w w w . L a w y e r S e r v i c e s . i n


Bank of Baroda, Barabanki Branch through Authorised Officer & Another v/s Bhagwandeen Cold Storage & Allied Industries & Another

    Appeal Sr. No. 48 of 2015
    Decided On, 18 July 2016
    At, Debts Recovery Appellate Tribunal at Allahabad
    By, THE HONOURABLE MR. JUSTICE V.K. MATHUR
    By, CHAIRPERSON
    For the Appellants: Maneesh Mehrotra, Advocate. For the Respondents: R1, Vineet Kumar along with Amit Verma, Advocates, R2, None.


Judgment Text
1. The present Appeal has been preferred by the Appellants-Bank under Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘SRFAESI Act) against the judgment dated 5th March, 2015 passed by the learned DRT, Lucknow, wherein the review application No. 02/2014 filed by the Respondent No. 1 was allowed and the judgment dated 7th May, 2014 in securitization application No. 483/2014 was set aside.

2. The brief facts of the present case are that the Respondent No. 1 which is a proprietorship firm with business of the cold storage was sanctioned financial assistance for establishment of a unit. Since the Respondent No. 1 could not repay the loan within stipulated time the Appellant-Bank issued a demand notice dated 18th February, 2011 under Section 13(2) of the SRFAESI Act and thereafter the possession notice dated 18th May, 2011 under Section 13(4) of the SRFAESI Act was issued to the Respondents. The Appellant-Bank had issued an E-auction sale notice on 7th June, 2013 which was challenged by Respondent No. 1 in the securitization application No. 483/2012 under Section 17 of the SRFAESI Act before the Tribunal below.

3. The Appellant-Bank auctioned the property in question on 9th July, 2013 for a sum of Rs. 2,05,05,000/-. After the sale of the property, the Respondent No. 1 moved an amendment and impleadment application on 23rd October, 2013 in order to amend the securitization application and to challenge and to challenge the said auction. However, the amendment application was dismissed vide order dated 3rd January', 2014 by the Tribunal below whereas the impleadment application was allowed vide order dated 29th October, 2013 and the auction purchaser, Respondent No. 3 was impleaded. Consequently, as per order dated 7th May, 2014 the securitization application of the Respondent No. 1 was rejected by the Debts Recovery Tribunal.

4. The Respondent No. 1 filed a review application on 26th May, 2014 before the Tribunal below challenging the sale. The learned DRT below held that there was error apparent on face of record in rejecting the amendment application as per order dated 3rd January, 2014 and accordingly, allowed the review application filed by the Respondent No. 1 vide impugned judgment dated 5th March, 2015 and thereby set aside the order dated 7th May, 2014 passed in securitization application No. 483/2012.

5. The Appellant-Bank being aggrieved by the order dated 5th March, 2015 of the learned DRT, Lucknow in review application has preferred the present Appeal to set aside the order dated 5th March, 2015.

6. Learned Counsel for the Appellant-Bank argued that the learned DRT below had allowed the review application on the ground that the order dated 3rd January, 2014 by which the amendment application of the Respondent No. 1 was disallowed was inconsistent with the earlier order dated 29th October, 2013 by which the impleadment application was allowed. The Learned Tribunal below in the review application has set aside the order dated 7th May, 2014 whereby the securitization application was dismissed on merits.

7. It was submitted that the learned DRT below has committed illegality in allowing the review application filed by the Respondent No. 1 on the basis of the order dated 3rd January, 2014 wherein the amendment application filed by the respondent No. 1 was rejected.

8. Learned Counsel for the Appellants further submitted that the power of review can be exercised only on the error apparent on face of record and prayed that the impugned order dated 5th March, 2015 be set aside. The learned Counsel placed reliance in the case ofAjit Kumar Rath v. State of Orissa, A.I.R. 2000 S.C. 85andState of Haryana v. Mahendra Singh, 2003 (1) A.W.C. 567 (S.C).

9. Per contra, the learned Counsel for the Respondent No. 1 submitted that there is no illegality in the impugned order dated 5th March, 2015 and the said order has been passed by the learned DRT below in view of the facts of the case. It was prayed that the appeal filed by the Bank be dismissed. The learned Counsel placed reliance in the case ofRakesh Chandra Shukla v. Union of India, 2013 (31) L.C.D. 1014 (All-LB)wherein it was held that sufficient reason for review in Order47, Rule1of CPC are wide enough to include a misconception of law or fact.

10. Heard the learned Counsels for the parties and perused the record of the case.

11. In the present case, the learned DRT, Lucknow had earlier rejected the amendment application filed by the Respondent No. 1 as per order dated 3rd January, 2014, wherein reasons for dismissing the amendment application were given. The judgment dated 7th May, 2014 in securitization Application No. 483/2012 is a detailed order on merits of the case which has been set aside on the basis of the review application.

12. It is relevant to place reliance on the judgment of the Hon'ble Supreme Court inAjit Kumar Rath v. State of Orissa, A.I.R. 2000 S.C. 85wherein it was held :

"the power of review available to the Tribunal is the same as has been given to a Court under Section 114 read with Order 47 of C.P.C. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order47, Rule1means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment."

13. It is also relevant to refer to the judgment of the Hon'ble Supreme Court inState of Haryana v. Mahender Singh, 2003 (1) A.W.C. 567 (S.C.)wherein it was held:

"under Order47, Rule1of C.P.C. a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. 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 the record justifying the Court to exercise its power of review under Order 47. Rule 1 of C.P.C. In exercise of the jurisdiction under Order47, Rule1of C.P.C., it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an Appeal in disguise".

14. In view of the law laid down inAjit Kumar Rath v. State of Orissa(supra) andState of Haryana v. Mahendra Singh, (supra) the scope of ambit of the review proceedings is limited and the judgment dated 7th May, 2014 which has been set aside by the learned DRT, was neither irregular nor without jurisdiction and was passed after considering the submissions made on behalf of the respective parties. The review proceedings cannot be converted into an Appeal.

15. In the facts and circumstances of the present case, in my considered opinion, the order dated 3rd January, 2014 in the amendment application cannot be termed as a mistake or error apparent on the face of the record in order to review the complete judgment dated 7th May, 2014 in S.A. No. 483/2014 passed on merits of the case. Accordingly, the impugned judgment dated 5th March, 2015 passed by the learned DRT below is not sustainable in law and is hereby set aside.

16. Consequently, the Appeal filed by the Appellant-Bank is allowed with no order as to costs.

Appeal allowed.