Dismissed

Ms Satyam Shivam Sundaram through Its Proprietor Raju Prasad v. the State of Jharkhand through the Secretary Rural Works Department

Jharkhand HC5 Feb 2021C.Rev./45/2020

Case brief

AI extract

What is this about?

This High Court of Jharkhand dismissed a review petition challenging an order that denied relief for refund of earnest money and security deposit. The court held that the petitioner could not use review to reargue merits or correct errors resulting from failure to raise objections earlier in the proceedings.

What did the court decide?

The review petition is dismissed; the petitioner is not entitled to exercise the prerogative of review.

Ms Satyam Shivam Sundaram through Its… — Contract and Commercial Disputes | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Review No. 45 of 2020

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M/s. Satyam Shivam Sundaram, through its Proprietor Raju Prasad

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..... … Petitioner

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Versus

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The State of Jharkhand through the Secretary, Rural Works Department, Government of Jharkhand, Ranchi

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Chief Engineer, Jharkhand State Rural Roads Development Authority, Ranchi

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Principal Secretary, Rural Works Department, Ranchi

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The Executive Engineer, Rural Works Division, Pakur Division, Pakur

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…. …. Opposite Parties CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Sumeet Gadodia, Advocate For the Opp. Party nos. 1, 3 & 4 : Mr. Anish Mishra, A.C. to G.A.-I For the Opp. Party no. 2 :-Mr. Akashdeep, Advocate

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Order No. 03 Dated: 05.02.2021

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The present writ petition is taken up today through Video conferencing.

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2. The present Civil Review petition has been filed for reviewing the judgment and order dated 21.05.2020 passed by this Court in W.P(C) No. 6826 of 2018 to the extent that this Court declined to allow the prayer of the petitioner with respect to refund the earnest money amounting to Rs.22,33,366/- as well as security deposit amounting to Rs.21,90,000/with interest @15% per annum from the due date i.e. 5^th December, 2014 till the date of actual refund.

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3. The petitioner had filed writ petition being W.P(C) No. 6826 of 2018 seeking direction upon the respondents to make payment of outstanding dues of Rs.7,45,830/- pending since 05.12.2014, earnest money of Rs.22,33,366/- deposited in the bank and security amount of Rs.21,90,000/- with 15% interest from the due date i.e 5^th December, 2014 till actual date of payment. This Court vide order dated 21.05.2020 allowed the writ petition in part by directing the respondents to make payment of Rs. 7,44,130/- against the final bill of the petitioner along with interest on the delayed payment @ 6% per annum with effect from the date of preparation of the final bill till the actual date of payment. So far as claim of payment of earnest money and the security deposit are concerned, this Court declined to entertain the said claim under writ jurisdiction. The relevant part of the order dated 21.05.2020 is quoted herein below:-

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“11. Having considered the facts available on record, I am of the view that the respondent authorities have arbitrarily retained the bill amount of Rs.7,44,130/- without any justified

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reason and as such they are bound to release the same in favour of the petitioner. If the respondents had executed the agreement with the petitioner for a specific amount, it was their duty to have the sufficient fund for the purpose of payment. Thus, the respondents are also bound to make payment of interest for delayed payment @ 6% per annum from the date the final bill was prepared till the actual date of payment. So far as the dispute with respect to earnest money and the security deposit are concerned, this Court is not inclined to interfere in the writ jurisdiction.

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Accordingly, the respondent authorities are directed to make payment of Rs.7,44,130/- against the final bill of the petitioner along with interest @ 6% per annum with effect from the date of preparation of the final bill within three months from the date of receipt/production of a copy of this order.

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It is, however, clarified that no determination with regard to factual dispute between the parties has been made and the petitioner is at liberty to take appropriate recourse as provided under the law for redressal of its subsisting grievance in terms with the agreement.”

