FERRO ALLOYS CORPORATION LTD., BHADRAK vs THE PRESIDING OFFICER, LABOUR COURT, BBSR
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No.399 of 2023
CNR No.ODHC010828962023
Ferro Alloys Corporation
Limited, Bhadrak
..... Petitioner
-versus-
The Presiding Officer, Labour
Court, Bhubaneswar and others
.....
Opposite Parties
Advocates appeared in this case:
For Petitioner :Mr. Lalitendu Mishra, Advocate
Mr. Saswat Kumar Acharya, Advocate
For Opp. Parties : Ms. Biswabara Dash,
Additional Standing Counsel
(for O.P. No.1)
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
J U D G M E N T
------------------------------------------------------------------------------
Date of hearing :13.10.2026: Date of Judgment: 05.11.2026
------------------------------------------------------------------------------
PER MRUGANKA SEKHAR SAHOO, J.
1. The application has been filed seeking review of the
judgment dated 29.08.2023 passed by Division Bench in
W.P.(C) No.21154 of 2023.
RVWPET NO.399 of 2023 Page 1 of 44
Since one of us M.S. Sahoo, J. was member of the
Division Bench that had considered the writ petition,
W.P.(C) No.21154 of 2023 and rendered the judgment dated
29.08.2023 dismissing the writ application, the review
application is listed before a Bench of which M.S. Sahoo, J.
is a member, the other Hon’ble Judge who was part of the
Bench that had delivered the judgment dated 29.08.2023 is
not available.
2. The review application has been filed under Order
XLVII Rules 1 and 2 read with Section 114 of C.P.C. The
petitioner in the writ petition is also the petitioner in the
review petition.
3. In the review application the notices were issued by
order dated 16.05.2024. The learned ASC/AGA appears on
behalf of the opposite party no.1. The notice on the
opposite party no.2 has been held to be sufficient by order
dated 03.07.2024 passed by another Division Bench of
which M.S. Sahoo, J. was a member. Paragraph-3 of the
said order dated 03.07.2024 observing the notice on the
opposite party no.2 to be sufficient is reproduced herein:
“
3. Petitioner has liberty to effect service through
learned advocate, who had represented opposite
party no.2 in the Labour Court. This is in addition
to the service already attempted, which is good
service per decisions of the Supreme Court,
C.C. Alavi Haji v. Palapetty
reported in
Muhammed , reported in (2007) 6 SCC 555 ,
paragraph 14, State of M.P. v. Hiralal , reported in
(1996) 7 SCC 523 , paragraph 1 and M/s. Madan
RVWPET NO.399 of 2023 Page 2 of 44
and Co. v. Wazir Jaivir Chand , reported in AIR
1989 SC 630 , paragraph 6.”
4. By order dated 03.09.2024 in I.A. No.277 of 2024
substitution of opposite party no.2 was allowed as the said
opposite party had unfortunately passed away.
Paragraphs-3 and 4 of the order dated 03.09.2024 are
reproduced herein:
“3. Application is allowed. Hema Devi (widow),
Deepak Kumar (son), Raj Nandini Kumari (daughter)
and Nikita Kumari (daughter) are substituted as
opposite party no.2 series. Amended cause title be
filed and circulated. The application is disposed of.
4. Mr. Sahoo submits he has already filed power
on behalf of substituted legal representatives. His
name be accordingly reflected.”
Thereafter, on each date of listing i.e. 08.12.2025,
13.02.2026, 20.03.2026 and lastly on 13.10.2026 when the
matter was finally heard and judgment was reserved, none
had/has appeared on behalf of opposite party no.2.
Learned counsel for the review petitioner, Mr. Mishra
and Mr. Acharya have been heard at length. The note of
submissions filed in the review application along with the
date chart has also been considered.
5. Now, the issue for consideration and determination in
the review is whether the review petitioner has made out a
case for review of the judgment dated 29.08.2023 in W.P.(C)
No.21154 of 2023, as per the parameters of Order XLVII
Rules 1 and 2 read with Section 114 of the C.P.C.
RVWPET NO.399 of 2023 Page 3 of 44
6. The applicable provisions of C.P.C. which have bearing
in deciding the review application are reproduced herein:
“ ORDER XLVII
REVIEW
1. Application for review of judgment
.—(1)
Any person considering himself aggrieved—
(a) by a decree or order from which an appeal
is allowed, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal
is allowed, or
(c) by a decision on a reference from a Court of
Small Causes, and who, from the discovery of
new and important matter or evidence which,
after the exercise of due diligence was not
within his knowledge or could not be produced
by him at the time when the decree was
passed or order made, or on account of some
mistake or error apparent on the face of the
record or for any other sufficient reason,
desires to obtain a review of the decree passed
or order made against him, may apply for a
review of judgment to the Court which passed
the decree or made the order.
(2) A party who is not appealing from a decree or
order may apply for a review of judgment
notwithstanding the pendency of an appeal by
some other party except where the ground of such
appeal is common to the applicant and the
appellant, or when, being respondent, he can
present to the Appellate Court the case on which
he applied for the review.
[Explanation.—The fact that the decision on a
question of law on which the judgment of the
Court is based has been reversed or modified by
the subsequent decision of a superior Court in any
other case, shall not be a ground for the review of
such judgment.]
RVWPET NO.399 of 2023 Page 4 of 44
2. To whom applications for review may be
made .—[Rep. by the Code of Civil Procedure
(Amendment) Act, 1956 (66 of 1956) s. 14.]
“ 114. Review .—Subject as aforesaid, any person
considering himself aggrieved— (a) by a decree or
order from which an appeal is allowed by this
Code, but from which no appeal has been
preferred. (b) by a decree or order from which no
appeal is allowed by this Code, or (c) by a decision
on a reference from a Court of Small Causes, may
apply for a review of judgment to the Court which
passed the decree or made the order, and the
Court may make such order thereon as it thinks
fit.”
Judgment in the writ application :
7. In the writ application petitioner-employer challenged
the award dated 16.03.2023 passed by the Presiding
Officer, Labour Court, Bhubaneswar in Industrial Dispute
Misc. Case No.63 of 2021.The industrial adjudication
involved issue raised under Section 33-C(2) of the
Industrial Disputes Act, 1947 which was for recovery of
money due from the employer determined by the Labour
Court in the award dated 17.02.1999 passed in I.D. Case
No.60 of 1990 and confirmed by Division Bench in the writ
petition. The direction contained in the award of the Labour
Court in I.D. Case No.60 of 1990 at paragraphs-7 and 8 of
the award are reproduced herein:
“7.Issue No. (i) :-The termination of the workman
was done by virtue of the domestic enquiry report
and orders of the management dated 21.10.86.
Since the domestic enquiry report as well as the
orders of the management dated 21.10.86 are held
RVWPET NO.399 of 2023 Page 5 of 44
to be not legal and proper, the actions of the
management in terminating the workman with
effect from 24.10.86 is also not legal and justified.
The issue no.(i) is answered accordingly.
8. Issue No. (iv):-In view of my findings on the
foregoing issues, the workmen is entitled to be
reinstated in service, but considering the peculiar
nature and circumstances of this case, I feel that
the award of back wages at the rate of 50 per cent
would meet the ends of justice. The issue No. (iv) is
answered accordingly.”
8. The management-employer is aggrieved by the direction
as it was held by the Labour Court that termination of
service of the opposite party no.2-employee (since deceased)
with effect from 24.10.1986 is not legal and justified. The
said workman is entitled to be reinstated in service with
continuity of service. His entitlement towards back wages
was held to be 50% of the amount.
9. The management challenged the award by filing writ
petition, OJC No.7286 of 1999. The Division Bench of this
Court by order dated 11.12.2019 upheld the award,
confirmed the observations at paragraphs-6, 7 and 8 of the
award. Thereafter, the management-present review
petitioner have stated to have filed a review petition
RVWPET No.2 of 2020 on 08.01.2020, the said review
application remains without any further steps being taken
by the review petitioner. The order passed by the Division
Bench has attained finality.
