Calcutta High Court
Eva Seth vs Bank Of Maharashtra on 6 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
RVWO/1/2023
IA NO: GA/1/2023
EVA SETH
VS
BANK OF MAHARASHTRA
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE KAUSIK CHANDA
Date : 6th December, 2023.
Appearance:
Mr. Rohit Banerjee, Advocate
Mr. S. S. Bhutoria, Advocate,
Mr. Altamash Alim, Advocate
....for petitioner.
Mr. Manabendra Thakur, Advocate,
Mr. Sourav Mondal,
..for Bank.
THE COURT:-
1. This is an application for review of a judgment and order dated
December 10, 2019, passed by a Coordinate Bench, of which one of
us (Koushik Chanda J.) was a member, whereby an appeal being APD
1 of 2017 arising out of CS No. 27 of 2009 was dismissed.
2. The review applicant filed a suit being CS No. 270 of 2009 against the
respondent herein claiming the following reliefs:-
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"a) Decree for Rs. 8,36,83,000/- (Rupees Eight Crores Thirty
Six Lakhs and Eighty Three thousand only) as pleaded in
paragraph 32 above;
b) Decree for Rs. 163,28,00,000/- (Rupees one sixty three
Crores twenty eight lakhs only) as pleaded in paragraph (36)
above;
c) Interest and interim interest on the decreed sum be
allowed at the rate 12% per annum and/or at such rate as
this Hon'ble Court may be deem fit and proper;
d) Decree directing the defendant to return to the plaintiff
two (2) Reserve Bank of India Bond Nos. CA 5281 Calcutta
dated 02.07.92 and CA 4052 Calcutta dated 27.05.91
respectively forthwith;
e) Decree directing the defendant to return to the plaintiff
Life Insurance Policy bearing no. 85387992 for Rs. 25.000/-
forthwith;
f) Decree directing the defendant to refund Rs. 19,76,000/-
to export credit corporation;"
3. In the suit, the applicant herein made an application for final
judgment and decree under Chapter XIIIA of the Original Side Rules
of this Court. By a judgment and order dated August 10, 2010, a
learned Judge of this Court held that there appears to be a bona fide
dispute both on the factual and the legal scores which cannot be
conveniently addressed on an application under Chapter XIIIA of the
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Original Side Rules of this court which is on affidavits and by way of
summary procedure. The learned Judge expedited hearing of the suit
and passed consequential directions.
4. By a judgment and decree dated August 5, 2016, a learned Judge
dismissed the suit as being barred by limitation.
5. The applicant herein carried such decree of dismissal in appeal by
filing APD no. 1 of 2017. By the judgment and order under review, the
said appeal was dismissed by a coordinate Bench as stated herein
before. The Bench concluded as follows:- "for the reasons above, there
was no merit in the plaint and, indeed, the plaint was liable to be
rejected as being ex facie barred by limitation without calling for any
trial. The appeal is utterly frivolous and devoid of any merit and the
same is dismissed with costs."
6. The present applicant filed a Special Leave Petition against the
judgment and order dated December 10, 2019, which is under review
in the present application. Such Special Leave Petition being SLP (c)
no. 6677/2021 was dismissed by the Hon'ble Supreme Court by an
order dated August 18, 2021. Subsequently, the present review
application was filed.
7. Before coming to the grounds of review, I notice that five issues were
framed by the learned Suit Court, the second of which was whether or
not the suit was barred by the laws of limitation. The applicants claim
against the bank in the suit arose in connection with banking
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transactions that the applicant /plaintiff had with the bank. Such
transactions admittedly took place between 1986 and 1995. The suit
was filed in 2009.
8. Prior to filing of the suit the present applicant had filed a writ petition
against the bank alleging that the bank had charged interest in excess
of what was prescribed by the Reserve Bank of India. Being
unsuccessful before the learned Single Judge, the applicant
approached the Division Bench. The appeal was dismissed by a
judgment and order dated June 24, 2003.
9. The Bank had thereafter initiated proceedings against the present
applicant under Section 19 of the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. Such proceedings were dismissed by
the Debts Recovery Tribunal by an order dated December 18, 2008.
The Bank's appeal against such dismissal order was dismissed by the
Debts Recovery Appellate Tribunal.