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4. Mr. Sumeet Gadodia, learned counsel for the petitioner, submits that the petitioner was awarded the work for construction of road from Pakur Dhuliyan, Main Road, Chanchki to Nawada via Pirthvi Nagar, Chand Nagar, Gandhaipur School for a distance of 4.850 Kms. for the financial year of 2012-13 and it completed the said work within the stipulated time i.e. by 5^th December, 2014 The work completion certificate was also issued to the petitioner. It is further submitted that the petitioner was maintaining the road in question during the defect liability period of three years i.e. till 4^th December, 2017, however the respondents in their counter affidavit alleged for the first time that the petitioner had not done the maintenance work of the road in question and in support of the said averment, they annexed letter no. 980/ Pakur dated 27.07.2017 issued by the respondent no. 4 wherein it was stated that though the petitioner in its application dated 13.07.2017 claimed that the said road was repaired, however it was found in the inspection carried out by the Assistant Engineer and Junior Engineer on 20.07.2017 that there were big potholes accumulated with water and blacktops on some places were also partially damaged. The said letter was never communicated to the petitioner and for the first time it was annexed with the counter affidavit. The petitioner inadvertently did not disclose the said fact before this Court at the time of hearing of the writ petition due to which this Court declined to grant relief to the petitioner in respect of payment of its earnest money and security amount. Moreover, it would be evident from the said letter itself that the petitioner was regularly maintaining the road

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in question and there were certain minor repair works to be undertaken by the petitioner. It is also submitted that this Court while declining the relief to refund the earnest money and security amount to the petitioner, failed to take into consideration the cost allegedly incurred by the respondents for filling up certain potholes as well as in repairing partially damaged blacktops as only the amount to the said extent could have been retained by the respondents and not the entire amount of earnest money and security amount.

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5. Per contra, the learned counsel appearing on behalf of the opposite parties submit that alleged amount was to be released in favour of the petitioner only after defect liability period of three years from the date of completion of the construction work but the said earnest money as well as the security money have not been released in favour of the petitioner due to the reason that the petitioner did not comply the terms and conditions of the maintenance of the constructed road during the period of defect liability of 3 years. It is further submitted that the letter dated 27.07.2017 issued by the respondent no. 4 was duly served to the petitioner physically which is evident from the content of the said letter itself. Therefore, now at this stage, the petitioner cannot be allowed to raise the point that it never received the said letter.

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6. Under the aforesaid factual context, it would be relevant to go through the judgments of the Hon’ble Supreme Court rendered with respect to the scope of entertaining a review petition.

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7. In the case of Aribam Tuleshwar Sharma Vs. Aibam Pishak Sharma & Ors. , reported in (1979) 4 SCC 389 , the Hon’ble Supreme Court has held as under:

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“3. ……… It is true as observed by this Court in Shivdeo Singh v. State of Punjab there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with

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appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.”

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(emphasis supplied)

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8. In the case of Parsion Devi and others Vs. Sumitri Devi and others , reported in (1997) 8 SCC 715 , the Hon’ble Supreme Court has held as under:

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“9. Under Order 47 Rule 1 CPC 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 of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”.

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9. The Hon’ble Supreme Court in a judgment rendered in the case of

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Haryana State Industrial Development Corpn. Ltd. Vs. Mawasi and others , reported in (2012) 7 SCC 200 , has held as under:

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“ 27. The aforesaid provisions have been interpreted in several cases. We shall notice some of them. In S. Nagaraj v. State of Karnataka, this Court referred to the judgments in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and Rajunder Narain Rae v. Bijai Govind Sing and observed:

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“19. Review literally and even judicially means reexamination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Sing that an order made by the Court was final and could not be altered: (Rajunder Narain Rae case, MIA p. 216)

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‘… nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in. … The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however,

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gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.’ Basis for exercise of the power was stated in the same decision as under:

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‘It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.’

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Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”

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28. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, the three-Judge Bench referred to the provisions of the Travancore Code of Civil Procedure, which was similar to Order 47 Rule 1 CPC and observed:

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“32. … It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.

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It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason.

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It has been held by the Judicial Committee that the words ‘any other sufficient reason’ must mean ‘a reason sufficient on grounds, at least analogous to those specified in the rule’. (See Chhajju Ram v. Neki.) This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath and was adopted by our Federal Court in Hari Sankar Pal v. Anath Nath Mitter, FC at pp. 110-11. The learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of ‘mistake or error apparent on the face of the record’ or some ground analogous thereto.”

