Calcutta High Court (Appellete Side)
Duncans Industries Ltd vs Narayan Kumar Khaitan on 2 March, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE R.V.W. No.165 of 2010 With C.O. No. 3202 of 2010 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Duncans Industries Ltd.
Versus
Narayan Kumar Khaitan.
For the petitioner: Mr. A. K. Mitra,
Mr. S. Basu,
Mr. J. Chowdhury,
Mr. S. Ganguly.
For the opposite party: Mr. Srijan Nayak.
Heard On:14.02.2011 & 22.02.2011.
Judgement On: March 2, 2011.
Prasenjit Mandal, J.: This review application is at the instance of the petitioner and is directed against the judgment and order dated December 1, 2010 passed by this Bench in C.O. No.3202 of 2010.
2
The contention of the petitioner is that there are apparent mistakes in the judgment passed by this Bench on December 1, 2010 in C.O. No.3202 of 2010. It is contended that this Bench did not consider the judgment of M/s. Duncans Industries Ltd. Vs. Biswajit Roy and Anr. reported in 2010 (1) CLJ (Cal) 342 which is binding on this Bench. If this judgment under review is not reviewed, there will be two judgments of two co-ordinate Benches of this Hon'ble Court conflicting with each other.
The petitioner company has been declared as a sick industry and for that reason it went on BIFR on February 21, 2007. The payment to the creditors have been stopped as per order of the appellate authority, namely, AAIFR dated December 14, 2007. Still then, the executing Court proceeded with the execution of the order of the Forum When a revisional application was preferred before the State Commission. that was dismissed. Thereafter, the application under Article 227 of the Constitution of India filed before this Bench against the order passed by the State Commission was also dismissed. There is an scope for review to avoid conflicting decisions of two co-ordinate Benches and so the impugned judgment and order should be set aside.
Mr. Mitra, learned senior Advocate appearing on behalf of the petitioners, has stressed much that this Bench did not consider the decision of the judgment reported in 2010 (1) CLJ (Cal) 342 (supra) and for that reason two conflicting decisions in respect 3 of the same petitioner arises. Therefore, it will be better to refer the matter to a Larger Bench after setting aside the impugned judgment and order dated December 1, 2010. It is also submitted that though the said decision was referred to, it was not considered at all by mistake or otherwise. The said decision is based on the decision reported in AIR 1998 Cal 218 which is also based on 1993 AIR SCW 991. It is also submitted that if a co-ordinate Bench has rendered a judgment over the selfsame matter and if the another co-ordinate Bench intends to deliver a judgment on the selfsame matter, the learned co-ordinate Bench could not take a view different from the earlier Bench in view of the decision reported in (1998) 5 SCC 637. The judicial decorum demands that the earlier decision should be followed as per judgment reported in (1989) 3 SCC 396 and if any other co-ordinate Bench dealing with the selfsame matter does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a Larger Bench. In the instant case, since a Single Bench has taken a view in 2010 (1) CLJ (Cal) 342 (supra) to the effect that the execution case could not proceed, another co- ordinate Bench dealing with the selfsame matter could not take a different view and if it holds that the later Bench was of correct view then the matter must be referred to a Larger Bench. So, the impugned order needs reviewed.
