Saturday 28 August 2021

Whether the party can file a review application on the ground that the court has not taken into consideration his written submission if his counsel has not relied on it?

 But before they filed this Review Petition, the Agarwals filed

an appeal. By the time of the Appeals, the Agarwals had changed

lawyers. They had now engaged M/s Pan India Legal Services LLP. Counsel instructed by Pan India Legal Services LLP in the appeal court sought to contend that I had failed to consider the Agarwals’ written submissions (filed at a much earlier date, on 15th December 2020) in my order of 12th March 2021. The Appeal Court disposed of the appeal by granting the Agarwals liberty to file a review.

9. It is actually correct that in my order of 12th March 2021 I did

not consider the Agarwals’ written submissions. I do not do so

because nobody asked me to. Nobody even told me they had been

filed. Nobody briefed for the Agarwals made any arguments on the written submissions. 

18. More disturbing is the implicit suggestion that Counsel’s

arguments are almost entirely worthless; and, by necessary extension, that Counsel are entirely redundant. If the attorney has filed something on record, Counsel must argue it, no matter how trifling or irrelevant. Further, it is then the job of the Court to engage in some sort of forensic archaeological excavation of these often mountainous records, and go through them document by document and page by page, to ferret out some sort of case in favour of a Review Petitioner, even if counsel have never argued every single line of what is pleaded.








Priyanka Communications (India) Pvt Ltd Vs Tata Capital Financial Services Ltd.

CORAM : G.S.Patel, J.

DATED : 4th August 2021

1. This Review Petition was adjourned yesterday at Mr

Krishnan’s request. He appears for the Review Petitioners (“the

Agarwals”). I have heard him at some length this afternoon and,

briefly, Dr Saraf for the contesting Respondent (“Tata Financial”).

2. In my view, this Review Petition is not only thoroughly

misconceived but is also deliberately mischievous, and quite possibly

vexatious. I believe it is precisely the kind of proceeding that the

Commercial Courts Act 2015 (“the CCA”) deprecates. It has taken

an unconscionable amount of the court’s time. The CCA uses the

expressions “frivolous claim”, “vexatious proceeding” and “wasting

the time of the Court”. This Review Petition is all three; I will return

to this part of the CCA towards the end of this judgment. Apropos

the last of these, the phrasing in the CCA is not “taking the time of

the Court” but “wasting the time of the Court”. The difference is

significant: every litigant is entitled to the Court’s time. After all, the

purpose of a court is to make time for a litigant. But no litigant is

entitled to squander or waste the time of the court. That is as unfair

to a court as it is to other litigants waiting in line. In the Commercial

Division, governed by the provisions of the CCA, wasting the time of

the Court invites an order of costs. I have, therefore, not only

dismissed the Review Petition, but I have done so with costs.

3. The law on the power of review is now far too well-settled to

warrant any larger discussion. There are two authorities that Dr Saraf

cites that seem to me apposite to this case; I will come to those later.

But it is not contentious that the power of substantive review — as

opposed to procedural or “purely procedural” review — is, first, one

that must be conferred by law,1 and, second, the exercise of the power of review is narrowly constrained by the law that confers it. This law

1 See Patel Narshi Thakershi & Ors v Shri Pradyuman Singhi Arjunsinghji,

(1971) 3 SCC 844; Patel Chunibhai Dajibha etc v Narayanrao Khanderao Jambekar

& Anr, AIR 1965 SC 1457; Harbhajan Singh v Karam Singh & Ors, AIR 1966 SC

641; RR Verma & Ors v Union of India & Ors, (1980) 3 SCC 402;

is not new either. In fact, it is very old. In the 1891 decision in Drew v

Willis,2 Lord Esher, M.R., said that no court or authority has the

power to set aside an order properly made, unless it (viz., the power)

is given by statute.

4. In 1914, in Hession v Jones,3 Bankes J held that no court has the

power to review an order deliberately made after argument and to

entertain a fresh argument upon it with a view to ultimately

confirming or reversing it. The decision in Hession — a case about a

contract for sale of eggs — is oddly prescient to the facts of this case,

as the extract that follows shows.

