TMI Blog2015 (6) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper law cannot be considered a mistake or error apparent on the face of the record. Thus, an order may be reviewed where the Court has failed to consider important facts on record, or provisions of law, which go to the root of the jurisdiction of the Court, or where the Court fails to consider an important plea or issue, or where the case is an exceptional one, as the point involved is one of general importance. The seller, that is, Indian Bank, would not accept any claim or responsibility on this account, and would not be held accountable or be asked to reimburse any amount in this regard. Clause 13 covers claims, disputes or litigation relating to the property and not money claims against the owner of the property. The contention that the appellant, Amrit Fresh Pvt. Ltd. was liable to satisfy the dues of the Judgment-debtor in terms of the award, cannot therefore be sustained. The sale may have been made on as is where is and as is what is basis as observed by the learned Single Bench. However, the Hon'ble Appeal Court very rightly found that there was no basis for the finding of the Single Bench that the properties of the Judgment-debtor purchased by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said agreement. According to the applicant respondent No. 1, the milk supplied by the applicant respondent No. 1 to the Judgment-debtor, was received by the Judgment-debtor without demur. 4. The applicant respondent No. 1 claims that, after giving credit to all payments made by the Judgment-debtor to the applicant respondent No. 1, a sum of ₹ 22,48,672/- remained outstanding from the Judgment-debtor to the applicant respondent No. 1. 5. Disputes and differences arose between the applicant respondent No. 1 and the Judgment-debtor by reason of the alleged failure and/or refusal of the Judgment-debtor, to clear the bills raised by the applicant respondent No. 1 on the Judgment-debtor. 6. The disputes between the applicant respondent No. 1 and the Judgment-debtor were referred to the arbitration of a sole arbitrator, in terms of the arbitration agreement between the applicant respondent No. 1 and the Judgment-debtor. 7. On 7th October, 2011, the sole arbitrator made and published an award of ₹ 34,20,483/- in favour of the applicant respondent No. 1, in full and final settlement of all claims of the applicant respondent No. 1 against the Judgment-debtor. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Bank, and the other in respect of the movable properties of the Judgment-debtor hypothecated to Indian Bank. After execution and registration of the sale certificate in respect of the immovable properties, the name of the appellant, Amrit Fresh Private Limited was mutated in the Block Land and Land Revenue office records. The appellant, Amrit Fresh Private Limited claims to have been paying taxes in respect of the said property. 15. On 31st January, 2012 the applicant respondent No. 1, through his Advocate, demanded payment of ₹ 34,29,583/- along with interest at the rate of 12% per annum in terms of award, from the appellant, Amrit Fresh Private Limited. 16. On or about 1st October, 2012, the respondent No. 1 filed an application in this Court under Section 36 of the 1996 Act, being EC 288 of 2012 for execution of the award dated 7th October, 2011. 17. By an order dated 11th September, 2013 in EC 288 of 2012, the learned Single Bench (Nadira Patherya, J.) held that the applicant respondent No. 1 was entitled to execute the decree dated 7th October, 2011 against the appellant Amrit Fresh Private Ltd., being the purchaser of the properties of the judgment-debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3rd October, 2013. Prayer for stay made is considered and rejected. 19. Being aggrieved by the Order dated 11th September, 2013 of Nadira Patherya, J. whereby the appellant Amrit Fresh Private Ltd. had been held liable for the dues of the Judgment-debtor to the respondent No. 1, the appellant filed an appeal being APO 307 of 2013, which was allowed by the judgment and Order dated 18th February, 2014 of the Division Bench of A.K. Banerjee and A.K. Mondal, J.J., of which review has been sought by the respondent No. 1. 20. The Division Bench held: We have considered the rival contentions. The learned Judge rightly held, if the claim had a charge on the property, the responsibility would be on the transferee. We do not, however, find, any charge created on the property. It was a simple claim for goods sold and delivered to the company being a juristic person. We have closely examined the agreement that the respondent No. 1 had with the respondent No. 2. The agreement did not speak of any immovable property. It is unfortunate, the respondent No. 2 is avoiding their liability. May be they are not in a position to discharge the same. However, we cannot foist the liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of evidence and not to legal provisions or legal authorities in existence on the date of the judgment, which were not brought to the notice of the Court. No review can, therefore, be sought on the ground of discovery of new authorities, which would show that the decision is not correct, even though, discovery of an earlier decision between the same parties, which operates as res judicata may be discovery of new and important matter within this rule. 25. It is not open to Court to indiscriminately reopen cases, in which final orders are passed, and it is only where something very grave and very material, has not been pointed out, such as an important position of law or a judicial decision which would virtually go to the root of the matter, that the Court might reconsider its order. 