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Express Publication (Madurai ) Ltd. v/s M/s.India Media Services Private Limited. & Others

    G.A.No. 1996 of 2010, A.P.O.No. 354 of 2008, G.A.No. 2817 of 2008, C.S.No. 486 of 2002

    Decided On, 04 October 2010

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE PINAKI CHANDRA GHOSE & THE HONOURABLE MR. JUSTICE ASIM KUMAR RAY

    For the Appellant: P.K. Mullick, Sr. Advocate, S.K. Kapoor, Sr. Advocate, A.K. Chatterjeee, Tapas Kumar Banerjee, Advocates. For the Respondent: Anindya Mitra, Sr. Advocate, Jayjit Ganguly, P. Sancheti, R. Sarkar, Ritzu Ghoshal, K. Bihani, Advocates.



Judgment Text

Asim Kumar Ray, J


This is an application praying for review of the judgment and order dated 17th December, 2009 passed in AP No. 354 of 2008. By the said judgment and order this Hon?ble Court dismissed the appeal being APOT No. 354 of 2009 and thereby confirmed the decision of the Hon?ble Single Judge passed in GA No. 1349 of 2008 dismissing the application filed by appellant/applicant under Section 28 of the Specific Relief Act, 1963 on 30th July, 2009.


A brief background may be taken note of for proper appreciation of the matter. India Media Services Private Ltd. being the plaintiff /respondent initiated suit being No. C.S. 486 of 2002 for recovery of an amount to the tune of Rs. 21.10 crores for price of newsprint sold and delivered to Express Publication (Madurai) Ltd., appellant/applicant. The suit was partially decreed by an order dated 17th March, 2004 with the consent of the parties. The appellant /applicant gave its consent to sell a property situates at Hyderabad to the plaintiff/respondent at Rs. 21.10 crores in lieu of the sum of Rs. 21.10 crores which the appellant/applicant owed to the plaintiff/respondent. The Hon?ble trial Court recorded undertaking given on behalf of the appellant/applicant that the appellant/applicant would transfer the aforesaid property to the plaintiff/respondent in lieu of part of the principal amount claimed in the suit. On the basis of such undertaking the decree was passed on consent. But the said decree was not acted upon and instead of that GA No. 3035 of 2004 was filed by appellant/applicant for direction upon the Registrar, Original Side to execute a deed of conveyance in terms of the decree dated 17th March, 2004. The said application was dismissed on technical ground with liberty to apply. Thereafter plaintiff field execution case No. 1 of 2006 and appellant/applicant filed an application being GA No. 2995 of 2005 for adjudication of the decree as nullity. Both the applications were disposed of by an order dated 18th May, 2007 and the Hon?ble Court gave a direction to the appellant to execute the deed of conveyance by adding Indian Express (Mumbai) Ltd. as a party to the conveyance. The appellant/applicant thereafter preferred an appeal being A.P.O.No. 308 of 2007 which was dismissed by an order dated 16th October, 2007 by the Hon?ble Court and the Hon?ble Court expressed that the Court had jurisdiction to execute the decree. Thereafter Special Leave Petition was filed by the applicant and the same was dismissed by the Hon?ble Apex Court by an order dated 7th April, 2008. The appellant thereafter filed GA No. 1349 of 2008 under Section 28 of the Specific Relief Act, 1963 which was dismissed by the Hon?ble Court by an order dated 30-7-2008. Appellant/applicant filed an appeal being APOT No. 354 of 2008 challenging the judgment and order dated 30th July, 2008 and the same was dismissed by the Hon?ble Court by an order dated 17th December, 2009. A Special Leave Petition before the Hon?ble Apex Court was filed by the appellant /applicant against the judgment and order dated 17th December 2009 but the same was withdrawn on 7th May, 2010.


Express Publication (Madurai) Ltd., applicant seeks review of the judgment dated 17th December, 2009 passed by this Hon?ble Court after withdrawing the Special Leave Petition being SLP(Civil) No. 11913 of 2010. There is a delay of 114 days in filing the review application but the same was not due to lack of bonafide on the part of the petitioner. There was no deliberate inaction on the part of the petitioner in not filing review petition earlier. There is a prayer for condonation of delay on the ground that it was not due to deliberate inaction and bonafide on the part of the petitioner in taking step which was available before it in the matter.


The petitioner took a ground that there is error apparent on the face of the record touching the jurisdiction of this Hon?ble Court to execute the subject decree dated 17-3-2004 passed against the petitioner. The subject of decree is located at Chennai and at Hyderabad, both situate outside the jurisdiction of this Hon?ble Court. There is a specific bar in Section 39(4) of the Code of Civil Procedure ousting the jurisdiction of this Court in respect of the property situates beyond the jurisdiction.


