M/S S.K. Traders A Proprietorship Firm vs Union Of India
2025 Latest Caselaw 4783 MP

Madhya Pradesh High Court

M/S S.K. Traders A Proprietorship Firm vs Union Of India on 25 February, 2025

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

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       IN THE HIGH COURT OF MADHYA PRADESH
                                        AT JABALPUR
                                              BEFORE
                 HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                            ON THE 25th OF FEBRUARY, 2025
                        REVIEW PETITION NO.1008 OF 2024

                              M/S GOODLUCK ENTERPRISES
                                         Versus
                              UNION OF INDIA AND OTHERS

                        REVIEW PETITION NO.1024 OF 2024

                                SHRI KRISHNA TRADERS
                                         Versus
                              UNION OF INDIA AND OTHERS

                        REVIEW PETITION NO.1029 OF 2024

                                   M/S S.K. TRADERS
                                         Versus
                              UNION OF INDIA AND OTHERS
                                                    &
                        REVIEW PETITION NO.1030 OF 2024

                  M/S SONAL CONSTRUCTION AND ENGINEERS
                                   Versus
                         UNION OF INDIA AND OTHERS

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Appearance :
        Shri Manoj Sharma - Senior Advocate with Ms. Lavanya Verma - Advocate for the
petitioners.
        Shri Vikram Singh - Advocate for the respondents - Union of India.
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Reserved on             :     04/10/2024
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Pronounced on :      25/02/2025

                                ORDER

These review petitions have been filed by the petitioners under the provisions of Order 47 Rule 1 of CPC seeking review/recall of the common order dated 24.07.2024 passed in W.P. No.19375 of 2023 and its connected petitions contending that the common order passed by the Court dismissing the writ petitions can be recalled because there is an error apparent on the face of the record for not considering certain material facts available on record.

2. As per learned counsel for the petitioners, while deciding the petitions filed by the petitioners certain material facts have escaped from the kind attention of the Court. As per the petitioners, availing remedy provided under clause 70 of General Conditions of Contract (for brevity, 'GCC') is not available to the petitioners and the same cannot be invoked because the contract period is already over. It is also contended that clause 67 of the GCC and the mechanism available therein cannot be exercised against the petitioners holding them guilty after expiry of Defect Liability Period (in short, 'DLP') and as per the petitioners that period is already over in 06 contracts out of 13. The challenge has been made on some other grounds as well and it is claimed that the order needs to be recalled.

3. Learned counsel for the respondents has opposed the submissions made by learned counsel for the petitioners and submits that review petitions are not maintainable and deserve to be dismissed on the ground that there is no error apparent on the face of the record to exercise the

power of review in these cases. In support of his submission, learned counsel for the respondents has placed reliance upon pronouncements of Supreme Court in (2024) 2 SCC 362 (Sanjay Kumar Agarwal vs. State Tax Officer (1) and another); (2013) 8 SCC 320 (Kamlesh Verma vs. Mayawati and others); (2019) 5 SCC 86 [Asharfi Devi (Dead) Through Legal Representatives vs. State of Uttar Pradesh and others] and (2024) 7 SCC 315 (Government of NCT of Delhi Through Its Secretary, Land and Building Department and another vs. K.L. Rathi Steels Limited and others).

4. I have heard the submissions made by learned counsel for the parties and perused the record.

5. As per the facts of the case, several writ petitions were filed under Article 226 of the Constitution of India including the present one i.e. W.P. No. 19375 of 2023 (M/s Goodluck Enterprises vs. Union of India and others) assailing the order dated 24.06.2023 which was a show cause notice issued to the petitioner directing him to deposit the amount of contract awarded to the petitioner and the amount paid in reference to those contracts as no work was done in reference to the contract. Another order has also been passed pursuant to the reply submitted by the petitioner to show cause saying that till final decision is taken, all work in respect of any contract or tender issued by the respondent shall remain suspended. As such, respondent suspended the business dealings with the petitioner-firm and as such, this order, according to the petitioner, amounts to black listing of the petitioner without giving them opportunity of hearing and hence the petition was filed.

