Madhya Pradesh High Court
Amitabh Sharma vs The State Of Madhya Pradesh on 3 April, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 3 rd OF APRIL, 2024
REVIEW PETITION No. 73 of 2024
BETWEEN:-
AMITABH SHARMA S/O SHRI LATE KRISHNADEV
SHARMA, AGED ABOUT 66 YEARS, OCCUPATION:
BUSINESS, FOR PROPRIETORSHIP M/S AMIT
ENGINEERING EQUIPMENTS HOUSE NO. 90, OLD NO.
181, RADIO COLONY, GANDHI PARK, INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SHEKHAR SHARMA (THROUGH V.C.) WITH SHRI SHANTNU
CHOURASIA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH COLLECTOR
COLLECTOR OFFICE, FIRST FLOOR, NEW
ADMINISTRATIVE COMPLEX, INDORE (MADHYA
PRADESH)
2. IDFC FIRST BANK THROUGH DIRECTORS
REGISTERED ADD. KRM TOWER, 7TH FLOOR NO.
1, HARRINGTON ROAD, CHETPET, CHENNAI,
BRANCH ADD. 111, 1S FLOOR TULSI TOWER,
SOUTH TUKOGANJ, STREET NO. 01, GEETA
BHAWAN, SQUARE, A.B. ROAD, INDORE
(MADHYA PRADESH)
3. ADDITIONAL DISTRICT MAGISTRATE
COLLECTOR OFFICE FIRST FLOOR, NEW
ADMINISTRATIVE COMPLEX INDORE (MADHYA
PRADESH)
4. SUB DIVISIONAL MAGISTRATE BICHOLI HAPSI
DIST. INDORE (MADHYA PRADESH)
5. TEHS ILD AR BICHOLI HAPSI, DIST. INDORE
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 05-04-2024
14:18:01
2
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ROHIT SABOO, ADVOCATE)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on I.A. No. 612/2024, which is an application under Section 5 of
the Limitation Act for condonation of delay in filing the review petition.
For the reasons stated in the application, I.A. No. 612/2024 is allowed.
Delay of 62 days in filing the petition is hereby condoned.
Also heard on the question of admission.
The present review petition under Order 47 Rule (1) of the Code of Civil
Procedure has been filed seeking review of order dated 18.10.2023 passed in
W.P. No. 26907/2023, whereby the writ petition was disposed off.
2. The brief facts of the case are that in the writ petition, the Respondent
No. 2- IDFC First Bank has sought execution of the order dated 10.08.2022
passed by Respondent No. 3 herein in Case No. 76/B-121/2022-23. The
original petitioner i.e., the Respondent No. 2 under the provisions of the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act")
directing the Sub Divisional Officer, Bicholi Hapsi, Indore to take physical
possession of the property and handover the same, no action has been taken to
comply with the order, therefore, the Respondent No. 2 had approached this
Court in the writ petition seeking direction to comply with the order dated
10.08.2022 and handover the vacant possession of the property in question.
3. The grievance of the petitioner is that the petitioner herein is the
borrower of the loan and he was a necessary party before passing of such an
order, on this ground itself the order impugned deserves to be recalled.
4. On the other hand, learned counsel for the respondent No.2 has
opposed the prayer and submitted that in any case as has been held by the
Apex Court in various judgments that the judgment debtor and the borrower is
not a necessary party nor any notice is required to be issued under Section 14
while implementing the order, therefore, even if the petitioner herein was
impleaded as a party, the same order would have been passed. The Apex Court
in various judgments have also deprecated the practice of entertaining of the
writ petitions by the High Courts where efficacious alternative remedy is
available and particularly against the SARFAESI Act. As per Section 17 of the
SARFAESI Act, any person is eligible to file securitization application which
include the petitioner herein, therefore, there is no need to recall the order and
review its order. As such, there is no apparent error on the face of the record or
this matter does not fall under the purview of Order 47 Rule 1 of CPC.
5. Learned counsel for the respondent further informed that the present
petitioner has already approached DRT in securitization application wherein
conditional stay order has been passed which has not been complied by the
petitioner, therefore, prayer to recall the order is unwarranted. Therefore, the
review petition deserves to be dismissed.