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29. In Thungabhadra Industries Ltd. v. Govt. of A.P., another three-Judge Bench reiterated that the power of review is not analogous to the appellate power and observed:

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“11. … A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions, entertained about it, a clear case of error apparent on the face of the record would be made out.”

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30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, this Court answered in affirmative the question whether the High Court can review an order passed under Article 226 of the Constitution and proceeded to observe:

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“3. … But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.”

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32. In Parsion Devi v. Sumitri Devi, the Court observed: “9. … 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 of review under Order 47 Rule 1 CPC … A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.”

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33. In Lily Thomas v. Union of India, R.P. Sethi, J., who concurred with S. Saghir Ahmad, J., summarised the scope of the power of review in the following words:

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“56. … Such powers can be exercised within the limits of the statute dealing with the exercise of power. The

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review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised.”

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34. In Haridas Das v. Usha Rani Banik, the Court observed:

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“13. … The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing ‘on account of some mistake or error apparent on the face of the records or for any other sufficient reason’. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict.”

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35. In State of W.B. v. Kamal Sengupta, the Court considered the question whether a Tribunal established under the Administrative Tribunals Act, 1985 can review its decision, referred to Section 22(3) of that Act, some of the judicial precedents and observed:

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“21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.

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The term ‘mistake or error apparent’ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not selfevident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.”

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10. It has consistently been held by the Hon’ble Apex Court in the aforesaid judgments that a review petition cannot be allowed to be “an

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appeal in disguise”. The power of review may be exercised on the discovery of new and important matter or evidence which, even after exercise of due diligence, was not within the knowledge of the person seeking review or could not be produced by him at the time when the original order was made. It may only be exercised where some mistake or error apparent on the face of the record is found or on any analogous ground.

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11. In the present case, the petitioner seeks review of the order dated 21.05.2020 passed by this Court in W.P.(C) No. 6826 of 2018 claiming that the letter dated 27.07.2017 issued by the respondent no. 4 was not taken into consideration by this Court while passing the order dated 21.05.2020 as the same was not served to it before filing of the writ petition and for the first time the same was annexed by the respondents with the counter affidavit. Further contention of the petitioner is that it inadvertently could not raise the said point at the time of hearing of the writ petition. I am of the view that the said contention of the petitioner cannot be accepted by this Court at this stage in view of the ratio laid down by the Hon’ble Supreme Court with respect to the scope of review petitions. It is not the case of the petitioner that it did not have the knowledge of the said document in course of hearing of the writ petition. It has rather admitted that it inadvertently could not raise objection regarding the contents of the letter dated 27.07.2017 in course of argument. The petitioner has also failed to disclose any apparent mistake or error on the face of the order dated 21.05.2020 passed by this Court in W.P.(C) no. 6826 of 2018 seeking review of the same. Moreover, the opposite parties have specifically denied the contention of the petitioner stating that the letter dated 27.07.2017 was served to its representative personally. Any failure to take a point at the time of hearing is not a ground to review the earlier order passed by a court. The other grounds taken by the petitioner touching the merit of its claim, cannot be entertained while hearing review petition more so when this Court after taking into consideration of all the points raised by the parties in W.P. (C) No. 6826 of 2018, has declined to pass the order for refund of the earnest money and the security deposit of the petitioner with respect to the work in question treating those as disputed question of facts. However, the petitioner was given liberty to take appropriate recourse as

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provided under the law for redressal of its subsisting grievance in terms with the agreement.

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12. Under the aforesaid facts and circumstance, I do not find sufficient grounds to entertain present review petition so as to review the order dated 21.05.2020 passed by this Court in W.P.(C) No. 6826 of 2018. 13. The present review petition is, accordingly, dismissed.

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(Rajesh Shankar, J.)

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Ritesh/-AFR

Ms Satyam Shivam Sundaram through Its Proprietor Raju Prasad v. the State of Jharkhand through the Secretary Rural Works Department

Case brief

What is this about?

What did the court decide?

Ms Satyam Shivam Sundaram through Its Proprietor Raju Prasad v. the State of Jharkhand through the Secretary Rural Works Department

Case brief

What is this about?

What did the court decide?

What the court decided

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