VIRENDRA KUMAR DIMRI AND OTHERS vs ICICI BANK LIMITED on 10 March 2026

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

**(Date of Decision: 10.03.2026)**

1. 1. The Applicants have filed this instant Review Application on 27.08.2024 with the prayer to recall/review final order dated 07.08.2024 passed in O.A. No. 380 of 2021.

2. 2. The Applicants have stated that the applicants were Defendants No. 1 & 2 in the Original Application No. 380 of 2021 titled as "ICICI Bank Limited Versus Mr. Virendra Kumar Dimri & Ors" and the Respondent No. 3 is the Builder, who supposed to construct the flats over the mortgaged property. The Tribunal vide its order dated 07/08/2024 allowed the above said Original Application No. 380 of 2021 against the Applicant No. 1 & 2/Defendant No. 1 & 2.

1. 3. That the land for the construction of the said project was belonged to Smt. Gurmeet Kaur & Shri Sunil Agarwal. The Respondent No.1/Bank had without taking 'No objection' from land owners disbursed the whole amount of loan to the Respondent No. 3 without any consent or approval of Applicants. There was payment schedule which clearly stated that the entire payment plan divided into 11 instalments but the Respondent No.1, Bank in collusion with Respondent No. 2, Builder directly disbursed the whole amount of loan to the Respondent No. 2 Builder/Defendant No.3 on 06.07.2017. The Respondent No. 1 Bank has annexed the relevant documents in O. A. No. 380 of 2021 at page No. 22 to 27 as Annexure No. A- 5. The Respondent No. 1 has annexed the statement of account as Annexure No. A-9 in the O.A. No. 380 of 2021 at page No. 38 to 43 which clearly proves the above averment of the Applicants.

2. 4. It is further stated that the Respondent No. 1 has disbursed the entire loan amount to the Respondent No. 2 against the terms and condition of the allotment letter dated 17.10.2016. The Applicants never received single penny from the Respondent No. 1 and also did not get the possession of the Flat No. 803 situated on the property in question. The Respondents did not follow the terms and condition of the allotment letter and generously distributed the entire loan amount between them. That it is relevant here to mention that till the possession of the Flat No. 803 the Builder, i.e., Respondent No. 2 had given his undertaking to pay EMI to Respondent No. 1. It is also relevant here to mention that Respondent No. 2 further undertook to deposit the EMI as well as dues of the Bank. The Photostate copy of the letter dated 07.07.2017, 09.08.2017 & 05/03/2019 are being annexed herewith and marked as Exhibit No. A- 2. That after lot of persuasion and due to the effect of F.I.R. the settlement was reached out between the Applicants and Respondent No. 2 in the police station and it was agreed by the Respondent No. 2 that he would pay the EMI as well as entire loan amount to the Respondent Bank. The Photostate copy of the settlement dated 01.11.2021 and 29/07/2021 are being annexed herewith and marked as Exhibit No. A-3 Colly to this Review Application.

1. 5. Earlier the Applicants have purchased the Flat No. 401 in the year 2013 and the Respondent No. 2 did not give the possession and made the pressure over the Applicants to exchange the Flat No. 401 with Flat No. 709. The Respondent No. 2 also did not give the possession to the Applicants and after being aggrieved the Applicants filed the case before RERA against the Respondent No. 2 and same is pending for the final adjudication of the case. The flat which was purchased by the Applicant in the year 2013, have no concern with the loan sanction by the Respondent No. 1 to the Applicants. The Respondent No. 1 had sanctioned the loan to the Applicants in the year 2017 for purchasing flat No. 803. The Respondent No. 1 disbursed the whole amount to the Respondent No. 2 directly but not in a phased manner as prescribed under the terms and conditions of the allotment letter. This clearly shows the collusion between the Respondent No. 1 & 2 and both has done fraud with the Applicants as Applicants neither got the possession of the flat No. 803 nor received any amount from the Respondent No. 1 and therefore the Applicants are not liable to pay single penny to the Respondent No. 1.