10. At the hearing of the suit before the learned Single Judge, the
present applicant, as plaintiff, argued that the Bank had wrongly not
given credit to the plaintiff for amounts realized under Packaging
Credit in Foreign Currency Scheme. The money actually belonged to
the plaintiff (present applicant). The money was therefore held by the
Bank in trust for the plaintiff. Referring to Article 10 of the Schedule
to the Limitation Act, 1963, it was submitted on her behalf that the
limitation period of three years for filing a suit would commence from
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the date of the demand made. In the present case, the demand for
refund was made by the plaintiff on May 16, 2008. Therefore, the suit
having been filed in 2009, was within the period of limitation. It was
further submitted that the plaintiff did not file the suit earlier because
of pendency of the proceedings before the Debts Recovery Tribunal
and the Debts Recovery Appellate Tribunal.
11. On behalf of the defendant it was submitted that neither before the
Debts Recovery Tribunal nor before the Debts Recovery Appellate
Tribunal the plaintiff made any counter claim which she could have
done after the 2002 amendment to the Debts Recovery Act, 1993.
Accordingly, the suit was barred by the principles of res judicata. It
was also submitted on behalf of the defendant Bank that the suit was
barred by the laws of limitation since the relevant transactions were
for the period up to 1995 and the suit was filed in 2009.
12. The learned Single Judge held the suit to be barred by limitation
observing, inter alia, as follows:-
"The second issue is taken up first for consideration for the
sake of convenience. The claim for damages of the plaintiff is on
account of banking transactions had between the parties for the
period between 1986 and 1995. This is the pleading in the
plaint and particularly paragraph 3 thereof. No document has
been relied upon in the course of submissions by the parties to
suggest that, the period of three years from 1995 stood
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extended by acknowledgement of existence of jural relationship
between the parties for a period extending upto a period of time
so as to bring the date of the filing of the suit within 3 years
from such extended date.
...........
The concept of trust introduced by the learned Advocate for the
plaintiff does not assist the plaintiff. In the present case, the
plaintiff had enjoyed credit facilities from the defendant.
Therefore, the plaintiff did not keep any amount in deposit any
amount with the defendant so as to claim that, the defendant
had kept such money of the plaintiff in trust for the plaintiff.
The defendant had advanced amounts to the plaintiff which the
plaintiff was liable to repay. However, the liability of the plaintiff
to repay any amount to the plaintiff stood adjudicated upon by
the order of the Debts Recovery Tribunal dated December 18,
2008 and the order of the Debts Recovery Appellate Tribunal
dated January 4, 2011 being Exhibit 'Z5'. The Tribunals have
held that, the plaintiff need not pay any amount to the
defendant on account of such loan transactions.
Since the plaintiff did not keep any money in deposit with
the defendant, the question of Article 22 of the Limitation
Act, 1963 coming into operation does not arise. Therefore,
the effort of the plaintiff to save limitation through Exhibit
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'Z3' being the letter of demand dated May 16, 2008 is of no
assistance to the plaintiff."
13. In the appeal preferred by the present applicant against the decree
of dismissal of the suit, a coordinate Bench by the order under review,
analyzed the plaint paragraph wise and came to the clear conclusion
that the plaintiff's suit is hopelessly barred by limitation. The Division
Bench finally observed, inter alia, as follows:-
"To return to the narration in the plaint, paragraphs 20 to 22
of the plaint and the several sub-paragraphs thereunder
refer to the proceedings instituted by the defendant bank
before the DRT culminating in the dismissal thereof by an
order of December 18, 2008. Paragraphs 23 to 30 of the
plaint refer to the perceived illegalities committed by the
bank, but it does not appear that any of such illegalities
were committed at any point of time after 1997 or after the
transactions between the parties came to an end in 1996 or
at any point of time within three years prior to the institution
of the present suit in 2009. Paragraphs 31 and 32 of the
plaint set out the particulars of the plaintiff's claims.
Paragraph 33 pertains to the claim on interest. Paragraph 34
of the plaint refers to the notice of May 16, 2008 which is
repeated again in paragraph 37 of the plaint and the reply of
advocates for the defendant dated June 9, 2008. The essence
of the reply is indicated at paragraph 34 of the plaint.
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Advocates for the defendant had asserted that the defendant
was advised not to deal with the notice of demand since the
matter was sub-judice and pending before the tribunal. It
may be recalled that it was only in December, 2008 that the
bank's claim was dismissed by the tribunal.
Paragraphs 35 and 36 again refer to the perceived wrongful
acts of the defendant without having any pointer as to any
specific period of time. Paragraphs 38 and 39 are the formal
and jurisdictional paragraphs. Paragraph 40, the last
paragraph of the plaint, indicates the valuation.
