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TMI Blog2025 (5) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent herein, which is to be recovered from the Managing Director, JBVNL. 2. The brief facts of the case leading to filing of the instant review, needs to be referred as under:- (i) The writ Petitioner-Firm (respondent herein) registered under the Companies Act, 1956 and engaged in the business of providing comprehensive engineering, procurement and construction services to the Core sector industries in India. The writ Petitioner-Firm has challenged the action of the Jharkhand Bijli Vitran Nigam Limited (JBVNL) in deducting Rs. 2,90,32,000/- from the running account bills raised against the supply of materials. (ii) The Petitioner-Firm was selected for the rural electrification works under Deen Dayal Upadhyaya Gram Jyoti Yojna in XIIth Plan for Giridih, Bokaro and Dhanbad. Later, the JBVNL issued the Letters of Award, vide (i) Letter of Award for supply of materials being, LoA No. 01/RE dated 5th February 2016, LoA No. 03/RE dated 5th February 2016 and LoA No. 05/RE dated 5th February 2016 for the projects at Giridih, Bokaro and Dhanbad and (ii) Letter of Award for erection and civil works being LoA No. 02/RE dated 5th February 2016, LoA No. 04/RE dated 5th February 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the litigant think twice before putting up any speculative claim or defence. Consequently, the writ Court has further directed that JBVNL must be saddled with cost of Rs. 5 Lacs, which shall be recovered from the Managing Director. (ix) Being aggrieved with the part of the order, i.e., the cost of Rs. 5 Lacs which has been imposed upon the JBVNL, shall be recovered from the Managing Director, hence, the instant review petition has been preferred by the petitioner, Managing Director JBVNL. 3. It is evident from the factual aspect that the issue pertaining to deduction of TDS @ 2% by the JBVNL from running account bills for supply of material by the petitioner and also retention of amount representing 2% of the value of the Work Order for supply of materials towards the TDS liability so demanded by the Income Tax Department, fell for consideration before this Court in the writ petition being W.P. (T) No. 5475 of 2023. 4. The writ Court, while taking into consideration the purport of the provisions of the Income Tax Act, follows the consequences as provided under section 201 of the Income Tax Act and also the concept that any unjust retention of money or property of another shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order. Submission of the learned counsel for the respondent-writ petitioner: 9. Mr. M.S. Mittal, learned senior counsel for the respondent-writ petitioner has submitted that the amount although has been paid to the petitioner by the JBVNL but it is incorrect on the part of the review petitioner to take the ground that the Coordinate Bench has passed an order in absence of Chairman-cum-Managing Director, JBVNL, rather, if the party position will be taken into consideration, the JBVNL has been impleaded as party through the Chairman-cum-Managing Director by way of its impleadment as respondent no. 3 (in writ petition). 10. The order has been passed by the Coordinate Bench of this Court on the basis of counter affidavit filed on behalf of the JBVNL under the authority of Chairman-cum-Managing Director of JBVNL and hence, the Coordinate Bench has found the laches committed on the part of individual functionary. However, only in order to compensate by way of imposing a cost upon the JBVNL by way of immediate measure, the direction has been passed upon the JBVNL for the payment of Rs. 5 lakhs but the same has been directed to be recovered from the individual functionary, i.e., in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure which is similar in terms to Order XL VII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely; (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason." 17. Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union of India (1980) Supp. SCC 562, the Hon'ble Apex Court observed that a review of an earlier order cannot be done unless the Court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundness. The observations made are as under: "12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt error. (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 searched. (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." 19. It is evident from the aforesaid judgments that the power of review is to be exercised if there is any error occurred on the face of the order or the factual aspect could not have been brought to the notice of this Court in spite of the due diligence having been taken in the matter of making available the factual aspect of the relevant documents. 20. The position of law is well settled, as would appear from the reference of the judgments made hereinabove that the review of the judgment can only be made if the new fact has come which could not have been brought to the notice of the Court in spite of the due diligence, as has been held by the Hon'ble Apex Court in Moran Mar Basselios Cathol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for ready reference the relevant paragraph of the aforesaid judgment is quoted as under: "9. Under Order 47 Rule 1CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under Order 47 Rule 1CPC. In exercise of the jurisdiction under Order 47 Rule 1CPCit is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"." 