Karnataka High Court
Mr Sushil Kumar Jindal vs M/S Rest House Developers on 10 June, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RP No. 166 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REVIEW PETITION NO.166 OF 2024
IN
MFA NO.181/2024 (CPC)
MFA NO.173/2024 (CPC)
MFA NO.211/2024 (CPC)
BETWEEN:
1. MR. SUSHIL KUMAR JINDAL,
S/O LATE MOHANLAL JINDAL,
AGED ABOUT 57 YEARS,
NO.17, LAXMI ROAD,
SHANTINAGAR,
BANGALORE-560017.
2. MRS. AMRITA AGARWAL,
D/O LATE MOHANLAL JINDAL,
AGED ABOUT 66 YEARS,
Digitally signed H.NO.1191, JUBILEE HILLS,
by DEVIKA M ROAD NO.59, SHAIKPET,
Location: HIGH HYDERABAD-500033.
COURT OF
KARNATAKA
3. MRS. DIMPLE BAJAJ,
D/O LATE MOHANLAL JINDAL,
AGED ABOUT 50 YEARS,
FLAT NO.S3/S4,
2ND FLOOR, A BLOCK,
LANDMARKS TOWN HALL APTS.,
69/71, MC NICHOLS ROAD,
CHETPET, CHENNAI-600031.
...PETITIONERS
(BY SRI B.K. SAMPATH KUMAR, SENIOR COUNSEL FOR
SRI SURAJ S., ADVOCATE)
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RP No. 166 of 2024
AND:
1. M/S. REST HOUSE DEVELOPERS,
A PARTNERSHIP FIRM,
REPRESENTED BY ITS PARTNER,
MR. AVINASH PRABHU,
HAVING ITS OFFICE AT 206 AND 207,
SOPHIA'S CHOICE, ST. MARK'S ROAD,
BANGALORE-560001.
...RESPONDENT
(BY SRI J.P.DARSHAN, ADVOCATE)
THIS REVIEW PETITION IS FILED UNDER ORDER XLVII
RULE 1 R/W SECTION 114 OF THE CPC, 1908 PRAYING TO
PERUSE AND REVIEW THE COMMON JUDGMENT DATED
15.03.2024 PASSED IN THE MFA NO.181/2024 (CPC) C/W.
MFA NO.173/2024 (CPC), MFA NO.211/2024(CPC) AND ALLOW
THE ABOVE REVIEW PETITION AND CONSEQUENTLY, ALLOW
THE SAID MISCELLANEOUS FIRST APPEALS AS PRAYED FOR BY
THE PETITIONERS THEREIN.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the
learned counsel for the respondent.
2. This review petition is filed praying this Court to
review the order of this Court dated 15.03.2024 passed in
M.F.A.No.181/2024 c/w M.F.A.No.173/2024 and
M.F.A.No.211/2024, wherein challenge was made before this
Court for granting temporary order of injunction in
O.S.No.5438/2023. This Court having considered the submission
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of both the learned counsel, passed a detailed order on
15.03.2024 confirming the order of the Trial Court and
dismissed the M.F.As.
3. The main ground urged in the review petition is that
the consideration of Rs.4 Crores was paid and the same has not
been disputed. The material also discloses that the amount vest
with the respondent to certain extent and apart from that, the
dispute is with regard to the non-withdrawal of
Rs.12,26,59,601/-. The learned counsel contend that Section
31 of the Specific Relief Act is clear with regard to the seeking of
better relief and Section 19 of the Contract Act. The learned
counsel brought to the notice of this Court Article 59 of the
Limitation Act and Section 73 of the Arbitration and Conciliation
Act. The learned counsel contend that the very document of
separation of settlement deed is not pleaded in the plaint and
also not brought to the notice of this Court the very approach of
the respondent herein in approaching the Court while seeking
the relief of discretionary relief of temporary injunction. The
learned counsel contend that when the suit itself is not
maintainable and when the prima facie case is not made out,
ought not to have granted the relief of temporary injunction.
The learned counsel brought to the notice of this Court the
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grounds which have been urged in paragraph No.7 of the
memorandum of petition and categorically contend that the
documents of Annexures - P, Q, R, S and T1, which were filed
along with M.F.As. were not considered while passing the order.
