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2017 DIGILAW 493 (KER)

P. YOOSUF v. CHIEF MANAGER, STATE BANK OF TRAVANCORE

2017-03-10

ANIL K.NARENDRAN, C.T.RAVIKUMAR

body2017
ORDER : 1. These review petitions arise out of the common judgment of this Court dated 12.1.2017 in W.A. Nos. 2467 and 2470 of 2016. The said writ appeals were filed challenging the judgment of the learned Single Judge dated 6.7.2016 in W.P. (C) Nos. 27696 of 2015 and 31084 of 2015. The said writ appeals were dismissed by the judgment dated 12.1.2017, declining interference on the judgment of the learned Single Judge. Now, the petitioner is before this Court in these Review Petitions, contending that there is error apparent on the face of the record, warranting review of the said judgment dated 12.1.2017. 2. On 9.3.2017, when these Review Petitions were listed for admission, it was brought to the notice of this Court by the learned Standing Counsel for the respondent Bank that, during the pendency of these review petitions, the petitioner approached this Court in W.P. (C) No. 5833 of 2017 seeking for an order directing the respondent Bank to fix the total liability and to allow a breathing time for payment, until the disposal of these review petitions, which ended in dismissal by the judgment of the learned Single Judge dated 21.2.2017. Taking note of the said submission, these review petitions are listed today along with the judges' papers in W.P. (C) No. 5833 of 2017. 3. We heard the arguments of learned counsel for the petitioner/appellant and also the learned Standing counsel for the respondent Bank. 4. Going by the pleadings and materials on record, the petitioner availed a cash credit facility from the respondent Bank to a limit of Rs. 20,00,000/- by mortgaging his assets including immovable properties. When there was default on the part of the petitioner in repaying the amount, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity SARFAESI Act) were initiated by respondent Bank. Challenging the said proceedings, the petitioner originally approathis Court in W.P. (C) No. 14898 of 2014. 5. By the judgment dated 16.6.2014 (produced as Ext.P1 in W.P. (C) No. 31084 of 2015), this Court disposed of W.P. (C) No. 14898 of 2014, by which the petitioner was permitted to clear the entire arrears of Rs. 24,16,848/- as on 14.6.2014 together with interest in 16 installments, commencing from 16.7.2014, and the subsequent installments payable on the 16th day of the succeeding months. 24,16,848/- as on 14.6.2014 together with interest in 16 installments, commencing from 16.7.2014, and the subsequent installments payable on the 16th day of the succeeding months. On the installments being paid as indicated above, the petitioner shall be issued with a further statement of subsequent interest from 14.6.2014; which he shall settle as the 16th installment. In Ext.P1 judgment, this Court has made it clear that, two consecutive defaults committed by the petitioner would entitle the respondent Bank to revive the recovery proceedings. Any application made for permission to sell the mortgaged property, shall not entitle the petitioner to default the aforesaid installments. This Court has also made it clear that, in the context of two consecutive defaults, the proceedings kept in abeyance by this Court would revive from the stage at which it has been interdicted by this Court by Ext.P1 judgment. 6. In the absence of any challenge by either side, Ext.P1 judgment in W.P. (C) No. 14898 of 2014 has attained finality. The pleadings and materials on record would show that, the petitioner committed two consecutive defaults by not remitting the 1st and 2nd installments, which fell due on 16.7.2014 and 16.8.2014 respectively. After committing two consecutive defaults, the petitioner remitted a total sum of Rs. 7,50,000/- vide Ext.P4 receipts produced in W.P. (C) No. 27696 of 2015 (Rs. 5,00,000/- on 23.8.2014; Rs. 1,00,000/- on 10.11.2014 and Rs. 1,50,000/- on 22.12.2014). Thereafter, a further remittance of Rs. 5,00,000/- was made by the petitioner only after the interim order granted by this Court dated 16.9.2015 in W.P. (C) No. 27696 of 2015. 7. On 11.9.2015, the petitioner approached this Court in W.P. (C) No. 27696 of 2015 seeking a writ of certiorari to quash the proceedings initiated by the respondent Bank, vide Ext.P1 sale notice dated 18.5.2015, in view of his default in remitting the two consecutive installments in terms of the judgment of this Court in W.P. (C) No. 14898 of 2014. During the pendency of that writ petition, the petitioner moved a representation dated 8.10.2015 before the respondent Bank for One Time Settlement (for brevity OTS). After making such request, the petitioner approached this Court in W.P. (C) No. 31084 of 2015 seeking a writ of mandamus commanding the respondent Bank to consider the said request made in Ext.P6 representation dated 8.10.2015. 8. After making such request, the petitioner approached this Court in W.P. (C) No. 31084 of 2015 seeking a writ of mandamus commanding the respondent Bank to consider the said request made in Ext.P6 representation dated 8.10.2015. 