Kerala State Cashew Development Corporation Ltd. v Surice Trading Pte Ltd (RP 797/2021 in WA 32/2016, High Court of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943** **RP NO. 797 OF 2021** **AGAINST THE JUDGMENT IN WA 32/2016 OF HIGH COURT OF KERALA, ERNAKULAM DATED 30.6.2016** ## **REVIEW PETITIONERS/APPELLANTS:** **1 KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD., CASHEW HOUSE, P.B. NO.13, KOLLAM-1, REPRESENTED BY ITS MANAGING DIRECTOR.** **2 THE MANAGING DIRECTOR, KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD., CASHEW HOUSE, P.B. NO.13, KOLLAM-1** **BY ADVS. VIPIN P.VARGHESE KEVIN MATHEW GEORGE ROWENA COLETTE DIAS** ## **RESPONDENT/RESPONDENT IN W.A:** **M/S. SURICE TRADING PTE LTD. 101 CECIL STREET, 11-09,TONG ENG BUILDING, SINGAPORE-069533, A COMPANY INCORPORATED IN, SINGAPORE, REP.BY ITS AGENT, BHADRESH MEHTA,PARTNER, M/S.BHADRESH TRADING CORPORATION,205,MAJESTIC SHOPPING, CENTRE,144 JSS ROAD, GIRAGUM, MUMBAI 400 004.** ## **SRI.K.S.BHARATHAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**R.P.797/2021 in W.A.32/2016**_ 2 ## O R D E R Dated this the 23[rd] day of November, 2021 ## S. Manikumar, CJ . Writ Petition No.27272 of 2009 has been filed in the year 2009 for the following reliefs: - “i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the first respondent to effect payment of the amount of US$394017.71 as claimed in Ext.P11 as expeditiously as possible, at any rate within a time frame to be fixed by this Hon’ble Court.” ## 2. Against the judgment in WP(C).No.27272 of 2009 dated 25.02.2015, Cashew Development Corporation/respondents in the writ petition, filed W.A. No.32 of 2016, on the following grounds: A. The finding of the learned single judge directing the respondents to make payment of US$ 2,93,120.20 is contrary to the facts, circumstances and the documents available in this case and is unjust and illegal. B. It is submitted that admittedly the Petitioner has earlier filed writ petition for similar reliefs and the present writ petition is also filed praying for similar reliefs. In the above circumstances, the learned single judge ought to have found that the present writ petition is barred by res judicata. C. It is submitted a reading of the prayer in the OP and in the W P(C) shows that the prayer is one and the same in both the cases and there is only a subtle difference in the amount claimed. Hence the finding of the learned single judge that the _**R.P.797/2021 in W.A.32/2016**_ 3 prayer is different in both the cases is wrong and is resulted from absolute non application of mind. D. The direction issued by this Honorable Court in the earlier original petition to pay the admitted amount does not give any right to the Petitioner to claim the amount due as per the books of accounts or the amount due mentioned in the affidavit based on the books of accounts. The respondent Corporation has never admitted in so many words that the amount due as per the books of accounts is admittedly payable to the Petitioner since the subsequent enquiry has revealed some illegalities in awarding the contract and there is dispute regarding the quality and quantity of the goods supplied. In the above circumstances, this Honorable Court while exercising its extra ordinary jurisdiction, should not have come to the conclusion that the amount due as per the books of account and which is reproduced in the affidavit based on the books of accounts is the amount admitted by the respondents/appellants. The respondents/appellants never admitted that they owe such sum to the writ petitioner. E. Since the issue agitated in the writ petition pertains to a claim out of contract, the Petitioner should have been directed to approach the civil court since he has got an effective alternate remedy there by way of civil suit and considering the fact that there is dispute regarding the actual amount liable to be paid to the petitioners, which depends up on various facts including the illegality if any in awarding or finalizing the contract, the quantity and quality of goods supplied etc. and that there is no admitted amount payable by the respondents. F. The learned single judge has proceeded with the case and _**R.P.797/2021 in W.A.32/2016**_ 4 passed the judgment without noticing the difference in the amount due as per the books of accounts/affidavit and the actual amount which the Corporation is liable to pay to the petitioner, which has to be decided on considerations of various aspects by a trial court. The direction in the OP for payment of the amounts due to the Petitioner and the clarification in the order in the review petition that what was directed was only to make payment of the admitted amount and the dismissal of the contempt petition itself clearly reveals that there is much difference between the admitted amount and amount due as per the records. The learned single judge has failed to consider this aspect. G. The order in the review petition and the dismissal of the contempt petition itself shows that there is in fact no admitted amount to be paid to the petitioners. The closure of the contempt petition by leaving freedom to the petitioner