7. Heard learned counsel for the parties and perused the record.
8. In view of the aforesaid, this Court finds force in the submissions
made by the learned counsel for the Respondent No. 2 herein and also in view
of the various pronouncements by the Apex Court, no ground is made out to
review the order impugned as no apparent error is seen from the record.
9. The Apex Court in the case of S. Bairathi Amaal Vs. Palani
Roman (2009) 10 SCC 464 has held that in order to seek review, it has to be
demonstrated that the order suffers from an error contemplated under Order 47
Rule 1 CPC which is apparent on the face of record and not an error which is
to be fished out and searched. A decision or order cannot be reviewed merely
because it is erroneous. In another case, the Apex Court in case of State of
West Bengal Vs. Kamal Sengupta (2008) 8 SCC 612 has held that "a party
cannot be permitted to argue de novo in the garb of review."
10. In the case of Shanti Conductors (P) Ltd. Vs. Assam State
Electricity Board & Ors. (P) Ltd. (2020) 2 SCC 677, it is observed and
held that the scope of review under Order 47 Rule 1 CPC read with Section 114
CPC is limited and under the guise of review, the petitioner cannot be permitted
to re-agitate and re-argue questions which have already been addressed and
decided. It is further observed that an error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be an error
apparent on the face of record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC.
11. The Apex Court in the case of Haridas Das Vs. Usha Rani Bank
(Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13 and 20 has
held as under :-
"13. In order to appreciate the scope of a review, Section 114
CPC has to be read, but this section does not even adumbrate
the ambit of interference expected of the court since it merely
states that it "may make such order thereon as it thinks fit". The
parameters are prescribed in Order 47 CPC and for the
purposes of this lis, permit the defendant to press for a rehearing
"on account of some mistake or error apparent on the face of the
records or for any other sufficient reason". The former part of the
rule deals with a situation attributable to the applicant, and the
latter to a jural action which is manifestly incorrect or on which
two conclusions are not possible. Neither of them postulate a
rehearing of the dispute because a party had not highlighted all
the aspects of the case or could perhaps have argued them more
forcefully and/or cited binding precedents to the court and
thereby enjoyed a favourable verdict. This is amply evident from
the Explanation to Rule 1 of Order 47 which states that the fact
that the decision on a question of law on which the judgment of
the court is based has been reversed or modified by the
subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment. Where the
order in question is appealable the aggrieved party has
adequate and efficacious remedy and the court should exercise
the power to review its order with the greatest circumspection.
This Court in Thungabhadra Industries Ltd. v. Govt. of A.P.1
held as follows: (SCR p. 186).
"[T]here is a distinction which is real, though it might not
always be capable of exposition, between a mere erroneous
decision and a decision which could be characterised as vitiated
by 'error apparent'. A review is by no means an appeal in
disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error. .... where without any
elaborate argument one could point to the error and say here is a
substantial point of law which stares one in the face, and there
could reasonably be no two opinions entertained about it, a clear
case of error apparent on the face of the record would be made
out."
20. When the aforesaid principles are applied to the background
facts of the present case, the position is clear that the High Court
had clearly fallen in error in accepting the prayer for
review.First, the crucial question which according to the High
Court was necessary to be adjudicated was the question whether
Title Suit No. 201 of 1985 (sic 1 of 1986) was barred by the
provisions of Order 2 Rule 2 CPC. This question arose in Title
Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2 of
1987 is concerned. Additionally, the High Court erred in holding
that no prayer for leave under Order 2 Rule 2 CPC was made in
the plaint in Title Suit No. 201 of 1985. The claim of oral
agreement dated 19-8-1982 is mentioned in para 7 of the plaint,
and at the end of the plaint it has been noted that the right to
institute the suit for specific performance was reserved. That
being so, the High Court has erroneously held about infraction
of Order 2 Rule 2 CPC. This was not a case where Order 2 Rule
2 CPC has any application."
12. On perusal of the record and in the light of the judgments passed in
the case of S. Bairathi Amaal and State of West Bengal (supra), there is no
error apparent on the face of record warranting interference in the order
impugned.
13. However, the order passed in W.P. No. 26907/2023 dated
18.10.2023 shall be subject to any orders/ interim orders passed by any Court
of law.
14. Accordingly, the petition is disposed off.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
Vatan
