Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REVIEW PETITION NO.166 OF 2024 IN MFA NO.181/2024 (CPC) MFA NO.173/2024 (CPC) MFA NO.211/2024 (CPC) BETWEEN:
1. MR. SUSHIL KUMAR JINDAL, S/O LATE MOHANLAL JINDAL, AGED ABOUT 57 YEARS, NO.17, LAXMI ROAD, SHANTINAGAR, BANGALORE-560017.
2. MRS. AMRITA AGARWAL, D/O LATE MOHANLAL JINDAL, AGED ABOUT 66 YEARS,
Digitally signed H.NO.1191, JUBILEE HILLS, by DEVIKA M ROAD NO.59, SHAIKPET, Location: HIGH HYDERABAD-500033.COURT OF KARNATAKA
3. MRS. DIMPLE BAJAJ,
D/O LATE MOHANLAL JINDAL, AGED ABOUT 50 YEARS, FLAT NO.S3/S4, 2ND FLOOR, A BLOCK, LANDMARKS TOWN HALL APTS., CHETPET, CHENNAI-600031. …PETITIONERS (BY SRI B.K. SAMPATH KUMAR, SENIOR COUNSEL FOR SRI SURAJ S., ADVOCATE) -2- AND:
1. M/S. REST HOUSE DEVELOPERS,
A PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNER, MR. AVINASH PRABHU, HAVING ITS OFFICE AT 206 AND 207, SOPHIA’S CHOICE, ST. MARK’S ROAD, BANGALORE-560001. …RESPONDENT (BY SRI J.P.DARSHAN, ADVOCATE) THIS REVIEW PETITION IS FILED UNDER ORDER XLVII RULE 1 R/W SECTION 114 OF THE CPC, 1908 PRAYING TO PERUSE AND REVIEW THE COMMON JUDGMENT DATED 15.03.2024 PASSED IN THE MFA NO.181/2024 (CPC) C/W. MFA NO.173/2024 (CPC), MFA NO.211/2024(CPC) AND ALLOW THE ABOVE REVIEW PETITION AND CONSEQUENTLY, ALLOW THE SAID MISCELLANEOUS FIRST APPEALS AS PRAYED FOR BY THE PETITIONERS THEREIN. THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned counsel for the respondent.
2. This review petition is filed praying this Court to review the order of this Court dated 15.03.2024 passed in M.F.A.No.181/2024 c/w M.F.A.No.173/2024 and M.F.A.No.211/2024, wherein challenge was made before this Court for granting temporary order of injunction in O.S.No.5438/2023. This Court having considered the submission -3- of both the learned counsel, passed a detailed order on 15.03.2024 confirming the order of the Trial Court and dismissed the M.F.As.
3. The main ground urged in the review petition is that
the consideration of Rs.4 Crores was paid and the same has not been disputed. The material also discloses that the amount vest with the respondent to certain extent and apart from that, the dispute is with regard to the non-withdrawal of Rs.12,26,59,601/-. The learned counsel contend that Section 31 of the Specific Relief Act is clear with regard to the seeking of better relief and Section 19 of the Contract Act. The learned counsel brought to the notice of this Court Article 59 of the Limitation Act and Section 73 of the Arbitration and Conciliation
Act. The learned counsel contend that the very document of separation of settlement deed is not pleaded in the plaint and also not brought to the notice of this Court the very approach of the respondent herein in approaching the Court while seeking the relief of discretionary relief of temporary injunction. The learned counsel contend that when the suit itself is not maintainable and when the prima facie case is not made out, ought not to have granted the relief of temporary injunction. The learned counsel brought to the notice of this Court the
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grounds which have been urged in paragraph No.7 of the memorandum of petition and categorically contend that the documents of Annexures - P, Q, R, S and T1, which were filed along with M.F.As. were not considered while passing the order. Those documents were also placed before the Trial Court and the Trial Court made an observation that no such documents are placed before the Court. In view of production of those documents, which have not been considered by this Court, this Court can invoke the review provision invoking Order 47 Rule 1 of CPC. The learned counsel brought to the notice of this Court Annexure-U, copy of the relevant portion of Form No.26AS of M/s. Jindal Steels for the assessment year 2013-14, which shows that the respondent even remitted TDS on 14.09.2013 after late Mohanlal Jindal retired from the respondent on 24.07.2013 and when such TDS is made, now cannot contend
that no such sale consideration has been paid. The learned counsel contend that for a period of more than a decade they kept quiet with regard to the non-payment of sale consideration and all these aspects have not been considered by this Court while passing the order. Hence, the review jurisdiction has to be exercised.
