates that in the present Review Application, applicants have prayed that S.A.No.71 of 2019 be allowed , which is already refused by the Hon'ble Tribunal. Thus, on this count alone, present Review Application is required to be dismissed.

2. 7. Moreover, the Hon'ble Apex Court in Judgment reported in (1975) 1 SCC 674 has held that Review of Judgment is serious step and reluctant resort to it is proper only where glaring omission or patent mistake or like grave error has crept in earlier by Judicial fallibility and second trip over in-effectually covered ground or minor mistake of in consequential import are obviously insufficient. Moreover, in the latest Judgment dated 14/11/2019 passed by the Hon'ble Apex Court in the matter of Yashwant Sinha V/s. CBI, the Hon'ble Apex Court has again relied upon the Judgment of Kamlesh Varma V/s. Mayawati and has ultimately, dismissed the said Review Application. It is further submitted that Review is not an Appeal in disguise and party is not entitled for rehearing of main matter under the guise of Review Application.

1. 8. The applicants have contended that the Hon'ble Tribunal has relied upon the Judgment dated 14/08/2019 of the Hon'ble DRAT passed in Appeal No.28 of 2019 and that said order has been set aside by the Hon'ble Apex Court in SCA No.15765 of 2019 on 07/10/2019. The Respondent No.1 submits that in the said case, the Hon'ble DRAT has allowed the Appeal by only deciding that DRT has no power for Condonation of Delay. The Respondent No.1 submits that the Respondent No.1 denies the interpretation made by the applicants of the said Judgment and, the Hon'ble High Court has held that DRT has power to Condone Delay. In the present case, applicants had waived and relinquished their rights as observed by the Hon'ble Tribunal in the final Judgment dated 01/10/2019 and even no application / request was made for Condonation of Delay and thus, said Judgment of the Hon'ble High Court is of no help to the applicants. Without prejudice to the aforesaid stand, it is further submitted that the DRT has passed Judgment on 01/10/2019 whereas Hon'ble High Court has given Judgment on 07/10/2019. The Respondent No.1 submits that the explanation, Order 47 Rule 1 of CPC provides that "the decision on the question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of the Superior Court in any other case shall not be a ground for Review of such Judgment". The Respondent No.1 has relies upon the Judgment of the Hon'ble Bombay High Court and reported in AIR 1984 Bombay 458 in this behalf. The said Judgment is directly on this point and as such, the aforesaid explanation, itself is very clear. Moreover, the Hon'ble Tribunal has not passed Judgment solely relying upon the aforesaid order of the Hon'ble DRAT passed in Appeal No.28 of 2019. The Hon'ble Tribunal has already held that the applicants have waived and relinquished their right and thus, applicants are not entitled to challenge the said measures in question.

1. 9. The applicants have also relied upon the Judgment of Hon'ble DRAT – Mumbai passed in Appeal No.283 of 2013 and Judgment of Hon'ble Madras High Court. It is specifically submitted that the said Judgments are not at all applicable in the facts and circumstances of the present case. The Respondent No.1 reiterates that the applicants are trying for rehearing of S.A. or have argued the matter on merits as if present Review Application is an Appeal. The Respondent No.1 reiterates that the applicants can argue such points only before Appellate Forum in an Appeal and the applicants are not entitled to argue such points in the Review Petition.

2. 10. The applicants have also relied upon the two Judgments passed by the Hon'ble Tribunal in S.A. No.412 of 2018 and 290 of 2019. It is submitted that the said Judgments are not at all applicable in view of the facts and circumstances of the present case. Moreover, said Judgments are not at all binding and thus, submission made by the applicants relying upon the said Judgments are thoroughly misconceived and is of no help.

1. 11. *The applicants have also relied upon the Judgment of Hon'ble High Court of Gujarat in case of Manjudevi Somani. The Respondent No.1 specifically says that the Hon'ble Tribunal has already dealt with the issue regarding Section 14 Application in Para 14 of the Judgment and if at all applicants are aggrieved, the applicants have to approach the Hon'ble Appellate Tribunal by filing an Appeal under Section 18 of SARFAESI Act. Thus, reference of said Judgment is thoroughly misconceived and even otherwise same is not applicable in the present case.*