10. The Division Bench in the writ petition has noted the
subsequent developments till filing of the W.P. (C) No.21154
RVWPET NO.399 of 2023 Page 6 of 44
of 2023 that was dismissed by judgment dated 29.08.2023
of which review is sought for. The relevant paragraph from
the judgment dated 29.08.2023 is reproduced herein:
“7. The Petitioner for the bad financial condition was
meanwhile admitted into Corporate Insolvency
Resolution Process (CIRP) under IBC vide order dated
06.07.2017 passed by the NCLT annexed as
Annexure-2 to the Writ Petition, the order of NCLT
remains as follows:-
"The petition filed by the Financial Creditor under section
7 of the Insolvency & Bankruptcy Code, 2016 is hereby
admitted for initiating the Corporate Resolution Process
and declare a moratorium and public announcement as
stated in section 13 of IBC 2016. The relevant sections 13
and 14 are reproduced below for the purpose of
convenience.
13. Declaration of moratorium and public announcement
(1) The Adjudicating Authority, after admission of the
application under section 7or section 9 or section 10,
shall, by an order-
(a) to in section 14; declare a moratorium for the purposes
referred
(b) cause a public announcement of the initiation of
corporate insolvency resolution process and call for the
submission of claims under section 15; and
(c) appoint an interim resolution professional in the
manner as laid down in section 16.
(2) The public announcement referred to in clause(b) of
sub-section(1) shall be made immediately after the
appointment of the interim resolution professional.
14. Moratorium
(1) Subject to provisions of sub-sections (2) and (3), on the
insolvency commencement date, the Adjudicating
Authority shall by order declare moratorim for prohibiting
all of the following namely:-
(a) the institution of suits or continuation of pending suits
or proceedings against the corporate debtor including
executing of any judgment, decree or order in any court of
law, tribunal arbitration panel or other authority;
RVWPET NO.399 of 2023 Page 7 of 44
(b) transforming, encumbering, alienating or disposing of
by the corporate debtor any of its assets or any legal
right of beneficial interest therein;
(c) Any action to foreclose, recover or enforce any security
interest created by the corporate debtor in respect of its
property including any action under the Securitisation
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (54 of 2002);
(d) The recovery of any property by an owner or lessor
where such property is occupied by or in the possession
of the corporate debtor.
(2) The supply of essential goods or services to the
corporate debtor as may be specified shall not be
terminated or suspended or interrupted during
moratorium period.
(3) The provisions of sub-section (1) shall not apply to
such transactions as may be notified by the Central
Government in consultation with any financial sector
regulator.
(4) The order of moratorium shall have effect from the
date of such order till the completion of the corporate
insolvency resolution process.
Provided that where at any time during the corporate
insolvency resolution process period, if the Adjudicating
Authority approves the resolution plan under sub-section
(1) of section 31 or passes an order for liquidation of
corporate debtor under Section 33, the moratorium shall
cease to have effect from the date of such approval or
liquidation order, as the case may be."
Necessary public announcement as per section 15 of the
IBC, 2016 may be made by the Company.
Financial Creditor has also resolved to appoint Mr.
K.G.Somani, having registration no. IBBI/I?PA-001/IP-
address (1) P00300/2017-18/10544 [e-mail
[email protected] to be appointed as interim
Resolution Professional for ascertaining the particulars of
creditors and convening a Committee of Creditors for
appointment of Resolution Professional and for evolving a
resolution plan.
Shri K.G.Somani has submitted his consent in Form-2
under Rule 9 of the insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016.
The applicant/petitioner has also certified the fact that
Mr. K.G.Somani is fully qualified and permitted to act as
an Insolvency Professional in accordance with Code and
the Associated Rules and Regulations. Therefore, Mr.
RVWPET NO.399 of 2023 Page 8 of 44
K.G.Somani is appointed as Interim Resolution
Professional.
The Interim Resolution Professional should convene a
meeting of the Committee of Creditors and submit the
resolution passed by the Committee of Creditors.
Let the copy of the order be sent to the
Applicant/Financial Creditor as well as Corporate Debtor
and I.R.P.
nd
List the matter on 22 July, 2017.”
8. In the meantime as per procedure laid down under
IBC, a Committee of creditors was formed and
Resolution professional being appointed it took over
the Management. As final outcome, one Sterlite Power
Transmission Limited (SPTL) was declared as the
Successful Resolution Applicant (SRA) and the above
resolution was approved by the NCLT Cuttack Bench
vide its order dated 30.01.2020 at Annexure-3 and 4
respectively. An Appeal being preferred by erstwhile
establishment, the NCLAT confirmed the order of the
NCLT and this order again got confirmed by the
Hon’ble apex Court in its order dated 27.09.2021 vide
Annexure-5 herein.
9. It is in the meanwhile for the Management not
working out the direction of Industrial Tribunal in I.D.
Case No.60 of 1990, the workman-Opposite Party No.2
got constrained to initiate a proceeding under Section
33-C(2) of the I.D. Act to compute the back wages @
50% arrear wages after the back wages period till
Opposite Party No.2 attended the age of
superannuation, bonus and leave salary during his
service period and this matter got registered as I.D.
Misc. Case No.63 of 2021. The Opposite Party No.2 led
its claim as an outcome of the award dated
17.02.1999 in I.D. Case No.60 of 1990 and final
award being confirmed vide O.J.C. No.7286 of 1999.”
11. The submissions and reliance upon the judgment of
the Hon’ble Supreme Court in Ghanashyam Mishra and
Sons Private Limited vrs. Edelweiss Asset
RVWPET NO.399 of 2023 Page 9 of 44
Reconstruction Company Limited: 2021 SCC Online SC
313 has been noted in the judgment at paragraph-10. The
contentions on behalf of the petitioner by the learned
counsel Mr. Mishra and Mr. Acharya have been noted at
paragraphs-12 and 13. The said paragraphs are
reproduced herein:
“10. In limiting the challenge to the order in I.D. Misc.
Case No.63 of 2021, Mr. Mishra, learned counsel for
the Petitioner submitted that for there is liquidation of
the Petitioner and there is approval of transfer plan,
there is no possibility of admission of further claim.
The Management-Petitioner also attempted to
take help of the judgment in Ghanashyam Mishra
and Sons Private Limited vrs. Edelweiss Asset
Reconstruction Company Limited: 2021 SCC
Online SC 313.
xxx xxx xxx xxx
12. Mr. Mishra, learned counsel appearing for the
Management-Petitioner raised the following
contentions:-
4. That it is a settled position of law that as soon as a
Resolution Plan is approved by the Hon'ble NCLT u/s.
31(1) of IBC, all the dues of the Corporate Debtor cease to
exist especially dues pertaining to period prior to the CIRP
of the Corporate Debtor. In the Petitioner's case also, the
Petitioner was admitted to CIRP and eventually when the
resolution plans were invited for taking over the Petitioner
Company, SPTL was declared as the SRA and as soon as
the Hon'ble NCLT Cuttack Bench approved the Resolution
Plan on 30.01.2020, all the prior dues of the Petitioner
company ceased to exist including the dues payable to
OP No. 2. Moreover, the order of the Hon'ble NCLT
Cuttack Bench clearly specifies that the order will be
binding on the Corporate Debtor (i.e. the Petitioner) and
its employees, members, all creditors including Central &
State Government and local authorities, guarantors and
other stakeholders. The said paragraph has been
reproduced below:
"19. The Resolution Plan submitted by Ms Sterlite Power
Transmission Limited (SPTL) i.e. Resolution Applicant,
approved by 95.15% of voting share in 31 Committee of
RVWPET NO.399 of 2023 Page 10 of 44
Creditors Meeting dated 13.11.2019 is APPROVED, as
per Section 31 (1) of the Insolvency and Bankruptcy
Code, 2016. Accordingly, the same shall be binding on
the Corporate Debtor and its employees, members, all
creditors including Central and State Government and
local authorities, guarantors and other stakeholders."
In fact, even the Hon'ble Supreme Court stamped with
finality the Resolution Plan of the Petitioner on
27.09.2021. 5. That Section 31 of the IBC clearly states
that the Resolution Plan once approved will be binding on
the Corporate Debtor and its employees, members,
creditors, guarantors and other stakeholder involved in
the Resolution Plan. The creditors whose claims are
accepted by the Resolution Professional and are
acknowledged in the Resolution Plan get paid
accordingly. Therefore, any claim relating to period prior
to the CIRP automatically extinguishes as soon as the
Resolution Plan is approved. The relevant extract of
section 31 is reproduced below: "31 (1) If the Adjudicating
Authority is satisfied that the resolution plan as approved
by the committee of creditors under sub-section (4) of
section 30 meets the requirements as referred to in sub-
section (2) of section 30, it shall by order approve the
resolution plan which shall be binding on the corporate
debtor and its employees, members, creditors, guarantors
and other stakeholders involved in the resolution plan."