to claim whatever balance due from the respondent Corporation itself indicates that this Honorable Court has intended availing of remedy under civil law by the petitioner. In the above circumstances, the learned single judge went wrong in entertaining the 2[nd] writ petition for the same relief and in granting the relief on a wrong consideration of the facts and law H. The learned single judge went wrong in holding that the writ petition is not hit by the principle of res judicata since there is difference in the reliefs sought for though the claim relates to the very same transaction. It is submitted that it is the matter in issue in both the writ petition and not the relief sought for, which would have been considered for deciding the question of resjudicata. Since the subject matter in issue in the subsequent _**R.P.797/2021 in W.A.32/2016**_ 5 writ petition was directly and substantially in the issue in the former writ petition, the finding that the subsequent writ petition for the purpose of ‘execution’ of the earlier judgment I. A reading of the OP and the subsequent writ petition and the finding of the learned single judge that "even though the claim relates the very same transaction there is difference in reliefs sought for” indicates that the writ petitions are based on same cause of action and hence the subsequent writ petition is barred under Order 2 Rule 2 read with Section 12 of the Code of Civil Procedure. J. The finding of the learned single judge that the Courts exercising powers under Article 226 are not precluded from issuing any further directions in achieving fulfillment of its earlier judgments/orders and hence the subsequent writ petition which is more or less in the nature of seeking execution of an earlier judgment is self contradictory, in view of the finding in the earlier part of the judgment that there is difference in the reliefs sought for and reliefs sought in the OP and subsequent writ petition. As such the finding of the learned single judge is self contradictory, irrational and unreasonable. K. It is submitted that the normal method for getting further directions in fulfillment of earlier judgment/orders is to file miscellaneous petition and not by a separate writ petition. As such there is procedural irregularity in entertaining and considering the subsequent writ petition. L. It is submitted that the case is one arising out of contract with a Corporation by a foreign company. There is effective alternate remedy by way of civil suit. In the facts and circumstances and the nature of the case, it is submitted that there is no public _**R.P.797/2021 in W.A.32/2016**_ 6 element to invoke the jurisdiction under Article 226 of the Constitution of India. Hence the writ petition was liable to be dismissed on that ground alone. M. The learned single judge has failed to consider and appreciate properly, the judgments relied on by the respondents. N. The Writ petitioner never explained before this Hon'ble court as to what is his locus standi to file the case on behalf of a foreign company. He has not produced any document authorizing him by that company. Therefore the W.P. itself was not maintainable. 3. Confirming the findings recorded by the learned Single Judge vide judgment dated 25.02.2015 in W.P.(C) No.27272/2009, W.A No.32 of 2016 has been dismissed on 30.06.2021. 4. We have considered the submissions of learned counsel for the parties and in paragraphs 11, 12 and 13 of the judgment dated 30.06.2021 in W.A. No.32 of 2016, ordered thus: “11. Anyhow, there is no material dispute with respect to the amount remaining in the books of account maintained by the appellant Corporation that the amount due is US$2,93,129.20, which was also supported by the contents of Exts. P13 and P15. Since the said amount due is undisputed, it is well settled and trite that directions could be issued by writ court to pay the amount, if there is arbitrary and illegal act on the part of the debtor to pay the money. As we have pointed out earlier and deliberated above, the learned single Judge has relied upon the _**R.P.797/2021 in W.A.32/2016**_ 7 statement of accounts and crucial and relevant documents to arrive at the conclusion that the appellant Corporation is liable to make the payment. So also, we find that the quality and the quantity of the cashew were never disputed in any of the earlier proceedings, and mere dispute raised in this appeal for the sake of disputing the factual circumstances cannot be sustained in law. 12. On appreciating the facts, circumstances and the legal implications raised, we are of the considered opinion that the appellants have not made out any case for interference in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958, there being no jurisdictional error or other legal infirmities justifying us to do so. Resultantly, writ appeal fails and accordingly, it is dismissed. However, at that point of time, the learned counsel for the appellants sought time for making payment of the amount directed to be paid to the writ petitioner. Taking into account the present Covid-19 pandemic situation and other difficulties pointed out by the counsel, we deem it fit to grant two months' time to pay the amount as directed by the learned single Judge with a further rider that if the amount is not paid within the time stipulated as specified above, the appellant Corporation would be liable to pay interest at the rate of 8% from the date of this judgment for the entire amount directed to be paid.” 5. Thus, we have considered the correctness and validity of the judgment of the writ court in WP(C).No.27272 of 2009 dated 25.02.2015 and confirmed the same. _**R.P.797/2021 in W.A.32/2016**_ 8 6. While doing so, we granted two months' time to pay the amount, as directed by the learned Single Judge. 