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2013 DIGILAW 53 (CAL)

Nemai Enterprise v. STATE OF WEST BENGAL

2013-02-01

MRINAL KANTI CHAUDHURI, TAPAN KUMAR DUTT

body2013
JUDGMENT Dr. Mrinal Kanti Chaudhuri, J. This is an application filed by the petitioner Dipak Kumar Modak for recalling the judgment and order dated 18.05.2012 passed by the Division Bench of this Court in MAT 1552 of 2011 with CAN 9575 of 2011. According to the petitioner, a partnership firm under the name and style “M/s. Nemai Enterprise” was constituted on 29th August, 2005 consisting of the four partners namely (1) petitioner/Dipak Kumar Modak, (2) Tamal Kundu, (3) Chandra China and (4) Chinmay Kuiry for carrying on the distributorship business of food grains. The Director of D.D.P.S. (F & S) Government of West Bengal issued a MR Distributorship licence in the name of the firm M/s. Nemai Enterprise on 19.03.2007. The firm was carrying on the business in accordance with the terms and conditions of the partnership deed and following West Bengal Public Distribution System (Maintenance and Control) Order, 2003. During the year in 2009, a dispute arose among the partners. As a result, one of the partners namely Tamal Kundu wrote a letter to the District Controller (F & S) requesting for temporary closure of MR Distributorship business. On the other hand, this petitioner together with another partner namely Chinmay Kuiry wrote another letter requesting the District Controller to allow them to continue the same MR Distributorship business. Again on 12.10.2009 and 26.10.2009 other two partners namely Tamal Kundu and Chandra China wrote letters to the District Controller (F & S), Purulia requesting him for temporary closure of the business. Subsequently, on 07.04.2010 the District Controller (F & S), Purulia passed an order that since the distributorship licence issued under West Bengal Public Distribution System was not renewed, the licence stood revoked after the expiry of the period of validity and, therefore, the dealers of M/s. Nemai Enterprise and M/s. Kundu Enterprise were retagged with M/s. P.D. Jhunjhunwala and M/s. P.M. Agarwala and this arrangement will continue till the dispute among the partners are settled. Further case is that one Jaydev Kumar Sen filed a writ petition challenging the appointment of M/s. Nemai Enterprise in W.P. No. 6541 (W) of 2007. During the pendency of the said writ petition the licence of the M/s. Nemai Enterprise stood revoked due to non-renewal as per condition of the licence. Therefore, the writ petitioner/Jaydev Kumar Sen filed a petition praying for interim order on 12.09.2011. During the pendency of the said writ petition the licence of the M/s. Nemai Enterprise stood revoked due to non-renewal as per condition of the licence. Therefore, the writ petitioner/Jaydev Kumar Sen filed a petition praying for interim order on 12.09.2011. Hon’ble Single Bench of this Court passed an interim order restraining the authority concerned from filling up the vacancy in respect of the said distributorship without the leave of the Court. Against the said interim order dated 12.09.2011, another partner Tamal Kundu in the name of M/s. Nemai Enterprise preferred an appeal being MAT 1552 of 2011 (M/s. Nemai Enterprise vs. Jaydev Kumar Sen). Hon’ble Division Bench of this Court modified the said interim order and directed the District Administration to declare a new vacancy for proper public distribution and for catering the needs for consumer in the said area. It is the case of the petitioner, Dipak Kumar Modak that while preferring the appeal, Tamal Kundu has stated in the affidavit that he was duly authorized by other partners to affirm the affidavit on their behalf. The applicant’s case is that Tamal Kundu preferred the appeal without any authorisation of M/s. Nemai Enterprise and by practicing fraud upon the Court he obtained the aforesaid order. Further case of the petitioner is that the said Tamal Kundu acted against the interest and betterment of the firm in seeking declaration of vacancy, knowing fully well that such prayer will permanently obstruct in the revival of the distributorship business after settlement of internal dispute between the partners. It is the case of the petitioner that dispute among the partners has not yet been settled and, therefore, the business is temporarily closed. The applicant was not aware of the said appeal although he is one of the partners of the said firm and the said Tamal Kundu preferred the appeal in violation of provision of Indian Partnership Act, 1932. The question of declaration of vacancy cannot arise till the settlement of dispute. In case the vacancy is declared during the existence of the firm, the interest of the partners will be highly affected. Since Tamal Kundu preferred appeal in the name of the firm M/s. Nemai Enterprise without any authorisation from the partners, the order of the Division Bench dated 18.05.2012 is required to be recalled. In case the vacancy is declared during the existence of the firm, the interest of the partners will be highly affected. Since Tamal Kundu preferred appeal in the name of the firm M/s. Nemai Enterprise without any authorisation from the partners, the order of the Division Bench dated 18.05.2012 is required