6. That it is further submitted that the approved
Resolution Plan also bars anyone to claim any amount
which does not form the part of the Resolution Plan as on
the Plan Effective Date (i.e., date on which Resolution
Plan was approved). Moreover, the Resolution Plan also
clearly states that apart from admitted workmen dues,
any dues be it demand for any losses, damages, interest,
back wages, compensation, penal interest liquidated
damages already accrued /accruing or in connection with
any claims) any present or past, direct or indirect,
permanent or temporary employee and/or workmen of
the company whether admitted or not, due or contingent,
asserted or unasserted, crystalized or un-crystallized,
known or un- known, secured or unsecured, disputed or
undisputed, present or future, whether or not set out in
the IM will cease to exist. The Sub-clause (iii) of Para 3(b)
at internal Pg. 20 of the Resolution Plan reads as follows:
RVWPET NO.399 of 2023 Page 11 of 44
"Other than the Admitted Workmen and Employees Dues
and Potential Workmen Dues, any and all claims or
demands made by, or liabilities or obligations owed or
payable to (including any demand for any losses or
damages, or interest, back wages, compensation, penal
interest, liquidated damages already accrued/accruing or
in connection with any claims) any present or past direct
or indirect, permanent or temporary employee and lor
workmen of the company whether admitted or not, due or
contingent, asserted or unasserted, crystalized or un-
crystallized, known or un-known, secured or unsecured,
disputed or undisputed. present or future, whether or not
set out in the IM, the balance sheets of the Company or
the list of creditors, in relation to any period prior to the
Plan Effective Date or arising on account of the
acquisition of control by the Applicant over the Company
pursuant to this Resolution Plan, will be written off in full
and shall be deemed to be permanently extinguished by
virtue of the order of the NCLT approving this Resolution
Plan and the Company or the Applicant shall at no point
of time be directly or indirectly, held responsible or liable
in relation there to."
7. That it is also profitable to contend that the binding
nature of the Resolution Plan is to such an extent that the
IBC under Section 74(3) also provides that if the
Corporate Debtor, any of its officers, creditors or any
person upon whom the Resolution Plan is binding,
contravenes the Resolution Plan then such person shall
be punishable with imprisonment of not less than one
year, but may extend to five year or with fine which shall
not be less than one lakh rupees, but may extend to one
crore rupees, or with both. The Resolution Plan is binding
upon the OP No. 2 and the OP No. 2 has clearly
proceeded in violating Section 74(3) of IBC which is a
punishable offence. The relevant extract of the section is
reproduced below:
"74. Punishment for contravention moratorium or the
resolution plan
(1)...
(2)....
(3) Where the corporate debtor, any of its officers or
creditors or any person on whom the approved resolution
RVWPET NO.399 of 2023 Page 12 of 44
plan is binding under section 31 knowingly and wilfully
contravenes any of the terms of such resolution plan or
abets such contravention, such corporate debtor, officer,
creditor or person shall be punishable with imprisonment
of not less than one year, but may extend to five years, or
with fine which shall not be less than one lakh rupees,
but may extend to one crore rupees, or with both.
8. That further it is pertinent to note that IBC has been
given overriding powers under Section 238 which clearly
specifies that the IBC will prevail over any other law. The
section states as below:
"238. Provisions of this Code to override other laws - The
provisions of this Code shall have effect, notwithstanding
anything inconsistent therewith contained in any other
law for the time being in force or any instrument having
effect by virtue of any such law"
9. That the claim of the OP No. 2 is not maintainable as it
relates prior to CIRP period and hence extinguished after
the approval of the Resolution Plan. This Hon'ble Court in
the Petitioner's own matter where the Department of
Mines, State of Odisha had raised claims of Rs. 215.92
Crores, has quashed the said demand on the ground that
the claim is extinguished as it relates to a period prior to
the approval of the Resolution Plan. The said judgment.is
reported as Ferro Alloys Corporation Ltd. vs. State of
Odisha, AIR 2022 Orissa 17.
10. The binding nature of the approved Resolution Plan
and the overriding powers of the Code have been
stamped with approval by several judgments which are
binding. on the Opposite Parties. The Hon'ble Supreme
Court in the landmark judgment of Committee of
Creditors of Essar Steel vs. Satish Kumar Gupta (2020) 8
SCC 531 has held as follows: "105. Section 31(1) of the
Code makes it clear that once a resolution plan is
approved by the Committee of Creditors it shall be
binding on all stakeholders, including guarantors. This is
for the reason that this provision ensures that the
successful resolution Applicant starts running the
business of the corporate debtor on a fresh slate as it
were.
107.. A successful resolution applicant cannot suddenly
be faced with "undecided" claims after the resolution plan
RVWPET NO.399 of 2023 Page 13 of 44
submitted by him has been accepted as this would
amount to a hydra head popping up which would throw
into uncertainty amounts payable by a prospective
resolution applicant who successfully take over the
business of the corporate debtor. All claims must be
submitted to and decided by the resolution professional
so that a prospective resolution applicant knows exactly
what has to be paid in order that it may then take over
and run the business of the corporate debtor. This the
successful resolution applicant does on a fresh slate, as
has been pointed out by us hereinabove."
11. Further, the Hon'ble Supreme Court, in the case of
Ghanashyam Mishra and Sons Pvt. Ltd. vs. Edelweiss
Asset Reconstruction Company Ltd, (2021) SCC ONLINE
SC 313, has clearly held that claims which are not part of
the resolution plan shall stand extinguished upon
approval of resolution plan and the same has been
quoted below for the kind perusal of this Hon'ble Court:
"95. In the result, we answer the questions framed by us
as under:
(i) That once a resolution plan is duly approved by the
Adjudication Authority under subsection (1) of Section 31,
the claims as provided in the resolution plan shall stand
frozen and will be binding on the Corporate Debtor and
its employees, members, creditors, including the Central
Government, any State Government or any local
authority, guarantors and other stakeholders. On the
date of approval of resolution plan by the Adjudicating
Authority, all such claims, which are not a part of
resolution plan, shall stand extinguished and no person
will be entitled to initiate or continue any proceedings in
respect to a claim, which is not part of the resolution plan;
(ii) 2019 amendment to Section 31 of the I & B Code is
clarificatory and declaratory in nature and therefore will
be effective from the date on which I&B Code has come
into effect;
(iii) Consequently all the dues including the statutory
dues owed to the Central Government, any State
Government or any local authority, if not part of the
resolution plan, shall stand extinguished and no
proceedings in respect of such dues for the period prior to
RVWPET NO.399 of 2023 Page 14 of 44
the date on which the Adjudicating Authority grants its
approval under Section 31 could be continued."
13. It is in the above grounds and taking cue from the
judgment in Ghanashyam Mishra (supra) and a
further direction of this Court in O.J.C. No.7286 of
1999, Mr. Mishra, learned counsel for the Petitioner
claimed declaring the direction in I.D. Misc. Case
No.63 of 2021 as bad in law and setting aside the
same.”
