Gujarat High Court
Kroll Trustee Services Limited vs Mv Sol (Imo No 9397030) on 31 January, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 2004 of 2024
In R/ADMIRALTY SUIT NO. 22 of 2022
With
R/MISC. CIVIL APPLICATION NO. 2005 of 2024
In
R/ADMIRALTY SUIT NO. 22 of 2022
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KROLL TRUSTEE SERVICES LIMITED
Versus
MV SOL (IMO NO 9397030) & ANR.
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Appearance:
MR SN SOPARKAR SENIOR ADVOCATE WITH MR HARSH N
PAREKH(6951) for the Applicant(s) No. 1
MR UNMESH D SHUKLA SENIOR ADVOCATE WITH MR. PRATHMESH
KAMAT WITH MR RUSHANG MEHTA WITH MR DAKSHESH MEHTA(2430)
for the Opponent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 31/01/2025
COMMON ORAL ORDER
1. These applications are arising out of common judgment
and order dated 25.8.2023 passed in Civil Application (for
orders) No. 8 of 2022 in Admiralty Suit No. 22 of 2022
with Civil Application (for orders) No. 10 of 2022 in
Admiralty Suit No. 22 of 2022 for review and recall of the
said order in view of the subsequent development.
2. The applicant is the original plaintiff who has
preferred Admiralty Suit No. 22 of 2022 against
respondent No. 1 - vessel who is original defendant. The
applicant is a security agent which holds security,
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including registered ship mortgages, on behalf of a
syndicate of lenders under a facility agreement entered
with the borrower for requisite assets and one of the
borrowers being owner of respondent No.1 and one of the
assets being the respondent No.1.
3. By the judgment and order dated 25.8.2023 passed
by this Court in the aforesaid applications, the applicants
who have also preferred admiralty suit against defendant-
respondent No.1 are permitted to be joined as defendant
Nos. 3 and 4 in the Admiralty Suit No. 22 of 2022 and are
also permitted to file their defence to the claim of the
applicant - original plaintiff.
4. Heard learned Senior Advocate S.N. Soparkar with
learned advocate Mr. Harsh N. Parekh for the applicants
and learned Senior Advocate Mr. Unmesh D. Shukla, with
learned advocate Mr. Prathmesh Kamat with learned
advocate Mr. Rushang Mehta for the newly joined
defendants in the admiralty suit and respondent No.2
5. Learned Senior Counsel Mr. S.N. Soparkar
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appearing with learned advocate Mr. Harsh N.Parekh for
the applicant-original plaintiff submitted that this Court
permitted the respondent No.2 in both the applications as
defendant No. 2 and 3 on the ground that no one
appeared for the defendant No.1 vessel, after withdrawal
of the appearance by the advocate appearing for original
defendant No.1 on 25.7.2022. It was submitted that this
Court considered the decision of Enmal TD Corporation
v. Credit Suisse Ag (CAV IA Order dated 01.02.2021
passed in Civil Application (OJ) (For Joining Party) No.1 of
2021 in R/Admiralty Suit No. 17 of 2020) and followed the
decision of Bank of Sharjah v. Joplin Overseas
Investment Limited reported in 2014 SCC OnLine Guj
14621 for allowing the application for joining party by the
plaintiffs of the admiralty suit against
respondent/defendant No.1. It was pointed out that after
the order dated 25.8.2023 was passed by this Court in
both the applications, by order dated 20.9.2023,
permission was granted to the advocate to appear on
behalf of the owner of the vessel in the Admiralty Suit No.
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22 of 2022. It was therefore, submitted that now the
original defendant vessel is represented in the admiralty
suit and therefore, order dated 25.8.2023 is required to
be recalled and both the applications may be ordered to
be reheard with regard to the prayer made therein for
joining party by the plaintiffs of the other admiralty suit
against the defendant vessel. It was further submitted
that during pendency of the decision being pronounced,
after the matters were heard in the month of January
2023, further development had taken place. It was
pointed out that in the High Court of Justice Business and
Property Courts of England and Wales Commercial Court
(QBD) a consent order was passed between the applicant
- original plaintiff and the owner of the vessel wherein,
owner of the vessel had accepted the liability of the
plaintiff on payment of USD24,000,000 in full and final
settlement of the claim. It was submitted that in view of
the development which had taken place after the matters
were heard and the judgment was pronounced and in
view of the fact that the owner of the vessel is now
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appearing in the admiralty suit representing the
defendant vessel therein, the order dated 25.8.2023
passed in the applications for joining party is required to
be recalled and both the applications are now required to
be heard afresh in light of the above stated development.
In support of his submission, reliance was placed on the
decision of Hon'ble Apex Court in case of Board of
Control for Cricket in India and another v. Netaji
Cricket Club and others reported in (2005) 4 SCC 741.