Learned Counsel appearing on behalf of the petitioner has invited the attention of this Court to the observation of the Court to page 50 of the judgment dated 17-12-2009 wherein the Court observed that ,?after perusing the facts and after analysing the decisions cited before us, that the Division Bench earlier had held that this Court has its jurisdiction to execute the Decree and further Special Leave to Petition has earlier been dismissed by the Hon?ble Supreme Court of India . Therefore in our considered opinion the said question has earlier been settled?..?. It has been vehemently contended by the learned Counsel of the petitioner that it is clear that the question relating to the authority, competence and jurisdiction of this Hon?ble Court to execute the decree in question dated 17-3-2004 was not gone into and decided by the Division Bench in the judgment under review. The judgment under review did not decide the question of jurisdiction to execute the decree in the context of Section 39(4) of the Code of Civil Procedure. Hon?ble Division Bench concluded the discussions of the question of jurisdiction to execute the decree by the observations made in the earlier Division Bench judgment. It has been contended further by the learned Counsel of the petitioner that the Hon?ble Single Judge by the order dated 30-7-2008 (page 262-284) also did not go into and decide the question of authority, competence and jurisdiction of this Hon?ble Court to execute the decree in question upon recording as under:


?The three additional grounds urged have been voiced with an undertone of nullity. The challenge to the order of May 18, 2007 on the ground of Section 39 of the Code has been discussed and discarded by the appellate Court. Whether or not the appellate Court decision on such aspect runs foul of the Mohit Bhargava dictum of Supreme Court, it is a matter concluded between the parties and, in any event , a judgment of a superior forum and not open to question here.?


Hon?ble Division Bench as well as Hon?ble Single Bench had not decide the question as to the authority, competence and jurisdiction of this Hon?ble Court to execute the decree in question against the petitioner and the property at Hyderabad both outside the jurisdiction of this Hon?ble Court. The Hon?ble Court did not touch Section 39(4) of the Code of Civil Procedure as it was neither a ground nor argued or canvassed by any of the parties to the appeal and as such it was not decided. Therefore, the justice demands that the Court is to decide the question of its authority, competence and jurisdiction to execute the decree in question with reasons and judicial findings. Such a decision has not been made by the Division Bench judgment and the decree dated 17-3-2004. There is as such an error apparent in the face of the record which should be corrected upon review of the judgment under review dated 17-10-2009 as also the Division Bench judgment dated 16-10-2007.


In support of the submissions the learned Counsel of the petitioner relies upon the judgments reported in 2000(1) SCC 666 (M.M.Thomas vs. State of Kerala & Anr., AIR 1949 Federal Court 106(5 Jds) (Hari Shankar vs. Anath nath, 1997 (8) SCC 715 (Parsion Devi & Ors. vs. Sumitri Devi & Ors.) and 2010(4) SCC 785 (Asst. Commissioner, Tax Department Works Contract & Leasing Quota vs. Shukla & Ors.


Learned Counsel appearing on behalf of the plaintiff/respondent opposing the review petition has contended that the application for review is barred by limitation. The ground for condonation of delay is not reasonable and cannot be taken into consideration. The time spent in the Hon?ble Apex Court cannot be deducted for calculation of the period of limitation. The Hon?ble Apex Court by its order dated 7th May, 2010 has not made any observations regarding limitation and that being so the review application being barred by limitation may be dismissed.


The grounds of review taken by the petitioner are nothing but repetition of the ground mentioned in the Special Leave Petition to appeal against the judgment and order dated 17th December, 2009. The issue as to Section 39(4) of C.P.C., was specifically raised as a question of Law in the Special Leave Petition. The Hon?ble Apex Court did not interfere. After having unsuccessfully approached the Supreme Court and having withdrawn the said petition the petitioner has approached this Hon?ble Court for review. Interference in such a situation would be contrary to judicial consensus as observed by the Hon?ble Apex Court and the same has been reported in (AIR 1999 Supreme Court 1486 3J).


The appellant /applicant has sought for review on several grounds which are not valid for the reasons noted hereunder:


?a) The Appellant/Applicant had submitted to the jurisdiction of this Hon?ble Court. The application being G.A. No. 3035 of 2004 was a clear and unambiguous invitation held out by the Applicant to this Hon?ble Court to execute the Decree. Thus the present contention that this Hon?ble Court lacked jurisdiction to execute is an afterthought and barred by principles of approbate and reprobate. (AIR 2006 Calcutta 102 )


b) Secondly, it is a question of territorial jurisdiction, which unless taken at the earliest opportunity cannot be taken subsequently. The Applicant in G.A. No. 3035 of 2004 did not take the plea of lack of jurisdiction and on the contrary asked this Hon?ble Court to execute the Decree.


c) Thirdly, the issue regarding jurisdiction to execute had been argued discussed and decided on several occasions. This Hon?ble Court in the judgment and order dated 17th December 2009 had categorically held that this Hon?ble Court did possess the jurisdiction to entertain the execution application. Even if it is assumed, but not admitted, that such finding is wrong, a wrong decision cannot be ground for review. The remedy available to the Appellant/Applicant was to challenge the said judgment order in Supreme Court which was filed and abandoned.?