BANKES J. This is an application on behalf of the plaintiff,

the respondent on an appeal to this Court, to restore the

appeal to the list. Such an application may be made either (1.)

to restore a case which has merely been struck out and has

never been heard and decided because the appellant did not

attend; or (2.) to restore a case in which the appellant has

appeared and argued his appeal in the absence of the

respondent and the Court has heard the appeal and come to

a decision. In the first case the application is to restore an

appeal which has not been heard; in the second case the

application is to set aside a decision after a hearing which in

the respondent's view is not satisfactory because he was not

present. This is an application of the second class, to set

aside an order of this Court made by Ridley J. and myself

after hearing. The appellant was present and produced a

copy of the county court judge's notes and was ready to

proceed with his appeal. The respondent was not

represented. The appellant was the defendant in the county

2 (1891) 1 QB 450. Cited in Harbhajan Singh, supra.

3 (1914) 2 KB 421. Also cited with approval in Harbhajan Singh, supra.

court. An action had been brought against him for the price

of certain cases of eggs ordered by him for delivery at a

named station. The plaintiff delivered a larger quantity than

that ordered. The defendant had refused to take delivery on

the grounds (1.) that there was unreasonable delay in

forwarding and (2.) that the eggs were not in proper

condition. When he was sued in the county court he took the

further point under s. 30, sub-s. 2, of the Sale of Goods Act,

1893, that the plaintiff could not succeed because he had

tendered a different quantity from that ordered. The

defendant claimed the right to reject on that ground also.

The point was taken before the county court judge. The

plaintiff contended that the defendant could not rely upon it,

because he had not given it as his reason when he first

rejected the goods. The county court judge decided the

point in favour of the plaintiff. In the opinion of Ridley J.

and myself he was wrong in so deciding. Before deciding

the appeal we considered whether there was any evidence

that the defendant had waived or abandoned or in any

way estopped himself from relying on this defence, and

came to the conclusion that he had not done so.

Accordingly we made an order allowing the appeal; we

set aside the judgment of the county court, and ordered

judgment to be entered for the defendant in that Court.

That order was duly drawn up by the officer of this Court; a

copy of the order was obtained by the solicitor for the

appellant, the defendant below, and he was thereupon in a

position to have the record in the county court altered by

striking out the judgment for the plaintiff and entering

judgment for the defendant. I do not know whether that was

done, but there is no doubt that the order of this Court was

drawn up and perfected before any step was taken to set it

aside. It is clear therefore that this is an application to

review an order deliberately made after argument and to

entertain a fresh argument upon it with a view to

ultimately confirming or reversing it. Has the Court

jurisdiction to do this? I may say at once that if we have I

should not exercise it in the present case, because any

application of this sort must be supported by an affidavit of

merits. I have read the affidavit in this application and can

find nothing which would lead me to alter the opinion I

formed on the hearing of the appeal. But it is necessary to

consider the jurisdiction of the Court. The application is

supported by an affidavit in which the solicitor for the

plaintiff says that by an unfortunate mistake he did not

instruct any one to appear for the respondent on the

appeal. … Our jurisdiction therefore is in part a statutory

jurisdiction regulated by the Rules of the Supreme Court,

1883, and partly an inherent jurisdiction which we

possess as judges of the High Court. The question is

whether either by the rules or by reason of our inherent

jurisdiction we have the power to reinstate this appeal.

Then as to the inherent jurisdiction of the Court. Before the

Judicature Acts the Courts of common law had no

jurisdiction whatever to set aside an order which had been

made. The Court of Chancery did exercise a certain limited

power in this direction. All Courts would have power to

make a necessary correction if the order as drawn up did not

express the intention of the Court; the Court of Chancery,

however, went somewhat further than that, and would in a

proper case recall any decree or order before it was passed

and entered; but after it had been drawn up and perfected no

Court or judge had any power to interfere with it. That is

clear from the judgment of Thesiger L.J. in the case of In re

St. Nazaire Co [(1879) 12 Ch D 88].

(Emphasis added)

5. As we shall presently see, this Review Petition is in the same

class as Hession. It seeks a reinstatement of the original Arbitration

Petition on grounds never argued, never taken, and some never

pleaded; and it does so after the original Arbitration Petition was fully

argued, and then decided by pronouncement in open court. The

order under review was then ‘perfected’, that is to say its transcript

was corrected, signed and uploaded, the very next day or perhaps

shortly after pronouncement.