2. 12. *The applicants have also relied upon the Judgment reported in (2012) 13 SCC 419, 2012 4SCC and (2005) 4SCC 741 and have submitted that Review Application is required to be allowed and thereby S.A.No.71 of 2019 is be allowed. The Respondent No.1 reiterates that law regarding scope of Review Application is well settled and Respondent No.1 relies upon the various Judgments of the Hon'ble Apex Court referred hereinabove in this behalf. It is specifically submitted that after giving sufficient opportunity to the parties, the Hon'ble Tribunal has dismissed S.A.71 of 2019 by detailed Judgment. The Respondent No.1 once again denies the allegations and interpretation made by the applicants of Judgment dated 01/10/2019. The Respondent No.1 reiterates that the Hon'ble Tribunal has dismissed the S.A. by considering the facts and circumstances of the case and said Judgment is perfectly legal and valid. The Respondent No.1 reiterates that the Review Petition is not maintainable when relief claimed in main matter has been refused and same prayer is again made in Review Application.*

3. 13. *Under the circumstances, the Respondent No.1 submits that there is no substance in the present Review Application and same is totally devoid of merits and is*

*required to be dismissed and be dismissed and be dismissed with cost in the interest of justice.*

1. 7) I have heard the Ld. Counsel for the parties and also gone through the records.

2. 8) Now question is whether the applicants are entitled to the relief of review as prayed on the basis of submissions made on their behalf.

3. 9) Having considered the rival contentions and after gone through the records and answer to that question comes out in negative due to the following reasons:-

1. (a) In this S.A. an amount of Rs. Rs.430,48,80,508.75Ps as on 31.10.2013 of public money is at stake and despite restructuring and OTS the borrowers/guarantors failed to repay the dues of the bank and instead of banking with respondent are banking upon technicalities to gain time and delay recovery of public money to their convenience at different times differently.

2. (b) The applicants herein sought review of earlier order on the ground that as much as there are 43 points in their written submissions but this Tribunal has not touched those grounds while deciding the Securitization Application. Now question is whether this Tribunal is under obligation to record findings on merit, all the points raised or only on those points which are entitled to be adjudicated in accordance with law.

(c) The issue raised could not be decided on merits for the reasons mentioned in the order dated 01.10.2019 itself as this Tribunal has specified why Tribunal is not touching all such issues.

(d) Limitation was one of the aspect otherwise this Tribunal had categorically held in the order itself that the act and conduct of the applicants tantamounts to waiver and relinquishment of their right to question validity of earlier securitization. Admittedly, there was no delay condonation application and the applicants failed to give any explanation as to why applicants had not come to this Tribunal within prescribed period of limitation even in this Review Application the applicants have failed to explain why they have failed to file Securitization Application within time. So, in the order this Tribunal consciously not touched those issues and it was not due to inadvertence or oversight that this Tribunal did not consider those issues so raised rather this Tribunal with judicious mind opted not to go into the merits of said raised issues. The borrower has right to invoke SARFAESI Act, 2002 under Section 17 within 45 days from the date of measure taken. Every step is independent but having continuous chain. Even borrower can challenge validity of demand notice at the time of sale but for that he must explain as to why he did not approach this Tribunal within 45 days when first cause of action accrued. Non explanation of sufficient reason would prove fatal.

(e) The decision given in the other cases by this Tribunal is not binding upon this Tribunal for subsequent cases and have only persuasive value only. Each case has its own merits under peculiar facts and circumstances. Let us talk other Securitization Applications decided by this Tribunal as quoted on behalf of the applicants, this Tribunal quashed the securitization process on patent illegalities committed by the financial institutions and petitioners of said cases at no point of time ever condoned the irregularities or process of financial institution but in this case the applicants enjoyed benefits of OTS but failed to make payment as per said OTS. Once they availed benefit of OTS in fact applicants relinquished their all grouses qua securitization process and upon default if bank proceeds on the earlier process, the applicants would not be permitted to raise grounds and irregularities in the process prior to OTS.

(f) This Tribunal in order dated 01.10.2019 primarily denied adjudication on merits for earlier steps due to applicability of principle of waiver and relinquishment. Although there is no reference of OTS in order dated 01.10.2019 but said facts were very much on record and this Tribunal very much considered the act and conduct of the applicants while adjudicating that matter. The latest judgment of Hon'ble Appellate Tribunal in Aditya Birla's case has been referred by this Tribunal in the order dated 01.10.2019 and that would not affect applicants in any manner as there was delay and applicants failed to file delay condonation application or prayer in respect thereto. So, if at all this Tribunal has referred judgment of Hon'ble Appellate Tribunal that would not affect merits of case and order, particularly when the order passed by this Tribunal has not bank upon the principles laid down by Hon'ble Appellate Tribunal in that case.