All the above points categorically taken note of and discussed by the Hon?ble Court by its earlier judgment and orders. This review application is nothing but an attempt on the part of the appellant/applicant for a fresh hearing on the view taken earlier and the same cannot be entertained. To support the contention, the learned Counsel appearing on behalf of the plaintiff/respondent has cited the decisions , namely, 1999 Vol.9 SCC 596, AIR 1964 SCC 1372, 2000 Vol. 6 SCC 224 and 2000 Vol. 8 SCC 612. The Order dated 16th October 2007 was challenged before the Hon?ble Supreme Court and by the judgment and order dated 7th April, 2008 the same was dismissed. Thus, the findings in the judgment and order dated 16th October, 2007 has reached a finality and cannot be a ground for review of a subsequent judgment based thereon. The memorandum of review is against the judgment and order dated 17-12-2009 and not the order dated 16-10-2007. Therefore, correctness of order dated 16-10-2007 cannot be questioned in this review application. The appellant /applicant cannot raise the issue of jurisdiction, particularly after giving undertaking to this Hon?ble Court and the said undertaking is at page 39. This application for review is an abuse of the process of Court since it has been filed after S.L.P (AIR 1999 SC 1486, AIR 2001 SC 2316). The decree was passed on consent of the parties. Thereafter for reasons which are not bona fide, the appellant /applicant has been trying to avoid the execution of the Deed of Conveyance and had been resisting the execution of the decree by making frivolous application. The present application for review is the fourth stage of such resistance. The review application is mala fide and is a diabolical ploy of the appellant/applicant to deny the plaintiff/respondent.


This review application was filed on 7-6-010 to review the judgment and order dated 17-12-2009 of this Court. The application for certified copy of impugned judgment was filed on 17-12-2009 and the certified copy was received on that very date that is 17-12-2009. Limitation for filing review petition is 30 days and it expired on 12-2-2010. Special Leave Petition was filed before the Hon?ble Apex Court on 18-3-2010.


The said special leave petition was withdrawn from the Hon?ble Apex Court on 7-5-2010. Therefore 114 days delay exists for filing review application. The delay has been explained and the same be condoned for the ends of justice.


It is an admitted fact that the subject property situates beyond the jurisdiction of this Court. Let us see whether the issue of jurisdiction was placed before the Hon?ble Division Bench or not. On plain perusal of the judgment and order of the Hon?ble Division Bench dated 17-12-200 it transpires that the said issue touching jurisdiction has been squarely dealt with and the observation is like this:


?It appears to us that the suit as it was filed after obtaining leave under Clause 12 of the Letters Patent and, therefore, it cannot be said that the Court was lacking jurisdiction or authority either territorial or in this subject-matter. The decree was passed upon recording the satisfaction of the claim of the plaintiff and in the said decree on the basis of the undertaking given by the appellant it was agreed that the property should be transferred in favour of the plaintiff/respondent. Therefore, at this stage we do not find that there is any reason to accept the plea of inherent jurisdiction as sought to be raised by the appellant before us. All through the Court acted including the acceptance of the suggestion put forward before the Court and the Court passed an order thereon at the instance of the parties. The effect of the decree has also been enjoyed by the appellant/defendant No. 3 and, thereafter, in our considered opinion, it is too late in the day to turn around and to challenge the decree on the ground of nullity or on the ground of territorial jurisdiction and not only that the defendant No. 3 made an application before the Court when the plaintiff pointed out and/or complained in respect of the title of the property at the instance of the defendant No. 3 the Court was persuaded to dismiss such application of the plaintiff and accepted the contention of the defendant No. 3


After enjoying the fruits of the order passed at the instance of the defendant No. 3, we must point out that the appellant tried to find out a way to bypass such decree which obviously was passed also at their instance in our considered opinion. It is only a way which is being tried to find out by the appellant to bypass the said decree in such a tricky manner. Therefore, in our opinion, the defendant No. 3 took th

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e burden on its shoulder to satisfy the claim of the plaintiff by transferring the Hyderabad property in lieu of money claim and at this stage they cannot take such a plea that decree is a nullity or the properties are outside the jurisdiction of this Court. Since we are also of the considered opinion after analyzing the facts and the decisions cited by the parties that this Court has jurisdiction to execute the decree in respect of the property which is situated outside the territorial jurisdiction of this Hon?ble High Court.? The point of jurisdiction which is being agitated in this instant review petition had been set at rest previously not once but repeatedly by the Hon?ble Division Bench. It is nothing but repeating the same thing again and again and the intention is nothing but putting hurdle on the way of execution of the decree. We find no option but to express that there is no error apparent on the face of the judgment. The Hon?ble Court did go into and decide the question of authority, competence and jurisdiction of this Hon?ble Court to execute the decree in question in respect of the property which is situated outside the territorial jurisdiction of this Hon?ble Court. Considering the facts and circumstances and the backgrounds stated hereinabove, we do find reasons to arrive at this decision that there is no merit in the review petition. The review petition is, thus, dismissed. There is no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (Asim Kumar Ray, J.) I agree.
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