to be recalled. As against the petition for recall of the judgment dated 18.05.2012, Tamal Kundu, the appellant, filed an affidavit-in-opposition and has stated that the applicant being one of partners of the firm was aware of the proceedings initiated by the writ petitioner as well as the appeal preferred against the interim order of writ petition and the same will appear in the Annexure “R-1” (collectively). It is stated further that due to dispute among the partners of the firm, licence issued under West Bengal Public Distribution System (Maintenance & Control) Order, 2003 could not be renewed and hence the same expired on 31.01.2010. The dispute could not be settled for a long period. Hence the licence was cancelled by the authority concerned by the order dated 2nd June, 2011. Since the licence was cancelled there is no scope for revival of the distributorship business even if the dispute between the partners is settled. In case the dispute is settled, the appellant firm will be liberty to apply for fresh licence if vacancy is declared against the cancelled licence of the appellant. Therefore, the appeal was preferred against the interim order of writ petition for the best interest of the firm and he obtained authorisation from all the partners. It is further stated that the vacancy has been declared by the Hon’ble Appellate Court in accordance with Section 23(i) of the Control Order, 2003. Since the firm is still in existence and the licence was cancelled by the order dated 2nd June, 2011 by the concerned authority, there is no scope for revival of the business of the firm. It is further stated that in pursuance of clause 14 of deed of partnership dated 29th August, 2005, all the partners are jointly and severally entitled to take appropriate step in respect of partnership business. Since licence was cancelled by the concerned authority this partner took step by preferring appeal so that vacancy can be declared and the firm after settlement of dispute, can apply for licence for conducting the distributorship business. Since licence was cancelled by the concerned authority this partner took step by preferring appeal so that vacancy can be declared and the firm after settlement of dispute, can apply for licence for conducting the distributorship business. It is further stated that the petitioner Dipak Kumar Modak could have represented the firm and filed appeal according to the Clause 14 of the partnership deed and such step could be taken in the interest of the firm. The declaration of vacancy against the cancelled licence of M/s. Nemai Enterprise will not affect the interest of the firm. On the contrary, it would be beneficial for the firm which would be entitled to participate in the appointment process after the declaration of the vacancy in case the dispute among the partners is settled. Therefore, order of the Hon’ble Division Bench dated 18.05.2012 cannot be recalled by way of this application. The application praying for recall is not maintainable and is liable to be dismissed. As against the affidavit-in-opposition, an affidavit-in-reply has been filed by the applicant Dipak Kumar Modak. In the reply factual aspect of the matter as stated by the partner Tamal Kundu has been admitted. In the reply, it is stated that the partner Tamal Kundu preferred an appeal against the interim order dated 12.09.2011 before the Hon’ble Division Bench in the name of partnership firm without taking any authorisation from him or other partners and, therefore, he made a false declaration before the Hon’ble Court to the effect that he has been authorised by the other partners. He, knowingly made false statement. It was his bounden duty as a partner of an unregistered firm to adopt resolution for initiating any proceedings and obtain signature of all the partners. It is stated further that until and unless the dispute is settled amongst the partners, no partner on his own can alone file a suit or initiate any proceeding on behalf of the firm. He has denied the cancellation of licence of distributorship licence of M/s. Nemai Enterprise and he was not communicated about the same. Moreover, the provisions for West Bengal Public Distribution System (Maintenance & Control) Order, 2003 do not permit the District Controller to cancel the licence for MR Distributorship without following the provision of paragraph 25 of the said Control Order, 2003. Moreover, the provisions for West Bengal Public Distribution System (Maintenance & Control) Order, 2003 do not permit the District Controller to cancel the licence for MR Distributorship without following the provision of paragraph 25 of the said Control Order, 2003. It is further stated that if licence is cancelled on 02.06.2011, how did the appellant i.e. M/s. Nemai Enterprise appear before the writ court and how did the appellant prefer an appeal. It is further stated that he had never given any verbal authorisation to Tamal Kundu for filing appeal. He made false statement in the affidavit that he was duly authorised by other partners to affirm the affidavit. By reason a false statement he is not entitled to get a relief or order dated 18.05.2012 and, therefore, said judgment and order dated 18.05.2012 should be recalled. It is further stated that Tamal Kundu