Thus, it is evident, on a plain reading of the plaint, that the
claim was ex facie barred by limitation and it was a complete
waste of time for such a plaint to qualify to go to trial or
witnesses be called in support of the claim. Nothing in
paragraph 37 of the plaint makes out any exception to the
general rule in the Limitation Act of 1963 for time to be
excluded. Though it is asserted that the bank was in a
position of a trustee, the nature of the relationship was that
of a banker and constituent and the bank was never a
trustee qua the plaintiff.
The suit was dismissed by a judgment and decree dated
August 5, 2016. For similar reasons as indicated
hereinabove, the trial Court found that the documents and
the material relied upon could not overcome the bar of
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limitation for the plaintiff's claim to be addressed or
adjudged on merits.
For the reasons above, there was no merit in the plaint and,
indeed, the plaint was liable to be rejected as being ex facie
barred by limitation without calling for any trial. The appeal
is utterly frivolous and devoid of any merit and the same is
dismissed with costs.
APD No.1 of 2017 stands dismissed as above."
14. We have already noted that the present applicant's Special Leave
Petition preferred against the judgment and order under review was
dismissed by the Hon'ble Supreme Court.
15. We have heard learned Advocate for the review applicant at length.
There are 64 grounds of review enumerated in the memorandum of
review. Naturally, learned Advocate could not make arguments
beyond the scope of the grounds of review. All such grounds however
pertain to the merits of the case or alleged procedural impropriety in
the conduct of the appeal. The grounds do not establish that there is
any error apparent on the face of the order under review. Indeed,
having gone through the judgment and order under review, we do not
find any error apparent on the face of the record as would warrant
exercise of review jurisdiction under Order 47 Rule 1 of the Code of
Civil Procedure .
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16. It is established law that the jurisdiction to review an order can be
exercised for correction of a mistake and not to substitute a view.
Review cannot be treated as an appeal in disguise. The mere
possibility of two views on the concerned subject is not a ground for
review. As pointed out by the Hon'ble Apex Court in the case of Lily
Thomas v. Union of India, AIR 2000 SC 1650, an error
contemplated in Order 47 Rule 1 C.P.C. must be such which is
apparent on the face of the record and not an error which is to be
fished out and searched. Error apparent on the face of the
proceedings is an error which is based on clear ignorance or disregard
of the provisions of law. It must be a patent error and not merely a
wrong decision.
17. In Parsion Devi v. Sumitri Devi reported at (1997) 8 SCC 715,
in paragraphs 9 and 10 of the reported judgment, the Hon'ble
Supreme Court observed as follows:-
"9. Under Order 47 Rule 1 CPC a judgment may be open to review
inter alia if there is a mistake or an error apparent on the face of the
record. An error which is not self-evident and has to be detected by
a process of reasoning, can hardly be said to be an error apparent
on the face of the record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In exercise of the jurisdiction
under Order 47 Rule 1 CPC it is not permissible for an erroneous
decision to be "reheard and corrected". A review petition, it must be
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remembered has limited purpose and cannot be allowed to be "an
appeal in disguise."
10. Considered in the light of this settled position we find that
Sharma, J. clearly over-stepped the jurisdiction vested in the court
under Order 47 Rule 1 CPC. The observation of Sharma, J. that
"accordingly", the order in question is reviewed and it is held that
the decree in question is reviewed and it is held that the decree in
question was of composite nature wherein both mandatory and
prohibitory injunction were provided" and as such the case was
covered by Article the scope of Order 47 Rule 1 CPC. There is a clear
distinction between an erroneous decision and an error apparent on
the face of the record. While the first can be corrected by the higher
forum, the later only can be corrected by exercise of the review
jurisdiction. While passing the impugned order, Sharma, J. found the
order in Civil Revision dated 25.4.1989 as an erroneous decision,
though without saying so in so many words. Indeed, while passing
the impugned order Sharma, J. did record that there was a mistake
or an error apparent on the face of the record which not of such a
nature, "Which had to be detected by a long drawn process of
reasons" and proceeded to set at naught the order of Gupta, J.
However, mechanical use of statutorily sanctified phrases cannot
detract from the real import of the order passed in exercise of the
review jurisdiction. Recourse to review petition in the facts and
circumstances of the case was not permissible. The aggrieved
judgment debtors could have approached the higher forum through
appropriate proceedings, to assail the order of Gupta, J. and get it
set aside but it was not open to them to seek a "review of the order
of petition. In this view of the matter, we are of the opinion that the
impugned order of Sharma, J. cannot be sustained and accordingly
accept this appeal and set aside the impugned order dated
6.3.1997."."
