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2019 DIGILAW 1681 (HP)

Shivalik Fibres Pvt. Ltd. v. Punjab National Bank

2019-11-08

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT : Jyotsna Rewal Dua, J. Petitioner, a third party is seeking review of following judgment dated 30.08.2019, passed in CWP No.1610 of 2019 titled as R.N. Knitfab (P) Limited vs. The Punjab National Bank:- "Learned counsel representing the respondent, submits that his client has no objection in case the petitioner lifts the machinery within fifteen days from today. His statement is taken on record. Respondent is directed to handover the possession of the entire machinery to the petitioner/Company, being purchased by the petitioner/Company, within two weeks from today. The process of lifting the machinery will commence from 1st October 2019, onwards by the petitioner/Company. Accordingly, the writ petition stands disposed of, so also, pending applications, if any. Parties are left to bear their own costs." 2. Review has been sought on the grounds that:- The plant and machinery sold by the bank to M/s R.N. Knitfab (P) Limited and ordered to be lifted by this Court vide judgment dated 30.09.2019 belongs to review petitioner; the plant and machinery were neither mortgaged by the review petitioner in favour of the bank nor any guarantee with respect to same was furnished by it. Therefore, it has been contended that sale of such plant and machinery by the bank in favour of M/s R.N. Knitfab (P) Limited was illegal. Accordingly, judgment dated 30.09.2019, directing handing over the possession of plant and machinery in favour of M/s R.N. Knitfab (P) Limited is liable to be recalled and reviewed. 3. We have heard Mr. Ajay Sharma, learned Senior Counsel with Mr. Rakesh Chaudhary, learned counsel for the review petitioner, Mr. Satyen Vaidya, learned Senior Counsel with Mr. Arvind Sharma, learned counsel for Punjab National Bank and Mr. Rajesh Kumar Parmar, learned counsel for M/s R.N. Knitfab (P) Limited and gone through the record. 4. Despite sufficient opportunity granted, learned Senior Counsel for the review petitioner, could not point out any document on record to show that the plant and machinery sold by the bank to M/s R.N. Knitfab (P) Limited and directed to be lifted by M/s R.N. Knitfab (P) Limited under the judgment sought to be reviewed, belonged to the review petitioner and that the same was not hypothecated to the bank. Whereas, bank's stand is that:- 4(a) The plant and machinery (scrap & skeleton) sold to M/s R.N. Knitfab (P) Limited was property of M/s Deluxe Enterprises, hypothecated with the bank to secure the credit facilities of M/s Deluxe Enterprises. Credit facilities of M/s Deluxe Enterprises, a sister concern of the review petitioner were collaterally secured by way of an equitable mortgage of land and building situated at Bharatgarh Road, Nalagarh in the name of M/s Shivalik Fibres Pvt. Ltd. (review petitioner) along with stock/plant and machinery of M/s Deluxe Enterprises. 4(b) Irregular accounts of M/s Deluxe Enterprises were classified by the bank as NPA on 08.03.2016 by initiating action under SARFAESI Act. The plant and machinery of M/s Shivalik Fibres Pvt. Ltd. hypothecated with the bank with reserved price of Rs. 200.00 lakhs, was sold in e-auction on 14.11.2018 to M/s R.N. Knitfab (P) Limited for Rs.200.11 lakhs. Entire sale amount was received by the bank and appropriated in the account. The Sale Certificate was accordingly issued by the bank on 07.12.2018. There has been no challenge to the Sale Certificate. In view of the Sale Certificate, the physical possession of plant and machinery (scrap and skeleton) was handed over by the bank to M/s R.N. Knitfab (P) Limited in January, 2019. 4(c) No stock/plant and machinery of M/s Shivalik Fibres Pvt. Ltd. was hypothecated with the bank. Therefore, there was no question of selling any plant and machinery pertaining to M/s Shivalik Fibres Pvt. Ltd. by the bank. 5. In fact, it is the clear stand of the bank that neither M/s Shivalik Fibres Pvt. Ltd. (review petitioner) was having any plant and machinery nor the same was hypothecated with the bank, therefore, there is no question of selling any plant and machinery belonging to M/s Shivalik Fibres Pvt. Ltd. by the bank. M/s Shivalik Fibres Pvt. Ltd. in its audited balance sheet for the year 2013-14 (Annexure R-1) has valued its plant and machinery at Rs.34,918.16 and for the year 2014-15 (Annexure R-2), the value of plant and machinery has been reflected as NIL. Whereas, the audited balance sheet of M/s Deluxe Enterprises for the year 2010 (Annexure R-8) reflects value of its plant and machinery at Rs. 1,60,59,972.61 and for the year 2014 (Annexure R-9) the value of its plant and machinery has been reflected as Rs. 2,07,68,914.02. 