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4. The learned counsel for the petitioners in support of
his arguments relied upon the judgment of the Apex Court in the case of PREM SINGH AND OTHERS v. BIRBAL AND OTHERS reported in (2006) 5 SCC 353 and brought to the notice of this Court paragraph Nos.12, 13 and 14, wherein it is discussed with regard to Section 31 of the Specific Relief Act and Article 59 of the Limitation Act when the relief is sought and also with regard to the suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act.
5. The learned counsel also relied upon the judgment of the Apex Court in the case of RAJENDRA SINGH v. LT.
GOVERNOR, ANDAMAN AND NICOBAR ISLANDS AND OTHERS reported in AIR 2006 SC 75 and brought to the notice of this Court paragraph Nos.15, 16 and 17, wherein it is discussed with regard to the scope of review.
6. The learned counsel relied upon the judgment of the
Apex Court in the case of S.MADHUSUDHAN REDDY v. V. NARAYANA REDDY AND OTHERS reported in LAWS(SC)- 2022-8-62 and brought to the notice of this Court paragraph Nos.18 and 19, wherein it is discussed with regard to the grounds of review and when the review is maintainable. The -6- learned counsel also brought to the notice of this Court paragraph No.23 of the judgment, wherein it is discussed with regard to justice is a virtue which transcends all barriers.
7. The learned counsel also relied upon the Division
Bench judgments of this Court in the case of CENTRAL BOARD OF DIRECT TAXES AND OTHERS v. ANURADHA GOYAL AND OTHERS reported in LAWS (KAR)-2022-4-145 and in the case of ADDITIONAL DISTRICT MAGISTRATE AND POLICE COMMISSIONER, HUBLI DHARWAD CITY AND OTHERS v. CHANDRAKANT BADDI reported in LAWS (KAR)- 2007-3-66 and brought to the notice of this Court paragraph Nos.6, 7 and 8, wherein discussion was made referring the
judgment of the Madras High Court judgment in the case of
SELECTION COMMITTEE v. N.R. NAGRAJ reported in AIR 1939 MADRAS 293.
8. The learned counsel also relied upon the judgment of this Court in the case of SAJIDA v. BIBI JAN reported in
LAWS (KAR)-2024-3-22. Having referred these judgments, the learned counsel would contend that when the documents, which have been relied upon in M.F.As. have not been considered by this Court and also the scope of review is when -7- there is injustice caused by passing such an order, the Court can review the order passed by this Court.
9. Per contra, the learned counsel for the respondent
would contend that the very ground urged by the review petitioners is that the documents are not referred and the said contention cannot be accepted. This Court while considering the contentions raised by both the learned counsel for the appellants and the learned counsel for the respondent taken note of the said fact into consideration and even discussed with regard to the Dahiben’s case is not applicable to the facts of the case when fraud is alleged and amount was withdrawn and also discussed in detail with regard to the judgment relied by the respondent in the case of Kewal Krishan’s case and not committed any error and even taken note of the discussion made by the Trial Court referring Section 54 of the Transfer of Property Act. The learned counsel relied upon the judgment of the Apex Court in the case of S.MADHUSUDHAN REDDY v. V. NARAYANA REDDY AND OTHERS reported in 2022 SCC Online SC 1034 and brought to the notice of this Court the application for review of judgment, which has been discussed in paragraph Nos.16 to 21, wherein also discussed with regard to the power of review can be exercised for correction of a
-8- mistake, but not to substitute a view. The learned counsel brought to the notice of this Court paragraph Nos.22 and 24 of the judgment, wherein discussion was made with regard to under what circumstances, the grounds for review are maintainable.
