Bombay High Court
Vienna Multiventures Pvt. Ltd., ... vs M/S. Challani Ginning And ... on 31 October, 2023
Bench: Mangesh S. Patil, Sandipkumar Chandrabhan More
2023:BHC-AUG:23533-DB
(1)
RAST-21431.2023.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION (ST.) NO. 21431 OF 2023
IN
FIRST APPEAL NO. 117 OF 2022
WITH CIVIL APPLICATION NO. 9995 OF 2023
IN REVIEW APPLICATION (ST) NO. 21431 OF 2023
Vienna Multi Ventures Pvt Ltd.
Through Amarnath Matadin Sharma
R/o 607, Ijmima Complex, Interface,
Off. Link Road, Malad West, Mumbai Applicant.
(original appellant)
Versus
1. M/s Challani Ginning and
Pressing Factory, A registered
Partnership Firm, Through
its partner
Jainendra Inderchand Chhallani
Age : 55 yrs, occ : business
R/o Plot No. 29, N-3, CIDCO, (original decree
Aurangabad holder)
2. Narendra Vishwanath Jadhav
Age ; 49 yrs, occ : business
R/o 1, Shriniketan Colony,
Jalna Road, Aurangabad.
3. Yog Industries Ltd.
Through its Managing Director,
Narendra Vishwanath Jadhav
Age ; 49 yrs, occ : business
R/o 1, Shriniketan Colony,
Jalna Road, Aurangabad. Respondents
(original judgment
debtors)
WITH
::: Uploaded on - 01/11/2023 ::: Downloaded on - 02/11/2023 07:04:44 :::
(2)
RAST-21431.2023.odt
CIVIL APPLICATION NO. 12427 OF 2023
IN REVIEW APPLICATION (ST) NO. 21431 OF 2023
HDFC Bank Ltd.
Through its Authorised Officer
Rupesh Sadanand Waghe
Age : 36 yrs, occ : service
R/o HDFC Bank House,
Senapati Bapat Marg, Lower
Parel, Mumbai. Applicant
Versus
1. Vienna Multi Ventures Pvt Ltd.
Through Amarnath Matadin Sharma
R/o 607, Ijmima Complex, Interface,
Off. Link Road, Malad West, Mumbai
2. M/s Challani Ginning and
Pressing Factory, A registered
Partnership Firm, Through
its partner
Jainendra Inderchand Chhallani
Age : 49 yrs, occ : business
R/o Plot No. 29, N-3, CIDCO,
Aurangabad
3. Yog Industries Ltd.
Through its Managing Director,
Narendra Vishwanath Jadhav
Age ; 49 yrs, occ : business
R/o 1, Shriniketan Colony,
Jalna Road, Aurangabad. Respondents
...
Mr. S.B. Deshpande, Senior Counsel i/b Mr. Bhargav
Kulkarni, Advocate for the applicant/review petitioner.
Mr. P.F. Patni, Advocate for respondent No.1.
Mr. Shrikishan S. Shinde, Advocate for Intervenor.
...
CORAM : MANGESH S. PATIL AND
SANDIPKUMAR C. MORE, JJ.
Order Reserved on : 11.10.2023
Order pronounced on : 31.10.2023
RAST-21431.2023.odt
Order (per Sandipkumar C. More, J.) :
1. By consent of the learned Counsel for the rival
parties, heard main review application finally alongwith delay
condonation application. By way of this review application,
the applicant, who is the original appellant in First Appeal
No. 117 of 2022, is seeking review of the order passed by this
Court in the aforesaid appeal on 16.06.2022, mainly on the
ground that there is an error apparent on the face of record,
which, this Court did not consider while passing the
judgment under review.
