SUPREME COURT ON REVIEW PETITION

[Dr. Sanjiv Agarwal]

In one of the recent judgments, Apex Court did not entertained a bunch of five review petitions and was dismissed which was filed by the liquidator of the corporate debtor. The Review Petitioner was not a party to the proceedings, but had filed the Review Petition claiming to be an ‘aggrieved person’ on the ground that the impugned order passed by Supreme Court would have direct effect on the proceedings pending between the Review Petitioner and the Gujarat Sales Tax Authority before the Gujarat High Court. [SANJAY KUMAR AGARWAL VERSUS STATE TAX OFFICER (1) & ANR. - 2023 (11) TMI 54 - SUPREME COURT].

The Apex Court observed on the powers and scope of reviewing its own judgments that the power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution of India. Of course, that power is subject to the provisions of any law made by the Parliament or the Rules made under Article 145. Supreme Court in exercise of the powers conferred under Article 145 of the Constitution of India has framed the Supreme Court Rules, 2013. The Order XLVII of Part IV thereof deals with the provisions of Review. Accordingly, in a Civil Proceeding, an application for review is entertained only on the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure and in a Criminal Proceeding on the ground of an error apparent on the face of record. However, it may be noted that neither Order XLVII CPC nor Order XLVII of Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Even a third party to the proceedings, if he considers himself to be an “aggrieved person,” may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by the Court in some respect. UNION OF INDIA (UOI) VERSUS NARESHKUMAR BADRIKUMAR JAGAD AND ORS. - 2018 (11) TMI 1855 - SUPREME COURT In view of the said legal position, the Review Petitioners who claimed to be the “aggrieved persons” by the impugned judgment dated 06.09.2022, were permitted to file Review Petitions and were heard by the Court.

The law is well settled so far as scope of review is concerned in term of Order XLVII of the Supreme Court Rules read with Order XLVII of CPC. Based on various pronouncements, it could be stated that:

1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
2. A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
3. 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 record justifying the court to exercise its power of review.
4. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.”
5. A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.”
6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
8. Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.

Relevant provisions of IBC

• Section 3(30)of IBC defines ‘Secured Creditor’

"Secured creditor" means a creditor in favour of whom security interest is created.

• Section 3(31) of IBC defines ‘Security Interest’

"Security interest" means right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person, provided that security interest shall not include a performance guarantee.

• Section 53 of IBC provides for ‘Distribution of Assets’

Accordingly,

(1) Notwithstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of the liquidation assets shall be distributed in the following order of priority and within such period and in such manner as may be specified, namely :-

(a) the insolvency resolution process costs and the liquidation costs paid in full;

(b) the following debts which shall rank equally between and among the following :-

(i) workmen's dues for the period of twenty-four months preceding the liquidation commencement date; and

(ii) debts owed to a secured creditor in the event such secured creditor has relinquished security in the manner set out in section 52;

(c) wages and any unpaid dues owed to employees other than workmen for the period of twelve months preceding the liquidation commencement date;

(d) financial debts owed to unsecured creditors;

(e) the following dues shall rank equally between and among the following :-

(i) any amount due to the Central Government and the State Government including the amount to be received on account of the Consolidated Fund of India and the Consolidated Fund of a State, if any, in respect of the whole or any part of the period of two years preceding the liquidation commencement date;

(ii) debts owed to a secured creditor for any amount unpaid following the enforcement of security interest;

(f) any remaining debts and dues;

(g) preference shareholders, if any; and

(h) equity shareholders or partners, as the case may be.

(2) Any contractual arrangements between recipients under sub-section (1) with equal ranking, if disrupting the order of priority under that sub-section shall be disregarded by the liquidator.

(3) The fees payable to the liquidator shall be deducted proportionately from the proceeds payable to each class of recipients under sub-section (1), and the proceeds to the relevant recipient shall be distributed after such deduction.

Further, it has been clarified that at each stage of the distribution of proceeds in respect of a class of recipients that rank equally, each of the debts will either be paid in full, or will be paid in equal proportion within the same class of recipients, if the proceeds are insufficient to meet the debts in full and the term "workmen's dues" shall have the same meaning as assigned to it in section 326 of the Companies Act, 2013.

• Section 62 of IBC provides for ‘Appeal to Supreme Court’

 (1) Any person aggrieved by an order of the National Company Law Appellate Tribunal may file an appeal to the Supreme Court on a question of law arising out of such order under this Code within forty-five days from the date of receipt of such order.

(2) The Supreme Court may, if it is satisfied that a person was prevented by sufficient cause from filing an appeal within forty-five days, allow the appeal to be filed within a further period not exceeding fifteen days.

The court held that the well considered judgment sought to be reviewed does not fall within the scope and ambit to Review. The petitioner have failed to make out any mistake or error apparent on the face of record in the impugned judgment, and have failed to bring the case within the parameters laid down by instant court in various decision for reviewing the impugned judgment. Thus, instant Review Petitions was not to be entertained and dismissed.

In the instant case i.e.  SANJAY KUMAR AGARWAL VERSUS STATE TAX OFFICER (1) & ANR. - 2023 (11) TMI 54 - SUPREME COURT, review was sought against the order in STATE TAX OFFICER (1) VERSUS RAINBOW PAPERS LIMITED - 2022 (9) TMI 317 - SUPREME COURT.

As per facts, civil appeal before supreme court was preferred by the respondent State Tax Officer against the Corporate Debtor, in liquidation being aggrieved by the judgment and order passed by the NCLAT, dismissing filed by the respondent. The said company appeal was filed against the order passed by the NCLT, rejecting the application, filed by the respondent, in which it was held that the respondent could not be claim first charge over the property of the corporate debtor, as section 48 of the Gujarat Value Added Tax Act, 2003 could not prevail over section 53 of the Insolvency and Bankruptcy Code, 2016. The NCALT dismissed the appeal of the respondent but Supreme Court allowed respondent’s appeal vide the impugned order.

The review petitions failed to make out any mistake or error apparent on the face of record in the impugned judgment, and have failed to bring the case within the parameters laid down by the Court in various decisions for reviewing the impugned judgment.