preferred an appeal in the name of the firm and obtained an order which is not in the interest of the firm. Since M/s. Nemai Enterprise is not a registered partnership firm, the firm has no juristic entity and, therefore, no appeal should be preferred by the firm. Therefore, he prays for recalling the order. It is submitted by the learned advocate for the applicant that the appellant, Tamal Kundu obtained an order for declaration of vacancy by preferring the appeal on false affidavit by stating that he has been authorised by the partnership firm, M/s. Nemai Enterprise to prefer an appeal. In fact, the applicant did not authorise the appellant in any way. Learned advocate has further submitted that since the firm is unregistered one, it has no power to file suit/proceeding in view of Section 69 of the Partnership Act, 1932. He has further referred to the Clause 14 of the partnership deed and has submitted that the partners must act for the interest and benefit of the firm. Learned advocate has further submitted that Section 18 of the Partnership Act has no application in the present case inasmuch as the appellant’s conduct and acts are detrimental to the interest and benefit of the firm. He has further referred to Sections 10 and 12 of the Partnership Act to submit that the question of inherent/implied authorisation comes into play when the interest of the firm is of paramount consideration. He has further referred to Sections 10 and 12 of the Partnership Act to submit that the question of inherent/implied authorisation comes into play when the interest of the firm is of paramount consideration. The said learned advocate has further submitted that interim order of the Hon’ble Single Judge dated 12.09.2011 is in the interest of the firm while modification of the said order and declaration of vacancy is against the interest and benefit of the firm because if the declaration of vacancy is made there would be permanent closure of the business of the firm and, therefore, would go against the interest of the partners. The said learned advocate further submitted that the declaration of vacancy as ordered by Hon’ble Division Bench is not inconsonance with Section 23(i) of the Control Order, 2003 and the said Bench only considered Section 19 of the Control Order, 2003. It is further submitted that since partnership firm has not yet been dissolved and the writ petition is still pending, the question of declaration of vacancy does not arise. Finally, the learned advocate has stated that since the appellant, M/s. Nemai Enterprise cannot be represented by Tamal Kundu and the false statement of authorisation is made and act of Tamal Kundu is detrimental to the benefit of the firm, the judgment and order of the Division Bench dated 18.05.2012 should be recalled. On the other hand, learned advocate appearing on behalf of the State has submitted that since the licence of M/s. Nemai Enterprise stood revoked on and from 31.01.2010, the writ petition filed by Jaydev Kumar Sen challenging the appointment of M/s. Nemai Enterprise has become in fructuous. Therefore, Hon’ble Division Bench is quite justified in modifying the interim restraint order and directing the authority concerned to declare the vacancy in view of smooth functioning of the public distribution system. He has further submitted that since partnership firm has no licence to conduct a business in connection with public distribution system, the tagging and retagging cannot continue for indefinite period. He has further submitted that since partnership firm has no licence to conduct a business in connection with public distribution system, the tagging and retagging cannot continue for indefinite period. Learned advocate has further referred to Annexure “A/7” at page 37 of the recall petition and Annexure “A/8” at page 39 of the recall petition and submitted that authority concerned tried to settle the dispute among the partners but to no effect and, therefore, the dealers of M/s. Nemai Enterprise are retagged with M/s. P.D. Jhunjhunwala and M/s. P.M. Agarwala till the settlement of the dispute among the partners. The two partners having 85% share in the business want temporary closure of the business of firm while two other partners having 15% share in the business want to continue the business and when there is no possibility of early settlement of the dispute and the licence was not renewed, the authority concerned retagged the firm with the M/s. P.D. Jhunjhunwala and others till the settlement of the dispute. Learned advocate has finally submitted that since tagging and retagging cannot continue for indefinite period and public distribution system is going to be hampered, Hon’ble Division Bench was justified in passing an order for declaration of vacancy for smooth functioning of the public distribution system. Further it is submitted that the applicant, Dipak Kumar Modak has filed petition for recalling the order in individual capacity and not in the name of the firm. Therefore, the petition for recall has no merit and is to be rejected. Learned advocate appearing for the appellant M/s. Nemai Enterprise represented by one of the partners viz. Tamal Kundu has submitted that the provision of Section 69 of Partnership Act has no application in the