12. The discussions on the factual issues raised as well as
the law has been discussed threadbare at length by the
Division Bench in its judgment at paragraphs-15, 16, 17
and 18, which are reproduced herein:
“15. This Court here finds undisputed facts here
remain to be Petitioner herein became insolvent on
06.07.2017. In between 2017-2020 Resolution
Professional (R.P) was in-charge as per IBC appointed
by NCLT Calcutta Bench and the R.P. invited claims
from 2017 till 2020. The C.P.(I.B) No.251/KB/2017 got
concluded in order of NCLT dated 22.07.2017. There is
drawing of Resolution Plan and the Resolution Plan
got approved by NCLT Cuttack on 30.01.2020. Copy of
Resolution plan is available here as Annexure-3 and
copy of approval order by NCLT appears at Annexure-
4. In the meantime promotors appealed before NCLAT
also failed. The matter went to the level of Hon9ble
apex Court and Hon9ble apex Court not only upheld
the decision of NCLT as well as NCLAT but it also
stamped the Resolution Plan by its order dated
27.09.2021 vide Annexure-5. Resolution Plan dated
13.11.2019 at Annexure-3 vide clause-10 under
heading the Resolution Plan and Implementation
Schedule at sub-para (a) and (b) reads as follows:-
"a) The term of the Resolution Plan shall commence on the
date of submission of the Resolution Plan to the
Resolution Professional and shall remain valid till the
Plan is fully implemented. Notwithstanding anything
RVWPET NO.399 of 2023 Page 15 of 44
contained in this Resolution Plan (except to the extent set
out in Section 7(b) of this Resolution Plan). no part of this
Resolution Plan shall become effective or enforceable until
either (i) the Resolution Plan is approved by the NCLT in
the manner previously proposes by the Applicant and
approved by the CoC; or (ii) if approved by the NCLT with
any variance which does not result in any change in the
Total Consideration proposed under the plan or does not
impact the overail Financial Proposal of the Applicant, in
the manner approved by the NCLT; (iii) if approved by the
NCLT with any variance other than (iv) above, then in the
form and substance acceptable to the COC and the
Applicant Upon approval of the Resolution Plan by the
NCLT, this Resolution Plan shall ispo facto form part of
the NCLT order approving the Resolution Plan.
b) The implementation schedule for the Resolution Plan is
set out in Section 7(b) of this Plan."
Similarly Resolution Plan at clause-3(b) under
heading proposed for workman-Employees sub-clause
(iii), at page-61 of the brief reads as follows:
"(iii) Other than the Admitted Workman and Employees
Dues and Potential Workmen Dues, any and all claims or
demands made by or liabilities or obligations owed or
payable to, (including any demand for any losses or
damages, or interest, back wages, compensation, penal
interest, liquidated damages already accrued/accruing or
in connection with any claims) any present or past, direct
or indirect, permanent or temporary employee and/or
workman of the Company whether admitted or not, due
or contingent, asserted or unasserted, crystalized or
uncrystallised known or unknown, secured or unsecured,
disputed or undisputed, present or future, whether or not
set out in the IM, the balance sheets of the Company or
the profit and loss account statements of the Company or
the list of creditors, in relation to any period prior to the
Plan Effective Dare or arising on account of the
acquisition of control by Applicant over the Company
pursuant to this Resolution Plan, will be written off in full
and shall be deemed to be permanently extinguished by
virtue of the order of the NCLT approving this Resolution
Plan and the Company or Applicant shall at no point of
time be, directly or indirectly, held responsible or liable in
relation thereto."
RVWPET NO.399 of 2023 Page 16 of 44
16. This condition appears to make it clear that the
resolution placed covers all other dues except the
admitted workman and employees9 dues. It be made
here that here the admitted dues of the workman
involved case by way of an industrial adjudication in
I.D. Case No.60 of 1990 decided on 17.02.1999 and
decided much prior to Company-Petitioner herein
became insolvent on 06.07.2017. The benefit to the
workman came by way of award dated 17.02.1999 in
disposal of I.D. Case No.60 of 1990. It is thus the
outcome in I.D. Misc. Case No.63 of 2021 remain
immaterial as it is only in giving into effect the outcome
in I.D. Case No.60 of 1990 that too being confirmed in
O.J.C. No.7286 of 1999. Pendency of the Review
Petition without even admitted has no consequence for
there is loss of decade in the meantime. The Petitioner
claims here undoubtedly remain outside, the
Resolution Plan and Petitioners attempt if entertained
will frustrate the effect of award being confirmed by
this Court and the Management here is expecting
undue advantage of the Resolution Plan and an
outcome of its approval by Supreme Court vide Civil
Appeal No.5991-92 of 2021 and 5129 of 2021 decided
on 27.07.2021 particularly when for there is
undertaking of industrial adjudication since 1990,
there was no scope for inclusion of such claim in
undertaking of exercise in calling for the claims in
2017.
17. This Court here considering the effect of the
judgment in Ghanashyam Mishra and Sons Private
Limited Vrs. Edelweiss Asset Reconstruction Company
Limited , 2021 SCC Online SC 313 finds, the short
question decided to be determined there as taken
down in paragraph-2 reads as follows:-
“2. The short but important questions, that arise for
consideration in this batch of matters, are as under:-
(i) As to whether any creditor including the Central
Government, State Government or any local authority is
bound by the Resolution Plan once it is approved by an
adjudicating authority under sub-section (1) of Section 31
RVWPET NO.399 of 2023 Page 17 of 44
of the Insolvency and Bankruptcy Code, 2016 (hereinafter
referred to as 'I& B Code')?
(ii) As to whether the amendment to Section 31 by Section
7 of Act 26 of 2019 is clarificatory/ declaratory or
substantive in nature?
(iii) As to whether after approval of resolution plan by the
Adjudicating Authority a creditor including the Central
Government, State Government or any local authority is
entitled to initiate any proceedings for recovery of any of
the dues from the Corporate Debtor, which are not a part
of the Resolution Plan approved by the adjudicating
authority?"
18. Attention in taking help of the above decision was
drawn through question (iii) particularly plain reading
of the aforesaid question, this Court here observes, the
question (iii) does not fit to the issue involved herein as
there should not be any doubt that the dispute here
involved a determination on claim prior to 1990 and
the final outcome in the dispute even involving benefit
through as a corollary but all as an outcome of the
result in I.D. Case No.60 of 1990 being confirmed by
way of disposal in O.J.C. No.7286 of 1999 but
disposed of on 11.12.2019 and claims here placed to
be confident in terms of Resolution Plan involved
herein. It be stated here that even though liquidation
process involving the Petitioner commenced in 2017 till
disposal of the Writ Petition in 2019, the Management-
Petitioner consciously let this issue from being
considered in the previous round of litigation.”
13. The Division Bench further formulated its conclusion
with the reasons after discussing the law at paragraph-19
to 24, which are reproduced herein:
“19. Undisputedly in the case at hand not only not a
part of the Resolution plan nor even there is any claim
put here after approval of the Resolution. The claim
here arises by way of Industrial Adjudication in an
award, vide I.D. Case No. 60 of 1990 passed on
17.02.1999. Such Award even got confirmed by this
RVWPET NO.399 of 2023 Page 18 of 44
Court in disposal of OJC No. 7286 of 1999. It be stated
here that here the Resolution plan was submitted for
the first time on 30.01.2020 and was approved by
NCLT also on 30.01.2020 and ultimately confirmed by
Hon9ble apex Court, vide judgment reported in (2022)
10 SCC 493 being decided on 27.09.2021. For the
benefit here through award passed on 17.02.1999 in
a litigation initiated in 1990 and litigation going on,
there was no deliberate inclusion of this aspect in the
Resolution plan.
20. This Court here further also observes, the legal
position on above is well settled that an approved
Resolution Plan can deal with related party claim and
extinguish the same, which shall ensure that the
successful Resolution applicant can take over the
Corporate Debtor on hassle-free and clean state. This
Court here also finds, once the Corporate Debtor was
with clear knowledge of such an outstanding coming
on its head, nothing prevents to the Corporate Debtor
also putting such claim in the Resolution Plan. On the
other hand attempt of the Petitioner here appears to
circumvent the yield through the Industrial
Adjudication settled through disposal of the Writ
Petition in the guise of Resolution plan and trying to
avoid its responsibility.
21. On the Petitioner here attempting to take
advantage of Ghanashyam Mishra (supra) in the first
step, this Court finds, there is, however, involve the
issue involved therein and on the other hand even
deciding the issue No. (iii) taken note herein the
Hon9ble apex Court though taken its view in
Paragraph-95 therein also does not come in the aid of
the Petitioner.
22. It be stated here that the Petitioner even though
has some other grounds but the impugned order was
challenged only on the premises that the proceeding
therein in I.D. Misc. No. 63 of 2021 does not stand to
test for its Resolution Plan confirmed involving the
company and did not include such claim further also
hit by judgment of Hon9ble apex Court in
Ghanashyam Mishra (supra).
RVWPET NO.399 of 2023 Page 19 of 44
23. Based on the above discussion we are of the
considered opinion that there are no reason for
interference in the order dated 16.03.2023 passed by
the Labour Court, Bhubaneswar in I.D. Misc. Case No.