Those documents were also placed before the Trial Court and
the Trial Court made an observation that no such documents are
placed before the Court. In view of production of those
documents, which have not been considered by this Court, this
Court can invoke the review provision invoking Order 47 Rule 1
of CPC. The learned counsel brought to the notice of this Court
Annexure-U, copy of the relevant portion of Form No.26AS of
M/s. Jindal Steels for the assessment year 2013-14, which
shows that the respondent even remitted TDS on 14.09.2013
after late Mohanlal Jindal retired from the respondent on
24.07.2013 and when such TDS is made, now cannot contend
that no such sale consideration has been paid. The learned
counsel contend that for a period of more than a decade they
kept quiet with regard to the non-payment of sale consideration
and all these aspects have not been considered by this Court
while passing the order. Hence, the review jurisdiction has to
be exercised.
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4. The learned counsel for the petitioners in support of
his arguments relied upon the judgment of the Apex Court in the
case of PREM SINGH AND OTHERS v. BIRBAL AND OTHERS
reported in (2006) 5 SCC 353 and brought to the notice of this
Court paragraph Nos.12, 13 and 14, wherein it is discussed with
regard to Section 31 of the Specific Relief Act and Article 59 of
the Limitation Act when the relief is sought and also with regard
to the suit for cancellation of instrument is based on the
provisions of Section 31 of the Specific Relief Act.
5. The learned counsel also relied upon the judgment of
the Apex Court in the case of RAJENDRA SINGH v. LT.
GOVERNOR, ANDAMAN AND NICOBAR ISLANDS AND
OTHERS reported in AIR 2006 SC 75 and brought to the
notice of this Court paragraph Nos.15, 16 and 17, wherein it is
discussed with regard to the scope of review.
6. The learned counsel relied upon the judgment of the
Apex Court in the case of S.MADHUSUDHAN REDDY v. V.
NARAYANA REDDY AND OTHERS reported in LAWS(SC)-
2022-8-62 and brought to the notice of this Court paragraph
Nos.18 and 19, wherein it is discussed with regard to the
grounds of review and when the review is maintainable. The
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learned counsel also brought to the notice of this Court
paragraph No.23 of the judgment, wherein it is discussed with
regard to justice is a virtue which transcends all barriers.
7. The learned counsel also relied upon the Division
Bench judgments of this Court in the case of CENTRAL BOARD
OF DIRECT TAXES AND OTHERS v. ANURADHA GOYAL
AND OTHERS reported in LAWS (KAR)-2022-4-145 and in
the case of ADDITIONAL DISTRICT MAGISTRATE AND
POLICE COMMISSIONER, HUBLI DHARWAD CITY AND
OTHERS v. CHANDRAKANT BADDI reported in LAWS (KAR)-
2007-3-66 and brought to the notice of this Court paragraph
Nos.6, 7 and 8, wherein discussion was made referring the
judgment of the Madras High Court judgment in the case of
SELECTION COMMITTEE v. N.R. NAGRAJ reported in AIR
1939 MADRAS 293.
8. The learned counsel also relied upon the judgment of
this Court in the case of SAJIDA v. BIBI JAN reported in
LAWS (KAR)-2024-3-22. Having referred these judgments,
the learned counsel would contend that when the documents,
which have been relied upon in M.F.As. have not been
considered by this Court and also the scope of review is when
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there is injustice caused by passing such an order, the Court can
review the order passed by this Court.
9. Per contra, the learned counsel for the respondent
would contend that the very ground urged by the review
petitioners is that the documents are not referred and the said
contention cannot be accepted. This Court while considering the
contentions raised by both the learned counsel for the appellants
and the learned counsel for the respondent taken note of the
said fact into consideration and even discussed with regard to
the Dahiben's case is not applicable to the facts of the case
when fraud is alleged and amount was withdrawn and also
discussed in detail with regard to the judgment relied by the
respondent in the case of Kewal Krishan's case and not
committed any error and even taken note of the discussion
made by the Trial Court referring Section 54 of the Transfer of
Property Act. The learned counsel relied upon the judgment of
the Apex Court in the case of S.MADHUSUDHAN REDDY v. V.
