Kerala High Court
Jayaprakash A vs Union Bank Of India on 19 April, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 19TH DAY OF APRIL 2024 / 15TH PHALGUNA, 1945
RP NO. 1231 OF 2023
AGAINST THE JUDGMENT DATED IN WP(C) NO.30803 OF 2023 OF
HIGH COURT OF KERALA
REVIEW PETITIONER/S:
JAYAPRAKASH A
AGED 55 YEARS
S/O. KRISHNAN NAIR, PROPRIETOR, M/S. EVERCOOL
ENTERPRISES KBC COMPLEX, OPP. KAIRALI
THEATRE ,KOZHIKODE ROAD, MANJERI, PIN - 676121
BY ADV MARIA NEDUMPARA
RESPONDENT/S:
1 UNION BANK OF INDIA
REPRESENTED BY THE CHAIRMAN AND MANAGING
DIRECTOR UNION BANK BHAVAN, 239, VIDHAN BHAVAN
MARG NARIMAN POINT, MUMBAI, PIN - 400021
2 THE BOARD OF DIRECTORS OF THE UNION BANK OF
INDIA
REPRESENTED BY ITS MANAGING DIRECTOR UNION BANK
BHAVAN, 239, VIDHAN BHAVAN MARG NARIMAN POINT,
MUMBAI, PIN - 40021
3 AUTHORISED OFFICER & CHIEF MANAGER
UNION BANK OF INDIA MANJERI BRANCH, K.P.M.
BUILDING, MIDDLE HILL NH 23, MALAPURAM, PIN -
676505
4 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF MICRO
SMALL & MEDIUM ENTERPRISES UDYOG BHAWAN, RAFI
MARG, NEW DELHI, PIN - 110001
5 SECRETARY, DEPARTMENT OF BANKING
MINISTRY OF FINANCIAL SERVICES GOVERNMENT OF
INDIA 3RD FLOOR, JEEVAN DEEP BUILDING SANSAD
MARG, NEW DELHI, PIN - 110001
6 RESERVE BANK OF INDIA
R.P. No. 1231 of 2023
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REPRESENTED BY ITS GOVERNOR CENTRAL OFFICE
BUILDING SHAHED BHAGAT SINGH ROAD MUMBAI, PIN -
400001
7 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001
8 ADV. AVADESH A.
ADVOCATE COMMISSIONER APPOINTED IN CMP NO.2941
BY MANJERI CJM COURT, DISTRICT COURT COMPLEX,
MANJERI, MALAPPURAM, PIN - 676121
9 STATION HOUSE OFFICER
MANJERI POLICE STATION, MALAPPURAM DISTRICT,
KERALA STATE, PIN - 676121
BY ADV PREMSANKAR R
BY ADV ASP KURUP, SC, UBI
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.P. No. 1231 of 2023
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K. BABU, J
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R.P. No. 1231 of 2023
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Dated this 19th day of April, 2024
ORDER
This review petition is filed seeking review of the
judgment dated 19.10.2023 in W.P.(C) No. 30803 of 2023.
2. The review petitioner is the petitioner therein.
In the Writ Petition, the petitioner prayed for extending
the benefits provided in Exts.P2 to P4 to the petitioner
who claims to be an MSME borrower and setting aside
the proceedings initiated by respondent No.1 under the
SARFAESI Act, 2002.
3. The petitioner inter alia raised the following
grounds in the Writ Petition:-
(a)It was incumbent on the respondent bank to constitute
a committee before the account of an MSME would be
classified as NPA.
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(b)As per Ext.P2/ MSME notification, there is a duty cast
on the banks to constitute a committee because that is
the only construction which would give effect to the
intention of the legislature.
(c)The MSMED Act and the notification issued thereunder
being a remedial law and welfare legislation deserve to
be given widest possible benevolent interpretation.
(d)The MSMED Act, 2006 and the notifications issued
thereunder have an all prevailing effect against all forms
of recovery.
4. After considering the rival contentions, this
Court recorded the following findings:-
(1) Recoveries under the SARFAESI Act with respect to
the secured assets would prevail over the recoveries
under the MSMED Act.
(2) A person aggrieved by the course adopted by the
secured creditor under Section 13 of the SARFAESI Act
have an effective and efficacious remedy. The petitioner
has failed to establish any extraordinary circumstances
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warranting interference of this Court under Article 226 of
the Constitution.
5. Based on the above findings, this Court
dismissed the Writ Petition as not maintainable.
6. I have heard Shri. Mathews J. Nedumpara, the
learned counsel appearing for the review petitioner. The
learned counsel for the review petitioner submitted that the
finding of this Court based on the principles declared in
Kotak Mahindra Bank Limited v. Girnar Corrugators
Pvt Ltd [(2023) 3 SCC 210] is erroneous. The learned
counsel further submitted that Kotak Mahindra Bank
Limited (Supra) was laid down while interpreting the scope
of Chapter V of the MSMED Act. The learned counsel
submitted that the provisions in the Chapter V of the
MSMED Act has no application to the facts of the case. The
learned counsel submitted that chapter V of the MSMED
Act which essentially deals with measures for promotion,
development and enhancement of competitiveness of
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micro, small and medium enterprises are to be applied to
the facts of the case.
