caselaws.org
Supreme Court of India
Standard Chartered Bank vs Mstc Limited on 21 January, 2020Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, V. Ramasubramanian
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 501 OF 2020
(ARISING OUT OF SLP (C) NO. 20093 OF 2019)
STANDARD CHARTERED BANK APPELLANT(S)
VERSUS
MSTC LIMITED RESPONDENT(S)
JUDGMENT
R.F. Nariman, J.
1) Leave granted.
2) The present appeal raises interesting questions which arise
under the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter
referred to as “the RDB Act” or “the Act”). The brief facts necessary
to appreciate the questions raised are as follows:-
(i) On 29.08.2008, a Receivables Purchase Agreement was
executed between Standard Chartered Bank, which is the appellant
before us and MSTC Limited, which is a Government Company-
respondent herein, whereunder receivables from overseas buyers
Signature Not Verified
Digitally signed by R
in respect of invoices raised by the respondent against foreign
NATARAJAN
Date: 2020.01.23
17:03:43 IST
Reason:
buyers were purchased by the appellant. 95% of the amount raised
by the invoices was remitted to the respondent.
2
(ii) An Export Insurance Policy was obtained by these parties from
ICICI Lombard General Insurance Company under which the
Insurance Company agreed to indemnify the respondent and the
appellant in the event of default in payment of foreign buyers.
(iii) The appellant had lodged a claim with the said Insurance
Company which, however, was repudiated on 03.03.2011. In this
background, on 13.03.2012, the appellant filed an application under
Section 19 of the RDB Act being O.A. No. 43 of 2012 before the
DRT, Mumbai for recovery of a sum of Rs.191,03,54,070.96.
(iv) An I.A was then filed by the respondent before the DRT
Mumbai, challenging its jurisdiction, which was ultimately disposed
of on 26.09.2013 and an appeal therefrom was dismissed on
03.02.2017, holding that the DRT Mumbai did have territorial
jurisdiction to go ahead with the case.
(v) At this point, an I.A was filed by the appellant stating that given
the admissions contained in the balance sheet of the relevant years
of the respondent-Company, a sum of Rs. 222,51,00,000/- was
owed by the respondent to the appellant. This I.A. was allowed by
the DRT Mumbai on 26.10.2017.
(vi) An appeal was filed by the respondent-Company against the
said order before the DRAT on 14.11.2017. While the appeal was
pending, Review Application No. 1 of 2018 was filed on 18.12.2017
3
before the DRT by the respondent-Company after the appeal that
was lodged earlier in point of time was withdrawn by the
respondent-Company on 02.01.2018.
(vii) In the meanwhile, an application dated 16.02.2018 was made
to condone a 28 day delay in filing the review petition before the
DRT, the period of limitation under Rule 5A of the Debt Recovery
Tribunal (Procedure) Rules, 1993 (hereinafter referred to as “the
Rules”) being 30 days. This review petition was dismissed by the
DRT on 21.04.2018, in which this Court’s judgment reported in
International Asset Reconstruction Company of India Limited vs.
Official Liquidator of Aldrich Pharmaceuticals Limited and Others,
(2017) 16 SCC 137 was followed, and Section 5 of the Limitation
Act, 1963 was held not to be applicable to review petitions that were
filed under Rule 5A of the Rules. A further plea to exclude time
taken under Section 14 of the Limitation Act, 1963 was also
dismissed by the DRT stating that a filing of the review petition after
the appeal would show that the appeal provision, which requires a
minimum 25% deposit, was sought to be circumvented, and,
therefore, this being the case, time taken under Section 14 cannot
be excluded as the respondent-Company did not move bona fide in
the matter.
(viii) From the order dated 21.4.2018, a writ petition was filed before
4
the Bombay High Court on 26.04.2018, which was then disposed of
by the impugned judgment on 03.05.2019, holding that the
alternative remedy of filing an appeal not being available, the writ
petition would be maintainable. In any case, the judgment of this
Court in International Asset Reconstruction Company of India
Limited (supra) was confined to consideration of Section 30 of the
RDB Act, and paragraph 14 of the said judgment would make it
clear that it would apply to the facts of this case inasmuch as an
original application made under Section 19 of the RDB Act, (which
by the definition clause under Section 2(b) applies only to
applications made under Section 19 and to no others) would
subsume an application for review as a review application would
originate from an order passed under Section 19 of the RDB Act, as
per procedure prescribed under Section 22 of the RDB Act, and
would therefore not be an application which could be said to be
independent of Section 19 of the RDB Act. This being the case, the
High Court set aside the judgment of the DRT, condoned the delay
in filing of the review application itself, and restored the review
application to the file.