10. The learned counsel brought to the notice of this Court the judgment of the Apex Court in the case of KALIAPERUMAL v. RAJAGOPAL AND ANOTHER reported in
(2009) 4 SCC 193 and brought to the notice of this Court
paragraph Nos.18 and 22. The learned counsel also relied upon the judgment of the Apex Court in the case of DAKSHIN HARYANA BIJLI VITRAN NIGAM LIMITED v. NAVIGANT TECHNOLOGIES PRIVATE LIMTIED reported in (2021) 7 SCC 657, wherein discussion was made with regard to Section 29A of the Arbitration and Conciliation Act and also brought to the notice of this Court Section 73 of the Arbitration and Conciliation Act, wherein discussion was made with regard to the Arbitration Act and conciliation proceedings is concerned.
11. In reply to the arguments of the learned counsel for the respondent, the learned counsel for the petitioners would contend that there is no dispute with regard to the payment of -9- Rs.3,67,38,841/- from Mohanlal Jindal on 31.03.2008 and an amount of Rs.15,10,451/- on 31.03.2009 and final additional contribution dated 22.07.2013 i.e., an amount of
Rs.12,26,59,601/-. The total investment is Rs.16,09,04,806/- in lieu of contribution and investment and M/s. Jindal Steels investment Rs.2,68,00,000/- on 02.02.2007 and on 28.05.2007 Rs.4 Crores i.e., sale consideration for purchase of larger extent and on 28.05.2007 to the tune of Rs.1,28,02,115/- payment of stamp duty and cess and registration fees for purchase of larger extent and several offer credits and debits between M/s. Jindal Steels and M/s. Rest House Developers and total investment with interest due as on 22.07.2013 is to the extent of Rs.12,26,59,601/- and the said amount was refunded on 22.07.2013 and the said amount is not withdrawal of the amount as contended by the respondent. The learned counsel contend that TDS paid on the refund of investments on
14.09.2013 is to the tune of Rs.15,31,225/-. The learned counsel contend that the Court has to take note of the conduct of the respondent and the respondent belatedly approached the Court seeking the relief of permanent injunction after lapse of a decade. - 10 -
12. Having considered the grounds urged in the review
petition and also the submission of the learned counsel for the petitioners and the learned counsel for the respondent and also the principles laid down in the judgments referred supra, there is no dispute with regard to the scope of review is concerned. If there is any mistake apparent on the face of record while passing such an order, the Court can exercise its review. The scope of review is explained in the judgment referred by both
the respective learned counsel. When injustice is caused and when the order passed by the Court is apparent on record by mistake and not considering the material on record, then this Court can review the order. It is settled law that review cannot be exercised sitting as an Appellate Court and only when prima facie error is apparent on record, under such circumstances only the Court can exercise review jurisdiction. This Court cannot sit and decide the same as in appeal and substitute the earlier view taken by this Court.
13. Keeping in view the principles laid down in the
judgments referred supra as well as the settled law, this Court has to take note of the order passed by this Court whether the material has been considered or not. This Court taken note of the contentions of the appellants as well as the respondent while - 11 - considering the M.F.As. while passing the order dated 15.03.2024 and taken note of the judgments which have been referred while arguing the matter on merits. The Court also
taken note of the fact that additional contribution of Rs.12,26,59,601/- transferred by the defendant on 22.07.2013. There is no dispute with regard to the registration of the sale deed as well as registration of the construction agreement and the same is also taken note of. With regard to the payment of TDS also the same is considered in paragraph No.9 when reference was made while passing the order.
