N. P. Abdul Nazer v Union Bank of India (Erstwhile Corporation Bank) and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945 RP NO. 973 OF 2023** **AGAINST OP(Crl.) 288/2023 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONER:** **N.P.ABDUL NAZER AGED 48 YEARS, S/O. LATE MR. MOHAMMED KUTTY, PROPRIETOR, PANAKKAD AGENCIES, RESIDING AT NANNAMPATA HOUSE, PUZHAYORAM VILLAS, ANAKKAYAM (PO), MANJERI, MALAPPURAM DISTRICT, PIN - 676528** **BY ADVS. SMT.MARIA NEDUMPARA SRI.GENS GEORGE ELAVINAMANNIL** ## **RESPONDENTS/RESPONDENTS:** **1 UNION BANK OF INDIA (ERSTWHILE CORPORATION BANK), MALAPPURAM BRANCH , REPRESENTED BY IT'S THE AUTHORISED OFFICER, ASHOK KUMAR, AGED 58, SON OF GOVINDA SHRIYAN, CHIEF MANGER, UNION BANK OF INDIA, FEROKE PETTA BRANCH, KOZHIKODE DISTRICT, PIN - 673631** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROCECUTOR , HIGH COURT OF KERALA, PIN - 682031 SMT.K.AMMINIKUTTY, SR. GOVT. PLEADER SRI.A.S.P.KURUP, SC** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** **19.10.2023, THE COURT ON 26.10.2023 PASSED THE FOLLOWING:** R.P. No.973/23 ## **-:2:-** ## **BECHU KURIAN THOMAS, J.** ## **-------------------------------R.P. No.973 of 2023 IN O.P.(Crl.) No.288 of 2023 ---------------------------------** Dated this the 26[th] day of October, 2023 ## **ORDER** Review petitioner was the original petitioner in O.P.(Crl.) No.288 of 2023. By judgment dated 22.08.2023, the original petition was dismissed, against which this review petition has been preferred. 2. Sri. Mathews J.Nedumpara, the learned counsel for the review petitioner, contended that though the review petitioner's business entity by the name 'Panakkad Agencies' is only a proprietary concern, this Court had in paragraph 22 of the judgment under review assumed it to be a partnership firm and therefore the judgment has an error apparent on the face of the record. Learned counsel contended that his contentions had not been referred to elaborately, especially those relating to the nature of the MSME legislation. It was further contended that his submission regarding the MSME Act being a benevolent, remedial and preventive legislation due to which there is an obligation for the bank to identify the R.P. No.973/23 ## **-:3:-** measures stipulated in the notification issued under section 9, has not been specifically adverted to in the judgment, has also resulted in an error apparent on the face of the record. On the above basis, it was argued that the judgment requires to be reviewed. 3. Sri. Sachith P. Kurup, the learned counsel for the first respondent, after referring to his counter affidavit, submitted that the review petition is a verbatim reproduction of the appeal filed by the review petitioner under section 5(2) of the Kerala High Court Act and hence the review itself is not maintainable. Referring to Ext.R1E produced in the review petition, which is the memorandum of writ appeal filed by the review petitioner, it was stated that every ground stated in the appeal has been reiterated in the review petition, which itself indicates that there is no error apparent on the face of the record. The learned counsel further submitted that none of the contentions urged by the review petitioner falls within the scope of review and that most of them, especially those relating to the nature of the MSME Act, are not supported even by the pleadings in the original petition. 4. I have considered the rival contentions. 5. The contention of the learned counsel that his arguments **-:4:-** R.P. No.973/23 were not adverted to in the judgment, especially those regarding the nature of the MSME Act, is, in my opinion, not a ground for a review. The review petitioner claims that his Counsel argued that the MSME Act is a benevolent, preventive and remedial legislation and that such an argument has not been adverted to in the judgment, thereby leading to an error apparent on the face of the record. In the impugned judgment, it has already been observed that at the time of declaring the review petitioner's account as NPA, he was not registered as an MSME. Petitioner registered himself as MSME only in April, 2023, that too after filing the original petition. The account of the review petitioner was declared as NPA in the year 2019. Therefore, even if it is assumed that the learned Counsel argued the statute to be a benevolent, preventive and remedial legislation, nonreference to such a contention cannot have any bearing, much less an error apparent on the face of the record. The benevolent nature of a statute cannot be a reason for application of its provisions to a person who does not fall within its ambit. 6. Even otherwise, whatever the nature of the MSME Act, when proceedings are initiated under the SARFAESI Act, in the absence of an exclusion of the latter Act, the former cannot prevail over the R.P. No.973/23 ## **-:5:-** latter. 