Calcutta High Court
Concast Cement Private Limited vs Deccan Chronicle Holdings on 1 March, 2023
OD - 1&2
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
EC/97/2019
IA No.GA/1/2020(Old No.521/2020)
CONCAST CEMENT PRIVATE LIMITED
-Versus-
DECCAN CHRONICLE HOLDINGS
LIMITED AND ANR.
RVWO/5/2023
WITH
EC/97/2019
IA No.GA/2/2023
CONCAST CEMENT PRIVATE LIMITED
-Versus-
DECCAN CHRONICLE HOLDINGS
LIMITED AND ANR.
BEFORE :
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
Date : 1st March, 2023
Appearance :
Ms. Noelle Banerjee, Adv.
Mr. Dipan Dey, Adv.
Mr. Dipanjan Dey, Adv.
Ms. Shreyasi Manna, Adv.
...for the decree-holder
Mr. Rajarshi Dutta, Adv.
Mr. Shyanti Dutta, Adv.
Mr. Sarbajit Mukherjee, Adv.
Mr. Sounak Mukherjee, Adv.
...for the judgment-debtor.
The Court : This is an application seeking review of the order dated
23rd November 2022 passed by this court, where this court was pleased to
issue warrant of arrest against judgement debtor No.1 through judgment
debtor No. 2. Petitioner/judgement No.2 contended that judgment debtor No.
2
1 from 2012 started experiencing tremendous financial hardship and various
legal proceedings were initiated against the judgment debtor No. 1 by it's
various creditors. Eventually an application under section 7 of the Insolvency
Bankruptcy Code, 2016 (IBC) was filed by Canara bank against judgment
debtor No. 1 before National Company Law Tribunal, Hyderabad Branch
(NCLT). Said IBC proceeding was eventually allowed on 19th July, 2017
resultantly moratorium under section 14 of the IBC also commenced from
the same date and judgment debtor No. 2 was suspended from his
directorship. Being aggrieved by the exception carved out in the moratorium
order dated 19th July, 2017, in respect of proceeding pending before the High
Court and Hon'ble Supreme Court against the judgment debtor No. 1, Said
Bank filed an appeal before NCLAT. Said appeal was disposed of by an order
dated 14th September, 2017 clarifying that suits, if filed, before any High
Court under original jurisdiction which is a money suit or suit for recovery
against the judgment debtor no. 1, such suit could not be proceeded with
after declaration of moratorium under section 14 of IBC. The decree holder
filed suit being CS no.394 of 2012 against the judgment debtor for reliefs
claimed in the plaint. The decree holder also filed application being GA 3248
of 2012 interalia for judgment and decree on admission, the sum of Rs.
15,75,00000/-. Said GA No. 3248 of 2012 was eventually disposed of by the
judgment and decree dated 20th August 2017, out of which present execution
proceeding has been started.
Mr. Dutta, learned Counsel appearing on behalf of judgment debtor no.
2 submits that no decree has been passed against judgement debtor No.2
3
and said suit is still pending. He further submits that judgment debtor no. 2,
no longer involved with the management or affairs of judgment debtor no. 1
and judgment debtor no. 2 participated in the execution proceeding merely
as a proper party. He further submits that one L&T Finance Limited filed an
application against judgment debtor 2 under section 95 of the IBC for
initiation of insolvency resolution process against the judgment debtor no. 2
as a personal guarantor of judgment debtor no. 1. Upon filing of section 95
application, interim moratorium under section 96 of the IBC commenced
and all legal action and proceeding against the judgment debtor no.2 are
deemed to be stayed. On 24th June, 2022 such application was allowed and
moratorium was imposed and as such present execution proceeding deemed
to be stayed. Thereafter judgment debtor no. 2 still continue to be
participated in the hearing but he could not appear before the court on 18th
November 2022 on which date order impugned was passed. He further
submits that no affidavit of asset needs to be filed by the judgment debtor
no.2 and as such he prayed for reviewing the said order and/or suitably
modifying the order, so that no warrant of arrest issued or executed or any
legal action is taken against the judgment debtor.
Learned counsel appearing on behalf of the decree holder vehemently
opposed the prayer for reviewing the order and contended that this court has
given sufficient opportunity to the judgment debtor to file affidavit of asset
but judgment debtor failed to comply the same and as such the court was
quite justified in passing the said order which does not call for any
modification.
4
Considered submissions made by both the parties.
Needles to say that the scope of review under order XLVII rule 1 read
with section 114 of the Code of Civil Procedure is applicable where mistake
or error is apparent on the face of the record and it is not synonymous with
re-hearing of the matter, for detecting any error in earlier decision and to
correct the same. Error which is not self evident and has to be detected by a
process of reason, can hardly be said to be an error apparent of the face of
the record, justifying court to exercise his power of review under order XLVII
rule 1 CPC. It is also settled position of law that in case of review, it must be
remembered that it can be used for limited purpose and it's not an appeal in
disguise. There is a clear distinction between erroneous decision and error
apparent on the face of the record.
In view of the aforesaid settled position of law let me consider whether
the order impugned calls for any review or not. It is apparent from the order
sheet that vide order dated 19th March, 2019, this court observed that since
no appeal has been preferred from the decree in question there will be order in
terms of prayer 'D' of the tabular statement and in the next order dated 2nd
April 2019, this court was pleased to direct judgement debtor no. 2 to file
affidavit of asset on behalf of the respondent no. 1 within four weeks from the
date. Subsequently on 18th November, judgment debtor, while represented
were again directed to submit affidavit of asset in terms of earlier order and it
was further ordered that in default warrant of arrest may be issued against
him. Such orders were never challenged. On the next day i.e. on 23rd
November, 2022 judgment debtor No.2 was represented but did not file any
affidavit of asset and accordingly the warrant of arrest was issued. Now
judgement debtor's contention is in terms of explanation given by him as
stated above there is no requirement to file affidavit of asset.
When the court has specifically directed the judgment debtor no. 2 to
file affidavit of asset, long back on 2nd April 2019 and also by subsequent
order and when judgment debtor in spite of appearance did not bother to
comply the same on the plea that such affidavit is not required to be filed in
the present context, I find no mistake or error which is apparent on the face
of the record. Even when impugned order was passed, opportunity was given
to judgment debtor to file affidavit of asset within four weeks and in case
filing the same opportunity was given to them for mentioning to discharge
the warrant of arrest. Till date, judgment debtor has not complied the same
and as such there is no mistake or error apparent on the face of the record
and as such the prayer for review is not sustainable.
RVWO/5/2023 arising out of EC 97 of 2019 is rejected.
Urgent photostat certified copy of this order, if applied for, be given to
the parties upon compliance of all requisite formalities.
(Ajoy Kumar Mukherjee, J.)
S.Das//As.