63 of 2021 involving a proceeding under Section 33-
C(2) of the I.D. Act and the Writ Petition thus declined
to be entertained for having no merit. For there is
inordinate delay in providing the legitimate dues to the
Workman involved herein and he is pursuing his
litigation remedy nearly three and half decade and the
Workman is sufficiently aged in the meanwhile, the
benefit by virtue of the impugned order unless paid
within thirty days hereafter, the Petitioner shall be
entitled to the same along with interest @ 8% per
annum all through.
24. The Writ Petition stands dismissed, however, with
the above direction. No Cost.”
Submissions on behalf of the petitioner
14. Supporting the prayer seeking review of the judgment
of the Division Bench extensive submissions have been
made by the learned Counsel for the petitioner Mr. Mishra
and Mr. Acharya. The summary of the submissions are
indicated herein below:
(i) The opposite party no.2-workman since deceased never
lodged a claim under IBC before the Resolution
Professional.
(ii) Clause -3(f)(i) of the Resolution Plan provides that all
mandatory liabilities arising out of the litigations relating to
the period prior to the effective date indicated shall be
settled as ‘NIL’.
(iii) The Division Bench has determined ‘apparently
mistaken findings’.
RVWPET NO.399 of 2023 Page 20 of 44
(iv) At paragraph-33 of the review application, paragraph-A
to Paragraph-E specific points have been raised by the
review petitioner suggesting that the Division Bench has
returned finding of fact, which are contrary on the face of
the record.
15. The learned counsel Mr. Mishra and Mr. Acharya have
relied on the decision of the Hon’ble Supreme Court in
Board of Control for Cricket in India and another v.
Netaji Cricket Club and others: (2005) 4 SCC 741 , to
support the submissions that a case for review has been
made out. Relied upon paragraphs-88, 90 and 93 are
reproduced herein:
“ 88. We are, furthermore, of the opinion that the
jurisdiction of the High Court in entertaining a review
application cannot be said to be ex facie bad in law.
Section 114 of the Code empowers a court to review its
order if the conditions precedent laid down therein are
satisfied. The substantive provision of law does not
prescribe any limitation on the power of the court
except those which are expressly provided in Section
114 of the Code in terms whereof it is empowered to
make such order as it thinks fit.
xxx xxx xxx xxx
90. Thus, a mistake on the part of the court which
would include a mistake in the nature of the
undertaking may also call for a review of the order. An
application for review would also be maintainable if
there exists sufficient reason therefor. What would
constitute sufficient reason would depend on the facts
and circumstances of the case. The words “sufficient
reason” in Order 47 Rule 1 of the Code are wide
enough to include a misconception of fact or law by a
RVWPET NO.399 of 2023 Page 21 of 44
court or even an advocate. An application for review
may be necessitated by way of invoking the doctrine
“actus curiae neminem gravabit”.
xxx xxx xxx xxx
93. It is also not correct to contend that the Court
while exercising its review jurisdiction in any situation
whatsoever cannot take into consideration a
subsequent event. In a case of this nature when the
Court accepts its own mistake in understanding the
nature and purport of the undertaking given by the
learned Senior Counsel appearing on behalf of the
Board and its correlation with as to what transpired in
the AGM of the Board held on 29-9-2004, the
subsequent event may be taken into consideration by
the Court for the purpose of rectifying its own
mistake.”
16. Seeking the review, the learned counsel for the
petitioner have also relied on the decisions of Ferro Alloys
Corporation Ltd. v. State of Odisha and others: AIR
2022 Ori 17 and Green View Tea and Industries v.
Collector, Golaghat, Assam and others: (2004) 4 SCC
122. We have gone through the said decisions and
considered whether they would be of any help to the
petitioner.
Discussions, Reasoning and Conclusions of the Court in
the review application
17. In The State of West Bengal & Ors. Vs.
Confederation of State Government Employees, West
Bengal & Ors.: R.V.W. 159 of 2022 In WPST 102 of 2020
nd
With C.A.N. 1 of 2022 dated 22 September, 2022, the
Division Bench of Calcutta High Court considered the
RVWPET NO.399 of 2023 Page 22 of 44
review application; speaking for the Bench regarding
interpretation of Order XLVII Rules- 1 and 2 of the C.P.C.,
one of us Harish Tandon,J. (as His Lordship then was)
observed thus:
“ Upon the meaningful reading of the above quoted
provisions the review is permissible provided the
condition enshrined therein are fulfilled. Although
the High Court enjoins the plenary powers of
review while dealing under Article 226 of the
Constitution of India yet the condition put forth
therein needs to be looked into and the power is to
be exercised within the circumference thereof. The
review is permissible provided the order/decree
contained an error apparent on the face of the
record or on a discovery of new and important
matters or evidence which despite the exercise of
due diligence was not within the knowledge of the
aggrieved person, at the time of passing of the said
order or decree or for any other substantial
reasons. The explanation appended thereto creates
a further fetter on the part of the Court exercising
review jurisdiction in not entertaining if aimed at
the subsequent decision of the superior Court in
any other case.”
[Underlined to supply emphasis]
18. It would be apt and appropriate to quote the judgments
relied upon and discussions made thereon by the Division
Bench of the Calcutta High Court in State of West
Bengal ( supra ).
“ The Three Judge Bench of the Supreme Court in
case of M/s. Thungabhadra Industries Ltd. Vs.
The Government of Andhra Pradesh reported in
AIR 1964 SC 1372 discussed the incidents which
can be engulfed within the expression “error
RVWPET NO.399 of 2023 Page 23 of 44
apparent on the face of the record”. It is held that
there is a distinction between an erroneous decision
and a decision vitiated by a patent error. It is
highlighted that the review jurisdiction should not be
invoked and/or exercised converting itself as a court
of appeal but founded upon the well sanctified
parameters and at the time of exercising such
jurisdiction the Court must be cautious and careful
in bearing in mind the aforesaid distinction. The
error can be said to be apparent on the face of the
record provided the law expounded therein does not
invite two possible conclusions/opinions. It is an
ardent duty of the Court not to find out the error
after an elaborate argument…... …”
In Parsion Devi & Ors. vs. Sumitri Devi & Ors.
reported in (1997) 8 SCC 715, the Apex Court in
fact, propelled the exposition of law laid down in the
case of Thungabhadra ( Supra ) and held that the
error apparent on the face of the record must be self-
evident and does not require to be ascertained by a
process of reasoning. It is further held that the said
jurisdiction can never be invoked for the purpose of
mere correction of the order and upon rehearing of the
entire matter, in the following:
“9. Under Order 47 Rule 1 CPC 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 1 CPC. In exercise of the
jurisdiction under Order 47 Rule 1 CPC it 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”.
RVWPET NO.399 of 2023 Page 24 of 44
[Emphasis in original]
In Haridas Das vs. Usha Rani Banik & Ors.
reported in (2006) 4 SCC 78, the Apex Court held
that the error or mistake appearing in Order 47 Rule
1 of the Code must not be such which is to be
established by a long drawn process of reasoning
upon lengthy arguments but should be self-evident in
the following:
“A Constitution Bench of this Court in the
case of Pandurang Dhondi Chougule v.
Maruti Hari Jadhav MANU/SC/0033/1965:
[1966]1SCR102 has held that the issue
concerning res judicata is an issue of law
and, therefore, there is no impediment in
treating and deciding such an issue as a
preliminary issue. Relying on the
aforementioned judgment of the
Constitution Bench, this Court has taken the
view in the case of Meharban v. Punjab
Wakf Board (supra) and Harinder Kumar
(supra) that such like issues can be treated
and decided as issues of law under Order
XIV, Rule 2(2) of the Code. Similarly, the
other issues concerning limitation,
maintainability and Court fee could always
be treated as preliminary issues as no
detail evidence is required to be led.
Evidence of a formal nature even with
regard to preliminary issue has to be led
because these issues would either create a
bar in accordance with law in force or they
are jurisdictional issues.”