6. The respondents filed their reply to the writ petition and denied the submissions made by petitioner in their petition and also submitted that suspending the business dealings with the petitioner-firm for the time being is not an order of black listing. They have also questioned the maintainability of petition saying that the petition cannot be filed under Article 226 of the Constitution of India challenging the validity of show cause issued to them.

7. This Court after hearing the submissions made by learned counsel for the parties and on perusal of record of writ petition, decided the same vide order dated 24.07.2024 dismissing the petition on the ground that a show cause notice issued to the petitioner cannot be held to be illegal for the reason that clause 67 of the GCC empowers the respondent-employer to make a demand of the amount which can be recovered from the contractor and a notice in this regard can be issued to the contractor. At the same time, the Court has observed that if any such dispute arises between the parties, they can avail mechanism available under Clause 70 of the GCC. It is also observed by the Court that in view of the submissions made by learned counsel for the respondents that the demand raised in the show cause notice is a tentative amount and if the same is deposited and if it is demanded by the respondent from the contractors/petitioners, the same can be determined as to what exact amount is to be recovered after making investigation and enquiry giving opportunity of hearing to the contractors/petitioners in which they can participate.

7.1 As such, this Court has observed that show cause notice was valid and could have been issued by the respondents as per Clause 67 of the

GCC and as per the assurance given by the learned counsel for the respondents that they are willing to conduct an investigation/enquiry so as to determine the exact amount which could be recovered from the petitioner. This Court found nothing illegal in the show cause notice and also observed that if at all petitioners are disputing the said show cause notice then they are free to avail the remedy available under Clause 70 of the GCC.

7.2 This Court has further observed that the order dated 03.08.2023 in which the respondents have ordered the following :-

"3. In exercise of the powers vested in Registering Authority as brought out in Para 1 above, it has been decided to suspend the business dealing with the firm with immediate effect till further orders."

is not the order of black listing but it is the consequential order of the show cause notice restraining the contractors/petitioners from dealing with the respondent but not debarring them to deal with the other companies and also not placing the name of the petitioners in the black list.

7.3 The Court has also observed that if after depositing the amount as demanded by the respondent, an investigation is done and it is found that the amount which is to be recovered is less than the amount deposited then after adjustment, the remaining amount should be refunded. 7.4 The Court has further observed that any further action which is required to be taken by the respondents, would be taken only after conducting an enquiry and it was also left open by the Court that the petitioner can also avail the remedy available under the GCC and as such, dismissed the petition holding that the show cause notice was not illegal

and the order dated 03.08.2023 is not an order of black listing. However, the petitioners by filing these review petitions are seeking recall of the common order on the grounds raised in the petitions which are basically based upon the fact that Clause 67 is not applicable in the facts and circumstances of the case and further, there is no mechanism available under the contract or any other provision which is being adopted by the respondents despite the fact that they have given undertaking to make an investigation and enquiry but that undertaking cannot give rise to a new mechanism not available under the contract and as such mistake is apparent on the face of the record that the Court has escaped taking note of certain facts which was to be taken note of that Clause 67 of the GCC was not applicable and as such any mechanism available under the same, cannot be used against the petitioners and they also have no remedy to avail Clause 70 which is also not available in the facts and circumstances of the case.

8. On the other hand, respondents have taken a stand that there is no error apparent on the face of the record and in view of the judgments relied upon by learned counsel for the respondents, power of review cannot be exercised in the existing circumstance.

9. Considering the submissions made by learned counsel for the parties and perusal of record, it is a settled principle of law that the power of review cannot be exercised by the Court and petitioners failed to make out a case that there is any mistake or error apparent on the face of the record in the impugned order. The principle in respect of exercising the power of review has been reiterated by the Supreme Court and also by the High Courts repeatedly and also in the judgments on which the

respondent has relied upon. In a latest decision of Supreme Court in the case of Sanjay Kumar Agarwal vs. State Tax Officer and another (2024) 2 SCC 362 the general principle for exercising the review has been summarized in the following manner :-

"16. The gist of the aforestated decisions is that:

16.1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.

16.2. A judgment pronounced by the court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. 16.3. 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. 16.4. In exercise of the jurisdiction under Order 47 Rule 1CPC, it is not permissible for an erroneous decision to be "reheard and corrected".

16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.