It was submitted that the Hon'ble Apex Court in the facts
of the said case, after considering the provisions of
Section 114 of the Code of Civil Procedure 1908 read
with Order 47 Rule 1 of the Code and the decision of the
Hon'ble Apex Court in case of Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasisus
reported in AIR 1954 SC 526 and the decision in case of
Lily Thomas vs. Union of India reported in (2000) 6
SCC 224 has held that it is not correct to contend that the
Court while exercising its review jurisdiction in any
situation whatsoever cannot take into consideration a
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subsequent event for the purpose of rectifying its own
mistake. It was therefore, submitted that in view of the
subsequent development which had taken place in form
of the consent decree being passed in favour of the
applicant original plaintiff and the undisputed fact about
appearance on behalf of the owner of the defendant
vessel, there is no need for joining the plaintiffs of other
admiralty suit against the defendant vessel and therefore,
the said issue is required to be reconsidered in light of
such development.
6. On the other hand learned Senior Advocate Mr.
Unmesh D. Shukla, with learned advocate Mr. Prathmesh
Kamat with learned advocate Mr. Rushang Mehta for
respondent No.2 in each of the application submitted that
there is no mistake apparent on the record pointed out by
the applicants in the impugned order dated 25.8.2023. It
was further submitted that this Court has not allowed the
applications only on the ground of non appearance by the
owner of the defendant vessel in the suit but has
considered the submissions made on behalf of the
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respondent No.2 and thereafter, arrived at independent
findings in the facts of the case.
7. Be that as it may. So far as the scope of review
under Section 114 r/w Order 47 Rule 1 of the Code is
concerned, the same is described in the decision in case
of Board of Control for Cricket (supra) cited on behalf
of the applicants itself as under:-
"88. We are, furthermore, of the opinion that the jurisdiction
of the High Court in entertaining a review application cannot
be said to be ex facie bad in law. Section 114 of the Code
empowers a court to review its order if the conditions
precedents laid down therein are satisfied. The substantive
provision of law does not prescribe any limitation on the
power of the court except those which are expressly provided
in Section 114 of the Code in terms whereof it is empowered
to make such order as it thinks fit.
89. Order 47, Rule 1 of the Code provides for filing an
application for review. Such an application for review would
be maintainable not only upon discovery of a new and
important piece of evidence or when there exists an error
apparent on the face of the record but also if the same is
necessitated on account of some mistake or for any other
sufficient reason.
90. Thus, a mistake on the part of the court which would
include a mistake in the nature of the undertaking may also
call for a review of the order. An application for review would
also be maintainable if there exists sufficient reason therefor.
What would constitute sufficient reason would depend on the
facts and circumstances of the case. The words 'sufficient
reason' in Order 47, Rule 1 of the Code is wide enough to
include a misconception of fact or law by a court or even an
Advocate. An application for review may be necessitated by
way of invoking the doctrine "actus curiae neminem
gravabit".
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91. It is true that in Moran Mar Basselios Catholicos and
Another Vs. The Most Rev. Mar Poulose Athanasius and
Others [(1955) 1 SCR 520], this Court made observations as
regard limitations in the application of review of its order
stating :
"Before going into the merits of the case it is as well to
bear in mind the scope of the application for review
which has given rise to the present appeal. It is
needless to emphasise that the scope of an application
for review is much more restricted than that of an
appeal. Under the provisions in the Travancore Code of
Civil Procedure which is similar in terms to Order
XLVII, rule 1 of our Code of Civil Procedure, 1908, the
Court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the
language used therein. It may allow a review on three
specified grounds, namely (i) discovery of new and
important matter or evidence which, after the exercise
of due diligence, was not within the applicant's
knowledge or could not be produced by him at the time
when the decree was passed, (ii) mistake or error
apparent on the face of the record and (iii) for any
other sufficient reason. It has been held by the Judicial
Committee that the words "any other sufficient reason"
must mean "a reason sufficient on grounds, at least
analogous to those specified in the rule.", but the said
rule is not universal.
92. Yet again in Lily Thomas (supra), this Court has laid down
the law in the following terms:
"52. The dictionary meaning of the word "review" is
"the act of looking, offer something again with a view to
correction or improvement". It cannot be denied that
the review is the creation of a statute. This Court in
Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji, AIR 1970 SC 1273 held that the power of
review is not an inherent power. It must be conferred
by law either specifically or by necessary implication.
The review is also not an appeal in disguise. It cannot
be denied that justice is a virtue which transcends all
barriers and the rules or procedures or technicalities of
law cannot stand in the way of administration of justice.
Law has to bend before justice. If the Court finds that
the error pointed out in the review petition was under a
mistake and the earlier judgment would not have been
passed but for erroneous assumption which in fact did
not exist and its perpetration shall result in miscarriage
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of justice nothing would preclude the Court from
rectifying the error" (Emphasis supplied)
8. Considering the above dictum of law, Hon'ble Apex
Court in the facts of the said case, held as under:-
"93. It is also not correct to contend that the court while
exercising its review jurisdiction in any situation whatsoever
cannot take into consideration a subsequent event. In a case
of this nature when the court accepts its own mistake in
understanding the nature and purport of the undertaking
given by the learned senior counsel appearing on behalf of
the Board and its correlation with as to what transpired in the
AGM of the Board held on 29th September, 2004, the
subsequent event may be taken into consideration by the
court for the purpose of rectifying its own mistake."