2. 6. Again mentioned that there is no permission/sanction of the project for construction of flats by the competent authority and without the same the Respondent Bank in collusion with Respondent No. 2 disbursed the entire loan amount directly in the account of the Respondent No. 2. The said amount was transferred to the account of the Respondent No. 2 without the consent/ approval of the Applicants.

1. 7. The Applicants have also stated that the Tribunal has not considered the above facts while deciding the O. A No. 380 of 2021 and passed the final order and judgment dated 07/08/2024 against the Applicants. That the above mentioned ambiguity is apparent on the face of the judgment dated 07.08.2024 passed by the Tribunal in the Original Application No. 380 of 2021.

2. 8. The applicants have prayed to review/recall the award dated 07.08.2024 passed by the Tribunal in case of O.A. No.380 of 2021 and to withdraw the Recovery Certificate only against the Applicants.

3. 9. The respondent bank in its reply/counter dated 04.04.2025 has stated that the instant review application is not maintainable on the ground that a review application is maintainable only to correct arithmetical or grammatical errors in a judgement.

4. 10. Heard Ld. Counsel for applicants and Respondent Bank.

5. 11. Firstly, law should be considered before entering in the averments of Review/Recall petition of the applicant in relation to Review of award as prayed by applicants. Section 114 of Civil Procedure Code says as under:

*S.114-Review- Subject as aforesaid, any person considering himself aggrieved-*

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

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

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

*may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.*

Again Order 47, Rule 1 says as under:

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 Order.

Order 47 Proviso (b) to Sub Rule (2) of Rule 4 says as under:

*no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or Order was passed or made, without strict proof of such allegation.*

*As per Sub Section (2) of Section 22 of the RDBD act, 1993, The Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908, while trying a suit and as per Sub Section (1) of Section 22 The Tribunal shall not be bound by the procedure laid down by Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules.*

*Clause (e) of the Sub Section 2 of the Section 22 provides reviewing of its decision.*

12. The Ld. Counsel for Respondent bank (Applicant in Original application No. 380/2021) has relied upon the principle laid down by Hon'ble Supreme Court in S. Murali Sundaram Vs. Jothibai Kannan & Ors, Civil Appeal No. S.1167-1170 of 2023 decided on February 24, 2023 by considering two decisions:

The Hon'ble Supreme Court has laid down in *Perry Kansagara Vs. Smirti Madan Kansagar* [(2019) 20 SCC 753]

*After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed up as under:*

*"(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.*

*(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any*

long drawn process of reasoning on the points where there may conceivably be two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

(v) An application for review may be necessitated by way of invoking the doctrine *actus curiae neminem gravabit.* (means that An act of the court prejudice no man)

*In Shanti Conductors (P) Ltd. Vs. Assam SEB, (2020) 2 SCC 677, the Hon'ble Supreme Court has observed and held that scope of review under Order 47 Rule 1 CPC read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reiterate and reargue questions which have already been addressed and decided. It is further observed that 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 record justifying the court to exercise its power of review under Order 47 Rule 1 CPC.*

1. 13. The Ld. Counsel for Applicants has submitted a judgement passed by Hon'ble National Company Law Appellate Tribunal in Canara Bank Vs. Vivek Kumar (2025 SCC on line NCLAT 51) decided on January, 9, 2025 has no relevance as the award in relation to this Review petition has already been passed on August, 7, 2024 i.e. prior to the judgement passed by Hon'ble NCLAT, as the law and principles can be considered existed at the time of passing any judgement/award.

2. 14. The petitioners have raised the point about non approval of the 8th Floor by sanctioning authority, only granted Ground + 6 floors. Eight Floor was never sanctioned by MDDA. This fact was already on record before passing award, the Respondent(Applicant Bank in O.A.) has submitted at the time of filing original application as Annexure-6, in which it is clearly mentioned that 'Project Approval No. DEH/16/3227, Project Name 'The Artigo Residency' and on next page clearly mentioned remarks structure is 2B + G+6 slab of all floor has been casted.