7. The Apex Court in Kotak Mahindra has held
that recoveries under the SARFAESI Act with respect to
the secured assets would prevail over the recoveries
under the MSMED Act.
8. The learned counsel for the review petitioner
submitted that while rejecting the plea of the petitioner,
this Court did not record most of the contentions of the
petitioner that the MSMED Act and the notification issued
thereunder be given the widest possible interpretation in
favour of the MSMEs.
9. On the principles to be followed while dealing
with a review petition under Section 114 of the Code of
Civil Procedure, this Court, in Vijay Kumar and Anr. v.
Travancore Devaswam Board [2022 (6) KHC 407 (DB)]
observed thus:-
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"9 .A review under Section 114 and Order 47 Rule 1 of
the Code of Civil Procedure will be maintainable only in
the following circumstances:
(i) Discovery of new and important matter or
evidence which, after the exercise of due
diligence, was not within knowledge of the
Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the
record;
(iii) Any other sufficient reason.
10. In Sow Chandra Kante v. Sheikh Habib
[(1975) 1 SCC 674], on the scope of review of judgment,
the Apex Court held thus:
"A review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omission or
patent mistake or like grave error has crept in earlier by
judicial fallibility....
The present stage is not a virgin ground but review of an
earlier order which has the normal feature of finality."
11. In Meera Bhanja v. Nirmala Kumari
Choudhury [(1995) 1 SCC 170] the Apex Court held that
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review proceedings are not by way of an appeal and have
to be strictly confined to the scope and ambit of Order 47
Rule 1 of the Code of Civil Procedure.
12. In Chhajju Ram v. Neki (AIR 1922 PC 112),
which was approved by the Apex Court in Moran Mar
Basselios Catholicos and another v. Most Rev. Mar
Poulose Athanasius and others [(1955) 1 SCR 520] the
Privy Council held that the words "any other sufficient
reason" appearing in Order 47 Rule 1 of the Code of Civil
Procedure must mean "a reason sufficient on grounds at
least analogous to those specified in the rule".
13. In Moran Mar Basselios Catholicos (supra),
the Apex Court held that error apparent on the face of the
proceedings is an error which is based on clear ignorance
or disregard of the provisions of law.
14. In T.C. Basappa v. T. Nagappa [(1955) 1 SCR
250] the Apex Court held that such error is an error
which is a patent error and not a mere wrong decision.
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15.In Hari Vishnu Kamath v. Syed Ahmad
Ishaque (AIR 1955 SC 233) it was held that it is essential
that it should be something more than a mere error; it
must be one which must be manifest on the face of the
record.
16.In Kerala State Electricity Board v. Hitech
Electrothermics and Hydropower Ltd., and others
[(2005) 6 SCC 651], the Apex Court on the review of
judgment held thus:
"10........In a review petition it is not open to this
Court to reappreciate the evidence and reach a
different conclusion, even if that is possible.
Learned Counsel for the Board at best sought to
correspondence exchanged between the parties did
not support the conclusion reached by this Court.
We are afraid such a submission cannot be
permitted to be advanced in a review petition. The
appreciation of evidence on record is fully within
the domain of the appellate court. If on
appreciation of the evidence produced, the court
records a finding of fact and reaches a conclusion,
that conclusion cannot be assailed in a review
petition unless it is shown that there is an error
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apparent on the face of the record or for some
reason akin thereto. It has not been contended
before us that there is any error apparent on the
face of the record. To permit the review Petitioner
to argue on a question of appreciation of evidence
would amount to converting a review petition into
an appeal in disguise."
17. Under the garb of filing a review petition, a party
cannot be permitted to repeat old and overruled
arguments for reopening the conclusions arrived at in a
judgment. The power of review is not to be confused with
the appellate power, which enables the Superior Court to
correct errors committed by a subordinate Court (Vide:
Jain Studios Ltd. v. Shin Satellite Public Co.Ltd
[(2006) 5 SCC 501].
18. In S. Madhusudhan Reddy v. V. Narayana
Reddy and Others (MANU/SC/1013/2022), the Apex
Court narrated the situations in which review will not be
maintainable, which read thus: "
"20.2. When the review will not be maintainable:
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(i) A repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise
whereby an erroneous decision is re-heard and corrected
but lies only for patent error.
(vi) The mere possibility of two views on the subject
cannot be a ground for review.
(vii) The error apparent on the face of the record should
not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully
within the domain of the appellate court, it cannot be
permitted to be advanced in the review petition.
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(ix)Review is not maintainable when the same relief
sought at the time of arguing the main matter had been
negatived."
19. In Patel Narshi Thakershi and others v. Shri.
Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844]
the Apex Court held thus:
"4..... It is well settled that the power to review is not an
inherent power. It must be conferred by law either
specifically or by necessary implication. No provision in
the Act was brought to notice from which it could be
gathered that the Government had power to review its
own order. If the Government had no power to review its
own order, it is obvious that its delegate could not have
reviewed its order.......""
The petitioner has failed to place on record any of
the requirements that warrant review of the impugned
judgment. The Review Petition lacks merits and is
accordingly dismissed.
Sd/-
K.BABU, JUDGE
kkj
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PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE CIRCULAR DATED 30-
11-2022, ISSUED BY THE CREDIT
GUARANTEE FUND TRUST FOR MICRO AND
SMALL ENTERPRISES,