[Emphasis in original]
In a recent judgment rendered by the Three Judge
Bench of the Supreme Court in S. Madhusudhan
Reddy (Supra) , it is held that the power of review
should not be equated with the power of an appeal. It
is further held that the Court can exercise such
powers for correction of a mistake but not to
RVWPET NO.399 of 2023 Page 25 of 44
substitute its view taken earlier solely on the ground
that there is a possibility of two views. It would be
profitable to quote the observations contained in
Paragraph 26 thereof which runs thus :
“26. As can be seen from the above
exposition of law, it has been consistently
held by this Court in several judicial
pronouncements that the Court’s jurisdiction
of review, is not the same as that of an
appeal. A judgment can be open to review if
there is a mistake or an error apparent on
the face of the record, but an error that has
to be detected by a process of reasoning,
cannot be described as an error apparent
on the face of the record for the Court to
exercise its powers of review under Order
XLVII Rule 1 CPC. In the guise of exercising
powers of review, the Court can correct a
mistake but not substitute the view taken
earlier merely because there is a possibility
of taking two views in a matter. A judgment
may also be open to review when any new
or important matter of evidence has
emerged after passing of the judgment,
subject to the condition that such evidence
was not within the knowledge of the party
seeking review or could not be produced by
it when the order was made despite
undertaking an exercise of due diligence.
There is a clear distinction between an
erroneous decision as against an error
apparent on the face of the record. An
erroneous decision can be corrected by the
Superior Court, however an error apparent
on the face of the record can only be
corrected by exercising review jurisdiction.
Yet another circumstance referred to in
Order XLVII Rule 1 for reviewing a judgment
has been described as “for any other
sufficient reason”. The said phrase has
RVWPET NO.399 of 2023 Page 26 of 44
been explained to mean “a reason sufficient
on grounds, at least analogous to those
specified in the rule” (Refer: Chajju Ram V.
Neki Ram 17 and Moran Mar Basselios
Catholicos and Anr. V. Most Rev. Mar
Poulose Athanasius and Others 18).”
[Emphasis in original]
19. The further observations of the Division Bench of
Calcutta High Court in State of West Bengal ( supra ) are
quoted and applied in considering the present review
application:
“ The law that emanates from the aforesaid decision
leaves no ambiguity that the power of the review is
to be exercised within the limited compass. Though
the substantive provision in the Code of Civil
Procedure in the form of Section 114 confers power
upon the Court to review its judgment, order or
decree yet it does not prescribe any conditions
and/or the grounds of such review. In other words
Section 114 of the Code of Civil Procedure neither
prescribes any condition for exercising the power of
review nor creates any brindle or prohibition on the
Court from exercising such powers. Logically what
follows therefrom is that though the substantive
provision of review is provided in the Code yet the
power is to be exercised by the Court on the grounds
enumerated under Order 47 Rule 1 of the Code.
Although the High Court enjoins a plenary power of
correcting its mistakes or the errors in a writ
jurisdiction yet by virtue of the introduction of Order
47 Rule 1 of the Code it is required to be exercised
bearing in mind the condition enshrined therein. The
expression ‘mistake’ or ‘error’ apparent on the face
of the record leaves no ambiguity on the legislative
intent that such error which are self-evident and
does not require a detailed examination, the detailed
scrutiny, roving enquiry and/or the elucidation of
RVWPET NO.399 of 2023 Page 27 of 44
the facts or the legal position, are kept outside the
purview of the aforesaid expression. The said
expression connotes that the mistake or error
apparent on the face of record must be such which
does not require a long debate or the elaborate
reasoning but on a bare look of the record and the
consequence to follow therefrom. Every error cannot
be construed as error apparent if it does not result
into an accepted decision already taken. The fringe
mistake or error which is ministerial having no
impact on the ultimate decision taken on a well
defined reasonings, cannot be perceived an error
apparent on the face of the record. There is a real
and apparent distinction between an erroneous
decision and the decision containing an error
apparent on the face of the record. In former case
the remedy available to an aggrieved person is to
move higher up and the review jurisdiction cannot
be invoked; on the other hand, in later case if the
Court finds that the judgment under review
contained patent error striking at the root of the
decision the review can be the proper remedy.
Though the Justice is a virtue and transcends all
barriers unbrindled with the rules of procedure or
technicalities but there is a difference in the nature
of a mistake and scope of the review as it largely
depends upon the facts of the each case. The
plenary powers of the Writ Court is based on equity
and the fairness and the mistake of a Court should
not cause prejudice to the litigants. The moment the
mistake or the error is qualified with the word
“apparent on the face of the record”, the power is to
be exercised in keeping the legislative intent and the
conferment of the jurisdictions by the statutory
provisions. The review jurisdiction is never equated
with the appellate jurisdiction nor can be considered
as an appeal in disguise. In case of an error, there is
a possibility of two views and the one has been
adopted it cannot come within the purview of the
review jurisdiction even the Court feels the other
possible views should have been taken. In such
RVWPET NO.399 of 2023 Page 28 of 44
cases, it should be regarded as an erroneous
decision capable of being corrected by a higherer
forum and does not come within the ambit of the
review jurisdiction. The normal principle perceived in
this regard is that the Court should avoid the
departure from the judgment taken as it becomes
final except when it is justified by the circumstances
of substantial and compelling character.
[Underlined to supply emphasis]
20. In judgment dated 25.04.2022 in RVWPET No.20
of 2022 rendered by coordinate Bench of this Court, of
which one of us M.S.Sahoo, J. was Member, decision of
the Hon’ble Apex Court in Kamlesh Verma v.
1
Mayawati was relied upon. Kamlesh Verma ( supra )has
also been relied upon by the Division Bench of the
Calcutta High Court in State of West Bengal ( supra ).
21. In Kamlesh Verma ( supra ) the Hon’ble Supreme
Court has laid down scope of exercise of power by the
High Court for reviewing its own judgment and the
limitations on exercise of such power. The paragraphs
which are relied upon and applied for adjudication of the
present review are reproduced herein; at paragraphs-12
to 20 of SCC the Hon’ble Supreme Court have held as
follows:-
“ 12. This Court has repeatedly held in various
judgments that the jurisdiction and scope of review
is not that of an appeal and it can be entertained
only if there is an error apparent on the face of the
record. A mere repetition through different counsel,
1
(2013) 8 SCC 320
RVWPET NO.399 of 2023 Page 29 of 44
of old and overruled arguments, a second trip over
ineffectually covered grounds or minor mistakes of
inconsequential import are obviously insufficient.
This Court in Sow Chandra Kante v. Sk. Habib
[(1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC
(L&S) 184 : 1975 SCC (Tax) 200] held as under :
(SCC p. 675, para 1)
(underlined to supply emphasis)
“1. Mr Daphtary, learned counsel for the
petitioners, has argued at length all the points
which were urged at the earlier stage when we
refused special leave thus making out that a review
proceeding virtually amounts to a rehearing. May
be, we were not right in refusing special leave in
the first round; but, once an order has been passed
by this Court, a review thereof must be subject to
the rules of the game and cannot be lightly
entertained. A review of a judgment is a serious
step and reluctant resort to it is proper only where
a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility. A
mere repetition, through different counsel, of old
and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of
inconsequential import are obviously insufficient.
The very strict need for compliance with these
factors is the rationale behind the insistence of
counsel's certificate which should not be a routine
affair or a habitual step. It is neither fairness to the
court which decided nor awareness of the precious
public time lost what with a huge backlog of
dockets waiting in the queue for disposal, for
counsel to issue easy certificates for entertainment
of review and fight over again the same battle
which has been fought and lost. The Bench and the
Bar, we are sure, are jointly concerned in the
conservation of judicial time for maximum use. We
regret to say that this case is typical of the
unfortunate but frequent phenomenon of repeat
performance with the review label as passport.
RVWPET NO.399 of 2023 Page 30 of 44
Nothing which we did not hear then has been
heard now, except a couple of rulings on points
earlier put forward. May be, as counsel now urges
and then pressed, our order refusing special leave
was capable of a different course. The present
stage is not a virgin ground but review of an earlier
order which has the normal feature of finality.”
(emphasis in original)
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. In Northern
India Caterers (India) Ltd. v. Lt. Governor of Delhi
[(1980) 2 SCC 167 : 1980 SCC (Tax) 222] , this
Court, in paras 8 and 9 held as under : (SCC pp.
