M/S. Binod Engineering & ... vs Union Of India & Another
2011 Latest Caselaw 81 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+              RA 169/2010 & CM 7391/2010 in FAO(OS) 588/2009


%                                 Date of Decision: 07.01.2011

M/s. Binod Engineering & Mechanical Works                          .... Appellant

                             Through Mr.D.Moitra, Advocate.

                                                 Versus

Union of India & Another                                         .... Respondents

                             Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE RAJIV SAHAI ENDLAW
1.   Whether reporters of Local papers may                        YES
     be allowed to see the judgment?
2.   To be referred to the reporter or not?                        NO
3.   Whether the judgment should be                                NO
     reported in the Digest?

ANIL KUMAR, J.

* CM No.7391/2010

This is an application by the applicant/appellant seeking

condonation of delay in filing the application for review of order dated

4th February, 2010 dismissing the appeal of the applicant/appellant

against the dismissal of his application under Order 9 Rule 13 of the

Code of Civil Procedure and Section 5 of the Limitation Act seeking

condonation of delay of 1550 days.

The applicant/appellant has contended that the counsel for the

applicant/appellant was not well since 15th February, 2010 and was not

attending to his office for a long period till middle of March, 2010. The

applicant/appellant is based in Kolkata and consequently, could not

contact the counsel for more than two weeks and could contact him

only when he became well and thereafter the review application was

prepared and filed,

Applicant has contended that in the circumstances, the delay of

14 days has been caused which is wholly unintentional. The

applicant/appellant has contended that there is every likelihood, of the

applicant succeeding in getting the order reviewed. The

applicant/appellant has therefore, sought condonation of delay in filing

the review application.

We have heard the learned counsel for the parties. The

application is supported by the affidavit of Sh. Satish Jhunjhunwala.

Considering the averments made in the application that the counsel for

the applicant/appellant was not well for a considerable period because

of which the applicant/appellant could not contact his counsel and

after two weeks when the counsel became alright, the

applicant/appellant contacted him and got the review application

prepared, would constitute sufficient cause for condonation of delay in

the facts and circumstances and in law.

Therefore, in the facts and circumstances, the delay of 14 days in

filing the application for review is condoned and the application is

allowed.

RA No.169/2010

This is an application by the applicant/appellant seeking review

of order dated 4th February, 2010 under Section 114 read with Order 47

of the Code of Civil Procedure, contending inter-alia, that there is an

error apparent in the order dated 4th February, 2010 relying on

N.Balakrishnan v. M.Krishnamurthy 1998 INDLAW SC 633; State of

Punjab v. Hardyal' AIR 1985 SC 920 and Bhagavathy Devaswom v.

Bhargavi Amma, 2008 INDLAW SC 2067.

This is not disputed by the petitioner that the Single Judge had

dismissed his application under Order 9 Rule 13 of the Code of Civil

Procedure against the order dated 15th March, 2004 and had also

dismissed the application under Section 5 of the Limitation Act seeking

condonation of delay of 1550 days in filing the application under Order

9 Rule 13 of the Code of Civil Procedure.

Relevant facts are that an award dated 25th March, 1998 was

given. The award was filed for making a rule of the court where

objections were filed by the applicant/appellant. The objections were

listed for hearing on 15th October, 2003 when the matter was adjourned

to 13th November, 2003. Though, on 15th October, 2003, the matter was

adjourned in the presence of the counsel for the applicant/appellant,

however, no one appeared on 13th November, 2003 and thereafter on

21st January, 2004. No one appeared even thereafter on 15th March,

2004 leading to dismissal of the objections. Learned Single Judge had

noted that even prior to 15th October, 2003 no one had been appearing

on behalf of the applicant/appellant, and therefore, objections were

dismissed for non-prosecution and award was made rule of the court on

15th March, 2004.

After 15th March, 2004 dismissing the objections and making the

award rule of the Court, the application for setting aside the said order

was filed in 2008 on the ground that the business of the

applicant/appellant's firm had became non-functional since 1998 due

to differences between the partners, the office of the

applicant/appellant's firm virtually remained closed down and there

was no person to take any decision or any other steps with respect to

the affairs of the applicant/appellant. The plea was also raised that one

of the partners of the applicant/appellant's firm was ill from 2001 till

the end of 2006 and the applicant/appellant came to know about the

dismissal of the objections and award being made rule of the court in

2008 whereafter the application for setting aside the order dated 15th

March, 2004 and seeking condonation of delay of 1550 days was filed.