6. A power of review is conferred on our civil courts by Section

114 and Order 47 of the Code of Civil Procedure, 1908 (“CPC”). The

relevant part of those provisions say:

114. Review.—Subject as aforesaid, any person considering

himself aggrieved—

(a) by a decree or order from which an appeal is

allowed by this Code, but from which no appeal has

been preferred,

(b) by a decree or order from which no appeal is

allowed by this Code, or

(c) by a decision on a reference from a Court of

Small Causes, may apply for a review of judgment to

the Court which passed the decree or made the order,

and the Court may make such order thereon as it

thinks fit.

Order 47


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 of 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


2. [deleted]

3. …

4. Application where rejected.—(1) Where it appear

to the Court that there is not sufficient ground for a review,

it shall reject the application.

(2) Application where granted.—Where the

Court is of opinion that the application for review

should be granted, it shall grant the same:

Provided that—

(a) no such application shall be granted

without previous notice to the opposite party,

to enable him to appear and be heard in

support of the decree or order, a review of

which is applied for; and

(b) no such application shall be granted on

the ground of discovery of new matter or

evidence which the applicant alleges was not

within his knowledge, or could not be adduced

by him when the decree or order was passed or

made, without strict proof of such allegation.

5. …

6. …

7. Order of rejection not appealable. Objections to

order granting application.—(1) An order of the Court

rejecting the application shall not be appealable; but an order

granting an application may be objected to at once by an

appeal from the order granting the application or in an appeal

from the decree or order finally passed or made in the suit.

(2) …

(3) …

8. …

9. …

7. The Agarwals were respondents to the original Section 9

Arbitration Petition. Tata Finance was the Petitioner. I made an order

on 12th March 2021. I held against the Agarwals. I said they had,

prima facie, no defence at all — they were indubitably borrowers from

Tata Finance under finance agreements, and, not having repaid the

loan on the terms of the agreement, were in contractual default. I

directed an asset disclosure and granted an injunction. This is the

order the Agarwals seek to review.

8. But before they filed this Review Petition, the Agarwals filed

an appeal. By the time of the Appeals, the Agarwals had changed

lawyers. They had now engaged M/s Pan India Legal Services LLP.

Counsel instructed by Pan India Legal Services LLP in the appeal

court sought to contend that I had failed to consider the Agarwals’

written submissions (filed at a much earlier date, on 15th December

2020) in my order of 12th March 2021. The Appeal Court disposed

of the appeal by granting the Agarwals liberty to file a review.

9. It is actually correct that in my order of 12th March 2021 I did

not consider the Agarwals’ written submissions. I do not do so

because nobody asked me to. Nobody even told me they had been

filed. Nobody briefed for the Agarwals made any arguments on the

written submissions. Before me, Mr SK Sen appeared for the

Agarwals, not only on that date but on several previous occasions. He

did not once reference these written submissions. Now, apart from

his acuity and legal acumen, Mr Sen has built himself a reputation in

this court for a preternaturally calm doggedness, and for being as

undaunted as he is dauntless. I imagine that had he wanted to show

me the written submissions and found any argument on them, no

human force could have stopped him and I would have had no choice

in the matter. But for whatever reason he did not once refer to them.

10. I dictated the order in open Court. Mr Sen was present

throughout. At no point did he say that I had not dealt with a point he

canvassed, or that I had not taken into account the written

submissions — simply because he never argued the latter. No one for

the Agarwals applied for a clarification or speaking to the minutes in

the days that followed. The very first time that this ground — of the

written submissions not being considered — was raised was by these

new lawyers in appeal.

11. But this is not the frame of the Review Petition at all. Its

grounds for review are, to put it mildly, astonishing.

12. Ground A says that this Court has no jurisdiction because the

dispute between the parties is within the jurisdiction of the Debts

Recovery Tribunal (“DRT”). This was never argued before me.

More importantly, it is no part of the Affidavit in Reply. It is also not

a part of these much-vaunted written submissions. Mr Krishnan

insists this is a question of law that can be taken at any stage. He is

wrong. In this case, it is at the very least a mixed question of fact and

law. His case is that Tata Finance is covered by a Notification dated

5th August 2016 of the Ministry of Finance and hence cannot

arbitrate its disputes. It must follow the special procedure under the

Recovery of Debts Due to Banks and Financial Institutions Act, 1993

(“the DRT Act”). No copy of any such notification of 2016

regarding Tata Finance is annexed. Dr Saraf submits that the correct

notification in question as regards Tata Capital is of 24th February

2020, not 5th August 2016. It is not under DRT Act but is under the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (“the SARFAESI

Act”). Mr Krishnan’s reliance on the decision of the Supreme Court

in Vidya Drolia & Ors v Durga Trading Corporation4 is misplaced:

paragraph 58 says claims covered by the DRT Act are non-arbitrable.