27. Similarly, in S. Murali Sundaram Versus Jothibai Kannan and Others 2023 SCC OnLine SC 185, the Hon'ble Apex Court observed as under: "15. While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court to exercise its power of review. 16.4. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected". 16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 16.7. 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.-" 29. In the backdrop of the aforesaid settled position of law, we are now proceeding with the merit of the instant petition. 30. On the cost of repetition, it would be apt to refer the admitted factual aspects. It is evident from the record that a writ petition being W.P. (T) No. 5475 of 2023 has been filed seeking direction upon respondent JBVNL to forthwith issue TDS certificate for the amount of Rs 2,90,32000/- deducted as income tax @ 2% from the bills raised by the petitioner onwards supply of materials. 31. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Enviro-Legal Action v. Union of India" (2011) 8 SCC 161, the Hon'ble Supreme Court held that this is the bounden duty of the Court to neutralize unjust enrichment by imposing compound interest and punitive costs. In paragraph No. 178 of the reported judgment, the Hon'ble Supreme Court held as under: "178. To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of time value of money, restitution and unjust enrichment noted above-or to simply levelise-a convenient approach is calculating interest. But here interest has to be calculated on compound basis-and not simple-for the latter leaves much uncalled for benefits in the hands of the wrongdoer." 18. As per clause 10.7.4 of the Jharkhand State Electricity Regulatory Commission, Ranchi (Electricity Supply Code) Regulation, 2015, the interest rate to be paid on any excess amount paid by the consumer is equivalent to the interest rate paid by the consumer on delay payment surcharge. Therefore, the JBVNL shall pay interest over the withheld amount of Rs. 2,90,32,000/- as per clause 10.7.4 of the Regulation of 2015 which is extracted hereunder: 10.7.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire amount with interest and penalties and then the TDS return shall be filed and certificate i.e. Form-16A for the same shall be generated and issued to the Contractor. In the circumstances of the case, we hold that the stand taken by the JBVNL lacks bona fide; short to saying actuated with oblique motive. 21. The imposition of cost on the party which started litigation without any just cause or took false and frivolous defences is necessary to discourage the dishonest litigant. To this end, the Court is required to impose such cost that would make the litigant think twice before putting up any speculative claim or defence. In "Salem Advocate Bar Assn. (II) v. Union of India" (2005) 6 SCC 344 the Hon'ble Supreme Court held as under: "37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 (2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the relevant paragraph of the aforesaid order is being quoted as under: "21. The ground of review are two folds that there is vagueness in paragraph-18 wherein the liability of interest has been imposed upon the total amount but from which date the interest is to be accrued on the total amount of Rs. 2,90,32,000/-, is not there. The second ground is that the Managing Director has been saddled with cost of Rs. 5 lakhs which has been passed by the Court by putting liability in not acting with due diligence and the third ground has been taken that the Managing Director was not a party to the proceeding and as such, saddling of cost of Rs. 5 lakhs as under paragraph-22 of the order sought to be reviews is contrary to the principles of natural justice. 22. The first ground which has been taken that the quantum of interest has not been decided but this Court on consideration of paragraph 18 has found that this Court has passed the order holding the writ petitioner entitled for interest over the withheld amount of Rs. 2,90,32,000/- as per clause 10.7.4 of the Regulation, 2015. 23. Reference of the said regulation has also been made in the said paragraph. For ready reference, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competent authority in not refunding the amount and if in that pretext, personal liability has been imposed upon the Managing Director by saddling cost of Rs. 5 lakh, the same cannot be said that there is no consideration of the issue in the light of the statutory provision applicable rather there is consideration which might be said to be wrong consideration, for which the remedy available is not of review but of appeal. 29. It has also been submitted that the Managing Director was not a party. 30. This Court is of the view that if the Managing Director was not a party and when the Managing Director has been saddled with cost of Rs. 5 lakh then, it is his individual liability and nobody can be allowed to question the individual liability rather the same can only be questioned by the Managing Director by directly approaching to the Court". 