Madhya Pradesh High Court
M/S Suman Infrastructure Pvt. Ltd. ... vs State Of Madhya Pradesh on 5 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:5748
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
REVIEW PETITION No. 1043 of 2024
M/S SUMAN INFRASTRUCTURE PVT. LTD. GOVERNMENT
CONTRACTOR THROUGH ITS PARTNER SHRI ARUN AWASTHI
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shekhar Sharma - learned Senior Advocate appeared for the
petitioner (through V.C.) alongwith Shri Shubham Verma - learned Advocate
for the petitioner.
Shri Sudeep Bhargava - Deputy Govt. Advocate for the
respondent(s)/State.
Heard on: 31.01.2025
Posted on: 05.03.2025.
............................................................................................................................................
ORDER
Per: Justice Gajendra Singh
This review petition under Order 47 Rule 1 of the CPC,1908 is
preferred for review of the judgment dated 06.08.2024 passed in M.P
No.3923/2023.
2. Facts in brief are that petitioner filed a civil suit before the Court of
District Judge, Ujjain on 10.11.2017 seeking relief of declaration that the
order of termination of the work of construction of Kiloli Lakhesra Road on
14.02.2013 be declared null and void and permanent injunction in favour of
the plaintiff and against the defendant be issued directing the defendants to
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determine the contract agreement under clause 14 of the condition of the
contract and release of the amount and prohibit the defendants to recover any
amount on account of termination of the contract agreement and the cost of
the proceedings making valuation for declaration as Rs.50,00,000/- and
permanent injunction as Rs.1,00,000/- and affixing the Court fees of
Rs.14,500/- (2000+12,500/-).
3. The Suit was registered as Civil Suit No. RCS-A/410/2017 and the
petitioner filed an application before the XIth Additional District Judge,
Ujjain seeking transfer of the case to the Commercial Court, Indore and XIth
District Judge vide order dated 18.12.2020 sent the record of the Civil Suit to
the Commercial Court, Indore.
4. Upon receiving the case in Commercial Court (District Judge
Level), Indore it was registered as Commercial Case No.7/2021 and the
Commercial Court made query regarding the jurisdiction of the Commercial
Court to hear the Suit.
5. The petitioner/plaintiff filed an application under Section 151 of
C.P.C.,1908 submitting that the disputes relates to the contract value amount
Rs.318.36 Lacs i.e. more than 3 (three) crores and the dispute between the
parties wherein the defendants have forfeited the amount of earnest money
and security deposit and performance security amounting to Rs.18,36,227/-.
Accordingly, risk and cost amount was assessed and further the plaintiff is
also claiming damages of which gross valuation comes to around more than
1 (one) Crore. It was also also stated that the defendants have not raised any
objection with respect of pecuniary jurisdiction.
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6. After hearing the parties, the Commercial Court (District Judge
Level), Indore concluded that the valuation of subject matter is Rs.51 Lacs
and the case was instituted in the Court of XIth District Judge, Ujjain on
24.11.2017 i.e. much before 3rd, May, 2018, the day when the Commercial
Courts, Commercial Division and Commercial Appellate Division of High
Courts (Amendment) Act, 2018 come into force. The Court concluded that
the subject matter of Rs.51 Lacs is value much less than Rs. 1 (one) crore,
even the amount of Rs.91.40 Lacs is less than Rs. 1 (one) crore, the specified
value as applicable at the time of institution of the present Suit before the
Court of XIth District Judge, Ujjain, therefore the subject matter in the
present case is not a commercial dispute of a specified value and ordered to
send back the Case file to the Court of XIth District Judge, Ujjain.
7. Challenging the aforesaid, Misc. Petition No.3923/2023 was
preferred and vide order dated 06.08.2024 the misc. petition was
dismissed. Being aggrieved by the judgment dated 06.08.2024, this review
petition has been preferred on the following grounds:-
(i) While, passing impugned order dated 06/08/2024, this Hon'ble
court pleased to redundant the section 15(1) of the commercial courts Act
2015, and only fresh case can be filed before the Commercial Courts.
(ii) While, passing the judgment dated 06/08/2024 this Hon'ble Court
has not considered the question that what was the intention of the legislature
behind making section 19 of the Amended Act of 2018 prospective,
however, this Hon'ble Court has observed the importance of the same and the
same is reflected in the order dated 05/04/2024 passed by this Hon'ble Court.
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(iii) In this case, the important question was raised that if by section 19
of Amended Act of 2018, the amendment will have the prospective effect
than the section 15 of the parent act of 2015 will be redundant and if there as
is clash between both the provisions then there must be harmonious
construction between the provisions.
(iv) This Hon'ble Court, while passing the order dated 06/08/2024 has
taken note of the Judgement of Hon'ble Delhi High Court and held that the
Amended Act could be take effect prospectively from 03/05/2018 whereas,
the legislature has nowhere diluted the affect and operation of section 15 and
other provisions of the act.
(v) The Hon'ble Apex Court, in the case of M/s. Patil Automation
Private Limited and. Ors vs. Rakheja Engineers Private Limited 2022 SCC
Online SC 1028 pleased to hold that the provisions of amended act would be
applicable from the order passed by the Hon'ble Apex Court where by a
declaration was made effective from 20/08/2022. Therefore as per the
prevalent law the riders of section 12A, which was the foundation of the
Judgement of Hon'ble Delhi High Court, would be applicable from order
passed by the Hon'ble Apex Court in the case of M/s. Patil Automation
Private Limited and Ors. vs. Rakheja Engineers Private Limited 2022 SCC
Online SC 1028. Therefore in the light of Judgement of Hon'ble Apex Court
the impugned order passed by this Hon'ble needs to be reconsidered.