NARAYANA REDDY AND OTHERS reported in 2022 SCC
Online SC 1034 and brought to the notice of this Court the
application for review of judgment, which has been discussed in
paragraph Nos.16 to 21, wherein also discussed with regard to
the power of review can be exercised for correction of a
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mistake, but not to substitute a view. The learned counsel
brought to the notice of this Court paragraph Nos.22 and 24 of
the judgment, wherein discussion was made with regard to
under what circumstances, the grounds for review are
maintainable.
10. The learned counsel brought to the notice of this
Court the judgment of the Apex Court in the case of
KALIAPERUMAL v. RAJAGOPAL AND ANOTHER reported in
(2009) 4 SCC 193 and brought to the notice of this Court
paragraph Nos.18 and 22. The learned counsel also relied upon
the judgment of the Apex Court in the case of DAKSHIN
HARYANA BIJLI VITRAN NIGAM LIMITED v. NAVIGANT
TECHNOLOGIES PRIVATE LIMTIED reported in (2021) 7
SCC 657, wherein discussion was made with regard to Section
29A of the Arbitration and Conciliation Act and also brought to
the notice of this Court Section 73 of the Arbitration and
Conciliation Act, wherein discussion was made with regard to the
Arbitration Act and conciliation proceedings is concerned.
11. In reply to the arguments of the learned counsel for
the respondent, the learned counsel for the petitioners would
contend that there is no dispute with regard to the payment of
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Rs.3,67,38,841/- from Mohanlal Jindal on 31.03.2008 and an
amount of Rs.15,10,451/- on 31.03.2009 and final additional
contribution dated 22.07.2013 i.e., an amount of
Rs.12,26,59,601/-. The total investment is Rs.16,09,04,806/-
in lieu of contribution and investment and M/s. Jindal Steels
investment Rs.2,68,00,000/- on 02.02.2007 and on 28.05.2007
Rs.4 Crores i.e., sale consideration for purchase of larger extent
and on 28.05.2007 to the tune of Rs.1,28,02,115/- payment of
stamp duty and cess and registration fees for purchase of larger
extent and several offer credits and debits between M/s. Jindal
Steels and M/s. Rest House Developers and total investment
with interest due as on 22.07.2013 is to the extent of
Rs.12,26,59,601/- and the said amount was refunded on
22.07.2013 and the said amount is not withdrawal of the
amount as contended by the respondent. The learned counsel
contend that TDS paid on the refund of investments on
14.09.2013 is to the tune of Rs.15,31,225/-. The learned
counsel contend that the Court has to take note of the conduct
of the respondent and the respondent belatedly approached the
Court seeking the relief of permanent injunction after lapse of a
decade.
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12. Having considered the grounds urged in the review
petition and also the submission of the learned counsel for the
petitioners and the learned counsel for the respondent and also
the principles laid down in the judgments referred supra, there
is no dispute with regard to the scope of review is concerned. If
there is any mistake apparent on the face of record while
passing such an order, the Court can exercise its review. The
scope of review is explained in the judgment referred by both
the respective learned counsel. When injustice is caused and
when the order passed by the Court is apparent on record by
mistake and not considering the material on record, then this
Court can review the order. It is settled law that review cannot
be exercised sitting as an Appellate Court and only when prima
facie error is apparent on record, under such circumstances only
the Court can exercise review jurisdiction. This Court cannot sit
and decide the same as in appeal and substitute the earlier view
taken by this Court.
13. Keeping in view the principles laid down in the
judgments referred supra as well as the settled law, this Court
has to take note of the order passed by this Court whether the
material has been considered or not. This Court taken note of
the contentions of the appellants as well as the respondent while
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considering the M.F.As. while passing the order dated
15.03.2024 and taken note of the judgments which have been
referred while arguing the matter on merits. The Court also
taken note of the fact that additional contribution of
Rs.12,26,59,601/- transferred by the defendant on 22.07.2013.