171-72)
“8. It is well settled that a party is not entitled to
seek a review of a judgment delivered by this Court
merely for the purpose of a rehearing and a fresh
decision of the case. The normal principle is that a
judgment pronounced by the Court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling
character make it necessary to do so: Sajjan Singh
v. State of Rajasthan [AIR 1965 SC 845]. For
instance, if the attention of the Court is not drawn
to a material statutory provision during the original
hearing, the Court will review its judgment:
Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC
189 : 1971 SCC (Cri) 279]. The Court may also
reopen its judgment if a manifest wrong has been
done and it is necessary to pass an order to do full
and effective justice : O.N. Mohindroo v. District
Judge, Delhi [(1971) 3 SCC 5]. Power to review its
judgments has been conferred on the Supreme
Court by Article 137 of the Constitution, and that
power is subject to the provisions of any law made
by Parliament or the rules made under Article 145.
In a civil proceeding, an application for review is
RVWPET NO.399 of 2023 Page 31 of 44
entertained only on a ground mentioned in Order
47 Rule 1 of the Code of Civil Procedure, and in a
criminal proceeding on the ground of an error
apparent on the face of the record (Order 40 Rule 1
of the Supreme Court Rules, 1966). But whatever
the nature of the proceeding, it is beyond dispute
that a review proceeding cannot be equated with
the original hearing of the case, and the finality of
the judgment delivered by the Court will not be
reconsidered except ‘where a glaring omission or
patent mistake or like grave error has crept in
earlier by judicial fallibility’ : Sow Chandra Kante
v. Sk. Habib [(1975) 1 SCC 674 : 1975 SCC (Cri)
305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200].
(underlined to supply emphasis)
9. Now, besides the fact that most of the legal
material so assiduously collected and placed before
us by the learned Additional Solicitor General, who
has now been entrusted to appear for the
respondent, was never brought to our attention
when the appeals were heard, we may also
examine whether the judgment suffers from an
error apparent on the face of the record. Such an
error exists if of two or more views canvassed on
the point it is possible to hold that the controversy
can be said to admit of only one of them. If the view
adopted by the Court in the original judgment is a
possible view having regard to what the record
states, it is difficult to hold that there is an error
apparent on the face of the record.”
(underlined to supply emphasis)
14. Review of the earlier order cannot be done
unless the court is satisfied that material error,
manifest on the face of the order, undermines its
soundness or results in miscarriage of justice. This
Court in Col. Avtar Singh Sekhon v. Union of India
[1980 Supp SCC 562 : 1981 SCC (L&S) 381] held
as under : (SCC p. 566, para 12)
RVWPET NO.399 of 2023 Page 32 of 44
“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 that material error, manifest on the
face of the order, undermines its soundness or
results in miscarriage of justice. In Sow Chandra
Kante v. Sk. Habib [(1975) 1 SCC 674 : 1975 SCC
(Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax)
200] this Court observed : (SCC p. 675, para 1)
‘1. … A review of a judgment is a serious step and
reluctant resort to it is proper only where a glaring
omission or patent mistake or like grave error has
crept in earlier by judicial fallibility. … The present
stage is not a virgin ground but review of an earlier
order which has the normal feature of finality.’ ”
15. 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. A review is by no means an appeal in
disguise whereby an erroneous decision is reheard
and corrected, but lies only for patent error. This
Court in Parsion Devi v. SumitriDevi [(1997) 8 SCC
715] held as under : (SCC pp. 718-19, paras 7-9)
(underlined to supply emphasis)
“7. It is well settled that review proceedings
have to be strictly confined to the ambit and scope
of Order 47 Rule 1 CPC. In Thungabhadra
Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372]
this Court opined : (AIR p. 1377, para 11)
‘11. What, however, we are now concerned with
is whether the statement in the order of September
1959 that the case did not involve any substantial
question of law is an “error apparent on the face of
the record”. The fact that on the earlier occasion the
court held on an identical state of facts that a
substantial question of law arose would not per se
RVWPET NO.399 of 2023 Page 33 of 44
be conclusive, for the earlier order itself might be
erroneous.Similarly, even if the statement was
wrong, it would not follow that it was an “error
apparent on the face of the record”, for there is a
distinction which is real, though it might not
always be capable of exposition, between a mere
erroneous decision and a decision which could be
characterised as vitiated by “error apparent”. A
review is by no means an appeal in disguise
whereby an erroneous decision is reheard and
corrected, but lies only for patent error.’
(underlined to supply emphasis)
8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury [(1995) 1 SCC 170] while quoting with
approval a passage from AribamTuleshwar
Sharma v. Aribam Pishak Sharma [(1979) 4 SCC
389] this Court once again held that review
proceedings are not by way of an appeal and have
to be strictly confined to the scope and ambit of
Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC 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 1 CPC. In exercise of the jurisdiction
under Order 47 Rule 1 CPC it 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’.”
(emphasis in original)
16. Error contemplated under the Rule must be
such which is apparent on the face of the record
and not an error which has to be fished out and
searched. It must be an error of inadvertence. The
RVWPET NO.399 of 2023 Page 34 of 44
power of review can be exercised for correction of a
mistake but not to substitute a view. The mere
possibility of two views on the subject is not a
ground for review. This Court, in Lily Thomas v.
Union of India [(2000) 6 SCC 224 : 2000 SCC (Cri)
1056] held as under : (SCC pp. 250-53, paras 54,
56 & 58)
(underlined to supply emphasis)
xxx xxx xxx xxx
56. It follows, therefore, that the power of review
can be exercised for correction of a mistake but not
to substitute a view. Such powers can be exercised
within the limits of the statute dealing with the
exercise of power. The review cannot be treated
like an appeal in disguise. The mere possibility of
two views on the subject is not a ground for review.
Once a review petition is dismissed no further
petition of review can be entertained. The rule of
law of following the practice of the binding nature
of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of
equal strength has to be followed and practised.
However, this Court in exercise of its powers under
Article 136 or Article 32 of the Constitution and
upon satisfaction that the earlier judgments have
resulted in deprivation of fundamental rights of a
citizen or rights created under any other statute,
can take a different view notwithstanding the
earlier judgment.
*
17. In a review petition, it is not open to the
Court to reappreciate the evidence and reach a
different conclusion, even if that is possible.
Conclusion arrived at on appreciation of evidence
cannot be assailed in a review petition unless it is
shown that there is an error apparent on the face of
the record or for some reason akin thereto. This
Court in Kerala SEB v. Hitech Electrothermics&
RVWPET NO.399 of 2023 Page 35 of 44
Hydropower Ltd. [(2005) 6 SCC 651] held as under
: (SCC p. 656, para 10)
“10. … In a review petition it is not open to this
Court to reappreciate the evidence and reach a
different conclusion, even if that is possible. The
learned counsel for the Board at best sought to
impress us that the correspondence exchanged
between the parties did not support the conclusion
reached by this Court. We are afraid such a
submission cannot be permitted to be advanced in
a review petition. The appreciation of evidence on
record is fully within the domain of the appellate
court. If on appreciation of the evidence produced,
the court records a finding of fact and reaches a
conclusion, that conclusion cannot be assailed in a
review petition unless it is shown that there is an
error apparent on the face of the record or for some
reason akin thereto. It has not been contended
before us that there is any error apparent on the
face of the record. To permit the review petitioner to
argue on a question of appreciation of evidence
would amount to converting a review petition into
an appeal in disguise.”
(underlined to supply emphasis)
18. Review is not rehearing of an original matter.
The power of review cannot be confused with
appellate power which enables a superior court to
correct all errors committed by a subordinate court.
A repetition of old and overruled argument is not
enough to reopen concluded adjudications. This
Court in Jain Studios Ltd. v. Shin Satellite Public
Co. Ltd. [(2006) 5 SCC 501] , held as under : (SCC
pp. 504-505, paras 11-12)
(underlined to supply emphasis)
19. Review proceedings are not by way of an
appeal and have to be strictly confined to the scope
and ambit of Order 47 Rule 1 CPC. In review
jurisdiction, mere disagreement with the view of the
RVWPET NO.399 of 2023 Page 36 of 44
judgment cannot be the ground for invoking the
same. As long as the point is already dealt with
and answered, the parties are not entitled to
challenge the impugned judgment in the guise that
an alternative view is possible under the review
jurisdiction.
20. Thus, in view of the above, the following
grounds of review are maintainable as stipulated
by the statute:
20.1. 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.