1. 15. The Ld. Counsel for review petitioners has submitted about Annexure-7 of the Secured Creditor submitted with Original Application by the respondent bank at the time of filing recovery proceeding mentioned that 'the plans have been approved by the concerned/Competent Authority. Annexure A/5 has also been submitted by Secured Creditor/Respondent Bank of this petition(Applicant in Recovery Petition), in which it is mentioned 'in case whole or part of the apartment to be abandoned or any particular flat is omitted or the developer is not able to hand over the same to the buyer due to any reasons beyond its control, the developer shall be responsible for the alternate flat or for refund of the actual amount received by him', on the basis of which financial assistance was granted by the respondent bank.

2. 16. The Respondent No. 2/Defendant No. 3 has not executed and registered document for which the developer has given undertaking for providing registry documents to ICICI Bank directly as nothing submitted on record of Original Application by applicant bank as mentioned in Annexure-7 of Original Application. The Bank has not claimed that the builder in violation of the terms and conditions has handed over the flat to the applicants/Defendant No.1 & 2 of Original Application. The borrowers/applicants of this petition have not taken any amount in their accounts and the entire amount has been paid to the Respondent No. 2/builder/defendant No. 3 of Original application. In addition to this the borrowers have also paid the margin money to the builder and also paid certain EMIs as mentioned by applicant bank. The borrowers have not got the possession of the flat in question as nothing has come on record. If the borrower is directed to pay the amount which has been actually paid to the builder, this will amount double penalty on the borrower.

3. 17. The Defendants have already submitted an affidavit with photographs dated 14.01.2024 by Diary No. 386 dated 17.01.2024 on the record of Original Application about status of the flat in question and nothing has been submitted in counter on the part of the respondent bank (Applicant in Original Application). There was no situation of physical possession of the flat in question as per the photographs produced by the borrowers before passing award in this case and as per applicants/borrower no possession has been provided to the Applicants/Defendant No. 1 & 2 by Respondent No. 2/Defendant No.3.

18. Lastly, the Ld. Counsel for Review petitioners has called attention of this Tribunal at the time of arguments on the awards passed by this Tribunal in relation to the same project in Original Application No. 356 of 2021 ICICI Bank Ltd. Vs. Naresh Rawat & Ors and O.A. No. 488 of 2021 ICICI Bank Ltd. Vs. Sumit Singh Negi & Ors decided on January 30, 2023. The flats in question were 109 and 209 i.e. First Floor & Second Floor, in the said matter the respondent bank had disbursed the Sanctioned amount at once on the same pattern like this matter. And the Tribunal has dismissed the Original Application for recovery against borrowers and allowed against builder Defendant. No. 3(present Respondent No. 2). The petitioners have approached this Tribunal on the basis of documents already on record filed by the applicants/Defendant No. 1 & 2 before passing award during Original Application proceedings including above mentioned judgements passed by this Tribunal.

19. In the case before Hon'ble Supreme Court, in S. Murali Sundaran, the survey report was considered by the Hon'ble High Court in review petition, which was brought out by tempering of official record and the Hon'ble High Court has proceeded on the basis of gift deed without noting the fact that the gift deed was a document which was unilaterally executed and not accepted by other party and could not have been treated to be a valid gift. Here is not a situation like that case.

As per the documents already available on record submitted by secured creditor and the defendants No. 1 & 2 the error is self-evident without any additional exercise or process of reasoning. The error in this

(2^nd Floor, Paras Tower, Saharanpur Road, Mazra, Dehradun, Uttarkahand-248171)

matter is on the face of record and seen by mere look at the record. There is no need to exercise for find out error in different manner. Hence this review petition is maintainable and considerable in the light of above and the plea of secured creditor about maintainability has no force.

