Jayaprakash A vs Union Bank of India and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 19[TH] DAY OF APRIL 2024 / 15TH PHALGUNA, 1945 ``` ``` RP NO. 1231 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED IN WP(C) NO.30803 OF 2023 OF HIGH COURT OF KERALA REVIEW PETITIONER/S: ``` ``` JAYAPRAKASH A AGED 55 YEARS ``` ``` S/O. KRISHNAN NAIR, PROPRIETOR, M/S. EVERCOOL ENTERPRISES KBC COMPLEX, OPP. KAIRALI THEATRE ,KOZHIKODE ROAD, MANJERI, PIN - 676121 BY ADV MARIA NEDUMPARA ``` ## **`RESPONDENT/S:`** - **`1 UNION BANK OF INDIA REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR UNION BANK BHAVAN, 239, VIDHAN BHAVAN MARG NARIMAN POINT, MUMBAI, PIN - 400021`** - **`2 THE BOARD OF DIRECTORS OF THE UNION BANK OF INDIA`** - **`REPRESENTED BY ITS MANAGING DIRECTOR UNION BANK BHAVAN, 239, VIDHAN BHAVAN MARG NARIMAN POINT, MUMBAI, PIN - 40021`** - **`3 AUTHORISED OFFICER & CHIEF MANAGER UNION BANK OF INDIA MANJERI BRANCH, K.P.M. BUILDING, MIDDLE HILL NH 23, MALAPURAM, PIN - 676505`** - **`4 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF MICRO SMALL & MEDIUM ENTERPRISES UDYOG BHAWAN, RAFI MARG, NEW DELHI, PIN - 110001`** - **`5 SECRETARY, DEPARTMENT OF BANKING MINISTRY OF FINANCIAL SERVICES GOVERNMENT OF INDIA 3RD FLOOR, JEEVAN DEEP BUILDING SANSAD MARG, NEW DELHI, PIN - 110001`** - **`6 RESERVE BANK OF INDIA`** R.P. No. 1231 of 2023 ..2.. ``` REPRESENTED BY ITS GOVERNOR CENTRAL OFFICE BUILDING SHAHED BHAGAT SINGH ROAD MUMBAI, PIN - 400001 ``` - **`7 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001`** - **`8 ADV. AVADESH A.`** - **`ADVOCATE COMMISSIONER APPOINTED IN CMP NO.2941 BY MANJERI CJM COURT, DISTRICT COURT COMPLEX, MANJERI, MALAPPURAM, PIN - 676121`** - **`9 STATION HOUSE OFFICER MANJERI POLICE STATION, MALAPPURAM DISTRICT, KERALA STATE, PIN - 676121 BY ADV PREMSANKAR R BY ADV ASP KURUP, SC, UBI`** ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P. No. 1231 of 2023 ..3.. ## **K. BABU, J** **------------------------------------------------R.P. No. 1231 of 2023 ------------------------------------------------Dated this 19[th] day of April, 2024** ## **ORDER** This review petition is filed seeking review of the judgment dated 19.10.2023 in W.P.(C) No. 30803 of 2023. 2. The review petitioner is the petitioner therein. In the Writ Petition, the petitioner prayed for extending the benefits provided in Exts.P2 to P4 to the petitioner who claims to be an MSME borrower and setting aside the proceedings initiated by respondent No.1 under the SARFAESI Act, 2002. 3. The petitioner _inter alia_ raised the following grounds in the Writ Petition:- (a)It was incumbent on the respondent bank to constitute a committee before the account of an MSME would be classified as NPA. R.P. No. 1231 of 2023 **==> picture [20 x 9] intentionally omitted <==** (b)As per Ext.P2/ MSME notification, there is a duty cast on the banks to constitute a committee because that is the only construction which would give effect to the intention of the legislature. (c)The MSMED Act and the notification issued thereunder being a remedial law and welfare legislation deserve to be given widest possible benevolent interpretation. (d)The MSMED Act, 2006 and the notifications issued thereunder have an all prevailing effect against all forms of recovery. 4. After considering the rival contentions, this Court recorded the following findings:- (1) Recoveries under the SARFAESI Act with respect to the secured assets would prevail over the recoveries under the MSMED Act. (2) A person aggrieved by the course adopted by the secured creditor under Section 13 of the SARFAESI Act have an effective and efficacious remedy. The petitioner has failed to establish any extraordinary circumstances R.P. No. 1231 of 2023 **==> picture [20 x 9] intentionally omitted <==** warranting interference of this Court under Article 226 of the Constitution. 5. Based on the above findings, this Court dismissed the Writ Petition as not maintainable. 6. I have heard Shri. Mathews J. Nedumpara, the learned counsel appearing for the review petitioner. The learned counsel for the review petitioner submitted that the finding of this Court based on the principles declared in _**Kotak Mahindra Bank Limited v. Girnar Corrugators Pvt Ltd**_ [(2023) 3 SCC 210] is erroneous. The learned counsel further submitted that _**Kotak Mahindra Bank Limited**_ (Supra) was laid down while interpreting the scope of Chapter V of the MSMED Act. The learned counsel submitted that the provisions in the Chapter V of the MSMED Act has no application to the facts of the case. The learned counsel submitted that chapter V of the MSMED Act which essentially deals with measures for promotion, development and enhancement of competitiveness of R.P. No. 1231 of 2023 ..6.. micro, small and medium enterprises are to be applied to the facts of the case. 7. The Apex Court in _**Kotak Mahindra**_ has held that recoveries under the SARFAESI Act with respect to the secured assets would prevail over the recoveries under the MSMED Act. 8. The learned counsel for the review petitioner submitted that while rejecting the plea of the petitioner, this Court did not record most of the contentions of the petitioner that the MSMED Act and the notification issued thereunder be given the widest possible interpretation in favour of the MSMEs. 9. 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:- R.P. No. 1231 of 2023 ..7.. - “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 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 R.P. No. 1231 of 2023 **==> picture [20 x 9] intentionally omitted <==** 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. 1231 of 2023 **==> picture [20 x 9] intentionally omitted <==** 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 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 R.P. No. 1231 of 2023 ..10.. apparent on the face of the record or for some reason akin thereto. It has 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: R.P. No. 1231 of 2023 **==> picture [26 x 9] intentionally omitted <==** (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. (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. R.P. No. 1231 of 2023 **==> picture [26 x 9] intentionally omitted <==** (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.......”” 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. 1231 of 2023 ..13.. ## **`APPENDIX OF RP 1231/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1 ``` ``` A TRUE COPY OF THE CIRCULAR DATED 30- 11-2022, ISSUED BY THE CREDIT GUARANTEE FUND TRUST FOR MICRO AND SMALL ENTERPRISES, ```