In any case, I do not see how this furnishes a ground of review.

Nobody ever argued it.

13. Ground B is that no leave was obtained under Order II Rule 2

of the Code of Civil Procedure 1908. This is on the basis that the

present Petition was lodged on 24th September 2020 and two days

earlier Tata Capital filed Commercial Summary Suit on 22nd

September 2020. Mr Krishnan insists that the subject matter of the

two actions is the same. Dr Saraf disagrees. He says that the

Summary Suit was on distinct cause of action on a transaction that

did not have an arbitration clause. But I am not going into the merits

of that at all. I cannot. Once again this ground was not argued by Mr

Sen before me. It turns on a question of fact: that the cause of action

in both proceedings is the same. Mr Krishnan insisting that the two

are identical does not make it so. It ought to have been shown. There

is a reference in paragraph 5(a) and 5(b) of the written submissions to

the summary suit. But this only says that the Tata Capital is

approaching multiple forums and it would be impermissible for the

arbitration proceedings and summary suit to be adjudicated

simultaneously. That is not the same as showing that the two causes

of action and underlying transactions are the same. Mr Sen made no

submission based on this. There is also no such averment in the

Affidavit in Reply.

4 (2021) 2 SCC 1.

14. Ground C says that there is no period of repayment in the

sanction letter. I have dealt with this. I rejected it. I said that the

submission amounted to saying that the Agarwals got a gift from Tata

Finance. It is no ground of review and Mr Krishnan does not press it.

15. Ground D is on the question of insufficient stamping. Again,

this was not argued. The ground incorrectly references the decision

of the Supreme Court in Garware Wall Ropes Ltd V Coastal Marine

Construction5 and happily ignores the law thereafter, especially the

decision of the Supreme Court in NN Global Mercantile Pvt Ltd v Indo

Uniqie Flame Ltd & Ors.6 That decision of 11th January 2021. This

Review Petition was filed on 22nd July 2021. The omission could not

have been accidental and prima facie seems designed to mislead on


16. Ground E is clearly on merits, saying that there was no

justification for an order under Section 9. It seeks to distinguish

authorities I noted in the order under review. That is impermissible

in our limited review jurisdiction. Mr Krishnan does not press it.

17. A more fundamental point is this. The entire Review Petition

does not explain nor does Mr Krishnan show how this Petition falls

within the narrow limits of Section 114 or Order 47 of the Code of

Civil Procedure 1908. It more or less assumes that a party’s right to

seek a review of a final order after arguments is, if not quite a

fundamental right, something very close to it. The submission seems

5 (2019) 9 SCC 209.

6 (2021) 4 SCC 379.

to be that anyone can file a Review Petition on any ground whatsoever

even if it is not pleaded or argued. It is perfectly all right, the

suggestion continues, to assail an order in appeal or in review on

grounds never taken or submitted. A mere change of advocates is

enough. Their latter-day epiphany on all matters — of fact and law

both — is enough ground for a review.

18. More disturbing is the implicit suggestion that Counsel’s

arguments are almost entirely worthless; and, by necessary extension, that Counsel are entirely redundant. If the attorney has filed something on record, Counsel must argue it, no matter how trifling or irrelevant. Further, it is then the job of the Court to engage in some sort of forensic archaeological excavation of these often mountainous records, and go through them document by document and page by page, to ferret out some sort of case in favour of a Review Petitioner, even if counsel have never argued every single line of what is pleaded.

Whether or not Mr Krishnan agrees with my interpretation of his

arguments and the implication for Counsel is totally irrelevant. For

that is indeed the implication of the submission he makes when he

says that my order does not take into account some written

submissions tucked away at the back of a large file and to which my

attention was never drawn and on which Counsel then appearing

made no submissions at all.

19. We have Counsel for a reason. We expect of them certain skills.

Foremost among these is their ability to sanguinely render assistance

to the Court. This purpose is fundamental. It is not achieved by

saying that Counsel’s arguments are irrelevant. It is not achieved by

saying that counsel overlooked or were not properly briefed or that

counsel ought to have but did not take some point. Counsel often

realize, as well they should, that not all arguments taken in affidavits

or even in written submissions are worth pursuing. They confine their arguments to a few points. They know that the rest do not matter and will not convince. If Counsel has not urged a point, the fact that there were written submissions is immaterial if those written submissions were never in fact argued.