(g) Further, the applicants have referred one judgment of Hon'ble Gujarat High Court which was pronounced on 07.10.2019 i.e. after the pronouncement of orders under review. Order 47 CPC is reproduced as under:- **"Order 47 Rule 1:**

1. ***Application for review of judgment.-*** (1) *Any person considering himself aggrieved -*

- (a) *by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.*

- (b) *by a decree or order from which no appeal is allowed, or*

- (c) *by a decision on a reference from a Court of Small Causes,*

*and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.*

(2) *A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.*

*Explanation.- 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."*

So, subsequent judgment or order of superior court cannot be a ground to claim review in the order passed earlier.

- (h) The law cited on behalf of the applicants in their written submissions and argued at the time of oral submissions are not applicable to the facts and circumstances of this present case as in this case this Tribunal has given reasons for not considering the said grounds owing to waiver and relinquishment of their rights to agitate at that belated stage of the process initiated by the bank under Securitization Act, 2002 and there was no inadvertent act or non adjudication due to oversight. So, the petitioners cannot be allowed to take benefit of said case laws. However, the case laws cited by the respondent bank are fully applicable to facts and circumstances of this case. There is no patent error on the face of the order which may invite review.

- (i) I have gone through the grounds taken in the review application and I am of the confirmed opinion that grounds so taken are outcome of reasoning and in fact applicants intend rehearing of matter on merits afresh under the garb of this review application. It is insignificant that applicants do not want to place on record any fresh material, but fact remains that applicants intend rehearing on merits.

(j) I have no hesitation to quote judgment of 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]

(k) The Hon'ble Apex Court dismissed the review petition on similar grounds in the case of Yashwant Sinha & Others Versus Central Bureau of Investigation Through its Director & Another in Review Petition (Criminal) No.46 of 2019 in Writ Petition (Criminal) No.298 of 2018 held as under:-

23. In *Haridas Das v. Usha Rani Banik (Smt.) and others*, the question arose out of an appeal in the High Court, wherein the High Court accepted the prayer for review. This Court held as follows:

"13. ... The parameters are prescribed in Order 47 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 to Rule 1 of Order 47 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. ..."

(Emphasis supplied)

24. Jain Studios Ltd. Through Its President v. Shin Satellite Public Co. Ltd. involved an order passed by Judge in Chambers. It was sought to review the order passed which is reported in Shin Satellite Public Co. Ltd. v. Jain Studios Ltd. In the Arbitration Petition which was the main matter, there was a prayer to appoint an Arbitrator by the review petitioner. The same was heard and rejected. The learned Judge, in the said circumstances, held as follows:

"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that 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."

(Emphasis supplied)

25. In State of West Bengal and others v. Kamal Sengupta and another, this Court, inter alia, held as follows:

"21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review *ex debito justitiae*. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier."

(Emphasis supplied)

26. In Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others, the question, which fell for consideration was, whether misconception of the court about a concession by counsel, furnished a ground for review. A court may pronounce a judgement on the basis that a concession had been made by the counsel when none had been made. The court may also misapprehend the terms of the concession or the scope of a concession. When such misconception underscores a judgment, whether review would lie? Answering the said question, this Court proceeded to hold as follows:

"36. ... Patanjali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in *Rekhanti Chinna Govinda Chettiyar v. S. Varadappa Chettiar* [AIR 1940 Mad. 17] that a misconception by the court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of "the record" within the meaning of Order 47 Rule 1. We see no reason to construe the word "record" in the very restricted sense as was done by Denning, L.J., in *Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw* [(1952) 2 KB 338 at pp. 351-52] which, was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the court assumed that a concession had been made when none had in fact been made or that the court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment."

(Emphasis supplied)

27. It is pertinent to notice that this Court did not confine the word "record" in the narrow sense in which it was interpreted as in the case of an application of Writ of Certiorari. This Court also sanctioned support being drawn from an affidavit by the counsel in this regard, as additional ground for review. Misconception by a court, was found embraced within the scope of the expression "sufficient reasons".

28. Non-advertence to the particular provision of the Statute, which was pertinent and relevant to the lis, was held to be a ground to seek review. In Girdhari Lal Gupta v. D.N. Mehta and another, this Court held as follows:

"16. The learned counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of the arguments our attention was not drawn specifically to sub-section 23-C(2) and the light it throws on the interpretation of sub-section (1)."

(Emphasis supplied)

29. Also, see in this regard, judgment in Deo Narain Singh v. Daddan Singh and others where finding that this Court had decided the case on the basis of a Statute, which was inapplicable in the facts, review was granted.

