Delhi High Court
State Bank Of India vs Diwanji Buildwell (India) Pvt. Ltd. And ... on 16 April, 2004
Equivalent citations: [2005]126COMPCAS161(DELHI), 111(2004)DLT267
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. This is an application for review/recall of the order dated 18.11.2003 on behalf of the respondent Bank. The first issue is that on the date on which the order dated 18.11.2003 was passed to some mistaken impression the Counsel for the respondents was unable to be present and put forward the case of the respondent bank with regard to the return of title deeds to the petitioner No. 2. The learned Counsel who appears today for the bank states that while it is correctly recorded in the matter that the loan taken by the petitioner had been fully repaid, it was not brought to the notice of the Court that the Title Deeds were not being retained by the Bank in respect of the loan taken by petitioner No.1 from the respondent Bank for which the petitioner No. 2 stood guarantor but wasbeing retained in respect of another transaction in which the petitioner No. 2 beinga partner of M/s. Shakti Cement Corporation had transactions with the bank. Learned Counsel appearing for the petitioner further submitted that the documents which were in the nature of goods were being retained by the bank on account of the provisions of Section 171 of the Contract Act as they had a right to them under the said provisions till the balance of the petitioner No. 2 was squared up. Learned Counsel also submitted that in respect of this other transaction in which the petitioner No. 2 was directly involved, there was some disputes and for which a suit has also been filed and the same is pending before the Trial Court. In such a situation, the learned Counsel for the respondent bank and applicant herein submits that the full facts were not disclosed to the Court on the date on which the orders sought to be reviewed was passed.
2. On the other hand, the learned Counsel for the petitioner submitted that first of all the Review Application was beyond time as the orders sought to be reviewed was dated 18.11.2003 whereas the Review application has been filed on 19.12.2003. Secondly, the learned Counsel for the petitioner contended that the respondents have falsely stated that it was under the mistaken impression that the matter had been adjourned on 18.11.2003 to 20.11.2003 and that is the reason for non-appearance. Thirdly, the learned Counsel for the petitioner has submitted that on 18.11.2003 a specific promise was made by the Bank as indicated in the Bank's letter of the same date to the effect that if the outstanding amount of Rs. 3,14,638.75 with interest were to be paid the papers by collateral securities would be returned. This letter according to the learned Counsel for the petitioner constitutes a promise and, therefore, the Title Deeds in any event had to be returned and the order which is sought to be reviewed cannot be so altered and the order was correctly passed.
3. As regards the question of limitation it appears that the order was passed on 18.11.2003 the respondent had applied for the certified copies thereof on 5.12.2003. As such, the benefit of the time taken for preparation of the certified copy would definitely be available to the applicant. That would clearly made the filing of the review application within that normal time under the Code of Civil Procedure, 1908 for filing review application although there is no strict provision prescribing limitation in respect of the order passed under Articles 226 and 227 of the Constitution. Even considering, the limitation prescribed for review petition under the Code of Civil Procedure, this ground would not be available to the Counsel for the petitioner to submit that the review application was beyond, time. With regard to the second contention, it is to be noted that the advocate who was present and who misunderstood the proceedings has filed an affidavit the same effect. Learned Counsel for the respondent Bank has categorically stated that he was on all other dates diligently pursuing the matter and had appeared on all other dates and there is no reason for him not to be present on 18.11.2003 when the order was passed. It does appeared that the non-appearance was not intentional and, therefore, the review application cannot be rejected on this ground. The third contention of the learned Counsel for the petitioner that the promise of return of Title Deed has been made and that the Bank must be held to this premise is also controverter by the learned Counsel appearing on behalf of the respondents by drawing the attention on the letter dated 3.12.2003 copy whereof is at page 53 of the paper book. First of the letter dated 18.11.2002 wherein the so called promise had been recorded is one in relation to the transaction that Divanji Buildwell (India) Pvt. Ltd. (petitioner No. 1 herein) and secondly, in the letter dated 3.12.2002 the respondent Bank has categorically stated as under:
"As regards the return of Sale Deed of property mortgaged is concerned, we have already advised that the same will be returned to mortgagor after Bank's Law Department clears as we have filed suit against him for his liability in case of Shakti Cement Corporation."
It is clear from this document that the respondent Bank was withholding the return of the Title Deed taken the lien that he had over the documents by virtue of Section 171 of the Contract Act.
4. Unfortunately, these aspects were not brought to the notice of the Court on 18.11.2003 when the matter was taken up for hearing. This may have been because of the non-appearance of the respondents. Be that as it may, it does appear from the face of the record itself these facts clearly show that the Bank had a Hen on the Title Deed and that there was not just one transaction of loan between petitioner No. 1 and the Bank but that the petitioner No. 2 was involved in the transaction with the Bank being a partner of Shakti Cement Corporation with which the Bank had pending disputes and even a civil suit has been filed in respect of these disputes. These facts clearly demonstrates that there are contentious issues of facts and issues which are in the realm of private law and, therefore, the writ petition would not be maintainable. The public law remedy of the writ petition would not be available to the writ petition.
5. In view of the aforesaid facts and circumstances the order dated 18.11.2003 is recalled. The writ petition is dismissed and parties are left to agitate their disputes in the civil Courts.
6. The Review Application is allowed.