E. Vivekraj v. Kshema Finance Corporation, Represented by its Managing Partner B. Shyamsunder
2017-09-08
B.VEERAPPA, JAYANT PATEL
body2017
DigiLaw.ai
JUDGMENT : B. Veerappa J. 1. The present review petition is filed against the judgment and decree dated 31.03.2016 made in RFA No.198/2016 2. The respondent herein filed suit in O.S. No. 7143/2005 against the review petitioners for recovery of Rs. 10,30,878/- with future interest at the rate of 6% per annum on the principal amount from the date of the suit till realization, raising various contentions. The same was disputed by the defendants/present review petitioners and denied the plaint averments in toto and contended that the suit was not maintainable. 3. The Trial Court, considering the entire material on record, recorded a finding that the plaintiff has proved advancement of loan of Rs. 6 lakhs to the defendants, execution of on demand pro-note by the defendants on 27.12.2001 and defendants failed to repay the said loan amount and decreed the suit. Aggrieved by the said judgment and decree, review petitioners filed RFA No.198/2016 before this Court which came to be dismissed by the judgment and decree dated 31st March 2016, holding that the transaction between the plaintiff and defendants is not in dispute, the defendants have executed on demand pro note and have signed Form No.6 and have not repaid the loan amount. It was held that Ex.P.1/cash receipt is not denied by the defendants and there is no specific pleading in the written statement; Ex.P.4 is the acknowledge of debt dated 19.09.2002 in which defendants 1 to 3 have acknowledged the debt; Ex.P.5 is the letter written by the defendant No.1 to the plaintiff on 10.08.2003 requesting to reduce the rate of interest and also note that he has executed the undertaking letter signed by him and his parents. The undertaking letter dated 10.08.2003 for paying the penal interest is marked as Ex.P.10. D.W.1 admitted his signatures on the said document. Ex.P.11 is the commitment letter executed by the defendants in favour of plaintiff on 23.11.2003. Ex.P.12 is the certified copy of the cheque for a sum of Rs. 8,51,500/- issued by defendant No.1 in favour of the plaintiff which was dishonoured as per Ex.P.13 and plaintiff has initiated criminal action as contemplated under Section 138 of the Negotiable Instruments Act. All these documents came into existence at an undisputed point of time which clearly establish that the suit of the plaintiff is well within time and defendants have borrowed a loan of Rs.
All these documents came into existence at an undisputed point of time which clearly establish that the suit of the plaintiff is well within time and defendants have borrowed a loan of Rs. 6 lakhs from the plaintiff. This Court, further recorded a finding that the defendants have not denied the transaction, receipt of loan as per Ex.D.1 and writing of letter requesting the plaintiff to reduce the rate of interest and accordingly dismissed the appeal. Hence the present review petition is filed. 4. We have heard the learned counsel for the Review Petitioners. 5. Sri K.B.S. Manian, learned counsel for the Review Petitioners mainly contended that the judgment and decree under review was passed by this Court at the time of admission, without issuing notice to the respondents. Thus statutory right of appeal to the review petitioners was denied and further contended that the judgment under review mechanically endorsing the findings of the Trial Court without reference to the ground of challenge raised in the memorandum of appeal. He further contended that in view of the dictum of the Hon'ble Supreme Court in the case of Union of India vs. K.V. Lakshman and others reported in 2016 SCC Online SC 641 decided on 29.06.2016, the appeal cannot be dismissed at the stage of admission. Therefore, he sought to review the impugned judgment and decree dated 31.03.2016 passed by this Court. 6. We have given our anxious consideration to the arguments advanced by the learned counsel for the Review Petitioners and perused the material placed on record. 7. It is not in dispute that the present Review Petitioners who are the defendants in the suit have borrowed a sum of Rs. 6 lakhs from the plaintiff and executed on demand pro-note dated 27.12.2001. It is also not in dispute that Ex.P.1/cash receipt is not denied by the defendants and there is no pleading in the written statement. Ex.P.4 is the acknowledgment of debt dated 19.02.2002 in which defendants 1 to 3 have acknowledged the debt, Ex.P.5 is the letter written by defendant No.1 to the plaintiff on 18.08.2003 requesting to reduce the rate of interest and also not that he has executed undertaking letter signed by him and his parents. Ex.P.11 is the commitment letter executed by the defendants in favour of the plaintiff on 27.11.2003. Ex.P.12 is the certified copy of the cheque for a sum of Rs.
Ex.P.11 is the commitment letter executed by the defendants in favour of the plaintiff on 27.11.2003. Ex.P.12 is the certified copy of the cheque for a sum of Rs. 8,51,500/- issued by the defendant No.1 in favour of the plaintiff which was dishonoured as per Ex.P.13 and plaintiff has initiated proceedings under Section 138 of the Negotiable Instruments Act. Considering the findings recorded by the Trial Court, exhibits relied upon, this Court dismissed the Appeal on re-appreciating the judgment and decree of the Trial Court. Therefore, there is no error apparent on the face of the record to review the impugned judgment and decree under review. 8. It is well settled that the first and foremost requirement of entertaining a Review Petition is that the order, review of which is sought suffers from error apparent on the face of the record and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and has to be detected by the process of reasoning can hardly be said to be error apparent on the face of the record, justifying the Court to exercise the power of review. Re-agitating the points already decided is impermissible in review proceedings. 9. The Hon'ble Supreme Court, while considering the provisions of Order XLVII Rule 1 of Code of Civil Procedure, in the case of S. Bagirathi Ammal vs. Palani Roman Catholic Mission reported in 2009(10) SCC 464 held that, "an error contemplated under Order XLVII Rule 1 of Code of Civil Procedure for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one, which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie". 10.
When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie". 10. The contention of the learned counsel for the Review Petitioners that since this Court while passing the impugned judgment and decree dismissed the Regular First Appeal at the stage of admission is not permissible, in view of the dictum of the Hon'ble Supreme Court in the case of K.V. Lakshman (supra) cannot be accepted, in view of the Explanation provided under Rule 2 of Order XLVII of Code of Civil Procedure, which reads thus: "Explanation: The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment". 11. Admittedly, the judgment under review is passed on 31st March 2016 and the judgment relied upon by the learned counsel for the Review Petitioners is dated 29.06.2016, i.e., subsequent to the impugned judgment under review. Therefore, it is not a ground to review the judgment in view of the explanation to Rule 2 of Order XLVII of Code of Civil Procedure. 12. As we have noticed earlier, this Court, on consideration of the material on record, has dismissed the Regular First Appeal confirming the judgment and decree passed by the Trial Court. We do not find any error apparent on the face of the record requiring to review the said judgment and decree. Accordingly, Review Petition is dismissed. 13. In view of the dismissal of the Review Petition, I.A. No.1/2016 for stay, does not survive for consideration and is also dismissed.