Gujarat High Court
Nitinbhai Ghanshyambhai Mehta vs Daimler Financial Services (Dfs) India ... on 26 April, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/3295/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR RECALL) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 3295 of 2019
================================================================
NITINBHAI GHANSHYAMBHAI MEHTA Versus DAIMLER FINANCIAL SERVICES (DFS) INDIA PVT. LTD. ================================================================ Appearance:
MR BM MANGUKIYA for the PETITIONER(s) No. MS BELA A PRAJAPATI for the PETITIONER(s) No. for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE Date : 26/04/2019 IA ORDER
1. This application is filed for recall of order dated 15.03.2019 passed by this Court in Special Civil Application No.3295 of 2019. The original petition was filed seeking issuance of appropriate writ to direct the respondent not to seize the vehicle of the applicant and stay proceedings of the notice issued by the respondent-
Financial Institution dated 20.07.2018.
2. By order dated 15.03.2019, the aforementioned petition came to be dismissed. This order was subject matter of challenge in LPA No.767 of 2019, which also came to be disposed of by order dated 03.04.2019, permitting withdrawal of the appeal.
Page 1 of 5 Downloaded on : Tue Jun 25 06:54:21 IST 2019C/SCA/3295/2019 IA ORDER 3. Learned Advocate for the applicant submitted
that learned Advocate was absent at the relevant time and therefore, could not make proper representation of the applicant. It is submitted that an error is committed in passing order dated 15.03.2019 as the Court has not appreciated the fact that the Financial Institution was a private body, which assumed the power and acted like sovereign authority and therefore, even if it is a private body, such body would be amenable to writ jurisdiction of the High Court.
4. The Court has taken into consideration the submissions made and the documents on record. The Court finds it necessary to reproduce the ground on which the review is sought. The said Ground-(b)reads as under:-
"(b) The applicant submits that the powers being exercised by the private bank are the powers under sovereign in nature.
With profound respect, it is submitted that learned single Judge has misdirected himself by holding that no writ would lie against private party. The learned single Judge has failed to appreciate the fact that any private body which takes out power of duty to act like sovereign authority, said authority, even if a private body, would be amenable to a writ jurisdiction of this Hon'ble Court. To take up the vehicle under the drive of Page 2 of 5 Downloaded on : Tue Jun 25 06:54:21 IST 2019 C/SCA/3295/2019 IA ORDER default in making payment of the loan and to sell without any intervention of the court is nothing but an act of sovereignty which can never be conferred on a private body and no such power has been conferred even under the contract which can be exercised under the contract which is specifically contemplated under section 69A of the Contracts Act. Therefore, the order passed by this Hon'ble Court dated 15.03.2019 is required to be recalled."
5. No further submissions are made in this regard.
6. The Apex Court in the case of Kamlesh Verma Vs. Mayawati & Ors., reported in 2013(8) SCC, 320 has circumscribed the power of review and in para-16 has held as under:-
"Summary of the Principles:
[16] Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.Page 3 of 5 Downloaded on : Tue Jun 25 06:54:21 IST 2019
C/SCA/3295/2019 IA ORDER The words 'any other sufficient reason' has been interpreted in Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., [(1955) 1 SCR 520], to mean 'a reason sufficient on grounds at least analogous to those specified in the rule'. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., [JT 2013 (8) SC 275].
(B) When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-
heard and corrected but lies only for patent 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 Page 4 of 5 Downloaded on : Tue Jun 25 06:54:21 IST 2019 C/SCA/3295/2019 IA ORDER matter had been negatived."
7. In the facts of the present case and from the pleadings, no case is made out which would fall within the parameters prescribed by the Apex Court in the case of Kamlesh Varma (supra).
8. In view of the aforesaid, no case is made out for review /recall of order dated 15.03.2019. The application deserves to be and is hereby dismissed.
(A.Y. KOGJE, J) SHITOLE Page 5 of 5 Downloaded on : Tue Jun 25 06:54:21 IST 2019