26. An application for review on the ground of discovery of fresh evidence is also to be refused, unless it can be shown that such evidence could not have been produced at the time of hearing, in spite of diligence. It is well-settled that an apparent error on the face of the record may be a ground for review. However, it is to be shown that the error is so manifest and clear that no Court wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider important facts on record, or provisions of law, which go to the root of the jurisdiction of the Court, or where the Court fails to consider an important plea or issue, or where the case is an exceptional one, as the point involved is one of general importance. 30. The Court may review its order, where the Court is satisfied that it is necessary to do so for the sake of justice. However, a review cannot be allowed to enable a party to raise issues, which could and ought to have been raised at the time of hearing, just to give another opportunity to the applicant to establish his case or on the ground that the case has been mismanaged by the appellant's Counsel or where the Court has wrongly decided a question of law or proceeded on a wrong exposition of the law. There can be no review on the ground of a decision being erroneous on merits. A finding given by an Appellate Court is not reviewable even though it may be erroneous. The Review Court cannot re-hear and correct an erroneous judgment. The fact that another view could have been taken having regard to the materials on record would also not be ground for review. 31. The short question raised by Mr. Paul i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced without the intervention of the Court or Tribunal and by such creditor in accordance with the provisions of the SARFAESI Act. 34. Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of a secured debt or any installment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may request the borrower, by a notice in writing, to discharge his liabilities to the secured creditor in full, within 60 days from the date of the notice, failing which the secured creditor would be entitled to exercise all or any of the rights under Sub-section (4) of Section 13 of the SARFAESI Act. 35. Sub-section (4) of Section 13 of the SARFAESI Act provides that, in case the borrower fails to discharge his liability in full within the period stipulated in sub-section (2), the secured creditor may take recourse to inter alia the measure of recovering his secured debt, by taking possession of the secured assets of the borrower, including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in Section 148 of the Contract Act as delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them, i.e., the bailor. A pledge and/or bailment of goods contemplates delivery of possession of the goods by the bailor to the bailee. The bailee is in possession of the goods. In hypothecation there is no delivery of possession, as will be evident from the definition of 'hypothecation' in Section 2(n) of the SARFAESI Act. In this case, the goods remained with the Judgment-debtor, till invocation of Section 13 of the SARFAESI Act. The movable properties of the Judgment-debtor were not pledged to Indian Bank, within the meaning Section 172 of the Contract Act. Section 31(b) of the SARFAESI Act was, therefore, not attracted. 43. Section 132 of the Transfer of Property Act, 1882, which provides that the transferee of an actionable claim takes it, subject to all the liabilities and equities to which the transferor was subject, in respect thereof, at the date of the transfer, has no application since the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tender and the purchaser would meet such claims for charges, damages, penalty etc. at the purchaser's own cost. The seller, that is, Indian Bank, would not accept any claim or responsibility on this account, and would not be held accountable or be asked to reimburse any amount in this regard. Clause 13 covers claims, disputes or litigation relating to the property and not money claims against the owner of the property. The contention that the appellant, Amrit Fresh Pvt. Ltd. was liable to satisfy the dues of the Judgment-debtor in terms of the award, cannot therefore be sustained. The sale may have been made on as is where is and as is what is basis as observed by the learned Single Bench. However, the Hon'ble Appeal Court very rightly found that there was no basis for the finding of the Single Bench that the properties of the Judgment-debtor purchased by the appellant Amrit Fresh Pvt. Ltd. under the SARFAESI Act were encumbered. The Hon'ble Appeal Court rightly held that the appellant, Amrit Fresh Pvt. Ltd., the purchaser in an auction sale, for valuable consideration had no liability to discharge the debts of the Judgment-debtor. 47. There are no grounds for revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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