present case inasmuch as the same is applicable in the matter of enforcement of contractual right. In the present case, it is not the case of the enforcement of contractual right but it is for the enforcement of the statutory right or common law right. He has referred to decision of Hon’ble Supreme Court of Kamal Pushpa Enterprises vs. D.R. Construction Company reported in AIR 2000 SC 2676 as well as M/s. Haldirm Bhujiawala and Anr. vs. M/s. Anand Kumar Deepak Kumar and Anr. reported in AIR 2000 SC 1287 and M/s. Raptakos Brett & Co. Ltd. vs. Ganesh Property reported in AIR 1998 SC 3085 . vs. M/s. Anand Kumar Deepak Kumar and Anr. reported in AIR 2000 SC 1287 and M/s. Raptakos Brett & Co. Ltd. vs. Ganesh Property reported in AIR 1998 SC 3085 . Since licence stood revoked for non-renewal and subsequently same was cancelled by the authority, public distribution system is going to be hampered and, therefore, the question of declaration of vacancy arose for smooth functioning of the public distribution system of the area. With regards to authorisation, the said learned advocate has submitted that as per Section 18 and Section 19 of the Partnership Act every partner is authorised to act on behalf of the firm because a partner is agent of the firm for the purpose of the business of the firm and the act of partner which is done to carry on business of the kind carried on by the firm binds the firm. He has submitted that the dispute is a long pending one and there is no possibility for the early settlement of the dispute. Moreover, the licence stood revoked on and from 31.01.2010 and subsequently it was cancelled by the State authority. He has referred to Annexure “A/7”, “A/8” at page 37 and 39 of the recall petition and submitted that the authority concerned heard all the partners who were divided into two groups, one having 85% share want the temporary closure of the firm’s business and the other having 15% share want continuation of the business of the firm. He has submitted that since licence of M/s. Nemai Enterprise was not renewed and validity period expired on 31.01.2010 the tagging and retagging of the dealers of M/s. Nemai Enterprise have been made with another distributor and this arrangement does not render any kind of benefit to the firm. Moreover, writ petition has become in fructuous due to expiry of the validity of licence and, therefore, interim restraint order in the matter of declaration of vacancy is nothing but an abuse of process of Court. He has referred to decision of Shipping Corporation of India Ltd. vs. Machado Brothers and Ors. reported in (2004)11 SCC 168 . The said learned advocate has further submitted that for the benefit of the firm the order of declaration of vacancy has been passed by Hon’ble Division Bench keeping in view of the smooth functioning of the public distribution system in the area. reported in (2004)11 SCC 168 . The said learned advocate has further submitted that for the benefit of the firm the order of declaration of vacancy has been passed by Hon’ble Division Bench keeping in view of the smooth functioning of the public distribution system in the area. Moreover, the retagging of the dealers of the M/s. Nemai Enterprise to other distributorship is not at all beneficial to the firm or to the dealers as the dealers have to go to the distributorship of other area for collection/procurement of food grains and, therefore, Hon’ble Division Bench is justified in modifying the interim restraint order and passing order for declaration of vacancy. He has further submitted that even if the order of Division Bench appears to be erroneous to the applicant, the same cannot be recalled inasmuch as the petition filed by the applicant Dipak Kumar Modak is neither an appeal nor a review. Learned advocate has finally submitted that the petition praying for recall of the judgment dated 18.05.2012 is to be dismissed. We have perused the petition for recall, affidavit-in-opposition, affidavit-in reply and gone through the materials on record. We have also heard the rival submissions and carefully considered the same. Admittedly, a partnership firm in the name and style “M/s. Nemai Enterprise” was constituted on 29.08.2005 consisting of following four partners namely (1) applicant/Dipak Kumar Modak, (2) Tamal Kundu, (3) Chandra China and (4) Chinmay Kuiry for carrying out business of food grains as distributors. The Government authority i.e. Director of D.D.P.S. (F & S) Government of West Bengal issued a MR Distributorship licence in the name of the firm M/s. Nemai Enterprise on 19.03.2007. One Jaydev Kumar Sen filed a writ petition challenging the appointment of M/s. Nemai Enterprise. The said Jaydev Kumar Sen participated in the process of appointment and became unsuccessful and thereafter challenged the appointment in M/s. Nemai Enterprise. During the pendency of the writ petition the validity period of licence of M/s. Nemai Enterprise expired on 31.01.2010 and the licence stood revoked due to nonrenewal. The said Jaydev Kumar Sen participated in the process of appointment and became unsuccessful and thereafter challenged the appointment in M/s. Nemai Enterprise. During the pendency of the writ petition the validity period of licence of M/s. Nemai Enterprise expired on 31.01.2010 