Delhi High Court
Sawhney Brothers vs Hongkong & Shanghai Banking ... on 30 October, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18.09.2017
Pronounced on: 30.10.2017
+ REV. P. 176/2017 & CM Nos.17219-20/2017 IN LPA 725/2012
SAWHNEY BROTHERS ..... Appellants
Through: In person
versus
HONGKONG & SHANGHAI BANKING CORPN. ..... Respondent
Through: Mr. Ankur Goel, Advocate
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUNIL GAUR
MR. JUSTICE S. RAVINDRA BHAT
1. The present review petition has been filed by M/s. Sawhney Brothers
through Mr. T.S. Sawhney ("referred to as "Mr. Sawhney") seeking review
of the order dated 03.03.2014 passed by this Court, disposing of LPA No.
725/2012. LPA No. 725/2012 arose from the order of a learned Single Judge
of this Court in W.P. (C) No. 3569/2012, dated 01.06.2012, whereby the
Single Judge dismissed the Writ Petition of Mr. Sawhney.
2. The facts of the case are that Mr. Sawhney had filed in W.P. (C) No.
3569/2012 before this Court to direct the Hong Kong and Shanghai Banking
Corporation ("respondent bank") to disburse his claim of U$ 7,86,540 with
18% interest with quarterly rests. Mr. Sawhney had claimed that the
respondent bank had cheated and defrauded him, in connivance with the
exporter/beneficiary of a Letter of Credit issued in favour of an exporter
from Singapore through the respondent bank. He alleged that the earlier
defence of the bank that they had received the amendment in the Letter of
Credit after its payment was falsified on the basis of cross-examination
conducted before the civil court. According to Mr. Sawhney, the amendment
of the Letter of Credit furnished at his instance had reached the respondent
bank even prior to disbursing the payment thereunder to the beneficiary.
3. The writ petition was dismissed by order of the Ld. Single Judge
dated 01.06.2012. The operative part of that decision reads-
"The petitioner already having preferred the civil suit,
which is still pending cannot prefer the present writ petition.
The effect of the said so-called receipt of the communication
regarding amendment of the L.C. prior to the making of
payment under the L.C., will have to be decided by the civil
Court. The petitioner cannot invoke the civil remedy, and
thereafter give up the same to prefer a writ petition and that
too, on the basis of proceedings which have taken place in the
Civil Court. Moreover, it remains doubtful whether the
petitioner's present petition is maintainable against the
respondent bank, since it is a private bank. I am, therefore, not
inclined to entertain the present petition. However, it shall be
open to the petitioner to approach the Civil Court on the basis
of the so-called admission under Rule XII CPC.
The petition stands disposed of."
4. The said decision of the Single Judge was challenged by way of a
Letters Patent Appeal (LPA No. 725/2012), after seeking condonation of
delay in filing the appeal, which was duly granted to the petitioner. LPA
725/2012 came to be disposed of by an order of this Court dated 03.03.2014.
The Division Bench's order reads:
"After some hearing Mr. T.S. Sawhney, appellant in
person sought liberty to withdraw the appeal stating that his
arguments on the question of amendment to the L.C. - which
according to him is in issue before the learned Single Judge in
the pending suit and the alleged fraud played upon him would
be urged before the learned Single Judge.
The appellant is at liberty to urge such questions of facts
and law as are permissible in accordance with law having
regard to the issues framed in the pending suit and pursue all
remedies.
All rights and contentions of all parties are reserved.
The appeal is accordingly disposed of as withdrawn."
The present review petition has been filed seeking review of this order
of the Division Bench.
5. The Mr. T.S. Sawhney appeared represented himself during the
hearing and took us through the records. It was argued by him that the order
dated 03.03.2014 was erroneous and as such, LPA No. 725/2012 should not
and ought not to have been dismissed. It was therefore contended that the
appeal should be restored back to the file of this Court with appropriate
directions to proceed for hearing of the matter expeditiously.
6. This court has heard the petitioner, appearing in person and has
perused the record. It is clear that on 03.03.2014, Mr. Sawhney, appearing in
person after making some submissions, sought liberty to withdraw the
appeal stating that his arguments on the question of amendment to the Letter
of Credit, were in issue before the Single Judge in a pending suit and
therefore the question of the alleged fraud perpetrated by the respondent
bank would be urged before the Single Judge itself. The Court granted this
liberty stating that he would be at liberty to urge all such contentions as
permissible under law and pursue all appropriate remedies and accordingly,
in its order, the Court reserved all rights and contentions of the parties. In
those terms, the Court proceeded to dispose of the appeal. Given that the
petitioner was present in Court and the order was passed in front of him, and
considering that after some hearing, he had sought liberty to withdraw the
appeal and instead pursue his case in a pending suit before the Single Judge,
this Court does not find any infirmity whatsoever with the order dated
03.03.2014.
7. To review an order, which merely recorded the submission that a
litigant be permitted to withdraw a substantive proceeding and pursue other
remedies, there ought to be something more than existing facts, which were
urged, but not viewed sufficient to grant the relief. The scope of review
proceedings are concededly very narrow: either the order should facially
show an error apparent, from the record, or materials hitherto not available
should have come to light. These two conditions have not been met with.
Having sought liberty to withdraw the appeal and pursue all contentions,
including the allegations of fraud, in another suit pending before the Single
Judge, the petitioner cannot now allege any wrongfulness in the dismissal of
his appeal. We accordingly find no reason to interfere with the previous
order dated 03.03.2014.
8. For the above reasons, the Review Petition is unmerited and is
dismissed, without order on costs.
S. RAVINDRA BHAT, J
OCTOBER 30, 2017 SUNIL GAUR, J