9. The Hon'ble Apex Court has arrived at the aforesaid
findings in view of the facts before it, which can be
summarized as under:-
10. Netaji Cricket Club (Netaji) of Tamil Nadu Cricket
Association who is a member of Board of Control of
Cricket in India (BCCI) filed a suit for declaration and
injunction in the Madras High Court wherein
apprehension was expressed that the BCCI in its ensuring
election of the office bearers would not permit some
candidates to contest on the ground of residence, wherein
two interim applications were filed with a prayer to the
effect that the Annual General Meeting (AGM) be
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conducted under the Chairmanship of a retired Supreme
Court Judge with absolute power to scrutinise and
approve the list of authorized representatives from the
member associations eligible to vote in the AGM. Another
application was filed with a prayer for injunction for
restraining the BCCI from interfering with the proposal of
any representative of any member of the North Zone for
the post of President on the basis of the residential
qualification. Learned Single Judge of the High Court
appointed former Judge of the Hon'ble Apex Court as
Commissioner to conduct elections and to take necessary
decision with regard to qualification etc.
11. The BCCI being aggrieved by the interim order
preferred Letters Patent Appeal before the Madras High
Court and thereafter, an undertaking was given on behalf
of the BCCI that it would not disqualify any candidate for
the post of President on the ground of residence and in
view of such undertaking and with the consent of the
parties, the suit was withdrawn and accordingly, the
appeal was also disposed of. Thereafter, the AGM was
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convened and in the said meeting although no person was
prevented from contenting the election for the post of
President of the Board on the ground of residence but it
was admitted fact that the Maharashtra Cricket
Association was not permitted to take part in the election
through Mr. D.C. Agashe or any other person and the
Chairman of the meeting had cast one vote as a result
whereof equal number of votes i.e. 15 each were polled
on both sides whereupon the Chairman also gave his
casting vote. Being aggrieved the BCCI preferred
Special Leave Petition on limited ground against the
order of the Division Bench permitting the withdrawal of
the suit. After the AGM was held, a review petition was
also filed by the Netaji Cricket Club contending that the
purported undertaking given on behalf of the BCCI was
not adhered to and furthermore no appeal had been filed
by the BCCI against the order of injunction. The said
review application was admitted by the Division Bench of
the High Court observing that the undertaking across the
Bar given by the Senior Advocate on behalf of the BCCI
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had not been given effect to in its letter and spirit.
Thereafter, an application being made by netaji, an
interim order was passed against which the BCCI filed
Special Leave Petition before the Hon'ble Apex Court.
Meanwhile, another suit was filed by Bharati Cricket Club
against the BCCI along with Tamil Nadu Cricket
Association praying for grant of an ex-parte ad- interim
injunction which was granted by the Court restraining the
BCCI from passing resolutions confirming the nomination.
Thereafter, review application was also filed before the
Madras High Court which was pending when the Hon'ble
Apex Court passed an order. In such facts of the case, the
Hon'ble Apex Court has observed that the Court while
exercising its review jurisdiction in any situation
whatsoever cannot take into consideration a subsequent
event, however, is not correct but in the facts of the case
before the Hon'ble Apex Court when Court accepts its
mistake in understanding the nature and purport of the
undertaking given by the learned Senior Counsel
appearing on behalf of BCCI and its correlation with as to
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what transpired in the AGM of the BCCI, it was observed
that the subsequent event may be taken into
consideration by the Court for the purpose of rectifying
its own mistake.
12. Considering the above scenario in which the Hon'ble
Apex Court has held that it is not correct to contend that
the court while exercising its review jurisdiction in any
situation whatsoever cannot take into consideration a
subsequent event applies to the facts of the each case
before the Court. In the facts of the present case, it is not
in dispute that no one represented the defendant vessel
after 25.7.2022 till the order dated 25.8.2023 was passed
by this Court. Therefore, without entering into the other
aspects of the matter when the applicant has harped
upon the fact of the development of the consent decree
and subsequent appearance of the owner of the vessel as
per the order passed by this Court on 20.12.2023 are
concerned, cannot be taken into consideration in absence
of any mistake on part of the Court, while passing the
order dated 25.8.2023.
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13. Therefore, considering the scope of review and
recall as provided in Section 114 r/w with Order 47 Rule
1 of the Code and in view of the dictum of the law
enumerated herein above from the decision of the
Hon'ble Apex Court, no case is made out by the
applicants for review and recall of the order dated
25.8.2023. Both the applications are accordingly
dismissed.
(BHARGAV D. KARIA, J)
SURESH SOLANKI