8. The learned Single Judge, taking into consideration the facts and circumstances of the case dismissed both the writ petitions by the judgment dated 6.9.2016, holding that, in view of the sufficient indulgence already shown by this Court in Ext.P1 judgment, the petitioner is not entitled for any further relief. While dismissing the writ petitions, the learned Single Judge has also taken note of the submission made by the learned Standing Counsel for the respondent Bank that, the total amount outstanding as on that date comes to Rs. 8,50,000/- and that, there is no scheme for OTS, as far as the respondent Bank is concerned, and the petitioner is under obligation to pay the entire amount. 9. The above judgment of the learned Single Judge was under challenge in W.A. Nos. 2467 of 2016 and 2470 of 2016 filed by the petitioner/appellant. During the course of arguments, learned counsel for the petitioner submitted that, the petitioner/appellant is not in a position to clear the entire amount outstanding in lump sum and as such he should be given some breathing time to clear the dues in installments. Further, the respondent Bank may be directed to consider the request in Ext.P5 representation for closure of the account under OTS. The said submissions were opposed by the learned Standing Counsel for the respondent Bank, pointing out that, at present, there is no OTS facility in respect of the cash credit facility availed by the petitioner/appellant and that, in spite of the indulgence shown by this Court in Ext.P1 judgment, the appellant is not choosing to clear the amount outstanding. 10. After considering the rival contentions, this Court by the judgment dated 12.1.2017 dismissed both the writ appeals declining interference with the judgment of the learned Single Judge. Para.11 of the judgment reads thus: "11. In Ext.P1 judgment, this Court has shown indulgence to the appellant by permitting him to remit the amounts outstanding in 16 installments. Though the appellant made certain payments after Ext.P1 judgment, he has not complied with the conditions stipulated therein. Para.11 of the judgment reads thus: "11. In Ext.P1 judgment, this Court has shown indulgence to the appellant by permitting him to remit the amounts outstanding in 16 installments. Though the appellant made certain payments after Ext.P1 judgment, he has not complied with the conditions stipulated therein. In view of the default committed by the appellant, the recovery proceedings initiated against him revived from the stage at which it has been interdicted by this Court in Ext.P1 judgment. Thereafter, the appellant moved two writ petitions before this Court, one against the sale notice issued by the respondent Bank and another claiming the benefit of OTS Scheme. The appellant having failed to comply with the conditions stipulated in Ext.P1 judgment of this Court, is not entitled for any further indulgence from this Court and in such circumstances the learned single Judge has rightly dismissed the writ petitions by the impugned judgment." 11. On 31.1.2017, the petitioner filed these review petitions before this Court, seeking review of the judgment of this Court dated 12.1.2017 in W.A. Nos. 2467 and 2470 of 2016, contending that, there is error apparent on the face of the record, warranting interference under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. On 6.2.2017, when these review petitions were listed before this Court for admission, the learned counsel for the petitioner sought adjournment and accordingly, the matter was adjourned after a week. During the pendency of these review petitions, the petitioner filed W.P. (C) No. 5833 of 2017 seeking an order directing the respondent Bank to fix the total liability, i.e. the balance amount due and to allow a breathing time for payment, until disposal of these review petitions. From the Judges' papers in W.P. (C) No. 5833 of 2017 it is seen that the said writ petition ended in dismissal by the judgment of the learned Single Judge dated 21.2.2017. The conduct of the petitioner in filing W.P. (C) No. 5833 of 2017 seeking the relief referred to above, after getting these review petitions adjourned, has to be deprecated in the strongest terms and we do so. 12. Now we shall deal with the grounds raised in these review petitions. 13. The conduct of the petitioner in filing W.P. (C) No. 5833 of 2017 seeking the relief referred to above, after getting these review petitions adjourned, has to be deprecated in the strongest terms and we do so. 12. Now we shall deal with the grounds raised in these review petitions. 13. In Parsion Devi vs. Sumitri Devi, (1997) 8 SCC 715 the Apex Court, in the context of the power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (for brevity the Code) held that, a judgment may be open to review inter-alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order XLVII Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be reheard and corrected. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise. Later, in Lily Thomas vs. Union of India, (2006) 3 SCC 224 the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 14. In Anantha Reddy N. vs. Anshu Kathuria, (2013) 15 SCC 534 the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 15. In order to seek review of the judgment of this Court dated 12.1.2007 in W.A. Nos. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 15. In order to seek review of the judgment of this Court dated 12.1.2007 in W.A. Nos. 2467 and 2470 of 2016, the petitioner would mainly contend that, the stand taken by the respondent Bank before this Court was without looking into the guidelines and observations by the Apex Court in the case of the Central Bank of India and that, there occurred error in calculating the balance amount, which has to be rectified by the Bank. The petitioner would also submit that, he is prepared to pay back an amount of Rs. 13,00,000/- to the respondent Bank towards final settlement. However, such proposal could not be placed before this Court at the time when arguments were heard in the writ appeals. Since the petitioner is now prepared for an amicable settlement, the judgment may be reviewed and the matter may be referred to Adalat. The petitioner would contend further that, he is legally entitled to file an application under Section 17 of SARFAESI Act before the Debts Recovery Tribunal, for which permission has to be granted. 16. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of these grounds fall within the ambit and scope of Order XLVII Rule 1 of the Code. Since review jurisdiction is not an appellate jurisdiction in disguise and it does not permit rehearing of the matter on merits, in the absence of any mistake or error apparent on the face of the record pointed out in the judgment of this Court dated 12.1.2017, the petitioner is not legally entitled to seek a review of the said judgment, under Order XLVII Rule 1 of the Code. 17. We also notice that, vide Ext.P1 judgment dated 16.6.2014 in W.P. (C) No. 31084 of 2015, the petitioner was permitted to clear the entire arrears as on 14.6.2014 together with interest in 16 installments, commencing from 16.7.2014, and the subsequent installments payable on the 16th day of the succeeding months. 17. We also notice that, vide Ext.P1 judgment dated 16.6.2014 in W.P. (C) No. 31084 of 2015, the petitioner was permitted to clear the entire arrears as on 14.6.2014 together with interest in 16 installments, commencing from 16.7.2014, and the subsequent installments payable on the 16th day of the succeeding months. In the said judgment, this Court has made it clear that, in the context of two consecutive defaults, the proceedings kept in abeyance would revive from the stage at which it has been interdicted by this Court. In the absence of any challenge by either side, the said judgment has attained finality. Admittedly, the petitioner committed two consecutive defaults by not remitting the 1st and 2nd installments, which fell due on 16.7.2014 and 16.8.2014 respectively. 18. In United Bank of India vs. Satyawati Tondon, (2010) 8 SCC 110 the Apex Court held that, the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. The High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. While dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the Legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant Statute. 19. In Sundaram BNP Paribas Home Finance Ltd. vs. Nisha, 2016 (1) KHC 167 a Division Bench of this Court held that, the High Court, in exercise of the jurisdiction under Article 226 of the Constitution of India, should not stay the proceedings under the SARFAESI Act and ordinarily the petitioner should be asked to avail statutory remedy provided under Section 17 of the said Act. After referring to the judgment of the Apex Court in Satyawati Tondon's case (supra) the Division Bench held that, the judgment of the learned Single Judge in granting ten installments to pay the entire outstanding amount along with interest accrued with regular installments, giving liberty to the Bank to proceed further from the stage at which it stands at the relevant date, in the event of any single default committed by the petitioner, cannot be said to be an order by which the proceedings of the Bank were either stayed or interfered with. Paras 6 and 7 of the said judgment read thus: "6. There cannot be any dispute to the proposition laid down by the Apex Court that the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India should not stay the proceedings under the SARFAESI Act and ordinarily the petitioner should be asked to avail statutory remedy provided under Section 17 of the SARFAESI Act. In Satyawati Tondon (supra), the High Court entertained the writ petition and stayed the further proceedings under Section 13(4) of the SARFAESI Act. Present is the case where, although possession notice was sought to be quashed in the prayer made, at the time of hearing, the only prayer