30. In Sow Chandra Kante and another v. Sheikh Habib, the judgment involved a request to review the decision of this Court refusing special leave to appeal in a matter, this Court held as follows:

*"... 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, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. ..."*

(Emphasis supplied)

31. Two documents, which were part of the record, were considered by the Judicial Commissioner to allow review by the High Court. This Court, in appeal, in the judgement in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, found as follows:

*"4. In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs."*

(Emphasis supplied)

32. M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi was a case which fell to be considered under Article 137 of the Constitution of India. The relevant discussion is found in paragraphs 8 and 9. They read as follows:

*"8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of*

*Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933, 948 : (1965) 1 SCJ 377] . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR 748, 750]. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2 SCR 11, 27] . Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility": Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933].*

9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error 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."

33. Question in the said case arose under the Bengal Finance (Sales Tax) Act, 1941. The case was based on new material sought to be adduced by the Revenue to establish that the transaction amounted to a sale.

34. The foundations, which underlie the review jurisdiction, has been examined by this Court at some length in the judgment in S. Nagaraj and others v. State of Karnataka and another:

"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In *Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai* [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in *Rajunder Narain Rae v. Bijai Govind Singh* [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order made by the Court was final and could not be altered:

"... nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in .... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies."

Basis for exercise of the power was stated in the same decision as under:

"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard."

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

(Emphasis supplied)

35. The decision in S. Nagaraj(supra), has been followed in various judgements of this Court (See Lily Thomas and others v. Union of India and others ; Haryana State Industrial Development Corporation Limited. v. Mawasi and others; Kamlesh Verma v. Mayawati and others; Usha Bharti v. State of Uttar Pradesh and others and Vikram Singh Alias Vicky Walia and another v. State of Punjab and another).

36. In Kamlesh Verma (supra), this Court in paragraph 20, laid down its conclusions, which reads as follows:

*\*Summary of the principles*

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. 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.

The words "any other sufficient reason" have been interpreted in *Chhajju Ram v. Neki* [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in *Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius* [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in *Union of India v. Sandur Manganese & Iron Ores Ltd.* [(2013) 8 SCC 337: JT (2013) 8 SC 275]

20.2. 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 reheard 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.

- (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.\*

37. In a very recent judgment, in fact, relied upon by the Union of India, viz., *Mukesh* (supra), in a review petition in a criminal appeal, this Court reiterated that a review is not rehearing of an original matter. Even establishing another possible view would not suffice [See *Vikram Singh* (supra), which was relied upon].

38. The anxiety of this Court that the consideration of rendering justice remain uppermost in the mind of the Court, has led to the Constitution Bench judgement in *Rupa Ashok Hurra v. Ashok Hurra and another*. It is in the said case that the concept of a curative petition was devised to empower a litigant to seek a reconsideration of a matter wherein the review petition also is unsuccessful. Certain steps have been laid down in this regard which stand incorporated in The Supreme Court Rules, 2013 [in Part IV Order XLVIII thereof].

39. Undoubtedly, any error to be an error on the face of the record, cannot be one which has to be established by a long drawn out process of reasoning on points where there may conceivably be two opinions or if the error requires lengthy and complicated arguments to establish it, a Writ of Certiorari would not lie (See Satyanarayan Laxminarayan Hegde and others v. Mallikarjun Bhavanappa Tirumale). This principle is equally applicable to a review petition also.

40. On a conspectus of the above decisions, the following conclusions appeared to be inevitable and they also provide the premise for review:

Justice above all. While a review petition has not been understood as an appeal in disguise and a mere erroneous decision may not justify a review, a decision which betrays an error which is apparent, does entitle the court to exercise its jurisdiction under Article 137 of the Constitution. The founding fathers were conscious that this Court was the final Court. There are two values, which in any system of law, may collide. On the one hand, recognizing that men are not infallible and the courts are manned by men, who are prone to err, there must be a safety valve to check the possibility of grave injustice being reached to a litigant, consequent upon an error, which is palpable or as a result of relevant material despite due diligence by a litigant not being made available or other sufficient reason. The other value which is ever-present in the mind of the law giver, is, there must be finality to litigation. Be it judgments of a final court, if it becomes vulnerable to indiscriminate reopening, unless a strong ground exists, which itself is based on manifest error disclosed by the judgment or the other two grounds mentioned in Order XLVII of the CPC in a civil matter, it would spawn considerable inequity.

41. It must be noticed that the principle well-settled in regard to jurisdiction in review, is that a review is not an appeal in disguise. The applicant, in a review, is, on most occasions, told off the gates, by pointing out that his remedy lay in pursuing an appeal. In the case of a decision rendered by this Court, it is to be noticed that the underpinning based on availability of an appeal, is not available as this Court is the final Court and no appeal lies.