7. Now, a review petition has been filed for the following relief: - “(i) Review the judgment passed in W.A.32 of 2016 dated 30.06.2021 and pass a fresh judgment stating the sum due as Rs.1,11,30,499/-, which shall be paid in twelve installments at the rate of 4%.” 8. Learned counsel for the review petitioner submitted that financial viability is the cause for non repayment of the amount directed to be paid, apart from the plea regarding deduction of Rs.25 Lakhs already paid. Grounds raised in the review petition are nothing, but an attempt to re-adjudicate the issues already decided. 9. A judgment or order can be reviewed only under the following circumstances: (i) In **Ramdayal Missir & Ors. v. The State of Bihar & Ors.** [AIR 1958 Pat. 4], a Hon'ble Division Bench of the Patna High Court observed that the power of review is a statutory power and in absence of any such power, having been conferred in writing in the statute, no power would vest, within any authority, to exercise the power of review. In the said case, the Hon'ble Division Bench held as under:- "On an examination of the language of these provisions it is manifest that the Settlement Officer has not been expressly granted the power of review of an order passed by the Assistant Settlement Officer under _**R.P.797/2021 in W.A.32/2016**_ 9 Section 103A of the Bihar Tenancy Act. It is true that Section 108A provides for correction by the Revenue Officers of mistakes in the records-of-rights, but the Section applies only to a case where an application is made after the final publication of the records-ofrights. It is also obvious that the Section provides for the correction of the records-of-rights only when there is a bona fide mistake." (ii) In **Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji** [(1971) 3 SCC 844], the Hon'ble Supreme 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 our 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 question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored The Subordinate Tribunals have to carry out that order....................” (iii) In **Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Ors** . [(1987) 4 SCC 525], the Hon'ble Apex Court held thus: “11. It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction.....................” (iv) In **Lily Thomas v. Union of India** , reported in (2000) 6 SCC 224, the Hon'ble Supreme Court held as under: _**R.P.797/2021 in W.A.32/2016**_ 10 "52. The dictionary meaning of the word "review" is the act of looking, offer, something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in **Patel Narshi Thakershi & Ors. v. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273]** , held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error........................” ## (v) In **Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and** **Weaving Mills Ltd.** reported in (2005) 13 SCC 777, at para 19, the Hon'ble Supreme Court held as under:- "Applying these principles it is apparent that where a Court or quasi Judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi Judicial authority is vested with the power of review by express provision or by necessary implication." ## (vi) In **Rekha Mukherjee v. Ashis Kumar Das and Ors.** [(2005) 3 SCC 427], the Hon'ble Supreme Court held thus:- “33. The right of review is a statutory right. Such right can be invoked if the conditions therefore are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping..........” (emphasis supplied) _**R.P.797/2021 in W.A.32/2016**_ 11 (vii) In **Rajindersingh v. Lt. Governor** , reported in (2005) 13 SCC 289, at paragraph Nos. 15 and 16, the Hon'ble Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. Power of judicial review extends to correct all errors to prevent miscarriage of justice. It was further held that Courts should not hesitate to review their own earlier order, when there exists an error on the face of record and the interest of justice so demands in appropriate cases. (viii) In **Union of India v. Kamal Sengupta** reported in [(2008) 8 SCC 612], the Hon'ble Supreme Court, at paragraphs 14 and 15, has held as under: "14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier. 15. The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of _**R.P.797/2021 in W.A.32/2016**_ 12 review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision." ## (ix) In **Kalabharti Advertising v. Hemant Vimalnath Narichania** **and others,** [(2010) 9 SCC 437], the power of review in the absence of statutory provisions was considered by the Hon'ble Supreme Court and, at paragraph Nos. 12, 13 and 14, held as under: “12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of Judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: **Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and another** , AIR 1965 SC 1457 and **Harbhajan Singh v. Karam Singh and others** , AIR 1966 SC 641). 