20. Counsel’s failure to argue written submissions is not a ground

of review or, I dare say, even appeal. It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight.

21. Sometimes, after arguments close, we permit written

submissions. That requires an order of the Court, and the Court then

always references the written submissions it called for. There is no

such order calling for the written submissions. The original

Arbitration Petition was before me and no other court since the time

it was instituted. It was listed on 13th October 2020, 2nd November

2020, 7th December 2020, 16th December 2020, 5th January 2021,

11th February 2021, 12th February 2021 and 12th March 2021 (this

being the order under review). The orders of 7th December 2020 and

16th December 2020 are important for today’s purposes. The order

of 7th December 2020 only stood over the matter by consent to 16th

December 2020. It did not permit any written submissions to be filed.

Neither did any previous order. The written submissions are of 15th

December 2020, one day before the next listing date. Even on 16th

December 2020, and in no order thereafter, did anyone mention these

written submissions. I do not pretend to understand how, without a

specific order of the court, the Agarwals could have entered these

written submissions on record. There is no inward stamp of

December 2020 showing receipt. I do not know how the registry

permitted this filing. It seems to have been done by email — but still

without an order permitting the filing — for the printed document

has only the scanned signature of Mr Vishwas Deo. Therefore, I do

not know, and cannot say, whether as a matter of record, i.e., with a

court order, these written submissions were filed. It is possible that

they were simply printed out when we moved from online / email

filings to physical filings. There is no praecipe asking the written

submissions to be taken on record.

22. In fact, I do not know whether Mr Sen in March 2021 even

knew of these written submissions or had himself seen them. He

certainly did not argue on them.

23. This is the situation of which Mr Krishnan seeks to take

advantage. I do not see how it cannot be termed undue advantage.

There is no order permitting those written submissions. There is no

inward entry from the registry. There is no physically signed set of

written submissions. There is only a print out and it has somehow

been tucked at the back of the file. That is the level of unfairness with which I am sought to be confronted.

24. That arguing counsel often confine themselves to a single point

or a few points is, indeed, exemplified by this Review Petition itself.

For the only point Mr Krishnan has canvassed is the one about the

summary suit. He has not pressed anything else. I have heard him in

open Court after giving him a date to prepare as he requested

yesterday, and I have dictated this order in open Court.

25. Dr Saraf says this point about the summary suit being based on

the same transaction and the same cause of action is not taken even

in the Review Petition. Mr Krishnan’s reply is to point to Ground

F(d) at page 19:

“d) That this Hon’ble Court failed to appreciate that the

alleged sanction letter is distinct from the consortium loan as

the alleged sanction letter is a part of the alleged Loan

Agreement. Furthermore, the alleged account statement and

alleged recall notice are common in respect of both alleged

loans and there are no bifurcation of amount under the

alleged facilities. The alleged One Time Temporary Limit

Finance and/or Working Capital Demand Loan facility are

one and the same and are not distinct to each other. Had it

been that One Time Temporary Limit Finance and Working

Capital Demand Loan facility would be a separate facility,

there would have been:-

 Separate Agreement;

 Separate Sanction;

 Separate Account Statement;

 Separate Documentation;

 Separate Demand Letter.

However, as there is no separate Agreement/Separate

Sanction/ Separate Account Statement/ Documentation/

Demand Letter, it is presumed that the One Time

Temporary Limit Finance/ ad hoc is part of the alleged

original loan agreement and extension of original sanction


26. But this is no answer at all to Dr Saraf’s objection. And this is

how it goes. Mr Krishnan makes a submission. When Dr Saraf points

out this is not a ground taken in the Review Petition, Mr Krishnan

shows me something totally irrelevant and on another aspect (which

is on merits and not a ground for review). Mr Krishnan’s submission

is that no matter what the controlling law is, I must strain every nerve

to find for his clients, even if I have to do this in some circuitous,

inferential way. It is clearly not possible for him to argue that the

Agarwals were unaware of the summary suit — they were, and most

certainly so by the time of my order of 12th March 2021. But it was

never argued and it is, as I noted earlier, a question of fact.