42. It is no doubt true that the Supreme Court Rules, 2013, certain powers are conferred on the Registrar as also on the Judge holding Court in Chambers and appeals, indeed, are provided in respect of certain orders passed by the Registrar.

43. The fact that no appeal lies from the judgment of this Court may not, however, result in the jurisdiction of this Court under Article 137 of the Constitution being enlarged. However, when the Court is invited to exercise its power of review, this aspect may also be borne in mind, viz., that unlike the other courts from which an appeal may be provided either under the Constitution or other laws, or by special leave under Article 136 of the Constitution, no appeal lies from the judgment of this Court, and it is in that sense, the final Court. The underlying assumption for the principle that a review is not an appeal in disguise, being that the decision is appealable, is really not available in regard to a decision rendered by this Court, is all that is being pointed out.

44. A review petition is maintainable if the impugned judgment discloses an error apparent on the face of the record. Unlike a proceeding in Certiorari jurisdiction, wherein the error must not only be apparent on the face of the record, it must be an error of law, which must be apparent on the face of the record, for granting review under Article 137 of the Constitution read with Order XLVII Rule 1 of the CPC, the error can be an error of fact or of law. No doubt, it must be apparent on the face of record. Such an error has been described as a palpable error or glaring omission. As to what constitutes an error apparent on the face of record, is a matter to be found in context of the facts of each case. It is worthwhile to refer to the following discussion in this regard by this Court in Hari Vishnu Kamath v. Ahmad Ishaque and Others, wherein, this Court held as follows:

"23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat Municipality [AIR 1953 Bom 133] that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

(Emphasis supplied)

45. The view of this Court, in the decision in Girdhari Lal Gupta (supra) as also in Deo Narain Singh (supra), has been noticed to be that if the relevant law is ignored or an inapplicable law forms the foundation for the judgement, it would provide a ground for review. If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be *per incuriam*. No doubt, the concept of *per incuriam* is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to review as it would betray a clear error in the decision.

46. As regards fresh material forming basis for review, it must be of such nature that it is relevant and it undermines the verdict. This is apart from the requirement that it could not be produced despite due diligence.

47. The dismissal of a special leave petition takes place at two levels. In the first place, the Court may dismiss or reject a special leave petition at the admission stage. Ordinarily, no reasons accompany such a decision. In matters where a special leave petition is dismissed after notice is issued, also reasons may not be given ordinarily. Several elements enter into the consideration of this Court where a special leave petition is dismissed. The task for a review applicant becomes formidable as reasons are not given. An error apparent on the face of the record becomes difficult to establish. In a writ petition where pleadings are exchanged and reasons are given in support of the verdict, a self-evident error is detected without much argument. No doubt, a Court, in review, does not reappreciate and correct a mere erroneous decision. That reappreciation is tabooed, is not the same as holding that a Court will not appreciate the case as reflected in the pleadings and the law by which the Court is governed.

10) I have considered the grounds taken in review application and order dated 01.10.2019 and after giving my thoughtful consideration to the issues raised. This Tribunal has recorded categorical findings in favour of Respondent Bank. Correct or incorrect, right or wrong, legally sound or not tenable can be questioned by either party in the appeal or before higher forum in accordance with law and I am of the opinion that grounds and averments so taken do not fall within the ambit of review. It appears that review application has been filed by the applicants before this Tribunal as an appeal against judgment passed by this Tribunal and it is a settled proposition of law that a court cannot sit as appellate authority against its own judgment/order 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 review is limited and cannot be equated with appeal if Act provides specific remedy of appeal litigant cannot invoke provisions of review to challenge the findings given on merits. The applicants could avail other efficacious remedy of appeal instead of filing this review application to assail the order of this Tribunal on merits by filing this Review Application. The review application is accordingly merits dismissal.

1. 11) This Tribunal has duly considered the contentions and passed reasoned order in the Securitisation Application. This Tribunal has no jurisdiction to peep into the merits of reasoning, so given. The review application merits dismissal with cost of Rs.2.00 lacs to be deposited with National Defence Fund Account No. 11084239799 State Bank of India at New Delhi Main Branch (00691) as in this case more than Rs.400 Cr. is recoverable and this review is nothing but to delay and put hindrance in recovery of public money.

12) The Review Application is accordingly dismissed with cost of Rs.2.00 lacs to be deposited with National Defence Fund Account No. 11084239799 State Bank of India at New Delhi Main Branch (00691).

Let copies of this order be supplied to the parties as per rules.

**Pronounced & Dictated on 25.11.2019**

**(Vinay Goel)** **Presiding Officer**

**Corrected & signed by me on 26.11.2019**

**(Vinay Goel)** **Presiding Officer**

//ac//