2. Learned Counsel for the applicant vehemently
argued that the applicant being a corporate debtor had
purchased property in question from present respondent No.2
by way of registered sale deed on 10.10.2017 and by that time
the alleged order of attachment passed by the Executing
Court in Special Darkhast No. 32/2017 on 21.09.2017 was not
actually effected as per Order XXI Rule 54 of the Code of Civil
Procedure (for short, "C.P.C."). It was subsequently effected on
13.10.2017, and therefore, the applicant is a bona fide
purchaser. He also pointed out that though notice of lis
pendens as reflected from the order under review was
registered much prior i.e. on 10.01.2016, but on passing of the
decree in Special Civil Suit No.201/2013 only for refund of
RAST-21431.2023.odt
earnest money and not allowing specific performance, the
notice had already come to an end. He also raised issue of
powers of applicant being Interim Resolution Professional
appointed by National Company Law Tribunal and contended
that under Insolvency and Bankruptcy Code, 2016, Interim
Resolution Professional was exercising all the powers of
Resolution Professional since he was already included in the
definition of "Resolution Professional" under the Code.
Learned Counsel for the applicant relied on the following
judgments :
(i) Ramesan vs Kunhipalu & ors, AIR 1977 Kerala 119
(ii) M. Marathchalam Pilla vs Padmavathi Ammal
1971 (3) SCC 878
(iii) First Appeal No. 38 of 2018 (Narendra Vishwanath
Jadhav vs M/s Chhallani Ginning and Pressing
Factory & another), dated 14.01.2019 (Bom.)
3. On the contrary, learned Counsel for respondent
No.1 strongly opposed the application on the ground that the
concept of lis pendens is applicable even in case of money
decree and it is not necessary that the same should be in
respect of only immovable property. According to him, the
applicant was not at all diligent in verifying the title of
disputed property before it was purchased. Therefore, it is
rightly held by this Court that attachment was actually
RAST-21431.2023.odt
effected at the site on 13.10.2017 i.e. after purchase of
property on 10.10.2017. It was not decisive particularly when
the notice of lis pendens was registered much prior thereto.
As such, he pointed out that the applicant is neither a bona
fide purchaser nor has he acquired any title over the disputed
property under the sale deed dated 10.10.2017. Thus, he
prayed for rejection of the application. He also relied on the
following judgments :
(i) Annakkili Ayyuanar vs Murugan Govindan
AIR 2002 Madras 63
(ii) Jain Studios Ltd vs Shin Satellite Public Co. Ltd.
(2006) 5 SCC 501
(iii) Arun Dev Upadhyaya vs Integrated Sales Services Ltd.
(2023) 8 SCC 11
(iv) Shanti Conductors Pvt. Ltd vs Assam State Electricity
Board & ors, (2020) 2 SCC 677
4. It is not in dispute that present respondent No.1
had filed Special Civil Suit No. 201/2013 against the present
respondent Nos.2 and 3 for specific performance in respect of
the disputed property. However, on 24.07.2017 the suit was
decreed only to the extent of refund of earnest amount by
respondent Nos.2 and 3 to respondent No.1. The respondent
No.1 had filed Special Darkhast No. 32/2017 since respondent
Nos.2 and 3 did not repay the said amount. The Executing
Court on an application of respondent No.1 (decree holder),
RAST-21431.2023.odt
issued order of attachment of the disputed property on
21.09.2017. Further, it is not in dispute that the applicant
being a corporate debtor, purchased the disputed property
from respondent No.2 by way of registered sale deed on
10.10.2017 and the earlier order of attachment dated
21.09.2017 was actually effected on 13.10.2017 i.e. after sale
deed dated 10.10.2017.
5. It is significant to note that the applicant being
appointed as Interim Resolution Professional, is seeking
review of the judgment dated 16.06.2022 passed by this
Court in First Appeal No. 117 of 2022 mainly on the ground
that there is an error apparent on the face of record in the
impugned order. The main grounds raised by the applicant
on the aspect of error apparent on the face of record are that
this Court wrongly considered the issue of lis pendens
specially when after registration of notice of lis pendens, the
suit was decreed only in respect of refund of money and not
in respect of specific performance of contract, and therefore,
the aforesaid notice had already outlived its utility and that
since lis pendens notice had actually expired on the decree of
suit, the applicant was therefore a bona fide purchaser since
the attachment order was not at all actually effected at the
site as required under Order XXI Rule 54 of the C.P.C.
RAST-21431.2023.odt
Besides, the learned Counsel for the applicant also argued as
to how the purchase of disputed property by way of sale deed
dated 10.10.2017 was not a 'void transfer' as contemplated in
Section 64 of the Transfer of Property Act.