37. It requires to refer herein the admitted fact, as would be evident from the order passed by the Coordinate Bench of this Court dated 08.04.2024 passed in W.P. (T) No. 5475 of 2023 that the writ petitioner, the respondent herein has been held entitled for Rs. 2,90,32,000/-. 38. It is evident from the aforesaid order that the amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 09.12.2024. For ready reference, the order dated 09.12.2024 passed by the Hon'ble Apex Court is being quoted as under: "O R D E R 1. Delay condoned. 2. Heard the learned counsel appearing for the petitioners. 3. We are not inclined to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petitions are dismissed. 4. Pending applications, if any, shall stand disposed of." 42. It needs to refer herein that as per the pleading made in the instant review petition, wherein, it has been mentioned that present review petition has been filed in individual capacity in the light of the order dated 01.08.2024 passed in Civil Review No. 71 of 2024 in reference to the paragraph-30 of the said order. 43. In the aforesaid context, this Court deems it fit and proper to refer herein the para-30 of the aforesaid order dated 01.08.2024 passed in Civil Review No. 71 of 2024, which reads as under: "30. This Court is of the view that if the Managing Director was not a party and when the Managing Director has been saddled with cost of Rs. 5 lakh then, it is his individual liability and nobody can be allowed to question the individual liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchi, Jharkhand - 834004. 4. Senior Manager (Finance & Accounts), Jharkhand Bijli Vitaran Nigam Limited, having its office at Engineering Building, H.E.C, Dhurwa, P.O & P.S-Dhurwa, District-Ranchi, Jharkhand -834004. 5. Joint Commissioner of Income Tax (TDS), having its office at Income Tax Building, M.G. Road, P.O-Railway P.O, P.S-Chutia, District-Ranchi-834001. ... Respondents 46. Further, the review petition, being Civil Review No. 71 of 2024 had been filed, wherein, paragraphs-18 and 22 of the order dated 08.04.2024 passed in W.P. (T) 5475 of 2023 has been sought for review, in which, also the Chairman-cum-Managing Director, JBVNL (present review petitioner) was one of the petitioners, i.e., petitioners/respondent no.2., for ready reference, cause title of order dated 01.08.2024 civil review being Civil Review No. 71 of 2024 is being quoted as under:- "Civil Review No. 71 of 2024 With I.A. No. 5511 of 2024 --------- 1. Jharkhand Bijli Vitaran Nigam Limited, a State Government Company, having its Registered Address at Engineering Building, H.E.C, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi-834004. 2. Chairman-Cum-Managing Director, Jharkhand Bijli Vitaran Nigam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakh then the same can only be questioned by the Managing Director by directly approaching to the Court. But it is not the case herein as the Chairman-cum-Managing Director, the incumbent, the review petitioner herein was party before the writ Court as well as before this Court when the instant issue was taken up in the Civil Review No. 71 of 2024. 50. It needs to refer herein that the present review petition has been filed for recall of the said part of the order on the ground that whatever decision has been taken, i.e., by JBVNL in the capacity of the Board and there is no individual attributability said to be committed by the present incumbent. 51. This Court has perused the document appended to the additional affidavit but no document has been appended thereto said to be a decision of the Board rather the decision has been shown to be taken by the subordinate authority, subordinate to the review petitioner herein, i.e., officer at the rank of Senior Manager, JBVNL, hence, it is incorrect on the part of the review petitioner to take the ground that the said decision of retaining the amount is of the decision of Board, is contrary to the record. 52. The Senior Manager or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent at every step and was granted higher pay scale, we do not propose to adopt that course as this is not a case of any bona fide error. It was a well-planned and deliberate infraction. We therefore direct recovery of the excess amount paid to the respondent No. 4, though in instalments and/or from the officer(s), who were directly involved in the decision-making process of granting undue benefit to the respondent No. 4. Both should be made equally liable to reimburse the exchequer for the amount illegally disbursed to the respondent No. 4. The exchequer should not be made to suffer on that account and either of two shall have to make good that loss of undue benefit granted to the respondent No. 4." 56. Thus, law is well settled that if any individual has committed any illegality on whatever reason, it will be the accountability of the individual concerned to take its liability in stead of shifting it upon the State. If the liability will be allowed to be shifted, then the question would be that why the State Exchequer while dealing with the public money, will be allowed to be overburdened due to laches committed on the part of the State authority. 57. At the cost of repetition, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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