(vi) This Hon'ble Court, while taking note of said section 3 and 12 of
the amended act have issued notification with respect to specified value and
notified the various court under the provisions of the commercial courts Act.
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This Hon'ble Court while passing the impugned order has not taken note of
said Judgement and notification of this Hon'ble Court therefor the impugned
order deserves to be reconsidered by this Hon'ble Court.
(vii) This Hon'ble Court, in the case Yashwardhan Raghuvansi Vs
District and Sessions Judge, WP No. 19656/2020 after taking note of
Notification issued by this Hon'ble court observed the cases can also be
transferred to the Commercial court of specified value.
Heard.
8. Before adverting to the contention of the petition we are considering
scope of review. The scope of review before this Court is limited to the
extent of ground available under Order 47 rule 1 CPC which is being
reproduced below for ready reference and convenience:-
Order XLVII
1. Application for review of judgment.--
(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and
who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within his
knowledge or could not be produced by him at the time when the
error apparent on the face of the record or for any other sufficient
reason, desires to obtain a review of the decree passed or order
made against him, may apply for a review of judgment to the
Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply
for a review of judgment notwithstanding the pendency of an
appeal by some other party except where the ground of such
appeal is common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate Court the case
on which he applied for the review.
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Explanation.--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.
9. The Hon'ble Apex Court in the matter of Kamlesh Verma Vs.
Mayawati and Others, (2013) 8 SCC 320,has laid down the following
principles ''when review will be maintainable'':-
(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. Similarly, in the matter of Moran Mar Basselios Catholicos Vs.
Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 the Hon'ble Apex
Court has laid down the following principles ''when review will not be
maintainable'':-
"(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 order, undermines its soundness or results in miscarriage of justice.
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(v) A review is by no means an appeal in disguise whereby an
erroneous decision is reheard 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.
(ix) Reviews is not maintainable when the same relief sought at the
time of arguing the main matter had been negatived."
11. It is well-settled principle of law that in the guise of review,
rehearing is not permissible. In order to seek review, it has to be
demonstrated that order suffers from error apparent on the face of record.
The Court while deciding the application for review cannot sit on appeal over
the judgment or decree passed by it. The review petitioner cannot be given
liberty to readdress the Court on merits because it is not an appeal in disguise
where the judgment/order is to be considered on merits.[See: J.R.
Raghupathy Vs. State of A.P. (AIR 1988 SC1681), S. Bagirathi Ammal v.
Palani Roman Catholic Mission, (2009) 10 SCC 464 and State of West
Bengal and Others v. Kamal Sengupta and Another, (2008) 8 SCC 612 ].
12. The Hon'ble Apex Court further in the matter of State Of West
Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 has held that
mistake or error apparent on the face of the record means that mistake or
error which is prima facie visible and does not require any detail
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examination. Erroneous view of law is not a ground for review and review
cannot partake the category of the appeal.
13. The Hon'ble Apex Court in the case of Arun Dev
Upadhyaya(supra) in paragraph-15 has held as under :-
"15. From the above, it is evident that a power of review cannot be
exercised as an appellate power and has to be strictly confined to the scope
and ambit of Order XLVII Rule 1 CPC. 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."
14. Now, this Court is referring to the para 84 of M/s. Patil
Automation Private Limited (supra) is reproduced as below:-
"84. Having regard to all these circumstances, we would disposed
of the matters in the following manner. We declare that Section
12A of the Act is mandatory and hold that any suit instituted
violating the mandate of Section 12A must be visited with
rejection of the plaint under Order VII Rule 11. This power can be
exercised even suo moto by the court as explained earlier in the
judgment. We, however, make this declaration effective from
20.08.2022 so that concerned stakeholders become sufficiently
informed. Still further, we however direct that in case plaints have
been already rejected and no steps have been taken within the
period of limitation, the matter cannot be reopened on the basis of
this declaration. Still further, if the order of rejection of the plaint
has been acted upon by filing a fresh suit, the declaration of
prospective effect will not avail the plaintiff. Finally, if the plaint
is filed violating Section 12A after the jurisdictional High Court
has declared Section 12A mandatory also, the plaintiff will not be
entitled to the relief."
15. Above statement of law does not declare that the provisions of
Section 4 of the Commercial Courts, Commercial Division & Commercial
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Appellate Division of High Courts (Amendment) Act, 2018 also apply to
case related to commercial disputes filed 'before' the date of commencement
of the Act i.e 03.05.2018. Yashwardhan Raghuvanshi vs. District & Sessions
Judge LAWS (MPHC)-2021-2-32 or M/s Suman Infrastructure vs. State of
M.P LAWS (MPHC) - 2017-10-204 does not provide a ground for review.
The ground for review raised by the petitioner has been answered in para 17
of the judgment dated 06.08.2024 and erroneous view of law is not a ground
for review.
16. A perusal of aforesaid provisions as well as law laid down by the
Hon'ble Apex Court reveals that none of the ground for the review under
Order 47 Rule 1 of the CPC is made out on the basis of ground raised by the
petitioner in the present matter.
17. In view of above, the judgment dated 05.08.2024 passed by this
Court does not suffer from any error apparent on the face of record
warranting the review of matter. This review petition fails and is hereby
dismissed.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