3) Mr. Neeraj Kishan Kaul, learned Senior Advocate appearing on
behalf of the appellant, has contended that the High Court is wrong
on all counts. First and foremost, the High Court could not have
5
looked at Order XLVII Rule 7 of the CPC in order to hold that an
appeal from an order dismissing a review petition would not be
maintainable before the DRAT both for the reason that Order 47
Rule 7 itself is inapplicable under Section 22(1) of the RDB Act and
for the reason that Section 20 of the RDB Act makes it clear that
appeals lie to the DRAT from all applications that may have been
disposed of by the Tribunal under the RDB Act. He further argued
that the judgment in International Asset Reconstruction Company of
India Limited (supra) ought to have been applied correctly in that
the ratio decidendi of the judgment made it clear that it is only
applications under Section 19 that are referred to in Section 24 of
the RDB Act, and this being the case, a review application, being an
independent proceeding, could not be subsumed within the
expression “application” contained in Section 24 of the RDB Act.
He also cited the judgment reported in Kamlesh Verma vs.
Mayawati and Others, (2013) 8 SCC 320 to buttress the submission
that a review petition cannot be equated with the original
proceeding. Further, contrasting Rule 5A of the Rules with Section
20 of the RDB Act, since peremptory language has been used in
the said rule, making it clear that a review petition filed beyond 30
days would have to be dismissed, coupled with the fact that no
provision for condonation of delay, as in Section 20, is contained in
6
Rule 5A would also make it clear that the impugned judgment has
to be faulted on this ground as well.
4) Mr. Amar Dave, learned Advocate appearing on behalf of the
respondent, stoutly resisted each one of these contentions. First
and foremost, he asked us to consider the fact that the O.A. before
the DRT was in 2012, and it is only after waiting for five years that a
thoroughly frivolous application was taken out in 2017 for a
judgment on admission. He also adverted to Section 19, in
particular, sub-section (2) thereof, to argue that Section 19 is not
exhaustive of the types of applications that can be made under the
Act. He also strongly relied upon the reasoning of the High Court
judgment, and stated that Section 19 and 22 should be read
together, as a review proceeding emanates from the original
proceeding and is really part and parcel of the proceeding, and this
being the case, Section 24 of the RDB Act would apply Section 5 of
the Limitation Act, 1963 to review proceedings as well. He strongly
relied upon paragraph 12, in particular, in International Asset
Reconstruction Company of India Limited (supra) to contend that
there was a fundamental difference between the facts in that
judgment and the facts of the present case. The difference is that in
the earlier judgment, Section 30 pre and post amendment was set
out, and it was stated that an appeal that was filed against the
7
orders of recovery officers, which will be governed by Section 30 of
the RDB Act, would be appeals filed against a persona designata
who is not a tribunal, and this being the case, the second sentence
of paragraph 12 becomes very important, in which this Court then
states that had the recovery officer been held to be a tribunal, the
matter would have to be completely differently viewed. It was his
case, therefore, that this judgment is wholly distinguishable. He also
supported the impugned judgment on maintainability of the Writ
Petition.