and the licence stood revoked due to nonrenewal. From R2 it appears that District Controller (F & S), Purulia vide order dated 02.06.2011 cancelled the distributorship licence of M/s. Nemai Enterprise on the following grounds :- (1) on the ground that the validity of MR distributorship licence of M/s. Nemai Enterprise expired on 31.01.2010; (2) the said distributor failed to submit original copies of licence along with renewal application; (3) that in spite of providing sufficient opportunity for explaining the failure in doing, they failed to come up with acceptable reply thereof, following which the area was tagged with M/s. PD Jhunjhunwala, MR distributor at Purulia; (4) that there is a clear violation of condition no.12 of distributorship licence issued under West Bengal Public Distribution System (M & C), 2003. Due to expiry of the validity period and cancellation of licence the writ petition stood in fructuous. Apprehending the declaration of vacancy a petition was filed by Jaydev Kumar Sen for interim restraint order. Hon’ble Single Judge passed an interim order restraining the respondent/Government authority from declaring the vacancy till the disposal of the writ petition. As against the interim restraint order M/s. Nemai Enterprise represented by the partner Tamal Kundu preferred an appeal. Hon’ble Division Bench of this Court in its judgement and order dated 18.05.2012 observed that since the validity of licence of M/s. Nemai Enterprise expired due to non-renewal, the writ petition has become infructuous. It appears that there was a long pending dispute among the two groups of partners, one group consisting of Tamal Kundu and Chandra China having 85% share wanted temporary closure of the distributorship and another group consisting of Dipak Kumar Modak and Chinmay Kuiry having 15% share wanted continuation of the distributorship business. Therefore, District Controller (F & S), Purulia asked them to appear before him on 31.12.2009 for personal hearing. It has been observed in the said Annexure that the dispute among the partners has given birth to a peculiar situation and, therefore, time was given to settle the dispute amicably. Therefore, District Controller (F & S), Purulia asked them to appear before him on 31.12.2009 for personal hearing. It has been observed in the said Annexure that the dispute among the partners has given birth to a peculiar situation and, therefore, time was given to settle the dispute amicably. From Annexure A/8 dated 07.04.2010 it appears that due to non-renewal of licence of M/s. Nemai Enterprise in spite of sufficient opportunity for explaining the failure on their part, they fail to come up with acceptable reply and due to violation of the condition 12 of the distributorship licence the MR dealers tagged with M/s. Nemai Enterprise were retagged with M/s. PD Jhunjhunwala and M/s. P.M. Agarwala and this arrangement will continue till the dispute among the partners are settled. Since dispute was not settled by the partners and licence was not renewed, the authority concerned cancelled the licence as stated above. In the circumstances, business of distributorship of M/s. Nemai Enterprise cannot survive even if the dispute is settled on future occasion. Therefore, the continuation of the interim order is not at all beneficial to the firm inasmuch as the firm would not be in a position to continue/resume its business even if the dispute of the partners is amicably settled. On the other hand, if the declaration of vacancy is made and, if dispute is amicably settled, the firm can apply for granting of licence and appointment of distributorship business. Therefore, the interim restraint order is not at all beneficial to the firm as the licence of the firm was cancelled by the competent authority. In affidavit-in-reply the authority or legality for cancellation of the licence was questioned by the applicant, Dipak Kumar Modak but no legal proceeding was initiated against the cancellation of licence. It does not appear that the applicant desiring to uphold the interim order and to recall the order of declaration of vacancy is acting for the benefit and interest of the partnership firm. On the other hand, the appellant Tamal Kundu preferring appeal against the interim restraint order is acting for the benefit of the interest of the firm in view of the fact that firm can apply for licence for resumption of partnership business. On the other hand, the appellant Tamal Kundu preferring appeal against the interim restraint order is acting for the benefit of the interest of the firm in view of the fact that firm can apply for licence for resumption of partnership business. Since there is no such renewal of licence of the firm, retagging of the dealers of the firm to another distributorship is no solution for the smooth and effective functioning of the public distribution system. Hence, Division Bench found that in order to cater the need of the consumer of the locality and for the smooth and effective functioning of the public distribution system, the declaration of the vacancy is sine qua non. Therefore, Section 23(i) of the Control Order of 2003 was taken into account by the Division Bench of this Court. With regards to preferring of appeal by the appellant