4On the other hand, Mr. Nayek appearing on behalf of the opposite party, submits that the impugned judgment does not lay down the decision of 2010 (1) CLJ (Cal) 342 (supra). Yet, if the judgment is perused as a whole, it would appear that the ratio of the said judgment has been taken into consideration in the said judgment and order under review. Moreover, this Bench has held by the impugned order that the application under Article 227 of the Constitution of India is not maintainable. So, question of consideration of that decision does not arise. It is also contended that with the disposal of the appeal by the State Commission on October 16, 2008 since no appeal or review has been preferred to the Hon'ble National Commission, the judgment dated October 16, 2008 has attained finality. The opposite party expects equal treatment with the other creditors. The petitioner is paying the dues of the other creditors who are strong but it is not paying any dues to the opposite party. So, the opposite party also expects equal treatment. The contention raised in the writ application before this Hon'ble Court was also raised before the learned District Forum in the execution proceeding. In that case, the decision of 2010 (1) CLJ (Cal) 342 (supra) was considered. But, this contention was not entertained by the said executing Forum. Thereafter a revisional application was preferred before the State Commission and the matter came up for hearing. The State Commission also rejected the revisional application. 5 Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record as well as the written arguments submitted by the parties, I find that the dispute between the parties arose from the fact that the opposite party made a fixed deposit of Rs.6,70,000/- in favour of the petitioner. That fixed deposit became matured in the year 2003. The petitioner was to repay the maturity value as per agreement between the parties. Out of the said fixed deposit of Rs.6,70,000/-, the petitioner paid back the principal amount to the extent of Rs.3,70,000/- only. The balance amount of the principal amounting to Rs.3,00,000/- and the interest accrued on the fixed deposits are to be paid by the petitioner in favour of the opposite party. Since no payment was made, the opposite party was compelled to lodge a complaint with the District Forum in 2006. The District Forum dismissed the petition of complaint. The complainant preferred an appeal before the Hon'ble State Commission and the Hon'ble State Commission by judgment and order dated October 16, 2008 set aside the order of the District Forum. The Hon'ble State Commission directed the petitioner to pay a sum of Rs.3,00,000/- to the complainants along with interest accrued thereon at the rate of 14% per annum from the date of deposit till such payment is made to the complainant. The Hon'ble State Commission also awarded a sum of Rs.4,000/- as 6 litigation cost in favour of the complainant. The Hon'ble State Commission also directed the petitioner to pay the aforesaid amounts to the opposite party within 45 days from the date of communication of the judgment failing which the amount would carry interest at the rate of 12% per annum till re-payment in full. It may be noted herein that the petitioner was declared sick industry in 2007 and the matter went to the BIFR. At first the BIFR directed to make re-payment in respect of the claimants who had made fixed deposits with the petitioner. Thereafter, the petitioner preferred an appeal to the AAIFR. The said appellate authority disposed of the same on December 14, 2007. From the above facts, it is clear that when the Hon'ble State Commission was dealing with the appeal filed by the opposite party, the judgment of the AAIFR was within the knowledge of the petitioner. In spite of that, the said judgment dated October 16, 2008 was passed.
Not only that, if the petitioner had any grievance against the said judgment of the Hon'ble State Commission dated October 16, 2008, the petitioner could have filed any appeal or revision against the said judgment dated October 16, 2008. But the petitioner did not prefer any revision before the Hon'ble National Commission. Nor did it approach any higher Court. So, the judgment dated October 16, 2008 has come to a finality and it has 7 a binding force. The petitioner is bound to comply with the said judgment.
Since the above judgment dated October 16, 2008 was not complied with by the petitioner and execution case was filed before the District Forum, at that time, the petitioner raised objection against the execution of the decree on the ground that the petitioner company was declared a sick company and it was under the BIFR. So, without permission from the BIFR, the execution case could not proceed. Even in that execution case, the petitioner relied on the decision reported in of 2010 (1) CLJ (Cal) 342 (supra) and the learned executing Forum considered the said judgment in details and thereafter rejected the contention of the petitioner by its judgment dated April 28, 2010 in execution case No.126 of 2008. Thereafter, the petitioner filed a revisional application before the Hon'ble State Commission raising the same stand of defence. It was duly considered by the Hon'ble State Commission in the judgment dated August 31, 2010. Everything was considered by the said Hon'ble State Commission. In both the cases, the petitioner was not successful. Thereafter against the final order dated August 31, 2010 of the Hon'ble State Commission, the petitioner preferred a revisional application before this Hon'ble Court and such revisional application being the C.O. No.3202 of 2010 was also dismissed on December 1, 2010. 8
Though the decision reported in of 2010 (1) CLJ (Cal) 342 (supra) was not referred to in the judgment under review dated December 1, 2010, yet this Bench finds that the principle laid down therein was considered. Such fact would appear from the observation in the body of the judgment with regard to the submission of the learned Advocate for the petitioner. This Bench made an observation that Mr. Mitra, learned senior Advocate on behalf of the petitioner submitted that the petitioner was a sick company and it went on to the BIFR. 'So, according to the provisions of Section 22 of the SICA Act, 1985 such a proceeding should be stayed,' submitted Mr. Mitra.