5) Having heard learned counsel for both sides, it is necessary to
set out some of the provisions of the RDB Act and the Rules made
thereunder. Section 2(b) of the RDB Act states as follows:
“2. Definitions.-
(b) “application” means an application made to a
Tribunal under section 19;”
Section 19 of the RDB Act states as follows:
“19. Application to the Tribunal. –
(1) Where a bank or a financial institution has to
recover any debt from any person, it may make an
application to the Tribunal within the local limits of
whose jurisdiction-
(a) the branch or any other office of the bank or
financial institution is maintaining an account in which
debt claimed is outstanding, for the time being; or
(aa) the defendant, or each of the defendants where
there are more than one, at the time of making the
application, actually and voluntarily resides or carries
on business, or personally works for gain; or
(b) any of the defendants, where there are more than
one, at the time of making the application, actually
8
and voluntarily resides or carries on business, or
personally works for gain; or
(c) the cause of action, wholly or in part, arises
xxx xxx xxx
(2) Where a bank or a financial institution, which has
to recover its debt from any person, has filed an
application to the Tribunal under sub-section (1) and
against the same person another bank or financial
institution also has claim to recover its debt, then, the
later bank or financial institution may join the applicant
bank or financial institution at any stage of the
proceedings, before the final order is passed, by
making an application to that Tribunal.
xxx xxx xxx
(5) (i) the defendant shall within a period of thirty days
from the date of service of summons, present a
written statement of his defence including claim for
set-off under sub-section (6) or a counter-claim under
sub-section (8), if any, and such written statement
shall be accompanied with original documents or true
copies thereof with the leave of the Tribunal, relied on
by the defendant in his defence:
Provided that where the defendant fails to file the
written statement within the said period of thirty days,
the Presiding Officer may, in exceptional cases and in
special circumstances to be recorded in writing,
extend the said period by such further period not
exceeding fifteen days to file the written statement of
his defence;
xxx xxx xxx
(18) Where it appears to the Tribunal to be just and
convenient, the Tribunal may, by order—
(a) appoint a receiver of any property, whether before
or after grant of certificate for recovery of debt;
(b) remove any person from the possession or
custody of the property;
(c) commit the same to the possession, custody or
management of the receiver;
(d) confer upon the receiver all such powers, as to
bringing and defending suits in the courts or filing and
defending applications before the Tribunal and for the
realisation, management, protection, preservation and
improvement of the property, the collection of the
rents and profits thereof, the application and disposal
9
of such rents and profits, and the execution of
documents as the owner himself has, or such of those
powers as the Tribunal thinks fit; and
(e) appoint a Commissioner for preparation of an
inventory of the properties of the defendant or for the
sale thereof.”
Sections 20, 21 and 22 of the RDB Act state as follows:
“20. Appeal to the Appellate Tribunal. – (1) Save as
provided in sub-section (2), any person aggrieved by
an order made, or deemed to have been made, by a
Tribunal under this Act, may prefer an appeal to an
Appellate Tribunal having jurisdiction in the matter.
xxx xxx xxx
(3) Every appeal under sub-section (1) shall be filed
within a period of thirty days the date on which a copy
of the order made, or deemed to have been made, by
the Tribunal is received by him and it shall be in such
form and be accompanied by such fee as may be
prescribed:
Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of thirty days
if it is satisfied that there was sufficient cause for not
filing it within that period.
21. Deposit of amount of debt due, on filing
appeal. – Where an appeal is preferred by any person
from whom the amount of debt is due to a bank or a
financial institution or a consortium of banks or
financial institutions, such appeal shall not be
entertained by the Appellate Tribunal unless such
person has deposited with the Appellate Tribunal fifty
percent of the amount of debt so due from him as
determined by the Tribunal under section 19:
Provided that the Appellate Tribunal may, for reasons
to be recorded in writing, reduce the amount to be
deposited by such amount which shall not be less
than twenty-five per cent of the amount of such debt
so due to be deposited under this section.
10
22. Procedure and powers of the Tribunal and the
Appellate Tribunal. – (1) The Tribunal and the
Appellate Tribunal shall not be bound by the
procedure laid down by the Code of Civil Procedure,
1908 (5 of 1908), but shall be guided by the principles
of natural justice and, subject to the other provisions
of this Act and of any rules, the Tribunal and the
Appellate Tribunal shall have powers to regulate their
own procedure including the places at which they
shall have their sittings.
(2) The Tribunal and the Appellate Tribunal shall have,
for the purposes of discharging their functions under
this Act, the same powers as are vested in a Civil
Court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, in respect of the following
matters, namely:
(a) xxx xxx xxx
(e) reviewing its decisions;”
Section 24 of the RDB Act states as follows:
“24. Limitation. – The provisions of the Limitation Act,
1963 (36 of 1963), shall, as far as may be, apply to an
application made to a Tribunal.”
