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TMI Blog2015 (6) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... r review, being the award holder, was entitled to execute the award, against the appellant, Amrit Fresh Private Ltd., being the purchaser of the properties of the Judgment-debtor, which had been mortgaged and/or hypothecated to Indian Bank, and sold in an auction under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Act, 2002, hereinafter referred to as the SARFAESI Act. 2. On or about 10th July, 2007, the applicant for review, being the respondent No. 1 in the appeal, entered into an agreement with M/s. Meadow Feeds Specialties Pvt. Ltd., hereinafter referred to as the 'Judgment-debtor', for supply of milk to the Judgment-debter at the agreed price. The said agreement executed on 10th July, 2007, inter alia contained a clause for reference of disputes to arbitration. 3. The applicant respondent No. 1 claims to have supplied milk to the Judgment-debtor, during the period from 11th July, 2007 to 17th March, 2010, pursuant to and/or in terms 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and put the same up for sale by auction by publication of advertisements in different newspapers on 27th November, 2011. 12. On or about 31st December, 2011, that is after the award was made and published, but before it could be put to execution, the properties of the Judgment-debtor mortgaged and/or hypothecated in favour of Indian Bank, were sold to the appellant, Amrit Fresh Private Limited, the successful bidder at an auction sale, held pursuant to the sale notice dated 27th November, 2011. 13. The appellant, Amrit Fresh Private Limited, purchased the mortgaged immovable properties of the Judgment-debtor, for consideration of Rs. 1,51,11,000/- and the hypothecated movable properties of the Judgment-debtor, for consideration of Rs. 1,18,00,000/-, under the SARFAESI Act. 14. Thereafter, Indian Bank issued two separate sale certificates in favour of the appellant, one in respect of the immovable properties of the Judgment-debtor, mortgaged to Indian 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property would be the responsibility of the purchaser. This is one such litigation and the purchaser cannot avoid its liability by taking the plea of either Section 35 or Section 37 of the 2002 Act. Therefore, as the sale was made on "as is where is and as is what is basis" and the decree had already been passed prior to the sale notice, the same was an encumbrance and the purchaser is liable for payment of the liabilities of the judgment debtor and, cannot therefore, shirk its responsibility. Accordingly, the decree holder is entitled to execute the decree dated 7th October, 2011 against the purchaser and for such purpose? Mr. Sujit Saha, Advocate, Bar Association Room No. 7 is appointed Receiver to take possession of the assets and properties of the purchaser. The Receiver will be entitled to an initial remuneration of 300 GMs. Let a report be filed by the Receiver on the next date of hearing. Matter to appear in the list on 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-de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya, J. 23. Under Order 47 Rule 1 of the Code of Civil Procedure, 1908, any person, considering himself aggrieved by a judgment and order, or a decree, from which an appeal is allowed, but from which no appeal has been preferred, or by a judgment and order or decree from which no appeal is allowed, may apply for review of the judgment and order or decree to the Court which passed the judgment and order or decree, upon 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 judgment and order/decree was passed. An application for review might also be made, when there is an apparent mistake or error in the judgment and order/decree of which review has been sought or for any other sufficient reason. 24. The words 'new and important matter' refers to evidence or other matter in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, imposing limits on the exercise of the power of review, a too narrow interpretation of the words will not be in accordance with equitable principles. A review may be granted on the ground of existence of "sufficient cause" where the decree or order has been passed under some misconception, due to mistake of the Counsel, or where a party has not had a fair opportunity of producing his evidence or where there was total non-representation of the party seeking review on grounds not attributable to that party to consider important evidence or relevant material due to mistake of the Counsel in not bringing it to the notice of the Court. This proposition finds support from the judgment of the Supreme Court in Board of Control for Cricket in India and another v. Netaji Cricket Club and Others reported in (2005) 4 SCC 741, cited by Mr. Pal. 29. 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. 30. The Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; ..................... (6) Any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset." 33. Section 13 of the SARFAESI Act provides that not withstanding anything contained in Section 69 or 69A of the 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 secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act. The Appeal Court had passed the judgment and order of which review is being sought, overlooking the provisions of Section 31(b) of the SARFAESI Act, to which the attention of the Appeal Court had not been drawn. Had the attention of the Appeal Court been drawn to Section 31(b), the decision in the appeal would have been otherwise. 41. Section 31(b) of the SARFAESI Act provides. "31............The provisions of this Act shall not apply to-- (b) a pledge of movables within the meaning of Section 172 of the Indian Contract Act, 1872 (9 of 1872);" 42. The definition of "security interest" excludes a pledge of movables within the meaning of Section 172 of the Contract Act. In other words, "security interest" does not include the bailment of goods as security for payment of a debt, or for performance of a promise. Bailment has been 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not binding on this Court. 45. In view of Section 13 read with Sections 2(zb), 2(zc), 2(ze), 2(zf), 2(t) of the SARFAESI Act, there can be no doubt that hypothecated movable properties might be sold under the provisions of SARFAESI Act. Section 35 of the SARFAESI Act provides that the provisions of the said Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or any instrument having effect by virtue of any such law. 46. Clause 13 of the terms and conditions of sale of the movable and the immovable properties of the judgment debtor, to which Mr. Pal referred, inter alia, provided that it would be the responsibility of the purchaser to deal with the claims or disputes or litigation, if any, relating to the property, its use or otherwise after acceptance of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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