27. A very similar case came up before the Hon’ble Mr Justice SC

Gupte in Mohinder Rijhwani & Ors v Hiranandani Construction Pvt

Ltd.7 Several months after he delivered a reasoned judgment, an

application for review was made before him suggesting that during

the course of hearing he indicated his mind in a certain way and that

counsel had according trimmed and tailored arguments and not

pressed the point or not made it fully. Gupte J said:

12. In Moran Mar Basselios Catholicos (supra), [Moran

Mar Basselios Catholicos v Most Rev. Mar Poulose Athanasius

((1955) 1 SCR 520 : AIR 1954 SC 526)] the controversy

concerned a statement made by the judges of the Full Bench

7 2019 SCC OnLine Bom 1827 : (2019) 6 Bom CR 837.

of the High Court of Travancore (per majority of two judges)

that the defendants’ advocate had conceded that the

plaintiffs had not left the Church and they were as good

members of the Church as anybody else. It was the case of

the defendants (the review petitioners) that this statement

was said to be inaccurate, incomplete and misleading. The

argument before the Supreme Court was that the majority

decision proceeded on a misconception as to the concession

said to have been made by the defendants’ advocate. This

misconception was sought to be proved through affidavit and

other documentary evidence. That was objected to by the

Attorney General. The learned Attorney General’s

argument was that the affidavit and document could not be

said to be part of the “record” within the meaning of Order

47 Rule 1. The Supreme Court did not countenance the

objection. According to the court, there was no reason to

construe the word “record” in any restricted sense. The

court observed that when the error complained of was that

the court assumed that a concession was made when none

had in fact been made or that the court misconceived the

terms of that concession or the scope or extent of it, it would

not generally appear on record but would have to be brought

before the court by way of an affidavit and this could only be

done by way of review. Once again, these facts are clearly

distinguishable. In our case, the court did not proceed on

any concession made by Counsel; the order under review

mentions none. If it was Counsel, who was under a

misconception as to the position of the court and

therefore, chose not to argue a point, that by itself is no

ground for review and cannot be brought in by way of an

affidavit. In any event, the affidavit in support of review

petition does not refer to any such misconception, as noted

above. As for what transpired in court, there is, as noticed

above, a serious contest between the parties and there is no

question of taking a view one way or the other based on a

unilateral statement of the review petitioners.

14. The Review Petitioners’ case here is neither

supported by law or authority of court. If anything, it

would set a bizarre precedent, if accepted, that it is open

to seek review of a judgment or order, if the court had

indicated its mind one way in court whilst reserving the

judgment and the judgment came the other way or that

Counsel appearing before the court was under an

impression that the case would be decided one way and in

reality, it was decided otherwise.

(Emphasis added)

28. Even if that decision can fairly be set to turn on the facts of this

case, the general principle that it propounds is not only salutary but

is essential. If this practice is to be encouraged — that a party faced

with an adverse order first files an appeal on a ground never taken or

argued before the court of first instance — then that injects an

impermissible level of uncertainty into the whole decision-making

process. A Review Petition that follows a disposal of that appeal with

liberty to the appellants to file a Review Petition, again on grounds

never taken, argued or even pleaded only aggravates the matter.

29. To take a step back from all of this, it is necessary, I think, to

see the Review Petitioners for what they really are. There is no

dispute that they are borrowers from Tata Capital. These are all

attempts to avoid the inevitable. They must come a point when a

Court must say enough is enough and they cannot succeed in taking

this further.

30. As to the contours of a Review Petition, I need only refer to the

Division Bench Judgment of this Court in Radhakrishna CHSL & Anr

v State of Maharashtra & Ors.8 The decision quoted at length from the

decision of the Supreme Court in Kamlesh Verma V Mayawati & Ors.9

The relevant portions read thus:

[Citing from Kamlesh Verma]:

14. Review is not re-hearing of an

original matter. The power of review cannot

be confused with appellate power which

enables a superior court to correct all errors

committed by a subordinate court.

15. Review proceedings are not by way of

an appeal and have to be strictly confined to

the scope and ambit of Order XLVII, Rule 1

of CPC. In review jurisdiction, mere

disagreement with the view of the judgment

cannot be the ground for invoking the same.

Summary of the Principles:

16. Thus, in view of the above, the

following grounds of review are maintainable

as stipulated by the statute:

(A) When the review will be maintainable:-

(i) Discovery of new and important

matter or evidence which, after the

exercise of due diligence, was not within

knowledge of the petitioner or could not

be produced by him;

8 2017 SCC OnLine Bom 9855 : (2017) 6 Mh LJ 932.

9 (2013) 8 SCC 320 : AIR 2013 SC 3301.