Section 34 (1) of the RDB Act states as follows:
“34. Act to have overriding effect.—
(1) Save as provided under sub-section (2), the
provisions of this Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force
or in any instrument having effect by virtue of any
law other than this Act.”
Rule 2(b) and 2(c) of the Debt Recovery Tribunal (Procedure)
Rules, 1993 states as follows:
“2. Definitions.-
(b) – “applicant” means a person making an
application under section 19 or under section 31A and
includes an “applicant” who files an appeal under
section 30(1) of the Act;
11
(c) “application” means an application filed under
section 19 or under section 31A and includes an
“appeal” filed under section 30(1) of the Act”
Rule 4(1) of the Rules states as follows:
“4. Procedure for filing applications
(1) An application under section 19 or section 31A, or
under section 30(1) of the Act may be presented as
nearly as possible in Form I, Form II and Form III
respectively annexed to these rules by the applicant
in person or by his agent or by a duly authorised legal
practitioner to the Registrar of the Bench within whose
jurisdiction his case falls or shall be sent by registered
post addressed to the Registrar.”
Rule 5A of the Rules states as follows:
“5A.Review.-
(1)Any party considering itself aggrieved by an order
made by the Tribunal on account of some mistake or
error apparent on the face of the record desires to
obtain a review of the order made against him, may
apply for a review of the order to the Tribunal which
had made the order.
(2)No application for review shall be made after the
expiry of a period of thirty days from the date of the
order and no such application shall be entertained
unless it is accompanied by an affidavit verifying the
application.
(3) Where it appears to the Tribunal that there is no
sufficient ground for a review, it shall reject the
application but where the Tribunal is of opinion that
the application for review should be granted, shall
grant the same:
Provided that no such application shall be granted
without previous notice to the opposite party to enable
him to appear and to be heard in support of the order,
a review of which is applied for.”
Rule 7 of the Rules states as follows:
12
“7. Application fee
(1) Every Application under section 19(1), or section
19(2), or section 19(8), or section 30(1) of the Act,
or interlocutory application or application for review
of decision of the Tribunal shall be accompanied by
a fee provided in the sub-rule (2) and such fee may
be remitted through a crossed Bank Demand Draft
drawn on a bank or Indian Postal Order in favour of
the Registrar of the Tribunal and payable at the
place where the Tribunal is situated.
(2) The amount of fee payable shall be as follows:-S.No. Nature of Application Amount of Fee
Payable
1. Application for recovery of
debts due under section 19(1)
or section 19(2) of the Act Rs. 12,000
(a)Where amount of debt
due is Rs. 10 lakhs
Rs. 12,000
(b)Where the amount of plus Rs. 1,000
debt due is above Rs. for every one
10 lakhs lakh rupees of
debt due or
part thereof in
excess of Rs.
10 lakhs,
subject to a
maximum of
Rs. 1,50,000
2. Application to counter claim
under section 19(8) of the Act
– Rs. 12,000
(a)Where the amount of
claim made is upto Rs.
10 lakhs. Rs. 12,000
plus Rs. 1,000
(b)Where the amount of for every one
claim made is above lakh rupees or
Rs. 10 lakhs. part thereof in
13
excess of Rs.
10 lakhs,
subject to a
maximum of
Rs. 1,50,000
3. Application for Review
including review application in
respect of counter-claim Rs. 125
(a)against an interim order
50% of fee
(b)against a final order ex- payable at
cluding review for cor- rates as
rection of clerical or applicable on
arithmetical mistakes the
applications
under section
19(1) or 19(8)
of the Act,
subject to a
maximum of
Rs. 15,000
4. Application for interlocutory Rs. 250
order
5. Appeals against orders of the
Recovery Officer
If the amount appealed Rs. 12,000
against is
(i) less than Rs. 10 Rs. 20,000
lakhs
(ii) Rs. 10 lakh or more Rs. 30,000
but less than Rs. 30
lakhs
(iii) Rs. 30 lakhs or more
6. Vakalatnama Rs. 5”
14
6) A reading of the aforesaid provisions of the Act and Rules
would show that review petitions are dealt with in Section 22(2)(e)
read with Rule 5A of the Rules. Section 24, which applies the
provisions of the Limitation Act to applications made to a Tribunal,
would, as per the definition section contained in Section 2(b),
apply only to applications that are made under Section 19, which
are original applications to recover debts that are made by banks
and financial institutions. What is clear is that an application for
review cannot possibly be said to be an application filed under
Section 19 even on a cursory reading of the provisions of the Act,
as it traces its origin to Section 22(2)(e) read with Rule 5A of the
Rules.