pressed was that the petitioner may be permitted to clear the outstanding amount due to the bank in easy instalments. The only indulgence asked for was to grant her some time to clear the outstanding amount along with interest accrued together with regular instalments. The learned Single Judge exercised his discretion in granting ten instalments to pay the entire outstanding amount along with interest accrued with regular instalments. The learned Single Judge did not stay the proceedings and, by the 2nd direction, gave liberty to the bank to proceed further from the stage at which it stands at the relevant date, in the event of any single default committed by the petitioner. We are of the view that the interest of the bank was protected by the judgment passed by the learned Single Judge and it cannot be said to be an order by which the proceedings of the bank were either stayed or interfered with. 7. The next judgment relied upon by the learned counsel for the appellant is Mardia Chemicals, (2004) 4 SCC 311 . 7. The next judgment relied upon by the learned counsel for the appellant is Mardia Chemicals, (2004) 4 SCC 311 . It was a case where the Apex Court had occasion to consider the provisions of the SARFAESI Act and the Apex Court held that the conditions laid down in Section 17(2) of the SARFAESI Act for making deposit for filing an application are unreasonable and arbitrary. It is contended by the learned counsel that in view of the condition of deposit having been held to be arbitrary and unreasonable, it is open for the petitioner to file an application under Section 17 for redressal of her grievance and this was not a case where the Court should have entertained a writ petition. There is no doubt regarding the proposition laid down by the Apex Court in Mardia Chemicals (supra). Petitioner, of course, had a statutory remedy under Section 17 to approach the Debt Recovery Tribunal to challenge the proceedings under the SARFAESI Act. But, as noted above, petitioner in the writ petition having accepted the entire liability and the learned Single Judge exercised his discretion in granting a breathing time to the petitioner to clear the outstanding, we do not think that the learned Single Judge has committed any error in passing the judgment, as noted above." 20. In the instant case, vide Ext.P1 judgment dated 16.6.2014 in W.P. (C) No. 31084 of 2015, the petitioner was granted a reasonable opportunity to clear the entire arrears as on 14.6.2014 together with interest in 16 installments, commencing from 16.7.2014. However, he committed two consecutive defaults by not remitting the 1st and 2nd installments, which fell due on 16.7.2014 and 16.8.2014 respectively. The petitioner, having failed to comply with the conditions stipulated in Ext.P1 judgment dated 16.6.2014 in W.P. (C) No. 31084 of 2015, is not entitled for any further indulgence from this Court. The petitioner cannot seek, as a matter of course, breathing time for repayment at each and every stage of the recovery proceedings initiated against him under the provisions of the SARFAESI Act. 21. For the reasons stated hereinbefore, these review petitions fail and they are accordingly dismissed. No order as to costs. 22. The learned counsel for the petitioner would point out that, during the pendency of these review petitions, the petitioner has remitted an amount of Rs. 21. For the reasons stated hereinbefore, these review petitions fail and they are accordingly dismissed. No order as to costs. 22. The learned counsel for the petitioner would point out that, during the pendency of these review petitions, the petitioner has remitted an amount of Rs. 17,00,000/- in view of the coercive steps initiated against him based on a notice dated 17.12.2017 issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Palakkad (which was under challenge in W.P. (C) No. 5833 of 2017), by which the petitioner was required to remit a sum of Rs. 20,00,000/- by 18.2.2017, towards the amount outstanding. 23. The learned counsel for the petitioner would submit that, the petitioner is prepared to remit the balance amount within a reasonable time, and the respondent Bank may be directed to intimate the said amount to the petitioner. 24. The learned Standing Counsel for the respondent Bank would submit that, after the remittance of Rs. 17,00,000/- made by the petitioner, a balance amount of approximately Rs. 3,00,000/- is still due and the Bank shall intimate the petitioner the balance amount due, within one week from this date. Based on the submission made by both the sides, the respondent Bank is directed to intimate the petitioner the balance amount due, within one week from this date. On receipt of such intimation the petitioner shall clear the entire dues within a period of two weeks thereafter. It is made clear that, if the petitioner fails to remit the balance amount within the time limit stipulated above, it would be open to the respondent Bank to proceed with the coercive steps in order to recover the said amount.