Gopalakrishnan T.P. v. The Manager, Aadhar Housing Finance Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 RP NO. 1107 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 32288/2023 OF HIGH COURT ``` ## **`OF KERALA`** ## **`REVIEW PETITIONER/S:`** ``` GOPALAKRISHNAN.T.P., AGED 64 YEARS S/O. PAGAN, THOTTINGAL VEEDU, THIRUVADI, AYYAPPANKUNNU, PUDUCODE, PALAKKAD DISTRICT -, PIN - 678687 ``` ``` BY ADV C.K.RAMAKRISHNAN ``` ## **`RESPONDENT/S:`** ``` THE MANAGER, AADHAR HOUSING FINANCE LIMITED, KUNNATHOORMEDU, KALMANDAPAM, PALAKKAD DISTRICT., PIN - 678013 BY ADVS. A.SURESH RASSAL JANARDHANAN A.(K/000960/2018) THAREEQ ANVER K.(K/000942/2018) GOVIND G. NAIR(K/001627/2018) SHINTO MATHEW ABRAHAM(K/977/2018) NEVIL ZACHARIA MATHEW(K/1526/2018) ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.No.1107 of 2023 ..2.. ## **K.BABU, J. ------------------------------------------Reveiw Petition No.1107 of 2023 --------------------------------------------Dated this the 30[th] day of October, 2023** ## **ORDER** This Review Petition is filed seeking review of the judgment dated 03.10.2023 passed by this Court in W.P.(C) No.32288 of 2023. The review petitioner is the petitioner therein. The operative portion of the impugned judgment reads thus:- “4. In the above circumstances, the Writ Petition is disposed of with the following directions:- (i) Respondent Bank is directed to regularize the loan account by accepting repayment of the entire overdue amount of Rs.1,43,966/- along with Bank charges from the petitioner. (ii) The petitioner shall remit the overdue amount of Rs.1,43,966/- together with any accrued interest and charges in eight equal monthly instalments. (iii) The first instalment shall be paid on or before 30.10.2023 and the subsequent instalments shall be paid on the last working day of every succeeding month. R.P.No.1107 of 2023 ..3.. (iv) The petitioner shall continue to pay the regular EMIs in terms of the contract. (v) In the event of default of any one instalment, the respondent Bank is entitled to proceed in accordance with law. (vi) The proceedings initiated under the SARFAESI Act against the petitioner shall be kept in abeyance to facilitate repayment as stated above.” 2. Heard the learned counsel for the petitioner. The learned counsel appearing for the petitioner submits that the respondent Bank is insisting the review petitioner to remit penal interest for the defaulted amount. 3. The Writ Petition was originally instituted challenging the proceedings initiated against the petitioner under the provisions of the SARFAESI Act. This Court in fact had repelled the contentions levelled by the petitioner and, based on the submission made by the learned Standing Counsel that the Bank is agreeable to permit the petitioner to remit the overdue amount in eight equal monthly instalments, passed the impugned R.P.No.1107 of 2023 ..4.. judgment. The other contentious issues raised by the petitioner were not considered by this Court while passing the impugned judgment. 4. On the principles to be followed while dealing with a review petition under Section 114 of the Code of Civil Procedure, this Court, in _**Vijay Kumar and Anr. v. Travancore Devaswam Board**_ [2022 (6) KHC 407 (DB)] observed thus:- “9. A review under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure will be maintainable only in the following circumstances: - (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. In _**Sow Chandra Kante v. Sheikh Habib**_ [(1975) 1 SCC 674], on the scope of review of judgment, the Apex Court held thus: “A review of a judgment is a serious step and reluctant resort to it is proper only where a R.P.No.1107 of 2023 ..5.. glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.” 11. In _**Meera Bhanja v. Nirmala Kumari Choudhury**_ [(1995) 1 SCC 170] the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure. 12. In _**Chhajju Ram v. Neki**_ (AIR 1922 PC 112), which was approved by the Apex Court in _**Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others**_ [(1955) 1 SCR 520] the Privy Council held that the words “any other sufficient reason” appearing in Order 47 Rule 1 of the Code of Civil Procedure must mean “a reason sufficient on grounds at least analogous to those specified in the rule”. 13. In _**Moran Mar Basselios Catholicos (supra)**_ , the Apex Court held that error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. 14. In _**T.C. Basappa v. T. Nagappa**_ [(1955) 1 SCR 250] the Apex Court held that such error is an error which is a patent error and not a mere wrong decision. R.P.No.1107 of 2023 ..6.. 15. In _**Hari Vishnu Kamath v. Syed Ahmad Ishaque**_ (AIR 1955 SC 233) it was held that it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. 16. In _**Kerala State Electricity Board v. Hitech Electrothermics and Hydropower Ltd., and others**_ [(2005) 6 SCC 651], the Apex Court on the review of judgment held thus: “10........In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has R.P.No.1107 of 2023 ..7.. not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.” 17. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power, which enables the Superior Court to correct errors committed by a subordinate Court (Vide: _**Jain Studios Ltd. v. Shin Satellite Public Co.Ltd**_ [(2006) 5 SCC 501]. 18. In _**S. Madhusudhan Reddy v. V. Narayana Reddy and Others**_ (MANU/SC/1013/2022), the Apex Court narrated the situations in which review will not be maintainable, which read thus: - “20.2. When the 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 the order, undermines its soundness or results in miscarriage of justice. R.P.No.1107 of 2023 ..8.. - (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard 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) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” ## 19. In _**Patel Narshi Thakershi and others v. Shri. Pradyuman Singhji Arjunsinghji**_ [(1971) 3 SCC 844] the Apex Court held thus: “4..... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.......”” R.P.No.1107 of 2023 **==> picture [20 x 9] intentionally omitted <==** The petitioner has failed to place on record any of the requirements that warrant review of the impugned judgment. The Review Petition lacks merits and is accordingly dismissed. Sd/- **K.BABU JUDGE** kkj R.P.No.1107 of 2023 ..10.. ## **`APPENDIX OF RP 1107/2023`** ``` PETITIONER ANNEXURES Annexure.A1TRUE COPY OF THE POSSESSION NOTICE DATED 25.09.2023 BY THE RESPONDENT BANK TO THE PETITIONER Annexure.A2TRUE COPY OF THE REGISTERED POST COVER AND ACKNOWLEDGMENT RECEIPT DATED 09.10.2023 BY THE RESPONDENT BANK TO THE PETITIONER. Annexure.A3TRUE COPY OF THE PETITION DATED 13.10.2023 BY THE PETITIONER TO THE RESPONDENT BANK WITH POSTAL RECEIPT . ```