6. It is significant to note that the learned Counsel
for respondent No.1, while opposing the submissions made on
behalf of the applicant, supported the impugned order and
pointed out as to how the applicant failed to carry out due
diligence for verification of title before purchasing the
disputed property. He also relied on the judgments wherein it
is observed that the concept of lis pendens is also applicable
to money decree and on rejection of specific performance by
the learned trial Court, the notice of lis pendens never got
expired as claimed by the applicant. The learned Counsel for
respondent No.1 also pointed out that the alleged error
apparent on the face of record as submitted by the learned
Counsel for the appellant cannot be treated as basis for filing
review application, since it is not actually an error on the face
of record. According to him, under the guise of the same, the
applicant wants to re-argue the matter which is beyond the
scope of review.
7. It is to be noted here that both the rival Counsels
have argued on various aspects of law involving the issues,
RAST-21431.2023.odt
such as, bona fide purchase, doctrine of lis pendens and its
applicability, concept of coming into actual effect of
attachment order under Order XXI Rule 54 of the C.P.C. and
void transfer as contemplated in Section 64 of the Transfer of
Property Act. The main questions raised by the applicant are
that, whether the notice of lis pendens was in existence even
after refusal of specific performance and as to whether it was
a void transfer by the applicant especially when the order of
attachment which was passed much prior to purchase of
property on 10.10.2017, was not effected actually at site as
required under Order XXI Rule 54 of C.P.C. However, the
learned Counsel for respondent No.1 has also relied on the
provisions of law to rebut the submission made on behalf of
the applicant. Thus, it appears that to decide all these
questions, the entire matter needs to be taken into
consideration once again.
8. It is extremely important to note that the Hon'ble
Apex Court in various judgments relied by the learned
Counsel for respondent No.1 has discussed the scope or
power of review. In the judgment reported in the case of Arun
Dev Upadhyaya vs Integrated Sales Services Ltd (supra), it is
specially observed that power to review cannot be exercised as
an appellate power and has to be strictly confined to the
RAST-21431.2023.odt
scope and ambit of Order XLVII Rule 1 of C.P.C. Further, an
error on the face of record must be such an error which, mere
looking at the record should strike and it should not require
any long-drawn process of reasoning on the points where
there may conceivably be two opinions. Further, the Hon'ble
Apex Court in the case of Shanti Conductors Pvt. Ltd. vs
Assam State Electricity Board (supra) has observed that
scope of review is limited and under the guise of review, the
petitioner cannot be permitted to reagitate and reargue
questions, which have already been addressed and decided.
Further, under Order XLVII Rule 1 of C.P.C. a judgment may
be open to review inter alia if there is a mistake or an error
apparent on face of record. However, such an error which is
not self evident and has to be detected by process of
reasoning, can hardly be said to be an error apparent on the
face of record justifying the court to exercise its power to
review.
9. In the instant matter, the rival Counsel have raised
so many questions of law and also relied on various
judgments on those aspects which are already mentioned
above. Thus, it appears that there are 4-5 grounds on the
basis of which the applicant is claiming that there is an error
apparent on the face of record in the impugned order. Thus,
RAST-21431.2023.odt
keeping in mind all these aspects or grounds for
determination of the aforesaid error apparent on the face of
record, the entire matter needs to be considered again which
is not permissible as per the observation of the Hon'ble Apex
Court on the point of scope of review. Under the guise of
exercising review powers we cannot sit as an appellate
authority in respect of our own order. Therefore, considering
the limited scope of review application, we do not find that
there is actual error apparent on the face of record as claimed
by the applicant. On the contrary, it appears that the
grounds raised by the applicant under this review application
are in fact required to be decided by the superior court.
10. Thus, considering all these aspects, the review
application stands dismissed and application for condonation
of delay also is disposed of. Needless to say that the
intervention application bearing Civil Application No. 12427
of 2023 also stands disposed of since review application itself
is dismissed.
(SANDIPKUMAR C. MORE, J.) (MANGESH S. PATIL, J.)
VD_Dhirde