14. The learned counsel for the petitioners brought to
the notice of this Court the annexures, which have been relied upon while arguing the matter on merits in paragraph No.7 of the review petition. Those documents though not relied upon by referring the annexures, but while arguing the matter, detailed reference is made in the judgment from paragraph Nos.2 to 15 and so also relied upon the judgments, which have been relied upon by the learned counsel for the appellants and the learned
counsel for the respondent. This Court also taken note of the contention of the respondent in paragraph Nos.24 to 28 including the judgments, which have been referred by the learned counsel for the respondent upto paragraph No.35. - 12 -
Having considered the contention of the learned counsel for the appellants and the learned counsel for the respondent, in paragraph No.36, detailed discussion was made with regard to the payment of Rs.12,26,59,601/-. This Court also taken note of the transfer of the said amount from the account of the defendant’s firm M/s. Jindal without the knowledge of partners of plaintiff’s firm and misrepresenting to him and other partner that defendant shall relinquish his contribution in lieu of 2 apartment conveyed. This Court taken note of the judgment of Dahiben’s case and distinguished the same and held that the said judgment is not applicable to the facts of the case when fraud has been alleged and comes to the conclusion that the fraud and misrepresentation has been alleged and re-transfer of
the amount also not disputed. But the only contention of the learned counsel for the petitioners is that the said amount was paid in favour of M/s.Jindal Steels with regard to the investment made by the same. No doubt, it is the contention of the learned counsel for the petitioners that the said amount was paid two days prior to the registration of the document and the plaintiff/respondent approached the Court after a decade and the same is a matter of trial and this Court cannot decide with regard to the conduct of the parties is concerned and there are
- 13 - sale deeds as well as registered documents of construction agreement.
15. The contention of the respondent is also taken note of while considering the M.F.As. in paragraph No.36 and the
judgment of the Apex Court in Kewal Krishan’s case is also
taken note of, which has been referred by the Trial Court with regard to the sale consideration is concerned and non-payment of sale consideration and delivery of possession and main contention of the respondent is that no possession has been delivered. On the other hand, it is the contention of the review petitioners that symbolic possession has been delivered even at the time of registration of documents. All these factors are to
be considered while considering the matter on merits. This Court comes to the conclusion that the Trial Court has not committed any error and the grounds which have been urged are also considered earlier. I have already pointed out that even though not specifically mentioned the annexures, which have been relied upon by the learned counsel for the appellants, all the contentions which have been raised by the appellants/review petitioners herein, has been considered in detail and comes to the conclusion that the withdrawal of the amount of Rs.12,26,59,601/- is not in dispute and that the - 14 - amount has been withdrawn even prior to execution of the sale deed and hence comes to the conclusion that no error has been committed by the Trial Court. When such being the case and when all the materials are considered by the Court, the question
of invoking review jurisdiction does not arise. Only in a case where injustice is caused, under such circumstances the Court can review its order apart from the mistake apparent on record. It is the contention of the learned counsel for the petitioners that total amount of Rs.16,09,04,806/- was paid and withdrawn Rs.12,26,59,601/- and remaining amount of around Rs.4 Crores is still vest with the respondent and these are the aspects to be considered by the Trial Court while considering the matter on merits. Merely because Rs.4 Crores vest with the respondent, this Court cannot interfere at this stage with regard to the passing of the earlier order. When the order has been passed considering all the contentions raised by the learned counsel for the appellants and the learned counsel for the respondent and detailed order has been passed which runs to 40 pages, non- mentioning of the documents in the reasoning cannot be a ground to review the order when the contentions are raised with regard to documents and reasoning is given analyzing the material on record, hence, I do not find any ground to invoke
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Order 47 Rule 1 of CPC to review the judgment of this Court and
no such ground is made out to review the order.
16. In view of the discussions made above, I pass the following:
ORDER
The review petition is dismissed. Sd/- JUDGE MD List No.: 1 Sl No.: 44