(ii) Mistake or error apparent on the

face of the record;

(iii) Any other sufficient reason.

The words “any other sufficient reason” has

been interpreted in Chhajju Ram v. Neki, AIR

1922 PC 112 and approved by this Court in

Moran Mar Basselios Catholicos v. Most Rev.

Mar Poulose Athanasius & Ors., (1955) 1 SCR

520: (AIR 1954 SC 526), to mean “a reason

sufficient on grounds at least analogous to

those specified in the rule”. The same

principles have been reiterated in Union of

India v. Sandur Manganese & Iron Ores Ltd. &

Ors., JT 2013 (8) SC 275 : (2013 AIR SCW


(B) When the review will not be


(i) A repetition of old and overruled

argument is not enough to reopen

concluded adjudications.

(ii) Minor mistakes of

inconsequential import.

(iii) Review proceedings cannot be

equated with the original hearing of

the case.

(iv) Review is not maintainable

unless the material error, manifest on

the face of the order, undermines its

soundness or results in miscarriage of


(v) A review is by no means an

appeal in disguise whereby an

erroneous decision is re-heard and

corrected but lies only for patent


(vi) The mere possibility of two

views on the subject cannot be a

ground for review.

(vii) The error apparent on the face

of the record should not be an error

which has to be fished out and


(viii) The appreciation of evidence on

record is fully within the domain of the

appellate court, it cannot be permitted

to be advanced in the review petition.

(ix) Review is not maintainable

when the same relief sought at the

time of arguing the main matter had

been negatived.”

9. The above principles are culled out from the

judgment of the Hon’ble Supreme Court itself. That is a law

of the land. They are salutary in character and by virtue of

Article 141 of the Constitution of India bind all the judicial

authorities. We cannot override the law declared by the

Hon’ble Supreme Court of India as that binds all courts

within the territory of India. The review petitioners before

us are aware of the same. Yet, they have, in the garb of the

order of the Hon’ble Supreme Court passed in this case,

preferred this review petition not through the same

advocates/counsel, who argued the matter when the

order under review was passed by this court. They were

aware that respondent No. 6 had challenged the acquisition

of the land/property in issue unsuccessfully. The property

stood acquired and the owner has lost his right, title and

interest therein. He/it could not have propped-up the

tenants/occupants of the building/structure standing on the

land to question the acquisition. Therefore, as a strategy, the

alleged dilapidated and unsafe condition of the

structure/building was put in issue in the original writ

petition purely to gain sympathy from this court. The very

purpose of the writ petition was to take another chance or, to

put it differently, initiate a second round to wriggle out of the

acquisition of the property. Therefore, advisedly, the

counsel arguing the matter at the initial stage and when

the order under review was passed, did not base his

arguments on the pleadings, which we have reproduced

above. When no argument was raised based on such

pleadings and advisedly and purposely, though the

pleadings were on record, now, through different

advocates on record and distinct set of counsel, the

petitioners are seeking to get over a binding order of this

court. This is a third round and in the garb of a review, a

re-hearing of the case is sought. That is why we have

deprecated the practice and routinely adopted in this

court of litigants filing review petitions not through the

same advocates and counsel, who were engaged when the

orders under review are passed. A different set of

advocates/counsel is engaged and the same contentions and

submissions, which were either not raised, given up or

negatived earlier, are sought to be re-introduced by taking

advantage of the liberty granted by the Hon’ble Supreme

Court of India. Should we, therefore, encourage this

trend, which destroys long-standing, healthy practices

and traditions of this court. The professionals and

litigants may not feel anything about the rich heritage

and healthy practices and traditions of this court, but

surely we cannot abandon or ignore them. More so, when

they are deep rooted and have stood the test of time.”

(Emphasis added)

31. A litigant has a right to be heard by a court. He has a right to

engage a lawyer, who will be heard on that party’s behalf. But no party has the right to keep changing lawyers and then having the new lawyers attempt to argue points not raised, given up or rejected. Certainly no lawyer is entitled to say to a court, “I am entitled to urge anything and everything, even points my client’s previous lawyer did not argue, or may have given up or which you negatived. I am entitled to do all this because I am now newly engaged and therefore it matters not a whit what my client’s previous lawyer, no matter how illustrious

or brilliant, said or did.” There is no such right.