There is no dispute with regard to the registration of the sale
deed as well as registration of the construction agreement and
the same is also taken note of. With regard to the payment of
TDS also the same is considered in paragraph No.9 when
reference was made while passing the order.
14. The learned counsel for the petitioners brought to
the notice of this Court the annexures, which have been relied
upon while arguing the matter on merits in paragraph No.7 of
the review petition. Those documents though not relied upon by
referring the annexures, but while arguing the matter, detailed
reference is made in the judgment from paragraph Nos.2 to 15
and so also relied upon the judgments, which have been relied
upon by the learned counsel for the appellants and the learned
counsel for the respondent. This Court also taken note of the
contention of the respondent in paragraph Nos.24 to 28
including the judgments, which have been referred by the
learned counsel for the respondent upto paragraph No.35.
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Having considered the contention of the learned counsel for the
appellants and the learned counsel for the respondent, in
paragraph No.36, detailed discussion was made with regard to
the payment of Rs.12,26,59,601/-. This Court also taken note
of the transfer of the said amount from the account of the
defendant's firm M/s. Jindal without the knowledge of partners
of plaintiff's firm and misrepresenting to him and other partner
that defendant shall relinquish his contribution in lieu of 2
apartment conveyed. This Court taken note of the judgment of
Dahiben's case and distinguished the same and held that the
said judgment is not applicable to the facts of the case when
fraud has been alleged and comes to the conclusion that the
fraud and misrepresentation has been alleged and re-transfer of
the amount also not disputed. But the only contention of the
learned counsel for the petitioners is that the said amount was
paid in favour of M/s.Jindal Steels with regard to the investment
made by the same. No doubt, it is the contention of the learned
counsel for the petitioners that the said amount was paid two
days prior to the registration of the document and the
plaintiff/respondent approached the Court after a decade and
the same is a matter of trial and this Court cannot decide with
regard to the conduct of the parties is concerned and there are
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sale deeds as well as registered documents of construction
agreement.
15. The contention of the respondent is also taken note
of while considering the M.F.As. in paragraph No.36 and the
judgment of the Apex Court in Kewal Krishan's case is also
taken note of, which has been referred by the Trial Court with
regard to the sale consideration is concerned and non-payment
of sale consideration and delivery of possession and main
contention of the respondent is that no possession has been
delivered. On the other hand, it is the contention of the review
petitioners that symbolic possession has been delivered even at
the time of registration of documents. All these factors are to
be considered while considering the matter on merits. This
Court comes to the conclusion that the Trial Court has not
committed any error and the grounds which have been urged
are also considered earlier. I have already pointed out that
even though not specifically mentioned the annexures, which
have been relied upon by the learned counsel for the appellants,
all the contentions which have been raised by the
appellants/review petitioners herein, has been considered in
detail and comes to the conclusion that the withdrawal of the
amount of Rs.12,26,59,601/- is not in dispute and that the
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amount has been withdrawn even prior to execution of the sale
deed and hence comes to the conclusion that no error has been
committed by the Trial Court. When such being the case and
when all the materials are considered by the Court, the question
of invoking review jurisdiction does not arise. Only in a case
where injustice is caused, under such circumstances the Court
can review its order apart from the mistake apparent on record.
It is the contention of the learned counsel for the petitioners
that total amount of Rs.16,09,04,806/- was paid and withdrawn
Rs.12,26,59,601/- and remaining amount of around Rs.4 Crores
is still vest with the respondent and these are the aspects to be
considered by the Trial Court while considering the matter on
merits. Merely because Rs.4 Crores vest with the respondent,
this Court cannot interfere at this stage with regard to the
passing of the earlier order. When the order has been passed
considering all the contentions raised by the learned counsel for
the appellants and the learned counsel for the respondent and
detailed order has been passed which runs to 40 pages, non-
mentioning of the documents in the reasoning cannot be a
ground to review the order when the contentions are raised with
regard to documents and reasoning is given analyzing the
material on record, hence, I do not find any ground to invoke
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Order 47 Rule 1 of CPC to review the judgment of this Court and
no such ground is made out to review the order.
16. In view of the discussions made above, I pass the
following:
ORDER
The review petition is dismissed.
Sd/-
JUDGE
MD
