Rosa Power Supply Co. Ltd. vs Union Of India & Ors.
2016 Latest Caselaw 6042 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 16th September, 2016

+                               W.P.(C) No.3821/2014.

      ROSA POWER SUPPLY CO. LTD.                    .... Petitioner
                  Through: Dr. A.M. Singhvi, Sr. Adv. with Mr.
                           Sujit Ghosh, Mr. Shashank Shekhar, Mr.
                           Nakul Mohta, Ms. Parul Shukla and Mr.
                           Rishi Aggarwal, Advs. for Review
                           Petitioner.

                                     Versus
      UNION OF INDIA & ORS.                               ..... Respondents

                   Through:            Mr. Sanjay Jain, ASG with Mr. Dev P.
                                       Bhardwaj, CGSC and Mr. Vidur Mohan,
                                       Adv. for UOI.
                                       Mr. Sujit Ghosh with Ms. Kanupriya
                                       Bhargava, Advs. for applicant in CM
                                       No.23810/2015.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
Review Petition No.542/2014.

1. The petitioner filed this petition impugning the four orders, all dated 21st

March, 2011 of the respondent no.3 Zonal Joint Director General of Foreign

Trade, intimating to the petitioner the decision taken in the meeting of the

Policy Interpretation Committee held on 15th March, 2011 under the

Chairmanship of the Director General of Foreign Trade, of denying Deemed

Export Benefits (DEB) "if the Bill of Entry is in the name of the project

authority", as was in the case of the petitioner and accordingly denying the

DEB to the petitioner. The petition also impugns the minutes of the said

meeting dated 15th March, 2011 and seeks a direction to the respondents to give

the DEB in the sum of Rs.72 crores to the petitioner.

2. Arguments on the petition were heard on 21st July, 2014 and judgment

reserved.

3. Vide detailed judgment dated 12th August, 2014, the petition was

dismissed.

4. The petitioner seeks review, inter alia pleading that Special Leave to

Appeal (C) No.28644/2014 was preferred before the Supreme Court against

our judgment dated 12th August, 2014 and which was disposed of as withdrawn

on 7th November, 2014 with liberty to the petitioner to file review petition and

with a request to this Court to consider the review petition in accordance with

law and with the clarification that if the review petition fails, the petitioner will

be at liberty to question not only the judgment dated 12 th August, 2014 but also

the order in the review petition.

5. Notice of the review petition was issued and a reply thereto filed and to

which a rejoinder has been filed by the petitioner.

6. The senior counsel for the petitioner/review applicant was heard on 21st

April, 2015 and 11th September, 2015.

7. CM No.23810/2015 has been filed by M/s Simplex Infrastructures Ltd.

for intervention in the review petition pleading that it has filed W.P.(C)

No.3200/2015 and W.P.(C) No.3257/2015 in this Court making the same

challenge as made in this petition and the hearing of which has been deferred

till the disposal of this review petition filed by the petitioner and seeking

intervention therein.

8. The senior counsel for the petitioner/review applicant and the learned

Additional Solicitor General (ASG) appearing for the respondents were heard

further on 22nd July, 2016 and order reserved.

9. We had vide our judgment dated 12th August, 2014, of which review is

sought, dismissed the writ petition for the reasons (i) that the claim in the

petition was in the nature of a monetary claim and the writ petition was not

maintainable; (ii) that the limitation for a suit for recovery of amount illegally

appropriated by the Government is governed by Article 62 of the Schedule to

the Limitation Act, 1908 corresponding to Article 24 of the Limitation Act,

1963; (iii) that the claim of the petitioner was not of illegal recovery of tax or

other monies by the Government but of denial by the Government of monetary

benefit to which the petitioner claimed to be entitled; (iv) thus Article 113 of

the Limitation Act, 1963 would apply and as per which the claim in the writ

petition was barred by time; (v) that repeated representations made by the

petitioner and rejection thereof neither extends the period of limitation nor is a

satisfactory explanation for delay; (vi) that the petitioner was satisfied with the

rejection of its claim and cannot be permitted to revive a stale claim merely

because someone else similarly situated had succeeded; and, (vii) that normally

a petition under Article 226 of the Constitution of India will not be entertained

to enforce a civil liability and no exceptional ground had been made out by the

petitioner.

10. The emphasis of the senior counsel for the petitioner/review applicant

has been that there is an error apparent on the face of the judgment dated 12 th

August, 2014 in as much as though in para 1 of the judgment it has been noted

that the petition also impugns the minutes of the meeting dated 15 th March,

2011 but in para 11 of the judgment it has been observed that "it is not the case

of the petitioner that the decision dated 15th March, 2011 was by an authority

which was not competent to take the decision". It is argued that in fact it was

the plea of the petitioner in the petition that the decision dated 15th March,

2011 was not of a competent authority.

