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HIGH COURT OF DELHI
DIPIKA SEN & ANR …..Plaintiffs
Through: Mr. Amitabh Sen, petitioner No.2 in person
Through: Mr. K. Pandey, Advocate
JUDGMENT
1. This application has been filed seeking condonation of delay for filing the review petition.
2. In the interest of justice and for the reasons given in the application, the delay is condoned.
3. The application stands disposed of.
REVIEW PET. 144/2022 [
4. The review petition has been filed by the plaintiff seeking the following prayers:- “(i) Rectify and modify the Judgment dt. 06.04.2022 and the Plaintiffs be awarded interest for the period of 12.05.2003 till 26.08.2014 on the sum of Rs. 6,61,760; and
(ii) Pass such other Order(s) in Plaintiffs’ favor as this Hon’ble
5. The plaintiff No.2 in person submitted that there was an error in the judgment of this court rendered on 6th April, 2022 as while observing in Para No.20 thereof that the retention of Rs.6,61,760/- was not legal, in Para No.41, interest @ 6.5% was granted only on the sum of Rs. 2,25,960/- for the period from 27th August, 2014 till the date of payment. It was 2022:DHC:3173 submitted that the omission to award interest for the period of 12th May, 2003 till 26th August, 2014 on the sum of Rs.6,61,760/- was an error that required to be rectified. It was submitted that if the judgment was not modified, the plaintiffs would suffer grave injustice.
6. A reply was filed on behalf of the defendants No.4 and 5, who are the contesting defendants. Mr. K. Pandey, learned counsel for the defendants No.4 and 5 has submitted that there was no error in the judgment in question and no ground for review had been disclosed in the petition. It was pointed out that Para No.20 only recorded the submissions made on behalf of the defendants and was not a finding whereas reasons have been given in Para Nos.23 to 25 and 39 and 41 for not granting interest on the sum of Rs.6,61,760/- and from May, 2003.
7. It was submitted that the fault lay with the petitioners for insisting on the execution of a Sale Deed, when all that could be registered was a Conveyance Deed in their favour as per the terms of the Apartment Buyer’s Agreement dated 20th October, 2001. It is further submitted in this reply-cum-affidavit that the defendant No.4 had always been willing to refund 50% of the differential amount due to the plaintiffs on account of the reduction of stamp duty @6.5% but the plaintiffs had refused to execute and issue the receipts in the standard format to enable the defendant No.4 to refund the amount to the plaintiffs. Thus, the plaintiffs were themselves responsible for the delay in execution of the Conveyance Deed and they have rightly not been granted interest. Thus, learned counsel for the defendants no. 4 and 5 prayed that the review petition be dismissed.
8. I have heard the submissions and I have perused the record. A review is maintainable only if there is an error apparent on the face of the record. There must be a material error on the face of the order which may result in miscarriage of justice. The error which is not self-evident and has to be detected by a process of reasoning cannot be described as an error apparent on the face of the record justifying the Court exercising powers of review. Review cannot be a re-hearing of the original matter and cannot be sought in the hope for substitution of the view taken by the Court. The scope of review has been succinctly summarized by the Supreme Court in Kamlesh Varma v. Mayawati, (2013) 8 SCC 320, which is reproduced herein- Summary of the principles
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.
(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.”
9. Applying these principles to the matter at hand it is seen that the review petition does not state anything more than that there was an error in the judgment since at one place, it has been observed that the retention of Rs.6,61,760/- was not legal and yet interest was not granted. Per contra, the learned counsel for the defendants No.4 and 5 has pointed out to the conduct of the plaintiffs in causing delay in execution of the Conveyance Deed in their favour and their refusal to issue receipts in format for refund of the stamp duty, and therefore, not being entitled to the interest since May, 2003 as sought.
10. In the judgment dated 6th April, 2022, this Court had observed that the retention was “not legal” which ought to read “not illegal” as part of the contentions that were being referred to in the said para. But it is in Para No.23 that the finding has been returned by this Court that there was nothing on the record to suggest that a wrong amount of Rs.6,61,760/- had been claimed towards registration or that the retention of the same was unlawful. The payment of Rs Rs.6,61,760/- paid in two tranches towards registration and stamp duty was when the stamp duty at that point of time was @13% of the Sale Price. By way of the instant review petition, this conclusion cannot be reopened for a redetermination of the issue to claim interest on the entire amount from the date of payment. The prayer for grant of interest on Rs.6,61,760/- from May, 2003 is rejected as being beyond the scope of review.
11. But a slight modification of the judgment with respect to interest could be considered. Admittedly the defendant No.4 had informed the plaintiffs vide letter dated 25th May, 2011 that the reduction in stamp duty would be adjusted after the execution of the Conveyance Deed. The execution of the Conveyance Deed was delayed by the plaintiffs by which time the stamp duty though reduced initially from 12.5% to 6.5% was again enhanced to 7%. Therefore, the actual amount used for the execution of the Conveyance Deed was a sum of Rs.4,35,800/-. Had the plaintiffs not been adamant, they could have had received the balance amount after the reduction of the stamp duty way back in 2011. They must face the consequences of their own conduct. At the same time, this Court is of the view that since the defendants were themselves ready to release the 50% of the Registration Charges deposited with them, but did not do so as the plaintiffs had not agreed to issue receipts in format, and thus, were to blame for the delay in the refund, it is considered apposite to modify the judgment in respect of the issue No.(v), granting interest @6.5% on Rs. 2,25,960/- from 25th May, 2011 instead of with effect from 27th August, 2014, till the date of payment treating this sum of Rs.2,25,960/- as the amount to which the plaintiffs were entitled as a refund.
12. With this modification, the review petition is disposed of.
13. The Corrigendum be issued accordingly and the modified Decree Sheet be prepared.
14. The judgment be uploaded on the website forthwith.
JUDGE AUGUST 22, 2022 ak