7) As a matter of fact, applications that are made to the Tribunal
under Section 19 of the Act are only made in order to recover a
debt from any person. Even Section 19(2), which is strongly relied
upon by Shri Dave, makes it clear that another bank or financial
institution may join an applicant bank or financial institution at any
stage of the proceeding before the final order is passed by making
an application against the same debtor for debts owed to such
other bank or financial institution. Also, under Section 19(5) of the
Act, a written statement may include a claim for set-off and/or a
counter-claim and under Section 19(18) of the Act, interim orders
15
may be passed in applications filed for recovery of debts under
Section 19 of the Act. All this must be contrasted with an
application for review that is filed under Section 22 (2)(e) of the Act
read with Rule 5A of the Rules. Such applications are not for
recovery of debts but are only applications to correct errors
apparent on the face of the record in a judgment that has been
delivered in an application filed under Section 19.
8) A reading of the Rules is also illuminating. Rules 2(b) and 2(c)
of the Rules define “applicant” and “application”, respectively, as
including applicants and applications filed under Section 19, 31A
as well as appeals filed under Section 30(1) of the Act. An
application under Section 31A is an application to enforce a
decree or order passed by any court before the commencement of
the Amendment Act of 2000 and which has not yet been executed.
An appeal under Section 30(1) is an appeal to the Tribunal against
orders of the Recovery Officer made under the Act. The reason
why Rule 2(c) of the Rules defines application as including an
application under Section 31A and an appeal filed under Section
31 of the Act, apart from applications filed under Section 19, is
because under Rule 4 of the Rules, the procedure for filing such
applications/appeal is under Forms I to III appended to the Rules.
What is important to note is that even this extended definition,
16
under the Rules, does not include an application for review filed
under Rule 5A of the Rules. In point of fact, Rule 7 makes it
abundantly clear that each such application, including applications
for review, are viewed separately and independently, as fees
payable for filing such applications are vastly different, as is clear
from Rule 7(2) of the Rules.
9) In fact, this Court in International Asset Reconstruction
Company of India Limited (supra) had to consider whether Section
5 of the Limitation Act can be invoked to condone delay in the filing
of an appeal after the prescribed period of 30 days under Section
30(1) of the RDB Act. The Court first stated, in paragraph 8, that
the RDB Act is undoubtedly a special law and a complete code by
itself with regard to expeditious recovery of dues to banks and
financial institutions. After then noticing Section 22(1) in paragraph
9 and stating that Section 5 of the Limitation Act cannot proprio
vigore apply to a tribunal as a tribunal is not a Court (in paragraph
10), the Court went on to hold:
“11. An “application” is defined under Section 2(b) of
the RDB Act as one made under Section 19 of the
Act. The latter provision in Chapter IV deals with
institution of original recovery proceedings before a
Tribunal. An appeal lies against the order of the
Tribunal under Section 20 before the Appellate
Tribunal within 45 days, which may be condoned for
sufficient cause under the proviso to Section 20(3) of
the Act. The Tribunal issues a recovery certificate
under Section 19(22) to the Recovery officer who then
17
proceeds under Chapter V for recovery of the
certificate amount in the manner prescribed. A person
aggrieved by an order of the Recovery officer can
prefer an appeal before the Tribunal under Rule 4, by
an application in the prescribed Form III. Rule 2(c)
defines an “application” to include a memo of appeal
under Section 30(1). The appeal is to be preferred
before the Tribunal, as distinct from the Appellate
Tribunal, within 30 days. Section 24 of the RDB Act,
therefore, manifestly makes the provisions of the
Limitation Act applicable only to such an original
“application” made under Section 19 only. The
definition of an “application” under Rule 2(c) cannot
be extended to read it in conjunction with Section 2(b)
of the Act extending the meaning thereof beyond what
the Act provides for and then make Section 24 of the
RDB Act applicable to an appeal under Section 30(1)
of the Act. Any such interpretation shall be completely
contrary to the legislative intent, extending the Rules
beyond what the Act provides for and limits. Had the
intention been otherwise, nothing prevented the
Legislature from providing so specifically.