11. In support of the aforesaid contention, the senior counsel for the

petitioner/review applicant has taken us through the pleadings in the petition

and the review petition and the reply thereto; Section 16 of The Foreign Trade

(Development and Regulation) Act, 1992; the judgment dated 26th February,

2014 of the Division Bench of this Court in W.P.(C) No.4455/2013 titled

Simplex Infrastructure Ltd. Vs. Union of India and encouraged whereby the

petitioner had filed this petition.

12. On the aspect of delay, the senior counsel for the petitioner/review

applicant contended that the petitioner had preferred this petition in May, 2014,

soon after the judgment dated 26th February, 2014 and thus there was no delay.

13. It was further argued that once another person similarly placed as the

petitioner namely Simplex Infrastructure Ltd. had succeeded, the claim of the

petitioner could not have been barred by delay in laches. Reliance was placed

on para 16 of Rajender Singh Vs. Lt. Governor, Andaman & Nicobar Islands

(2005) 13 SCC 289 laying down that the power of review extends to correct all

errors to prevent miscarriage of justice and it was argued that there would be

miscarriage of justice, in Simplex Infrastructure Ltd. succeeding and the

petitioner failing, qua the same claim.

14. Error was also sought to be found in the reasoning in the judgment under

review as to the maintainability of the petition by referring to para 25 of ABL

International Ltd. Vs. Export Credit Guarantee Corporation of India Ltd.

(2004) 3 SCC 553.

15. Reliance was also placed on paras 15 and 16 of Competent Authority

Vs. Barangore Jute Factory (2005) 13 SCC 477 to contend that non-

consideration of material on record is a ground for review.

16. Reference was also made to Bharat Heavy Electricals Ltd. Vs. Union

of India 2015 (316) ELT 466 (Cal.) where a Single Judge of the High Court of

Calcutta also set aside the decision supra dated 15 th March, 2011 and

consequently held that the petitioner therein would not be required to pay back

the DEB already received.

17. Per contra, the learned ASG contended that the argument of the

petitioner/review applicant, of the competence of the authority which had

taken the decision dated 15th March, 2011 is irrelevant as the reason which

prevailed in the judgment of which review is sought was that the monetary

claim in the writ petition was barred by time. Without prejudice thereto, it is

also argued that the petitioner itself had submitted to the jurisdiction of the

authority which took the decision dated 15th March, 2011 and never challenged

its jurisdiction. Further without prejudice, it is argued that the challenge to the

competence of the authority is misconceived.

18. The learned ASG further argued that the claim of the petitioner in the

petition was based entirely on the judgment dated 26th February, 2014 supra in

the writ petition filed by Simplex Infrastructure Ltd. and that cannot be a cause

of action for the petitioner. It is argued that a judgment in one case cannot be a

cause of action for another case.

19. The learned ASG has even otherwise, on merits also argued that DEB is

only for goods manufactured in India but the subject goods were not

manufacture in India.

20. It was also contended by the learned ASG that ABL International

Ltd. supra has been differentiated in Joshi Technologies International Inc.

Vs. Union of India (2015) 7 SCC 728.

21. The senior counsel for the petitioner/review applicant in rejoinder has

again drawn attention to para 11 of the judgment of which review is sought

and argued that it flows therefrom that had we understood the case of the

petitioner as constituting a challenge to the competence of the authority

which took the decision dated 15th March, 2011 and which has now been

argued, our judgment would have been otherwise. Attention is invited to the

judgment dated 13th February, 2014 of the Division Bench of the High Court

of Gujarat in Special Civil Appeal No.11031/2013 titled Alstom India Ltd.

Vs. Union of India holding that even after making payment of tax either by

misinterpreting the statutory provision or under unconstitutional provision or

under mistake of law, a citizen can challenge the inherent lack of jurisdiction

and if succeeds, the Court can in appropriate case direct refund of the

amount which has been collected without jurisdiction. Reliance is also

placed on para 8 of Sushil Kumar Sen Vs. State of Bihar (1975) 1 SCC 774

to contend that qua an action for recovery of payment made under mistake,

there can be no plea of laches or delay.

22. Both counsels also relied on Salonah Tea Company Ltd. Vs.

Superintendent of Taxes, Nowgong (1988) 1 SCC 401 (para 20).

23. No arguments were addressed by the counsel for M/s Simplex

Infrastructures Ltd..

24. We cannot be unmindful of the fact that we have on an earlier

occasion, after hearing the counsels and reserving the judgment, not found

the petitioner entitled to the relief. We have wondered, whether our judicial

system permits the Courts / Judges to so change their minds / opinions, when

approached in review.

25. In our view, to widen the scope of the review to the extent desired by

the senior counsel for the petitioner/review applicant, may have far reaching

ramifications affecting the justice delivery system.