M/s. Nemai Enterprise represented by Tamal Kundu, the barring provision of Section 69 of the Partnership Act has no application. In case of unregistered firm barring provision of Section 69 is applicable in the matter of enforcement of contractual right. The appeal has been preferred not for enforcement of the contractual right but for enforcement of the statutory right or common law right so that public distribution system cannot hamper in any way. In order to cater the need of the consumer of the locality and for the smooth and effective running of public distribution system, the tagging and retagging for indefinite period is no solution. The appointment of distributorship in the local area by way of declaration of vacancy is the only solution for undisturbed functioning of P.D. system as observed by the Division Bench of this Court in its order dated 18.05.2012. The ratio of the decision of Kamal Pushpa Enterprises vs. D.R. Construction Company reported in AIR 2000 SC 2676 as well as in M/s. Haldiram Bhujiawala and Anr. vs. M/s. Anand Kumar Deepak Kumar and Anr. reported in AIR 2000 SC 1287 has sharp application in case of barring provision of 69 of the Partnership Act. With regards to the authorization to prefer appeal, it may be noted that Section 18 of the Partnership Act provides that a partner is an agent of the firm for the purpose of business of the firm. Section 19 of the Act further provides for implied authority of the partner as agent of the firm. With regards to the authorization to prefer appeal, it may be noted that Section 18 of the Partnership Act provides that a partner is an agent of the firm for the purpose of business of the firm. Section 19 of the Act further provides for implied authority of the partner as agent of the firm. Section 22 of the Act provides that in order to bind the firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm’s name or in any other manner expressing or implying an intention to bind the firm. Section 19 provides that authority of a partner to bind the firm conferred by Section 19 is called implied authority. Section 21 of the Act provides that a partner has authority in an emergency to do all such acts for the purpose of protecting the firm from loss as would be done by a person of ordinary prudence, in his own case, acting under similar circumstances and such act binds the firm. Clause 14 of partnership deed dated 29.08.2005 provides that each party shall be jointly and/or severally entitled to commence, prosecute or defend all the suits and proceedings in respect of the same partnership business and to take all appropriate step therein including appointment of advocate, signing of vokalatnama, affidavit, written statement and all other documents of like nature. Having regard to the aforesaid sections of Partnership Act as well as relevant clause of partnership deed and having regard to the fact that the benefit/interest of the firm is of paramount consideration, the partner, Tamal Kundu representing the firm name has taken step for the benefit of the firm by preferring appeal against the interim restraint order of declaration of vacancy. If the retagging all the dealers of the firm is made to another distributorship and the same is continued for indefinite period, the firm cannot continue business of distributorship as licence not only stood revoked but was cancelled by the Government authority. Even after settlement of the dispute, the firm cannot function in view of the cancellation of licence. After the settlement of the dispute, if declaration of vacancy is made, the firm can participate the process of appointment and can also apply for granting of licence in order to conduct the distributorship business of food grains. Even after settlement of the dispute, the firm cannot function in view of the cancellation of licence. After the settlement of the dispute, if declaration of vacancy is made, the firm can participate the process of appointment and can also apply for granting of licence in order to conduct the distributorship business of food grains. Therefore, the partner Tamal Kundu has authority to represent M/s. Nemai Enterprise or has authorization to act as representative of the firm M/s. Nemai Enterprise for the benefit and protection of interest of the firm. It is needless to reiterate that interim restraint order is not at all for the benefit of the firm because the licence of the firm not only stood revoked but was cancelled and the writ petition became in fructuous. The firm cannot perform the distributorship business even if dispute is resolved. Therefore, the declaration of vacancy has given scope for filing application for licence and appointment of distributorship. There is no document to hold that the partner Tamal Kundu wanted dissolution of the partnership business. On the other hand, he wanted scope for distributorship business after declaration of vacancy. In view of the above, we do not find that Tamal Kundu obtained the order of the Division bench by practicing fraud or by advancing any false statement. This Court does not find that Tamal Kundu has no authorization. On the contrary, this Court is of opinion that Tamal Kundu has perfect authorization as he acts for the benefit and protection of the interest of the firm