Above all, at the time of disposal of the said revisional application, this Bench virtually has held that the revisional application under Article 227 of the Constitution of India is not maintainable at all. This Bench has also observed that the State Commission had acted and disposed of the matter within the limits of its jurisdiction and so this Bench should not entertain the application under Article 227 of the Constitution of India in view of the provisions of the Consumer Protection Act, 1986. This Bench also noticed that the petitioner did not move the Hon'ble National Commission against the order dated August 31, 2010. So, the application was not maintainable. In coming to that decision, this Bench also considered the decision of Manager, Burdwan Co- operative Agri and Rural Development Bank Ltd. Vs. Anath Bandhu 9 Dhara reported in 2009 (2) CLJ (cal) 685 delivered by another learned Single Bench of this Hon'ble Court.
Mr. Mitra has referred to the decision of Safiya Bee Vs. Modh. Vajahath Bussain Alias Fasi reported in (2011) 2 SCC 94, particularly paragraph no.27, Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and ors. reported in (1998) 8 SCC 1, particularly paragraph no.15, State of H.P. and ors. Vs. Gujarat Ambuja Cement Ltd. and anr. reported in (2005) 6 SCC 499 particularly paragraph no.20 and Harbanslal Sahnia and anr. Vs. Indian Oil Corpn. Ltd. and ors. reported in (2003) 2 SCC 107 in support of his contention that if a co-ordinate Bench of equal strength intends to differ from the view of an earlier Co-ordinate Bench of equal strength over the selfsame matter, the learned co- ordinate Bench should refer the matter to a Larger Bench and an alternate remedy is not a bar since the executing Forum has considered the decision of 2010 (1) CLJ (Cal) 342 (supra) and passed the order dated April 28, 2010 and then it was supported by the revisional authority, that is, the Hon'ble State Commission. The Hon'ble State Commission has not acted without jurisdiction. So, this Bench holds that there is no scope of entertaining another revisional application over the selfsame matter by this Hon'ble Court.
Above all, as per written argument filed by the opposite party, this Bench finds that the petitioner is making repayment of 10 the loan with the approval of the BIFR to the other fixed depositors. For looking into the same at a glance, this Bench is placing the instances in a tabulated form:-
"2. Payments to several investors by petitioner without approval of BIFR.
Particulars
Case No. Amount Date of
Payment in
part.
i. Exe. Case No.114 of 2006 Rs.4,10,000/- 05.10.2010
ii. Exe. Case No.17 of 2010 Rs.17,000/- 18.11.2010
iii. Exe. Case No.113 of 2009 Rs.42,000/- 24.08.2010
Rs.74,926/-
Rs.15,678/-
iv. Exe. Case No.02 of 2009 Rs.37,000/- 16.09.2010
All applications admitting payments of petitioner Company are annexed."
The petitioner cannot take a pick and choose policy for repayment to the investors. The investors cannot wait for unlimited period when they would get money at the mercy of the petitioner.
In that view of the matter, this Bench is of the opinion that the judgment of 2010 (1) CLJ (Cal) 342 (supra) has been duly considered by the executing Forum and in consequence, by the Hon'ble State Commission. This Bench has observed that the application for revision is not maintainable. Therefore, this Bench is of the view that the judgment and order under review does 11 not suffer from any apparent error or mistake. So, it does not call for any interference by way of review.
Accordingly, this review application has no merit at all. It is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)