12. A comparative study of Section 30, pre and post-
amendment in the year 2000, reveals that the
deemed status of proceedings before the Recovery
officer, as a Tribunal, stands denuded. Had the pro-
ceedings before the Recovery officer deemed to be
before a Tribunal, entirely different considerations
may have arisen.
Old Section 30 before the Section 30 after the 2000
2000 Amendment Amendment
“30 Orders of Recovery Of- “30. Appeal against the or-
ficer to be deemed as order der of Recovery Officer.-
of Tribunal.- Notwithstand- (1) Notwithstanding
ing anything contained in anything contained in Sec-
Section 29, an order made tion 29, any person ag-
by the Recovery Officer in grieved by an order of the
exercise of his powers un- Recovery Officer made un-
18
der Sections 25 to 28 (both der this Act may, within
inclusive), shall be deemed thirty days from the date on
to have been made by the which a copy of the order is
Tribunal and an appeal issued to him, prefer an ap-
against such orders shall lie peal to the Tribunal.
to the Appellate Tribunal.” (2) On receipt of an ap-
peal under sub-section (1),
the Tribunal may, after giv-
ing an opportunity to
the appellant to be
heard, and after making
such enquiry as it deems
fit, confirm, modify or set
aside the order made by
the Recovery Officer in ex-
ercise of his powers under
Sections 25 to 28 (both in-
clusive).”
13. The RDB Act is a special law. The proceedings
are before a statutory Tribunal. The scheme of the Act
manifestly provides that the legislature has provided
for application of the Limitation Act to original pro-
ceedings before the Tribunal under Section 19 only.
The Appellate Tribunal has been conferred the power
to condone delay beyond 45 days under Section
20(3) of the Act. The proceedings before the Recov-
ery officer are not before a Tribunal. Section 24 is lim-
ited in its application to proceedings before the Tri-
bunal originating under Section 19 only. The exclusion
of any provision for extension of time by the Tribunal
in preferring an appeal under Section 30 of the Act
makes it manifest that the legislative intent for exclu-
sion was express. The application of Section 5 of the
Limitation Act by resort to Section 29(2) of the Limita-
tion Act, 1963 therefore does not arise. The pre-
19
scribed period of 30 days under Section 30(1) of the
RDB Act for preferring an appeal against the order of
the Recovery officer therefore cannot be condoned by
application of Section 5 of the Limitation Act.”
10) The judgment of this Court makes it plain, though in a slightly
different context, that the only application that is referred to by
Section 24 of the RDB Act is an application filed under Section 19
and no other. This being the case, an application for review, not
being an application under Section 19, but an application under
Section 22(2)(e) read with Rule 5A of the Rules, this judgment
would apply on all fours to exclude applications which are review
applications from the purview of Section 24 of the RDB Act.
11) However, Mr. Dave laid great stress on paragraph 12 of the
said judgment and, in particular, the sentence “had the proceedings
before the Recovery Officer deemed to be before a Tribunal,
entirely different considerations may have arisen”. From this
sentence, the learned counsel sought to infer that it would not only
be applications under Section 19 that would come within the
“application” spoken of in Section 24, but other applications also.
12) We are afraid we are unable to agree with the aforesaid
submission. The clear ratio decidendi of this judgment makes it
abundantly clear that the only application referred to in Section 24 is
an application filed under Section 19 and to no other. The sentence
that is extracted and relied upon by Mr. Dave only makes sense in
20
the context of Section 30 unamended, when read juxtaposed with
Section 30 as amended. Under the unamended section, when the
recovery officer’s order was deemed as an order of the Tribunal,
appeals would lie to the Appellate Tribunal. This would mean that
Section 20 of the RDB Act would apply, as a result of which Section
20(3) would kick in and would permit condonation of delay. After the
amendment, it is important to note that the recovery officer is no
longer considered a Tribunal, as result of which an appeal from a
recovery officer’s order is made not to the Appellate Tribunal, but to
the Tribunal of first instance. It is in this context that the aforesaid
sentence in paragraph 12 of the Court’s judgment is to be read,
making it clear that if the unamended Section 30 were to apply, the
provision contained in Section 20(3) would be attracted, permitting
condonation of delay.