20. If justice summons the judges to allow a vital material in, it becomes part of the record and if apparent error is there, correction becomes necessitous.

The rule on its face affords a wider set of grounds for review for orders in civil proceedings to error apparent on the face of record. Here "record" means any material, which is already on record or may with the permission of the court be brought on record.

What is asked for is a review or second look at the first order. The focus must be limited to obvious, serious errors in the first order. The main purpose of a review petition is to reopen an order vitiated by an error on the face of the record or for such other reasons. A technical objection should not throw out a suitor from the plea of justice.

21. In the light of above discussion and principle laid down by Hon'ble Supreme Court, this petition is liable to be allowed and the award passed by this Tribunal in Original Application No. 380 of 2021, ICICI Bank Ltd. Vs. Virendra Kumar Dimri & Ors. dated August 7, 2024 is liable to modify up to some extent. Hence modify accordingly.

**Order**

The Original Application No. 380 of 2021 ICICI Bank Ltd. Vs. Virendra Kumar Dimri & Ors. is allowed against Defendant No. 3 builder with costs and dismissed against Defendant No. 1 & 2 borrowers. The Recovery Certificate issued on the basis of award dated August 7, 2024 has also been cancelled accordingly. The mortgaged properties are liable to be sold for recovery of amount due alongwith the personal movable and immovable properties/assets of the Defendant No. 3.

1. i. The Original Application is allowed declaring that the Defendant No.3 is liable to pay a total sum of Rs.97,01,899/- (Rupees Ninety-Seven Lacs One Thousand Eight Hundred Ninety-Nine only) along-with cost, expenses and future interest @7.55% per annum simple rate of interest as claimed by Applicant Bank from the 18.09.2021 i.e. date of filing of the OA till the date of realization as dismissed against Defendant No.1 & 2. The Defendant No.3 is directed to pay the dues within 30 days.

2. ii. In case of failure to repay the aforementioned adjudicated amount within 30 days, same shall be recovered from the sale of the mortgaged properties of the Defendant No.3 in execution proceedings. The amount, if any, already recovered by sale of any mortgage properties or otherwise shall be adjusted towards the debt and only the balance amount shall be recoverable. If the dues of Applicant Bank still remain unsatisfied, the same shall be recovered by attachment and sale of the personal movable and immovable assets of the Defendant No.3. The cost of litigation be also borne by the Defendant No.3.

3. iii. The Defendant No.3 is hereby restrained by means of injunction from depleting, transferring, encumbering, alienating, selling or otherwise dealing with mortgage properties or their other immovable/movable properties/estates without first paying the above claim of Applicant Bank.

4. iv. In case, the Defendant No.3 expires, the legal representatives shall be liable to pay in proportion to the inheritance.

- v. Applicant Bank is directed to file revised statement of accounts from the date of filing of O.A. along-with interest as granted by this Tribunal before the Recovery Officer of this Tribunal.

- vi. Any other application pending stands disposed of.

- vii. Recovery Certificate be issued forthwith in above terms U/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) and be sent to the Recovery Officer-II, DRT, Dehradun for execution.

- viii. The Recovery Officer shall realize the amount as per the Recovery Certificate in the manner and mode prescribed under section 25 to 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended from time to time) from the above named Defendant No.3. Party is directed to appear before the Ld. Recovery Officer-II, DRT, Dehradun on **04.05.2026**.

- ix. Copy of this Judgment and Recovery Certificate be given Dasti to Applicant Bank and be sent to the Defendants free of cost by Registered Post in terms of section 19(21) (i) of the RDB Act, 1993 (as amended from time to time) and Rules as well as to the Recovery Officer and after due compliance file be consigned to record room.

22. Applicant Bank is directed to file a Memo of Cost forthwith, if not filed earlier, for preparing Recovery Certificate U/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time).

Judgment pronounced in the open Court and signed on this 10th day of March, 2026.

(Umesh Kumar Sharma) Presiding Officer DRT, Dehradun