32. No matter how long and tortuous litigation in India may be, it

must have some finality. If what Mr Krishnan seems to believe is

legitimate — that appeals can be filed on grounds not argued and that

review petitions can be similarly pressed — then there is no end in

sight at all. This is anathema to our jurisprudence.

33. The Review Petition is entirely bereft of merit. Allowing it

would set a dangerous precedent. The Review Petition is dismissed.

34. As to costs, this being in the Commercial Division, the

amendment to CPC Section 35 effected by the CCA will operate:

costs must ordinarily follow the event. If not, reasons must be

recorded. Dr Saraf presses for an order of costs. I can see no reason

not to make that order.

35. In response, it is now suggested by Mr Krishnan for the Review

Petitioner was “not his choice” but “was suggested by the Division

Bench”. Those are his exact words. The argument is quite possibly

the most repellent I have heard in a long time. Mr Krishnan leaves me

with no choice. I will now reproduce the whole order of 20th June

2021 of the Appeal Court. It is at Exhibit ‘D’ at pages 103-104. This

is what it says:

“By the above Appeal, the Appellants have impugned the

Order dated 12th March 2021 passed by the Learned Single

Judge whilst disposing off the Arbitration Petition (L) NO.

3628 of 2020 filed by the Respondent No. 1 seeking reliefs by

way of interim protection under Section 9 of the Arbitration

and Conciliation Act, 1996. The learned Advocate for the

Appellants has made several submissions before this Court.

However, it appears that though the said submissions

were set out in the written submissions filed by the

Appellants, much prior to the commencement of

arguments, the same were not advanced before the

learned Single Judge at the time of making oral

submissions. In view thereof, we grant liberty to the

Appellants to file a Review Petition seeking review of the

impugned Order dated 12th March, 2021 before the

Learned Single Judge. Since the execution proceedings are

fixed on 26th July 2021, the Review Petition may be moved

before the Learned Single Judge on or before 23rd July 2021.

Needless to add that the Review Petition shall be heard

strictly on merits. The Appeal is accordingly disposed off.

The above Interim Application also stands disposed off.”

(Emphasis added)

36. The emphasized words above show clearly that the Division

Bench merely granted liberty to the Agarwals to file a Review

Petition. The Division Bench did not ‘direct’ the Review Petitioner

to do so. It did not ‘suggest’ that. It did not order it. The reason to

grant this liberty, and it was not an idle indulgence, is set out in the

previous part where the Court noted that the Counsel briefed by Mr

Krishnan made several submissions that were based on the written

submissions but were not advanced during the arguments either in

my order of 12th March 2021.

37. It lies ill in Mr Krishnan’s mouth to say that this Petition was

filed because “the Division Bench directed” or “suggested” it.

Nothing could be further from the truth. This is a deliberate and

entirely unacceptable distortion of an unambiguous and clear order

of a Division Bench of this Court. Frankly, to my mind, it is probably

deserving of censure, but I will let that pass. But this does not mean

that this serves as a reason not to award costs.

38. I should also reiterate that the filing of the written submissions

is in more than murky — and certainly ambiguous — circumstances

as I have set out earlier: with no order of a court permitting it, no

stamp of receipt, no praecipe, and a mere print-out of some digital

document. That only makes matters worse.

39. In my view, it is now time to send a clear message that this kind

of conduct will not be tolerated. It will be dealt with severely. The

factors that the CCA says must be taken into account while ordering

costs are in Section 35(3) of the amended CPC:

(3) In making an order for the payment of costs, the

Court shall have regard to the following circumstances,


(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case,

even if that party has not been wholly successful;

(c) whether the party had made a frivolous counterclaim

leading to delay in the disposal of the case;

(d) whether any reasonable offer to settle is made by a

party and unreasonably refused by the other party; and

(e) whether the party had made a frivolous claim and

instituted a vexatious proceeding wasting the time of the


(Emphasis added)

40. The Review Petitioners’ conduct is deplorable. The Review

Petition is certainly frivolous and vexatious and it is an unforgivable

waste of judicial time — which, not incidentally, has been to the timedisadvantage

of other litigants as well.

41. Consequently, the dismissal of the Review Petition will be

accompanied by an order of costs in the amount of Rs. 5 lakhs. These

costs are to be paid by the Review Petitioners directly to the

Respondent within two weeks from the day this order is uploaded.

42. This order will be digitally signed by the Private Secretary of

this Court. All concerned will act on production of a digitally signed

copy of this order.

(G. S. PATEL, J)

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