26. Though we, in the facts of the present case, even after hearing a

different counsel now appearing for the petitioner/review applicant, do not

find any case to take a different view from what we had taken earlier, but it

is well-nigh possible that the same judge, at another point of time far

removed from when he/she had earlier heard and decided the lis, may be

inclined to take a different view. After all we, as Judges, are continuously

evolving and our beliefs and opinions are changing with each day‟s

experience and judgments read by us and cited before us. Inspite of our best

efforts, due to repeated adjournments sought, the review petition has

remained pending for nearly one and a half years. However if it were to be

held that we today are entitled to form a different opinion than what we had

formed earlier, the same in our view is coupled with the danger of eroding

the faith in the judicial system and the consumers of the judicial system

believing that the Judges can be prevailed upon to so change their

opinion/judgments.

27. The power of review, in the Code of Civil Procedure, 1908 (CPC), is

confined to cases of discovery of new and important matter or evidence

which after exercise of due diligence could not be placed by the parties

before the Court at the time of hearing or on account of some mistake or

error apparent on the face of the record.

28. The present case does not fall within the aforesaid limitation. We are

on the basis of the arguments of the senior counsel for the petitioner/review

applicant unable to find any such error apparent on the face of the record.

29. Every one of the arguments now presented before us has been already

considered carefully in the judgment of which review is sought and the

petitioner‟s demand for review is only an attempt to retrieve a lost case. No

fresh facts are brought to our notice by way of discovery of new and

important evidence, which would justify reconsideration of the judgment.

Para 11 of the judgment of which review is sought and to which repeated

reference was made by senior counsel for petitioner/review applicant, in our

view, instead of forming a ground for review, shows that we have considered

the said contention also and decided against the petitioner thereon also. In

this circumstance, if we are to now reach a different conclusion than was

reached earlier, the same in our view will put the credibility of the judicial

system and this court at stake.

30. Supreme Court, in Haridas Das Vs. Smt. Usha Rani Banik (2006) 4

SCC 78 reiterated in S.N.S. (Minerals) Ltd. Vs. Union Of India (2007) 12

SCC 132 held that the parameters of review are prescribed in Order XLVII

of the CPC and permit for a rehearing "on account of some mistake or error

apparent on the face of the records or for any other sufficient reason"; the

former part of the rule deals with a situation attributable to the applicant and

the latter to a jural action which is manifestly incorrect or on which two

conclusions are not possible; neither of them postulate a rehearing of the

dispute because 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. It was

further held that where the order in question is appealable, the aggrieved

party has adequate and efficacious remedy and the Court should exercise the

power to review its order with the greatest circumspection. The same is the

position here. The petitioner, this time around represented by an eminent

counsel, who has argued with all eloquence at his command and with

reference to a host of judgments, cannot expect a different verdict.

31. Reference may also be made to M/s. Thungabhadra Industries Ltd.

Vs. Government of Andhra Pradesh AIR 1964 1372 also reiterated in

S.N.S. (Minerals) Ltd (supra) laying down that there is a distinction which

is real, though it might not always be capable of exposition, between a mere

erroneous decision and a decision which could be characterised as vitiated

by "error apparent". Review was held to be no means an appeal in disguise

whereof an erroneous decision is reheard and corrected but lies only for

patent error, where without any elaborate argument one could point to the

error and say there is a substantial point of law which stares one in the face,

and there could reasonably be no two opinions entertained about it - only

then a clear case of error apparent on the face of the record would be made

out.

32. The present case by no stretch of imagination falls in the category

aforesaid. The petitioner here seeks review not on the ground of discovery of

new and important matter or evidence which, after the after the exercise of

due diligence was not within the knowledge of the petitioner or could not be

produced by the petitioner at the time when the judgment was passed but

wants a review on the ground that the decision is erroneous. This was held

to be not permissible also in Meera Bhanja vs Nirmala Kumari Choudhury

(1995) 1 SCC 170 and in the State Of West Bengal vs Kamal Sengupta

(2008) 8 SCC 612.

33. We have also considered whether in the light of the order dated 7 th

November, 2014 of the Supreme Court in Special Leave to Appeal (C)

No.28644/2014 supra, we are required to consider the matter afresh.

34. A perusal of the said order shows that the counsel for the petitioner at

the outset only sought permission to withdraw the Special Leave Petition

with liberty to file review petition and which permission was granted. The

fact that the petitioner was also granted liberty to, if remaining aggrieved,

again question the judgment dated 7th November, 2014, does not according

to us entitle the petitioner/review applicant to a wider consideration before

us than is permissible in review jurisdiction.

35. We therefore do not find any ground for review.

36. CM.No.23810/2015 by M/s Simplex Infrastructures Ltd. is also

misconceived.

Dismissed.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE SEPTEMBER 16, 2016 „pp‟.,