13) Mr. Dave’s second contention that, in any case, a review
petition is only a correction of the order made in the original
proceeding, and therefore part and parcel of the original
proceeding, cannot be countenanced in view of this Court’s
judgment in Kamlesh Verma vs. Mayawati and Others (supra). This
Court held:
“13. In a criminal proceeding, review is permissible on
the ground of an error apparent on the face of the
record. A review proceeding cannot be equated with
the original hearing of the case.
21
20.2. When the review will not be maintainable:
(i) xxx
(iii) Review proceedings cannot be equated with the
original hearing of the case.”
14) The peremptory language of Rule 5A would also make it clear
that beyond 30 days there is no power to condone delay. We may
also note that Rule 5A was added in 1997 with a longer period
within which to file a review petition, namely, 60 days. This period
was cut down, by amendment, with effect from 04.11.2016, to 30
days. From this two things are clear: one, whether in the original or
unamended provision, there is no separate power to condone delay,
as is contained in Section 20(3) of the Act; and second, that the
period of 60 days was considered too long and cut down to 30 days
thereby evincing an intention that review petitions, if they are to be
filed, should be within a shorter period of limitation – otherwise they
would not be maintainable.
15) We are also of the view that the High Court wrongly applied
Order XLVII Rule 7 of the Code of Civil Procedure. Order XLVII
Rule 7 states as follows:
“7. Order of rejection not appealable – Objections to
order granting application.-
(1) An order of the Court rejecting the application shall
not be appealable; but an order granting an
application may be objected to at once by an appeal
from the order granting the application or in an appeal
22
from the decree or order finally passed or made in the
suit.
(2) Where the application has been rejected in
consequence of the failure of the applicant to appear,
he may apply for an order to have the rejected
application restored to the file, and, where it is proved
to the satisfaction of the Court that he was prevented
by any sufficient cause from appearing when such
application was called on for hearing, the Court shall
order it to be restored to the file upon such terms as
to costs or otherwise as it thinks fit, and shall appoint
a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless
notice of the application has been served on the
opposite party.”
16) Section 22(1) of the Act makes it clear that the Tribunal and the
Appellate Tribunal shall not be bound by the procedure laid down by
the Code of Civil Procedure, making it clear thereby that Order
XLVII Rule 7 would not apply to the Tribunal. Also, in view of
Section 20, which applies to all applications that may be made,
including applications for review, and orders being made therein
being subject to appeal, it is a little difficult to appreciate how Order
XLVII Rule 7 could apply at all, given that Section 20 of the RDB Act
is part of a complete and exhaustive code. Section 34 of the Act
makes it clear that the 1993 Act, (and, therefore, Section 20), will
have overriding effect over any other law for the time being in force,
which includes the Code of Civil Procedure. The High Court, in
holding that no appeal would be maintainable against the dismissal
of the review petition, and that therefore a writ petition would be
23
maintainable, was clearly in error on this count also.
17) Shri Dave’s contention that as to the appellant’s conduct, as in
an application filed in 2012 an I.A praying that a judgment should be
given on admission, was filed unconscionably late i.e. only in 2017,
five years later, also has no legs to stand. In 2013, the respondent
challenged the jurisdiction of the DRT Mumbai which challenge was
repelled finally in appeal only in 2017 after which the said I.A was
filed. In any event, this is not an argument which would, by itself,
lead to a dismissal of the SLP filed by the appellant under Article
136 of the Constitution of India.
18) For all these reasons therefore, we are of the view that the
High Court judgment cannot be sustained and is thus set aside.
The appeal is allowed accordingly.
…………………………………….. J.
(ROHINTON FALI NARIMAN)
…………………………………….. J.
(V. RAMASUBRAMANIAN)
New Delhi;
January 21, 2020.
Comments