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TMI Blog2024 (10) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of Order 47 Rule 1 of the C.P.C. which is pari materia to Rule 203 of the Jharkhand High Court Rules, wherein, the proposition has been laid down to entertain the review. It is also settled that order is not to be reviewed in the garb of the appeal. Further settled position of law is that if the fact has been taken into consideration by the Court may be wrong consideration by the Court but the same cannot be a ground for review rather the same will be a ground to prefer an appeal before the higher forum, if available. The ground of review are two folds that there is vagueness in paragraph-18 wherein the liability of interest has been imposed upon the total amount but from which date the interest is to be accrued on the total amount is not there. The second ground is that the Managing Director has been saddled with cost of Rs.5 lakhs which has been passed by the Court by putting liability in not acting with due diligence and the third ground has been taken that the Managing Director was not a party to the proceeding and as such, saddling of cost of Rs.5 lakhs as under paragraph-22 of the order sought to be reviews is contrary to the principles of natural justice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on applicable rather there is consideration which might be said to be wrong consideration, for which the remedy available is not of review but of appeal.It has also been submitted that the Managing Director was not a party. This Court is of the view that if the Managing Director was not a party and when the Managing Director has been saddled with cost of Rs. 5 lakh then, it is his individual liability and nobody can be allowed to question the individual liability rather the same can only be questioned by the Managing Director by directly approaching to the Court. This Court, as per the aforesaid reason and relying upon the judgment passed by the Hon'ble Apex Court in Sanjay Kumar Agarwal Vrs. State Tax Officer (1) Anr. [ 2023 (11) TMI 54 - SUPREME COURT ] as also taking into consideration the ground which is to be applied in review of the order, is of the view that the instant civil review is fit to be dismissed. - HON BLE THE ACTING CHIEF JUSTICE SUJIT NARAYAN PRASAD AND HON BLE MR. JUSTICE ARUN KUMAR RAI For the Petitioners : Mr. Sachin Kumar, Sr. Standing Counsel. For the Respondents : Mr. M.S. Mittal, Sr. Advocate Mr. Salona Mittal, Advocate. I.A. No. 5511 of 2024: 1. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the writ petitioner and also retained the amount representing 2% of the value of the Work Order for supply of materials towards the TDS liability so demanded by the Income Tax Department. Thereafter, the writ petitioner had issued a letter dated 14.03.2018 to the appellant/respondent-JBVNL requesting to release the amount retained as Income Tax contingency @ 2%. The writ petitioner wrote another letter dated 21.06.2018 to the appellant/respondent-JBVNL requesting to release the amount being Rs. 2,90,32,000/- deducted/retained/withheld as Income Tax Contingency for Tax Deducted at Source from Running Account Bills for all the three projects. Thereafter, the writ petitioner wrote another letter dated 21.09.2018 drawing attention towards the excess TDS collected from the writ petitioner. It is also the case of the writ petitioner that the writ petitioner has not received any credit of the TDS so deducted/retained/withheld by the appellant/respondent-JBVNL as it was not reflected in Form 26AS of the writ petitioner. Thereafter, the appellant/respondent-JBVNL issued letter dated 22.10.2018 to the writ petitioner requesting to submit certain documents in support of payment of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its in the hands of the wrongdoer. 18. As per clause 10.7.4 of the Jharkhand State Electricity Regulatory Commission, Ranchi (Electricity Supply Code) Regulation, 2015, the interest rate to be paid on any excess amount paid by the consumer is equivalent to the interest rate paid by the consumer on delay payment surcharge. Therefore, the JBVNL shall pay interest over the withheld amount of Rs. 2,90,32,000/- as per clause 10.7.4 of the Regulation of 2015 which is extracted hereunder: 10.7.4 If the consumer has paid any excess amount, it shall be refunded to the consumer within 15 days or, if consumer opts, be adjusted within two subsequent bills. The Distribution Licensee shall pay to the consumer interest charges at the rate equivalent to the delay payment surcharge as per tariff on the excess amount outstanding on account of such wrong billing from the date of payment till the date of refund or adjustment in subsequent bills. 19. Regarding the imposition of cost, we may indicate that on 14th March 2024, this Court has passed the following order: Having briefly heard Mr. M.S Mittal, the learned senior counsel for the petitioner, Mr. Sachin Kumar, the learned senior standing counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under: 37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasis 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 XL VII, Rule I 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. 13. Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union of India (1980) Supp. SCC 562 , the Hon ble Apex Court observed that a review of an earlier order cannot be done unless the court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 15. It is evident from the aforesaid proposition of law that the jurisdiction of the Court who is to review the order, is very limited and the same can only be exercised if there is error apparent on the face of the order or any facts could not have been brought to the notice of the Court in spite of due diligence. 16. This Court is now proceeding to examine the factual aspect along with the grounds based upon which the present review petition has been filed. 17. It has been found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of law is that if the fact has been taken into consideration by the Court may be wrong consideration by the Court but the same cannot be a ground for review rather the same will be a ground to prefer an appeal before the higher forum, if available. 21. The ground of review are two folds that there is vagueness in paragraph-18 wherein the liability of interest has been imposed upon the total amount but from which date the interest is to be accrued on the total amount of Rs. 2,90,32,000/-, is not there. The second ground is that the Managing Director has been saddled with cost of Rs.5 lakhs which has been passed by the Court by putting liability in not acting with due diligence and the third ground has been taken that the Managing Director was not a party to the proceeding and as such, saddling of cost of Rs.5 lakhs as under paragraph-22 of the order sought to be reviews is contrary to the principles of natural justice. 22. The first ground which has been taken that the quantum of interest has not been decided but this Court on consideration of paragraph-18 has found that this Court has passed the order holding the writ petitioner entitled for interest over the withheld amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding. 28. This Court has considered in the light of the provision of clause 10.7.4 of the Regulation, 2015 and due to non-adherence of the said clause by the competent authority in not refunding the amount and if in that pretext, personal liability has been imposed upon the Managing Director by saddling cost of Rs.5 lakh, the same cannot be said that there is no consideration of the issue in the light of the statutory provision applicable rather there is consideration which might be said to be wrong consideration, for which the remedy available is not of review but of appeal. 29. It has also been submitted that the Managing Director was not a party. 30. This Court is of the view that if the Managing Director was not a party and when the Managing Director has been saddled with cost of Rs. 5 lakh then, it is his individual liability and nobody can be allowed to question the individual liability rather the same can only be questioned by the Managing Director by directly approaching to the Court. 31. This Court, as per the aforesaid reason and relying upon the judgment passed by the Hon'ble Apex Court in Sanjay Kumar Agarwal Vrs. State Tax Officer (1) Anr. (supra) as also taking i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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