Madras High Court
M/S.Olympic Cards Ltd vs Standard Chartered Bank on 25 January, 2022
Review A. No.145 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Review Application No.145 of 2021
and C.M.P. No.16891 of 2021
M/s.Olympic Cards Ltd.,
rep. by its Managing Director,
Mr.N.Mohamed Faizal .. Applicant
Vs.
1.Standard Chartered Bank,
Small Medium Enterprises Banking,
Consumer Banking,
rep. by its Regional Sales Manager,
Mr.K.Satish,
No.8, Haddows Road,
Chennai – 600 006.
2.Standard Chartered Bank,
rep. by its Manager,
No.19, Rajaji Salai,
Chennai – 600 001. .. Respondents
Prayer: Review Application filed under Section 114 and Order 47 Rule 1
of C.P.C. against the decree and judgment dated 25.02.2021 passed in
A.S. No.947 of 2020.
For Applicant : Mr.K.Sankaran
For Respondents : Mr.M.S.Murali,
for M/s.R & P Partners
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Review A. No.145 of 2021
JUDGMENT
[Judgment of this Court was delivered by T.RAJA, J.]
This Review Application has been filed by the plaintiff/applicant
against the decree and judgment dated 25.02.2021 passed in A.S.
No.947 of 2020.
2.Mr.K.Sankaran, learned counsel appearing for the applicant
submitted that when the Trial Court in O.S. No.5239 of 2019 has given
judgment and decree for Rs.33,13,634.39 with interest at the rate of
9% per annum from the date of plaint till the date of judgment and at
6% per annum from the date of judgment till the date of realisation,
this Court in A.S. No.947 of 2020 has not mentioned any interest, which
has caused huge prejudice to the plaintiff/applicant and therefore, the
same has to be clarified. Learned counsel for the applicant further
submitted that though the plaintiff/applicant is entitled to get interest
from the date of judgment till the date of realisation as per Section 34
of the Code of Civil Procedure, this Court has failed to frame any issue
with regard to the entitlement of the interest, which constiutes a
mistake leading to an error apparent on the face of record. Learned
counsel appearing for the applicant further submitted that this Court,
relying on Ex.P4/Letter of Credit dated 24.02.2006, has held that
forward contract was issued for EURO 2,16,800/- and not for EURO
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Review A. No.145 of 2021
1,70,000/-, overlooking the fact that Ex.P4 is only the form of letter of
credit and it is not the forward contract and that Ex.D6 is only a
confirmation for issue of letter of credit for EURO 2,16,800/-, which is
the error apparent on the face of record because no where in the
written statement of the respondents, they have mentioned that
Forward Contract was issued for EURO 2,16,800/-, whereas, in the
plaint, the plaintiff/applicant specifically pleaded that forward contract
was issued only for EURO 1,70,000/- instead of EURO 2,16,800/-.
Therefore, the same needs rectification. Learned counsel appearing for
the applicant, referring to Section 9 of the Civil Procedure Code,
submitted that when there is no specific bar for the review applicant to
file a suit, the contra finding given by this Court that there is a failure
on the part of the review applicant in not challenging the award passed
by the Banking Ombudsman is liable to be recalled.
3.In reply, learned counsel appearing for the respondents
submitted that as the Trial Court has framed 13 issues, this Court in
Appeal, has framed 5 issues, out of the same, 1 to 4 were
consequential and connected issues, which were answered accordingly
by this Court and Issue No.5 is answered in favour of the applicant.
Learned counsel for the respondents pleaded that the Trial Court, with
regard to Issue Nos.1 and 2, has held that the plaintiff was entitled to
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Review A. No.145 of 2021
Rs.14,23,338/- and the same was not accepted for the reasons
recorded therein by this Court. Learned counsel for the respondents
further pleaded that in respect of Issue Nos.7 and 8, the Trial Court has
held that the plaintiff is entitled for Rs.1,86,823.37 and Rs.2,54,029.02
respectively. In respect of Issue No.9, the Trial Court has held that the
defendants are not entitled to charge the pre-closure penalty of
Rs.14,49,444/- for closure of their OD account and the Trial Court has
granted interest at the rate of 9% per annum from the date of filing the
plaint till the date of passing the judgment and at the rate of 6% per
annum from the date of judgment till the date of realisation. Learned
counsel for the respondents further submitted that although this Court
has made an observation that there was a failure on the part of the
appellant in not challenging the award passed by the Banking
Ombudsman, when the suit was filed, it was decreed partly by the Trial
Court and as against the portion, partly refusing the relief, A.S. No.947
of 2020 was filed before this Court, the applicant was granted the relief.
In this regard, learned counsel for the respondents, taking support from
the judgments of the Apex Court in the State of West Bengal and others
vs. Kamal Segupta and another reported in 2008 (8) SCC 612, Lilly
Thomas and others vs. Union of India and others reported in 2000 (6)
SCC 224 and Haridas vs. Usha Rani Banik (Smt) and others reported in
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Review A. No.145 of 2021
2006 (4) SCC 78, submitted that the review applicant cannot confer the
review application to revisit all the findings given by this Court.
4.Heard the learned counsel for the applicant and the learned
counsel for the respondents.
5.This Court, while partly allowing the Appeal Suit, has framed the
following issues:
'1.Whether the defendants were negligent in opening
forward contract on 26.04.2006 for Euro 1,70,000/- instead
of Euro 2,16,800/- mentioning due date of letter of credit as
24.07.2006, falling for payment on 18.08.2006 and
resulting in loss of Rs.14,23,338/- to the plaintiff?
