9911796707
TMI Blog2006 (4) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... he review application, let me, in nutshell, state the case of the plaintiff and the basis on which aforesaid amount is decreed. Mr. Rajesh Arora, the original plaintiff who had filed the suit (since deceased and is represented by the LRs.) had imported a BMW car in the year 1993. After payment of Customs duty the car arrived at Delhi. However, on 11th June, 1993, the Customs department impounded the said car and thereafter initiated proceedings under Section 111 of the Customs Act. This culminated in confiscation order. Challenging this order, deceased filed a writ petition in this court which was allowed vide judgment dated 19th December, 1997 quashing the show cause notice and directing the defendants to return the car. It was also directed that the plaintiff would be at liberty to move court for award of damages. The defendants' attempt to challenge the Single Bench judgment of this court before the Division Bench as well as before the Supreme Court failed as LPA and SLP filed by the defendants herein were dismissed. On the strength of the observations of this court in judgment dated 19th December, 1997 giving liberty to the plaintiff to claim damages, the plaintiff filed CS(OS) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of which the plaintiff suffered harassment and mental torture : Rs. 5 lacs (iii) 12% interest on Rs. 20 lacs, the value on which the car was assessed by the defendants for a period of 4 and half-years : Rs. 10,80,000/- Interest of Rs. 36,43,647/- claimed for the period from 31st December, 1997 to the date of filing of the suit was disallowed on the ground that the plaintiff took time in approaching the court after the car was released on 31st December, 1997 and he could not take benefit of his own wrong. Claim of Rs. 15,50,000/- on account of loss on the sale of car was also rejected as not sustainable on the ground that the plaintiff had failed to prove on record as to what price the car was sold by him after getting it repaired. Claim of Rs. 5 lacs on account of expected gains and profits was also rejected for the reason that there was no evidence on record as to at what price the car could be sold by the plaintiff in the year 1993 when it was illegally impounded. Litigation costs and other expenses were not given for the reason that they were not proved by any evidence. 6. In there this review application filed by the plaintiff, it is alleged that are certain manif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to bring it within the scope of Section 152. Where the court considered a legal provision and came to a wrong conclusion consciously thinking that conclusion to be correct and passed a wrong decree, it is evidently not an error arising from any accidental slip or omission but a mistake consciously committed and therefore cannot be corrected under Section 152 of the CPC. The only remedy open to the party in such cases would be to appeal. [Refer : Velayudhan Nair v. Kerala Kshemam Yunik Kuries Pvt.Ltd., AIR 1988 Kerala 223]. 9. Review of judgment and decree, on the other hand, under Section 114 of the CPC read with Order 47, Rule 1, CPC can be sought on the following grounds : (a) On the basis of 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 (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason. 10. The primary intention of review is reconsideration of the subject of the suit by the same Judge only on the aforesaid conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition was heard and, therefore, it could not be said that there have been discovery of new and important matter which despite exercise of due diligence on the part of the appellant was not within his knowledge. Appeal filed by the appellant to the Supreme Court was allowed and the Supreme Court held that the High Court was not correct in overlooking the documents relied upon by the appellant. After convincing itself that those documents were not in possession of the appellant at the time of hearing and even despite due diligence the appellant could not place the same before the Division Bench. These records were the minutes of the screening committee held on 23rd June, 1987 and 4th March, 1992 wherefrom it is crystal clear that senior scale and selection grade have been awarded to many lecturers by relaxing conditions and only on the basis of length of regular service in the college, on the basis of their teaching experience. In the process, commenting upon the review jurisdiction, the Supreme Court observed : "In our opinion, review jurisdiction is available in the present case since the impugned judgment is a clear case of an error apparent on the face of the record a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority under the Customs Act as the said interest has an element of penalty also and is not market rate of interest. The plaintiff has not led any evidence to show as to what was the market rate of interest during the period 1993-97 but considering the market custom, trade usage and Bank interest in those years, this Court is inclined to grant interest @ 12 % per annum to him on the amount of Rs. 20 lacs of which, the plaintiff was deprived for a period of about 4 years." Learned Counsel for the plaintiff relied upon the judgment of the British court in the case of United Arab Maritime Company v. Blue Star Line Ltd. reported as (1968) All ER 731 in support of the plea that interest should have been payable at the rate which was applicable at the relevant time. However, on this ground the plaintiff cannot seek review as a particular view, after giving certain reasons, is taken by the court allowing interest at the rate of 12 per cent per annum and in fact under the garb of plea that there is an error apparent on the face of record, the plea essentially is that court has not decided the issue properly. It is, therefore no necessary to go into this plea as such a plea seeking revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge has stated that the evidence on record shows that about a sum of Rs. 2,25,000/- was spent by the deceased plaintiff on repairs of the car. Some of the invoices are in Dirham and it appears that while calculating the figure of Rs. 2,25,000/- amount spent in Dirham is not taken into consideration. Learned Counsel for the plaintiff pointed out that it may be due to the reason that their convertible rate was not before the court which is Rs. 3.67 per dirham. Since the documents/invoices were proved as Ex. PW-1/15 to Ex. PW-1/21 and also enquiries which were made for carrying out the repairs in the form of email communications as Ex. PW-/14, I am of the view that the expenditure incurred in carrying out the repairs in foreign currency should also have been taken into consideration in Para 10 of the affidavit, the deponent categorically stated that cost of replacing the missing and damaged parts and to restore the car into working condition came to Rs. 3,13,421/-. As pointed out, there is no cross-examination on this aspect. This would constitute an accidental omission and judgment and decree needs to be modified on this account. (d) Loss on the sale of car has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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