The words “any other sufficient reason” have been
interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA
144 : (1922) 16 LW 37 : AIR 1922 PC 112] and
approved by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasius
[AIR 1954 SC 526 : (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. [(2013) 8 SCC 337 : JT
(2013) 8 SC 275]
20.2. 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.
RVWPET NO.399 of 2023 Page 37 of 44
(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 reheard 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 matter
had been negatived.”
(underlined to supply emphasis)
22. The principles laid down in Kamlesh Verma ( supra ),
have been subsequently reiterated by the Hon’ble Supreme
Court in several judgments. To refer to a few, we take note of
2
Sunil Vasudeva & others vrs. Sundar Gupta & others ,
Yashwant Sinha & others vrs. Central Bureau of
3
Investigation through its Director and another .
23. Keeping in view the principles which have been laid
down in Kamlesh ( supra ) at paragraphs 20.1 and 20.2, the
contentions raised in the review petition are to be
considered: whether a case has been made out for reviewing
judgment dated 10.01.2025. Accordingly, each of the
2
(2019) 17 SCC 385
3
(2020) 2 SCC 338
RVWPET NO.399 of 2023 Page 38 of 44
grounds raised by the petitioner are discussed and answered
herein :
23.1 Submissions on behalf of the review petitioner inter alia
suggest that the judgment passed by the Division Bench is
erroneous. Assuming for the sake of argument that the
submission is correct, review will not be maintainable as
held in Kamlesh ( supra ); para-20.2(ii)(v): that a review by no
means is an appeal in disguise whereby an erroneous
decision is reheard and corrected. The arguments were
considered and overruled by the Division Bench, therefore
and such plea raised again is not enough to reopen the
concluded adjudication.
23.2 The contentions raised regarding interpretation of
Ghanashyam Mishra ( supra ) were considered in the
judgment rendered by the Division Bench. The Division
Bench has interpreted Ghanashyam , determined the
implications which has not favoured the review petitioner-
opposite party. Reiteration of the argument in review cannot
be countenanced as the argument has been overrulled.
Consideration of the review petition cannot be equated with
rehearing of the matter.
23.3 Further, assuming for the sake of argument that the
interpretation of Ghanashyam (supra) suggested by the
review petitioner would be a possible view, applying the
principles laid down in Kamlesh 20.2(vi): mere possibility of
two views on the subject cannot be a ground for review. In
RVWPET NO.399 of 2023 Page 39 of 44
the present case the Division Bench has considered and
taken a view following Ghanashyam (supra).
23.4 The grounds as contended in the review application
deal with legal and factual aspects. The said factual aspects
have been considered by the Division Bench in challenge to
the award of the learned Tribunal and have been
discussed/decided. Therefore, the grounds would not come
to the aid of the review petitioner as it would amount to
reappreciation of evidence/material on record which would
not be available to be done by the Court even in an appeal,
much less in exercising review jurisdiction.
23.5 The legal issues raised in grounds of review are
reiteration of contentions those were raised in writ petition
and rejected, such contentions cannot be reheard and
reconsidered again in review.
23.6 Further, the relief as sought at the time of arguing the
writ application which have been negatived cannot be
reconsidered.
24. Having heard learned counsel for the petitioner, we
have also gone through the decision of the Hon’ble Supreme
Court in Board of Control for Cricket in India ( supra ). We
take note of the paragraphs-91, 95, 108 and 109 which are
reproduced herein:
91. It is true that in Moran Mar Basselios Catholicos v.
Most Rev. Mar Poulose Athanasius [(1955) 1 SCR 520 :
AIR 1954 SC 526] this Court made observations as
RVWPET NO.399 of 2023 Page 40 of 44
regards limitations in the application of review of its
order stating: (SCR p. 529)
“Before going into the merits of the case it is as well to
bear in mind the scope of the application for review
which has given rise to the present appeal. It is
needless to emphasise that the scope of an application
for review is much more restricted than that of an
appeal. Under the provisions in the Travancore Code of
Civil Procedure which is similar in terms to Order 47
Rule 1 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. It has
been held by the Judicial Committee that the words
‘any other sufficient reason’ must mean ‘a reason
sufficient on grounds, at least analogous to those
specified in the rule’.”
but the said rule is not universal.
xxx xxx xxx xxx
95. Furthermore, the impugned order is interlocutory in
nature. The order is not wholly without jurisdiction so
as to warrant interference of this Court at this stage.
The Division Bench of the High Court had jurisdiction to
admit the review application and examine the
contention as to whether it can have a relook over the
matter. This Court, it is trite, ordinarily would not
interfere with an interlocutory order admitting a review
petition. The contentions raised before us as regards
the justification or otherwise of the Division Bench
exercising its power of review can be raised before it.
Furthermore, the Court having regard to clause (ii) of its
order dated 29-9-2004 may have to consider as to
RVWPET NO.399 of 2023 Page 41 of 44
whether the election was held in accordance with the
constitution of the Board and the Rules and Bye-laws
framed by it.
xxx xxx xxx xxx
108. However, keeping in view the fact that the elected
office-bearers are yet to take over charge, with a view
to do complete justice to the parties, we would in
exercise of our jurisdiction under Article 142 of the
Constitution direct that the adjourned meeting should
immediately be convened. As regards the election of the
office-bearers of the Board, it would further be open to
an aggrieved party to question the legality or validity of
the said meeting dated 29-9-2004. Netaji also may, if it
is otherwise permissible in law, subject to an
appropriate order that may be passed by the Madras
High Court, file an application for amendment of the
plaint or take such other step or steps as it may be
advised.
109. Keeping in view the fact that on 8-10-2004 when
the impugned order was passed the new Board had not
taken over as also having regard to the prayer made in
the interim application filed by Netaji for grant of
interim injunction restraining the newly elected Board
from functioning in the interim, we make our interim
order dated 11-10-2004 staying the operation of the
part of the order whereby Mr. Justice S. Mohan was
appointed as an interim administrator absolute, leaving
the parties to file such interim applications as may be
necessary in the changed situation.”
25. The judicial pronouncements relied upon on behalf of
the petitioner and dealt in the preceding paragraphs, would
be of no avail for it’s cause as the fact matrix of those cases
are at miles apart from the facts of the present petition. A
decision is only an authority for the proposition laid down in
a given fact matrix, and not for all that, would logically
RVWPET NO.399 of 2023 Page 42 of 44
follow from what has been so laid down or every observation
made, said the Earl of Halsbury, Lord High Chancellor more
4
than a century ago in Quinn v. Leathem and we quote:
“Before discussing the case of Allen v. Flood, [1898] AC
1 and what was decided therein, there are two
observations of a general character which I wish to
make; and one is to repeat what I have very often said
before-that every judgment must be read as applicable
to the particular facts proved or assumed to be proved,
since the generality of the expressions which may be
found there are not intended to be expositions of the
whole law, but governed and qualified by the particular
facts of the case in which such expressions are to be
found. The other is that a case is only an authority for
what it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow legically
from it. Such a mode for reasoning assumes that the law
is necessarily a logical code, whereas every lawyer must
acknowledge that the law is not always logical at all. I
think that the application of these two propositions
renders the decision of this case perfectly plain,
notwithstanding the decision in Allen v. Flood(1).”
[Underlined to supply emphasis]
26. Further, it has to be and is held that the suggested
grounds seeking review are not errors manifest on the
judgment and that they do not undermine soundness of the
judgment rendered by the Division Bench in the writ
application.
26.1 We do not find any material error, manifest on the face
of the judgment in the writ application nor can we ‘revisit’
the judgment when the matter is being ‘reargued’ in review.
4
[1901] UKHL 2:3[1901] AC 495:[1900-3] All E.R. Rep.1 (Page-7, placitum H & I of All E.R.)
RVWPET NO.399 of 2023 Page 43 of 44
27. In view of the discussions made above, the review
application being devoid of any merit has to be and is
dismissed.
No costs.
I agree.
(HARISH TANDON) (MRUGANKA SEKHAR SAHOO)
CHIEF JUSTICE JUDGE
Orissa High Court, Cuttack
th
The 5 day of November, 2026/Jyostna/Radha
Signature Not Verified
Digitally Signed
Signed by: RADHARANI JENA
Reason: Authentication
Location: OHC
Date: 05-Nov-2026 16:21:41
RVWPET NO.399 of 2023 Page 44 of 44