2.Whether the defendants failed and neglected to open
forward contract in respect of documentary letter of credit
dated 24.02.2006 as per the letter of credit?
3.Whether loss of Rs.3,19,651.84 is incurred by the plaintiff
on account of delayed opening of forward contract on
23.11.2007, instead of 28.09.2007?
4.Whether the defendants delay in opening forward contract
on 23.11.2007 in respect of letter of credit for Euro
1,24,864.00 resulted in loss of Rs.3,19,651.84 to the
plaintiff, despite acknowledging the receipt of margin money
on 28.09.2007.
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Review A. No.145 of 2021
5.Whether the defendants are entitled to charge the plaintiff
pre-closure penalty of Rs.14,49,449/- for the closure of their
overdraft account?'
6.With regard to the contention raised by the learned counsel for
the applicant that Ex.P4 is only the form of letter of credit and not the
forward contract, this Court, after framing the issues, relying upon
Ex.P4/Letter of Credit dated 24.02.2006, has held that forward contract
was issued for EURO 2,16,800/- and not for EURO 1,70,000/-. When
there was a specific question in the Cross Examination, while P.W.1
stepping into the witness box, namely,
Are you aware of the fact that the payment for the first letter of credit
was effected on 18.08.2006 for the value of EURO 2,16,800/-?
He has answered 'yes' affirming the said question. Again, when he was
posed one another question, namely,
Whether the Bank has effected the payment as instructed in EURO
2,16,800/- and that there is no discrepancy, he has answered in the
negative.
7.Therefore, the contention raised by the learned counsel
appearing for the applicant that in the written statement of the
respondents, no where they have mentioned that Forward Contract was
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Review A. No.145 of 2021
issued for EURO 2,16,800/- whereas, in the plaint, the
plaintiff/applicant specifically pleaded that forward contract was issued
only for EURO 1,70,000/- instead of EURO 2,16,800/- is liable to be
rejected as devoid of any merit.
8.With regard to the contention raised by the learned counsel for
the applicant that this Court has failed to frame any issue with regard to
the entitlement of the interest, since Issue Nos.1 and 2 are disallowed
by this Court in appeal, the connected Issue Nos.3 and 4 are also
answered against the plaintiff/applicant. As the pre-payment charges
said to have been levied on the applicant by the respondents is not
justified, the issue No.5 is answered in favour of the applicant.
Therefore, now we make it clear that the review applicant is entitled to
get interest at the rate of 9% per annum from the date of plaint till the
date of judgment and at the rate of 6% per annum from the date of
judgment till the date of realisation.
9.With regard to the contention raised by the learned counsel for
the applicant that there was a failure on the part of the appellant in not
challenging the award passed by the Banking Ombudsman, when the
matter was taken up, on merits, all the issues raised by the review
applicant before this Court have been judiciously considered. Therefore,
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Review A. No.145 of 2021
the argument made by the learned counsel for the applicant does not
have any leg to stand as the review applicant cannot convert this review
application to revisit all the findings given by this Court, as submitted by
the learned counsel for the respondents. Useful reference can be had
from the judgment of the Hon'ble Apex Court in the case of Lilly
Thomas and others vs. Union of India and others reported in 2000 (6)
SCC 224, which is extracted as under:
'58... Error contemplated under the rule must be such
which is apparent on the face of the record and not an
error which has to be fished out and searched. It must be
an error of inadvertence. No such error has been pointed
out by the learned counsel appearing for the parties
seeking review of the judgment.'
10.A perusal of the above judgment would clearly show that the
error contemplated under the rule should be apparent on the face of
the record. Since errors have not to be searched and fished out, the
review applicant cannot confer this review application to revisit all the
findings given by this Court.
11.In another judgment in the case of Haridas vs. Usha Rani
Banik (Smt) and others reported in 2006 (4) SCC 78, the Hon'ble Apex
Court has held as under:
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Review A. No.145 of 2021
'13.... Where the order in question is appealable the
aggrieved party has adequate and efficacious remedy and
the court should excercise the power to review its order with
the greatest circumspection. This Court in Thungabhadra
Industries Ltd. v. Govt. of A.P. held as follows:
There 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 is disguise whereby an erroneous decision is reheard
and corrected, but lies only for patent error..'
12.A perusal of the above judgment also shows that 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
or error apparent on the face of the record would be made out. In the
present case, since no such errors apparent on the face of the record,
the contention made by the learned counsel for the applicant cannot be
accepted.
13.For the above reasons, this review application stands disposed
of. Accordingly, the respondents shall pay the applicant a sum of
Rs.18,90,296.57 with interest at the rate of 9% per annum from the
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Review A. No.145 of 2021
T.RAJA,J.
and
D.BHARATHA CHAKRAVARTHY, J.
vga
date of plaint till the date of judgment and at the rate of 6% per annum
from the date of judgment till the date of realisation.
(T.R.,J.) (D.B.C.,J.)
25.01.2022
Index : Yes / No
Speaking/Non Speaking order
vga
To
1.The VI Additional Judge,
City Civil Court, Chennai.
2.The Section Officer,
V.R. Section, High Court, Madras.
Review Application No.145 of 2021
and C.M.P. No.16891 of 2021
https://www.mhc.tn.gov.in/judis