13. **In Patel Narshi Thakershi and others v. Shri Pradyuman Singhji Arjunsinghji** , AIR 1970 SC 1273; **Maj. Chandra Bhan Singh v. Latafat Ullah Khan and others** , AIR 1978 SC 1814; **Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) and others** , AIR 1987 SC 2186; **State of Orissa and others v. Commissioner of Land Records and Settlement, Cuttack and others** , (1998) 7 SCC 162 and **Sunita Jain v. Pawan Kumar Jain and others** , (2008) 2 SCC 705, this Court held that the pouter to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in absence of any statutory provision providing for review, entertaining an _**R.P.797/2021 in W.A.32/2016**_ 13 application for review or under the garb of clarification/modification/correction is not permissible.” (x) Referring to various decisions of the Hon'ble Apex Court as well as this Court, a Hon'ble Division Bench of the Madras High Court, in **Infant Jesus Teacher Training v. M. Manikandan** (Rev. Appn. No. 38 of 2010 in W.A. No. 1145 of 2009, dated 31.08.2010), considered several decisions of the Hon'ble Apex Court and at paragraphs 14, 31 and 32, held as follows:- "14. Considering the scope of review jurisdiction and holding "mistake or error apparent on the face of the record must be self evident and does not require a process of reasoning, in Parsion Devi v. Sumitri Devi, [(1997) 8 SCC 715], the Hon'ble Supreme Court has held as under: "7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (AIR 1964 SC 1372 : (1964) 5 SCR 174) (SCR at p. 186) this Court opined: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record, for 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 in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." _**R.P.797/2021 in W.A.32/2016**_ 14 .......... 31. The review proceeding is not by way of an appeal. Holding that the review must be confined to error apparent on the face of the record and reappraisal of the entire evidence on record for finding the error would amount to exercise of Appellate Jurisdiction, which is not permissible, in **Meera Bhanja v. Nirmala Kumari Choudhury** , [(1995) 1 SCC 170], the Supreme Court held as under: "8. It is well settled that the 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, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma** [(1979) 4 SCC 389], speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909), there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be _**R.P.797/2021 in W.A.32/2016**_ 15 produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court. 9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of **Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale** (AIR 1960 SC 137), wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and _**R.P.797/2021 in W.A.32/2016**_ 16 complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." ## 32. As held by the Hon'ble Supreme Court in AIR 1960 SC 137, ( **SATYANARAYAN LAXMINARAYAN HEGDE v. MALLIKARJUN BHAVANAPPA TIRUMALE** ), the error must be apparent on the face of the record i.e., error must be self evident and not which has to be established by a long drawn process of reasoning or which has to be searched. In other words, it must be an error and it must be one which must be manifest on the face of the record. Under the guise of review, parties are not entitled to rehearing of the same issue. An error can be said to be apparent on the face of the record only if such error is patent and can be located without any elaborate argument arid without any scope for controversy with regard to such error, which stares at the face even by a mere glance of the judgment. The said position of law is reiterated in the decisions reported In [(1997) 8 SCC 715], Delhi Administration v. Gurdip Singh Uban And Others [2001 (1) Mu 45 (SC)], Kerala State Electricity Board v. Hitech Electrothermics Hydropower Ltd. and Others [(2005) 6 SCC 651], Haridas Das v. Usha Rani Bank [(2006 (4) SCC 78] and State of West Bengal And Others v. Kamal Sengupta [(2008) 8 SCC 612]." (xi) In **Haryana State Industrial Development Corpn. Ltd. v. Mawasi** , [(2012) 7 SCC 200], the Hon'ble Supreme Court held as under: _**R.P.797/2021 in W.A.32/2016**_ 17 "26. At this stage it will be apposite to observe that the power of review is a creature of the statute and no court or quasi-judicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so...........................” 10. Giving due consideration to the pleadings, grounds raised in the review petition, and the decisions considered, we are of the view that petitioner has not made out a case for review of the judgment in W.A. No.32 of 2016 dated 30.06.2021. Accordingly, the review petition is dismissed. Sd/S. Manikumar, Chief Justice Sd/- Shaji P. Chaly, Judge sou. xxx