6. Whereas, the audited balance sheet of M/s Deluxe Enterprises for the year 2010 (Annexure R-8) reflects value of its plant and machinery at Rs. 1,60,59,972.61 and for the year 2014 (Annexure R-9) the value of its plant and machinery has been reflected as Rs. 2,07,68,914.02. 6. The action of the bank taken under SARFAESI Act, was challenged by four applicants including the review petitioner (as applicant No.4) before the learned Debt Recovery Tribunal, Chandigarh in SA No. 316 of 2016. One of the contentions raised by the review petitioner there was that the possession of its movables was taken over by the bank though they were never hypothecated. Learned Debt Recovery Tribunal after hearing the parties, dismissed the application on 20.04.2019 (Annexure R10) inter alia recording following factual finding:- "So far as the objections raised by the applicants qua valuation are concerned, we cannot ignore that the applicants themselves have earlier said that there was a fire in the unit and further the respondent-Bank has rightly pointed out that the applicant No.4 has filed claim with ROC and in the balance sheet for the year 2014-15, valuation of the tangible assets of applicant No.4, i.e. M/s Shivalik Fibres Pvt. Ltd. which was earlier Rs. 33, 39, 305.11p was reduced to zero and in fact there was no plant and machinery of applicant No.4. Thereafter, the process of fixing the reserve price of sale was rightly carried out by the Bank." The Securitization Application having been dismissed by the learned Debt Recovery Tribunal vide order dated 20.04.2019, the review petitioner filed statutory appeal before the learned Debt Recovery Appellate Tribunal under Section 18 of the SARFAESI Act. Vide order dated 31.05.2015, learned Appellate Tribunal rejected the prayer for waiver of pre-deposit condition and directed the petitioner to deposit 50% of the amount due from it. The review petitioner challenged the order dated 31.05.2019 before this Court in CWP No. 1368 of 2019. The writ petition was also dismissed vide judgment dated 09.07.2019. It has been submitted on behalf of review petitioner that a Special Leave to Appeal has been preferred against the judgment dated 09.07.2019 before the Hon'ble Apex Court, the fate of which is yet to be decided. 7. Grounds for review have been specifically enumerated under Order 47 Rule 1 of the Code of Civil Procedure and are as follows:- "1. 7. Grounds for review have been specifically enumerated under Order 47 Rule 1 of the Code of Civil Procedure and are as follows:- "1. Application for review of judgment.- (1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. 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." Hon'ble Apex Court in titled as Sasi (dead) through legal representatives v. Aravindakshan Nair and others, (2017) 4 SCC 692 observed as under:- "6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied. 9. The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied. 9. The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings." Order 47 Rule 1 CPC provides for review of judgment by any person considering himself aggrieved. It is apt to refer to the judgment rendered by Hon'ble Apex Court in titled as Gopabandhu Biswal vs. Krishna Chandra Mohanty and others, (1998) 4 SCC 447 whereby the Court has observed that, "However leniently one may construe the term "party aggrieved", a person not directly affected cannot be so considered." 8. The review petitioner has not been able to point out any error apparent in the judgment dated 30.09.2019. The review petitioner has also not been able to substantiate its alleged grievances in the review petition. Hon'ble Apex Court in titled as Asharfi Devi (dead) through legal representatives vs. State of Uttar Pradesh and others, (2019) 5 SCC 86 held that: "18. It is settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case." In view of the pleadings and documents on record it cannot be said that the machinery sold by the bank to M/s R.N. Knitfab (P) Limited belonged to the review petitioner. There is no merit in the instant petition, hence, the same is dismissed. Pending applications, if any, shall also stand disposed of.