18. In the case of Suresh Kumar Jain & Ors. v. Madanlal Jain &
Ors., reported at (2019)4CALLT233(HC), a Co-ordinate Bench of
this Court, in paragraphs 11, 12 and 13 of the reported judgment,
observed as follows:-
"11. In State of West Bengal & Ors -vs- Kamal Sengupta &
Anr.(supra), the Hon'ble Supreme Court observed at paragraph
22 of the reported judgment as follows:
"22. The term "mistake or error apparent" by its very connotation
signifies an error which is evident per se from the record of the
case and does not require detailed examination, scrutiny and
elucidation either of the facts or the legal position. If an error is
not self-evident and detection thereof requires long debate and
process of reasoning, it cannot be treated as an error apparent on
the face of the record for the purpose of Order 47 Rule 1 CPC or
Section 22(3)(f) of the Act. To put it differently an order or decision
or judgment cannot be corrected merely because it is erroneous in
law or on the ground that a different view cold have been taken
by the court/tribunal on a point of fact or law. In any case, while
exercising the power of review, the court/tribunal concerned
cannot sit in appeal over its judgment/decision."
12. In the said decision at paragraphs 25 to 30 the Hon'ble
Supreme Court discussed its earlier decisions wherefrom, inter
alia, the following points emerge:
(i) That a decision is erroneous in law is no ground for
ordering review. If the Court has decided a point and
decided it erroneously, the error could not be one
apparent on the face of the record or even analogous to it.
(ii) The words "any other sufficient reason" must mean a
reason sufficient on grounds at least analogous to those
specified in Rule 1 of Order 47 of CPC.
(iii) A review is by no means an appeal in disguise whereby an
erroneous decision can be corrected.
(iv) An error which is not self-evident and has to be detected
by a process of reasoning, cannot be said to be an error
apparent on the face of the record justifying the Court to
exercise its power of review under Order 47 Rule 1 CPC.
(v) In exercise of jurisdiction under Order 47 Rule 1 CPC, it
is not permissible for an erroneous decision to be reheard
and corrected.
(vi) There is a clear distinction between an erroneous
decision and an error apparent on the face of the record.
While the first can be corrected only by a higher forum,
the latter can be corrected by exercise of the review
jurisdiction. A review petition has a limited purpose and
cannot be allowed to be "an appeal in disguise".
(vii) Order 47 Rule 1 CPC does not postulate a rehearing of
the dispute on the ground that 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.
(viii) The power of review may not be exercised on the ground
that the decision under review was erroneous on merits.
That would be the province of the Appellate Court. The
power of review is not to be confused with appellate
powers which may enable an Appellate Court to correct
all manner of errors committed by the subordinate Court.
13. The aforesaid propositions of law are also supported by the
decisions of the Hon'ble Supreme Court in the cases of Meera
Bhanja -vs- Nirmala Kumari Choudhury, (1995) 1 SCC 170
and Dr. Somayajulu, Secretary, Diesel Loco Shed and South
Eastern Railway House Building Cooperative Society Ltd.-
vs- Attili Appala Swamy & Anr., (2015) 2 SCC 390."
19. In the case of Paramita Das v. Pranati Sarkar AIR 2004 CAL
22, a Coordinate Bench of this Court echoed the same view that
erroneous decisions cannot be re-heard and corrected by the Court in
exercise of its jurisdiction under O. 47 r. 1 of the C.P.C. An erroneous
decision cannot be categorized as an error apparent on the face of the
record.
20. Keeping in mind the aforesaid principles of law, we have to hold
that the applicant has been unable to make out any ground for
exercise of jurisdiction for review under Order 47 Rule 1 C.P.C.
Having been unsuccessful in obtaining leave to appeal from the
Hon'ble Apex Court against the judgment and order under review in
this application, the applicant is seeking to reopen the merits of the
case by way of the instant application. If one goes through the
grounds of review, one will immediately see that the applicant is in
effect and substance seeking to have the appeal re-heard on merits in
the garb of a review application. This is not permissible in law.
21. We find no reason to review the judgment and order dated
December 10, 2019. There is no error apparent on the face of the
record nor any other ground has been made out by the applicant
which would persuade me to review the said judgment and order.
RVWO/1/2013 IA NO: GA/1/2023 is accordingly dismissed. There
will be no order as to costs.
22. Urgent certified website copies of this order, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities
(ARIJIT BANERJEE, J.)
(KAUSIK CHANDA, J.)
dg
