Madhya Pradesh High Court
Patwa Automotive Private Limited vs Bhagawati Elite Motors Through ... on 19 July, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 19 th OF JULY, 2023
REVIEW PETITION No. 710 of 2023
BETWEEN:-
PATWA AUTOMOTIVE PRIVATE LIMITED THROUGH ITS
LIQUIDATOR MR. SAJJAN KUMAR DOKANIA, 25,
GLOBUS FAB CITY, KOLAR ROAD, CHUNA BHATTI,
BHOPAL-462016, (MADHYA PRADESH)
.....PETITIONER
(SHRI VINAY GANDHI, ADVOCATE FOR THE PETITIONER).
AND
1. BHAGAWATI ELITE MOTORS THROUGH
PARTNER MR VAIBHAV SINGH REGISTERED
OFFICE AT H. NO. A-1, A SECTOR, ROYAL
RESIDENCY, DISTRICT BHOPAL. ANOTHER
OFFICE AT LASUDIA MORI, DEWAS NAKA A.B.
ROAD, DISTRICT INDORE (MADHYA PRADESH)
2. DISTRICT MAGISTRATE AND COLLECTOR,
COLLECTORATE, MOTI TABELA, INDORE
(MADHYA PRADESH)
3. KALYAN TOLL INFRASTRUCTURE LIMITED,
THROUGH ITS DIRECTOR MR. RAJESH GARG,
VIDYA DEEP, 15/3, MANORAMAGANJ, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI ABHINAV MALHOTRA, ADVOCATE FOR RESPONDENT No.1)
This petition coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
This review petition has been filed under Order 47 Rule 1 of the Code of
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Signed by: SREEVIDYA
Signing time: 7/20/2023
5:58:51 PM
Civil Procedure 1908 read with Article 215 of the Constitution of India in
respect of order dated 27.06.2023 passed in Writ Appeal No. 892/2023.
2. The facts giving rise to filing of this review petition briefly stated are
that the petitioner had filed the Writ Petition No. 12657/2023 challenging the
communication dated 03.06.2023 issued by the Chief Judicial Magistrate,
Indore directing the petitioner firm to vacate and hand over the subject
properties within a period of seven days.
3. The learned Single Judge, after hearing the petitioner, had disposed
of the writ petition by permitting the petitioner to withdraw the writ petition with
a liberty to avail the statutory remedy of appeal against the order of National
Company Law Tribunal (NCLT) in accordance with law. Since, the National
Company Law Appellate Tribunal (NCLAT) was not functioning till
02.07.2023, the learned Single Judge directed status-quo in respect of
possession of the subject properties till 02.07.2023. The petitioner herein
preferred a Review Petition No. 626/2023 against the said order, which was
allowed vide order 22.06.2023 modifying the order of status-quo. Being
aggrieved, the original petitioner i.e. respondent No.1 herein preferred Writ
Appeal No. 892/2023. The said writ appeal was finally disposed of at the
admission stage itself vide order dated 27.06.2023 modifying the order dated
22.06.2023 passed in review petition on the ground that the application for grant
of stay is pending adjudication before the NCLAT and the learned Single Judge
has protected the respondent No.1 till 02.07.2023 for the reason that the
NCLAT is not available. The petitioner, being respondent in the writ appeal, is
aggrieved by the decision of Writ Appeal No. 892/2023 dated 27.06.2023.
4. Learned counsel for the petitioner contended that the delay beyond
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 7/20/2023
5:58:51 PM
a period of 45 days cannot be condoned and therefore, this Court ought not to
have passed an order staying the execution of the order impugned. He has
relied on the judgment of the Apex Court in case of National Spot Exchange
Ltd. vs. Dunar Foods Ltd. (Resolution Professional), (2022) 11 SCC 761
and contended that such delay cannot be condoned even under Article 142 of
the Constitution of India. Therefore, the order dated 27.06.2023 passed in Writ
Appeal No. 892/2023 needs to be recalled/set aside.
5. On the other hand, learned counsel for respondent No.1 has
contended that the petitioner has not been able to put forth any of the grounds
for review as mentioned under Order 47 Rule 1 of the CPC. In fact, the writ
appellate Court considering the non-availability of NCLAT had granted the
interim direction till the application for condonation of delay as well as stay is
decided on merits. Learned counsel further pointed out that on 18.07.2023, the
learned NCLAT has issued notice on the application for condonation of delay
wherein, learned counsel for the review petitioner had appeared and prayed for
two weeks' time to file reply to the application for condonation of delay. The
matter is now fixed on 21.08.2023. Therefore, no ground for review is made
out. As such this review petition deserves to be dismissed.
6. We have considered the respective submissions made by the
learned counsel for the parties and perused the order impugned as well as order
dated 18.07.2023 passed by the NCLAT.
7. This Court is very well aware of the fact that delay cannot be
condoned beyond a period of 45 days. In the present case, this Court has not
condoned the delay but had directed not to take any coercive steps till the
application for condonation delay as well as stay is decided by the NCLAT.
The NCLAT is already seized of the matter as is evident from the order dated
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Signed by: SREEVIDYA
Signing time: 7/20/2023
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18.07.2023. Therefore in the fitness of things, this court is not inclined to
entertain the review petition.
8. It is well settled in law that in the guise of review, rehearing is not
permissible. In order to seek review the petitioner has to demonstrate that the
order suffers from error apparent on the face of record. The Court while
deciding the review petition cannot sit in appeal over the judgment passed by it.
The petitioner cannot be given liberty to readdress the Court on merits because
it is not an appeal in disguise where the judgment is to be considered on
merits.[See: J.R. Raghupathy Vs. State of A.P. (AIR 1988 SC 1681), S.
Bagirathi Ammal Vs. Palani Roman Catholic Mission, (2009) 10 SCC
464 and State of West Bengal and Others Vs. Kamal Sengupta and
Another, (2008) 8 SCC 612].
9. The judgment passed by this Court does not suffer from any error
apparent on the face of the record warranting review of the same by this Court.
Accordingly, the review petition fails and is hereby dismissed.
10. However, the interim protection granted by this Court vide order
dated 27.06.2023 in Writ Appeal No. 892/2023 shall continue only upto
21.08.2023, thereafter, the same would stand vacated automatically.
(S. A. DHARMADHIKARI) (HIRDESH)
JUDGE JUDGE
vidya
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 7/20/2023
5:58:51 PM