and his act of preferring appeal is not at all detrimental to the interest of the firm. In view of the above, this Court is of the view that Tamal Kundu has authorization as per Section 18 and implied authority as per Section 19 of the Partnership Act as he acts for the benefit of the firm. Therefore, the allegation of procurement of order of the Division Bench by practicing fraud and/or false statement finds no merit. It has been submitted finally by learned advocate for the State as well as for the appellant that the instant petition of recall is not at all maintainable in view of the fact that by virtue of this recall petition, judgment and order of the Division Bench dated 18.05.2012 cannot be recalled. This is because this petition is neither an appeal nor a review. This is because this petition is neither an appeal nor a review. In the foregoing analysis this Court observed that even if the order of Division Bench appears to be erroneous to the applicant, the remedies lies in appeal and not in the recall petition as has been filed by the applicant. If the instant petition of recall is taken as a petition of review, then the petition under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure can be filed on the ground of (1) new materials or (2) on account of some mistake or error apparent on the face of the record or (3) for any other sufficient reason. On the point of discovery of new material or evidence which could not be produced after due diligence at the time of passing order, no materials are forthcoming. In the matter of other ingredient namely mistake or error apparent on the face of the record it is well-settled that mistake or error apparent on the face of the record must be self evident and does not require a process of reasoning. Hon’ble Supreme Court in “Parsion Devi & Ors. vs. Sumitri Devi & Ors. reported in 1997 (8) SCC 715 held that the error which is not self evident and has to be detected by process of reasoning can hardly be apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 of CPC. Hon’ble Court has further held that in the exercise of jurisdiction under Order 47 Rule 1 of CPC it is not permissible for erroneous decision to be “reheard and corrected”. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction. A review petition has limited purpose and cannot be allowed to be “an appeal in disguise”. In the matter of mistake or error apparent on the face of the record this Court does not find any inherent mistake or error apparent on the face of the record. This Court does not find any self-evident error or mistake apparent on the face of the record. In the matter of mistake or error apparent on the face of the record this Court does not find any inherent mistake or error apparent on the face of the record. This Court does not find any self-evident error or mistake apparent on the face of the record. Hon’ble Supreme Court in a decision, Board of Control for Cricket, India vs. Netaji Cricket Club reported in AIR 2005 SC 592 held that Order 47 Rule 1 of the Civil Procedure code provides for filing application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. The word “sufficient reason” in Order 47 Rule 1 of CPC is wide enough to include a misconception of fact of law by a Court or an advocate. No such new materials or evidence is also found to be forthcoming in the present case. It has been submitted by the learned advocate for the applicant Dipak Kumar Modak that the petition for recall has been filed as the order was obtained by practicing fraud upon the Court and also by making false statement of authorization. For argument sake, if the word “sufficient reason” includes fraud or false statement even then the applicant must prove the same without any ambiguity as stated earlier. In the light of the above analysis this Court is of considered view that there is no ingredient of fraud or false statement as alleged by the applicant. Even if a decision or order is erroneous in law or on merit it cannot be accepted that it is an error apparent on the face of the record. An error which has to be established by long 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. Reliance may be placed on the decisions of Hon’ble Supreme Court in Meera Bhanja vs. Nirmala Chowdhury reported in AIR 1995 SC 455 ; Parisionm Devi vs. Sumitri Devi reported in 1997(8) SCC 715 . Reliance may be placed on the decisions of Hon’ble Supreme Court in Meera Bhanja vs. Nirmala Chowdhury reported in AIR 1995 SC 455 ; Parisionm Devi vs. Sumitri Devi reported in 1997(8) SCC 715 . By filing this instant petition, the applicant, in fact, seeks to challenge the decision of the Division Bench and thereby rehearing of the appeal which is not permissible under the provision of law mentioned above. In view of the aforesaid position of law, this Court is of considered view that the instant petition praying for recalling the judgment and order dated 18.05.2012 passed by Division Bench of this Court is not maintainable and is accordingly dismissed without, however, any cost. The interim order of stay passed earlier and extended from time to time stands vacated. Let a photostat certified copy of the judgment and order, if applied for, be given to the parties after compliance of necessary formalities.