7. On an appreciation of the connections raised by the learned counsel for the review petitioner, it is evident that the attempt of the review petitioner is to paint the judgment under review as wrong and incorrect. In this context, it is relevant to observe that a review petition has a limited purpose, and it cannot be permitted to be an appeal in disguise. A wrong or incorrect judgment is a ground for correction in appeal and not through a review petition. The attempt of the review petitioner is to seek substitution of the view taken in the judgment by another view, which, according to the review petitioner, is the correct interpretation of the MSME Act in the circumstances of the case. Reference to the judgment in **Shri Ram Sahu through legal representative and Others v. Vinod Kumar Rawat and Others** [(2021) 13 SCC 1] is relevant in this context. 8. It is settled that under the guise of review, a party cannot be permitted to reopen conclusions arrived at in the judgment. When this Court had already concluded that the MSME Act is not applicable to the review petitioner and also that the notification issued under section 9 cannot override the provisions of the SARFAESI Act, the review petitioner cannot seek to overturn the said conclusions **-:6:-** R.P. No.973/23 through this review. Such a process is not contemplated under the jurisdiction of a review. 9. In this context, it is relevant to mention that the review jurisdiction under Article 226 of the Constitution of India is analogous to that under Order XLVII of the Code of Civil Procedure, 1908. Therefore, when an appeal has been preferred by a party, a review petition at his instance is not maintainable. Concededly, the review petitioner has already filed a writ appeal against the judgment under review, and he has simultaneously preferred this review petition. Over and apart from the absence of merit in the review petition, on the above legal aspect also, this review petition is to be dismissed. 10. However, an observation which is of no consequence in fact, has been pointed out as a mistake. On considering the nature of observation, this Court finds that there is a mistake in the last sentence of the penultimate paragraph of the judgment. In paragraph 22 of the judgment under review, it was observed that ‘each individual partner of the registered entity M/s.Panakkad Agencies, cannot seek the benefit of the MSME Act separately’. The cause title of the original petition reveals that 'Panakkad Agencies' is a proprietorship and not a partnership. By mistake, this Court has R.P. No.973/23 ## **-:7:-** referred to the petitioner’s establishment as a partnership. Though, on a perusal of the nature of contentions dealt with in paragraph 22, it can be understood that reference to the petitioner’s entity as a partnership is not the basis of the judgment and that it is only a passing observation, still, it is a mistake, as in a proprietorship, there can only be one person. Since no findings have been based on that mistake, and as the said mistake does not go to the root of the judgment, there is no reason to review the entire judgment itself. By referring to ‘each individual partner’, the Court has not denied any relief or deprived any right of the review petitioner. The original petition was dismissed on other grounds. Hence, the last sentence in paragraph 22, i.e. “The registered entity being M/s.Panakkad Agencies, each individual partner cannot seek the benefit of the MSME Act separately”, ought to be reviewed and deleted from the judgment. 11. In view of the above discussion, except for the last sentence in paragraph 22 of the judgment, no other part of the judgment requires to be reviewed. Accordingly, this review petition is allowed in part to the extent it has mistakenly observed in the last sentence of paragraph 22 of R.P. No.973/23 **-:8:-** the judgment dated 22.08.2023 in O.P.(Crl.) No. 288 of 2023 that “The registered entity being M/s.Panakkad Agencies, each individual partner cannot seek the benefit of the MSME Act separately”, which sentence shall stand deleted from the judgment. Sd/- **BECHU KURIAN THOMAS** **JUDGE** vps R.P. No.973/23 ## **-:9:-** ## **APPENDIX** ## **PETITIONER'S/S' ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE SALE-NOTICE DATED 0409-2023, ISSUED BY THE 1ST RESPONDENT** **ANNEXURE A2 TRUE COPY OF THE ADVOCATE COMMISSIONER'S NOTICE DATED 14-09-2023** - **ANNEXURE A3 A COPY OF THE APPLICATION DATED 20.9.2023 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT** - **ANNEXURE A4 A COPY OF THE REPLY DATED 26.9.2023 ISSUED BY THE 1ST RESPONDENT,** ## **RESPONDENT'S/S' ANNEXURES** - **ANNEXURE R1A A TRUE COPY OF THE CIRCULAR DATED 7.7.2021 ISSUED BY THE RESERVE BANK OF INDIA** - **ANNEXURE R1B A TRUE COPY OF THE REPRESENTATION DATED 20.9.2023 GIVEN BY THE PETITIONER TO THIS RESPONDENT** - **ANNEXURE R1C A TRUE COPY OF THE COMMUNICATION DATED 26.9.2023 GIVEN BY THIS RESPONDENT** - **ANNEXURE R1D A TRUE COPY OF THE COMMUNICATION DATED 27.9.2023 GIVEN BY THE BANK TO THE PETITIONER** **ANNEXURE R1E A TRUE COPY OF THE WRIT APPEAL MEMORANDUM COPY WITHOUT ANNEXURES DATED 23.9.2023 OF THIS HONOURABLE COURT**