The learned Single Judge and the Division Bench while

dismissing the application for condonation of delay and the application

under Order 9 Rule 13 of the Code of Civil Procedure have noted that

the plea that the applicant/appellant that he came to know about the

dismissal of the objections in 2008, is incorrect inasmuch as on 3rd

June, 2006 a letter was written by the respondents to the

applicant/appellant about the dismissal of the objections. After the

award was made rule of the court execution was filed where a counsel

had appeared on behalf of the applicant/appellant on 12th January,

2007; 6th February, 2007 and 17th April, 2007 before execution was

transferred to Calcutta. The plea that the office of the

applicant/appellant's firm was non-functional was repelled noticing

that the notice of execution was served at the address of the

applicant/appellant's firm. The plea that one of the partners was ill was

also disbelieved as he had been attending the meetings of the Board of

Directors and the medical records of that partner did not reflect any

such maladies so as to incapacitate him from doing anything.

The learned Single Judge and the Division Bench while

dismissing the application for setting aside the order dated 15th March,

2004 had also noted that the negligence of the other partners has not

been explained. No reason was explained as to why no steps were taken

from June, 2006 till the end of 2008 for filing the application for setting

aside the order dated 15th March, 2004 dismissing the objections of the

applicant/appellant and making the award rule of the court.

The Division Bench has also noted 'State of Punjab v. Hardyal'

AIR 1985 SC 920 and 'Katari Suryanarayana v. Koppisetti Subba Rao'

(2009) 11 SCC 183 to conclude there was no sufficient reason for

setting aside the order dated 15th March, 2004, nor was there sufficient

reason for condoning the delay of 1550 days. The judgments relied on

by the applicant are distinguishable. In State of Punjab Vs Hardayal

(supra) the Apex Court had rather held that the power to extend time

for making the award rule of the Court can be exercised even by

appellate Court. In the case relied on by the applicant the parties had

been taking part willingly in the Arbitration proceedings after the expiry

of time limit and the Supreme Court had found it to be fit for extension

of time. In N Balakrishnan (supra) the Supreme Court had held that

acceptability of explanation for the delay is the sole criterion and length

of delay is not that relevant. This Court has not accepted the

explanation for delay by a detailed order and there are no grounds to

review the order passed by this Court. In Perumon Bhagvathy

Devaswom the respondent had died during the pendency of the appeal

and the death had not been intimated to the appellant either by the

counsel for the respondent or by legal heirs and that the appellant was

unaware of death of respondent was not disbelieved by the Court and in

the circumstances delay in filing the application for substitution was

condoned. Apparently all the cases relied on by the applicant does not

entitle him for review of order passed by this Court declining to condone

the delay of 1550 days.

The learned counsel for the applicant/appellant in the garb of

above noted review application wants to re-argue the pleas and

contentions raised by the applicant/appellant, which were dealt with by

this Court in the order dated 4th February, 2010 dismissing the appeal

of the applicant/appellant.

In Ajit Kumar Ratha v. State of Orissa, Manu/SCC/0705/99, it

was held by the Supreme Court that the power to review is not an

absolute power and it is circumscribed by the restriction indicated

under Order 47 of the Code of Civil Procedure. Such power can be

exercised on the application of a person, on the discovery of new or

important matter or the 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 order was passed. The power of review can also be

exercised on account of some mistakes or errors apparent on the face of

the record or for any other sufficient reason. The learned counsel for the

applicant/appellant has relied on the Judgments of the Supreme Court

which had been considered by this Court while dismissing the appeal

by order dated 4th February, 2010.

In Manu/SCC/0327/2000/ 'Lily Thomas etc. v. Union of India, it

was held that in exercise of power of review the court may correct the

mistake but not to substitute the view. The mere possibility of two views

on the subject is not a ground for review. In any case in the facts and

circumstances, even two views are not possible as the

applicant/appellant has failed to make out a sufficient cause for setting

aside the order dated 15th March, 2004 and for condonation of delay of

1550 days. The applicant/appellant has failed to establish that there is

an error or mistake apparent on the face of the record or there is such

other material available with the applicant/appellant which if not taken

into consideration would cause miscarriage of justice.

The attempt of the applicant/appellant in the review petition is

only to re-agitate the issues which have already been decided by order

dated 4th February, 2010 whose review is sought by the

applicant/appellant. No error much less and error apparent on the face

of the record has been pointed out by the applicant/appellant. It is also

no more res-integra that a review cannot be sought merely for fresh

hearing or argument or correction or even erroneous view taken earlier.

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 court to exercise its power of review under Order 47 of

the Code of Civil Procedure. In exercise of jurisdiction under Order 47,

it is not permissible for an alleged erroneous decision to be re-heard

and corrected. A review petition, it must be remembered has a limited

purpose and thus cannot be allowed to be an appeal in disguise.

In the circumstances, there is no apparent error in the order

dated 4th February, 2010 dismissing the application for setting aside

the order dated 15th March, 2004 dismissing the objections of the

applicant/appellant and making the award dated 25th March, 1998 as a

rule of court and also declining to condone the delay of 1550 of days.

The application for review is, therefore, without any merit and it is

therefore, dismissed. The parties are however, left to bear their own

costs.

ANIL KUMAR, J.

January 07, 2011. RAJIV SAHAI ENDLAW. J.

'vk'