Calcutta High Court
West Bengal Financial Corporation vs Efcalon Tie-Up Pvt. Ltd on 11 August, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Biswaroop Chowdhury
RVWO 27 of 2024
With
APO 174 of 2018
IA No. GA 2 of 2024
West Bengal financial Corporation
Vs.
Efcalon Tie-Up Pvt. Ltd.
RVWO 7 of 2025
IA No. GA 1 of 2025
Efcalon Tie-UP Pvt. Ltd.
Vs.
West Bengal Financial Corporation
For the WBFC : Mr. Anindya Mitra, Sr. Adv.
Mr. Sanniddhya Dutta, Adv.
Mr. Abhijit Sarkar, Adv.
Mr. Abhik Chitta Kundu, Adv.
For the Efcalon : Mr. Sabyasachi Chowdhury, Sr. Adv.
Mr. Rupak Ghosh, Adv.
Mr. Meghnad Dutta, Adv.
Mr. Rajesh Upadhyay, Adv.
Hearing Concluded on : 2nd August, 2025
Judgment on : 11th August, 2025
SOUMEN SEN, J:
1. Both the plaintiff and the defendant have filed review
applications separately with regard to the payment of stamp duty as
2
directed by the judgment and order dated 25th August, 2023. This
judgment is under review.
2. The grounds are different. However, it pertains to a direction
by the Hon'ble Division Bench for payment of stamp duty on
instrument dated 7th July, 2008 described as Memorandum of
Understanding (MOU).
3. The first review applicant, West Bengal Financial Corporation
and the second review applicant Efcalon Tie Up Private Limited for the
sake of convenience and brevity are described as Corporation and
Efcalon respectively.
4. The order under review was challenged by WBFC in a Special
Leave Petition (Civil) Diary no. 7735 of 2024. The said review
application was dismissed as withdrawn on 06.05.2024 in view of the
submission made by the learned Counsel on behalf of Corporation that
the said corporation shall file a review application in so far as the
WBFC has been directed to bear half of the stamp duty/penalty
amount.
5. Before we enter into the merits of the review applications we
may briefly indicate the facts.
6. The Corporation and Efcalon had entered into a MOU
whereby rights have been created partly over immovable properties and
partly over movables. Indisputedly, on the basis of the MOU Efcalon
continue with the proceeding initiated by Corporation before the Debt
Recovery Tribunal against the Borrower Company and after the
3
certificate was issued, filed necessary applications for execution on
behalf of Corporation in which the said property was sold. Efcalon
contended that by reason of MOU, Efcalon is entitled to the proceeds
thereof. The Corporation after resolving and receiving the entire sale
proceeds refused to part with the said money and denied the obligation
to pay the sale proceeds to Efcalon. Efcalon filed a suit before the High
Court and in the said proceeding had taken out an application for
summary judgment under Chapter XIII(A) of the Original Side Rules.
In the said proceeding Efcalon relied upon the said MOU to establish
its right to claim the sale proceeds which was the outcome of the
proceeding continued by Efcalon on and on behalf of the corporation.
At this stage, objection was raised by Corporation with regard to the
admissibility of the said document as it was contended by the
Corporation that unless proper stamp duty is paid on the said
instrument, the said document cannot be taken on record and
admitting to evidence for the purpose of adjudicating the claim of
Efcalon. The learned Single Judge allowed such objection and
impounded the document only to admit upon payment of stamp duty
and penalty. This has resulted in an appeal in which the order under
review was passed.
7. The Corporation was aggrieved by the said order and
preferred a Special Leave Petition as mentioned above in which the
Hon'ble Supreme court passed the following order which is stated
below:
4
"Learned Senior Advocate appearing for the petitioner - West
Bengal Financial Corporation seeks permission to withdraw
the present special leave petition and states that the
petitioner will made a review application/petition insofar as
it has been directed that they shall bear half of the stamp
duty/penalty amount.
In view of the statement made, the special leave petition is
dismissed as withdrawn with liberty to the petitioner to file a
review application/petition.
The petitioner, if required and necessary, will be entitled to
the impugned judgment after disposal of the review
application/petition, only to the extent it has been asked to
deposit or bear half of the stamp duty/penalty amount."
8. This review application filed by the Corporation is on the
ground that there is an error of law apparent on the face of record as
in the teeth of Section 29(C) of the Indian Stamp Act 1890 the stamp
duty is payable by the person who is relying upon the said document.
The liability of stamp duty cannot be fastened on the Corporation as
the Corporation has not relied upon the said document. Party who is
relying upon such document insufficiently stamp to be admitted in
evidence is required to oblige under the law to bear the entire stamp
duty. The Stamp Act does not contemplate apportionment of payment
of stamp duty. Moreover once the judgment of the learned Single
Judge has been affirmed by the Hon'ble Division Bench the direction
with regard to the payment of stamp duty in equal share by the parties
was an error apparent on the face of the record. Hence the last
5
sentence of the operative portion of the judgment under review which
reads:
"In the special facts and circumstances of the case, the
parties Efcalon and the Corporation shall bear the stamp
duty equally."
should be recalled as it is an obvious error.
9. Mr. Anindya Kumar Mitra, learned Senior Counsel
appearing on behalf of the Corporation has submitted that if a
judgment is passed in ignorance of provision of law or there is a failure
to consider an important provision of law materially affecting the result
of the lis it would be an error of law apparent on the face of record as
held in Gulam Abbas & Ors. v. Mulla Abdul Kadar (dead) Through
his executors1. The reviewing court has a power to correct any
mistake on the part of the court if there exists sufficient reason and
the expression sufficient reason was held to be "are wide enough to
include a misconception of fact or law by a court" per S.B. Sinha, J in
Board of Control for Cricket in India & Anr. v. Netaji Cricket Club
& Ors.2 paragraphs 89, 90, 91 and 92.
10. Mr. Mitra has emphasised on the following paragraph of the
judgment in Lily Thomas v. Union of India3 which was quoted with
approval in BCCI (supra) in paragraph 92 it is stated thus:
1
1970(3) SCC 643
2
2005(4) SCC 741
3
2000(6) SCC224
6
"92. Yet again in Lily Thomas33 this Court has laid down the law
in the following terms: (SCC pp. 247-48, para 52)
"52. The dictionary meaning of the word 'review' is 'the act
of looking, offer something again with a view to correction
or improvement'. It cannot be denied that the review is the
creation of a statute. This Court in Patel Narshi Thakershi
v. Pradyumansinghji Arjunsinghji, held that the power of
review is not an inherent power. It must be conferred by
law either specifically or by necessary implication. The
review is also not an appeal in disguise. It cannot be
denied that justice is a virtue which transcends all barriers
and the rules or procedures or technicalities of law cannot
stand in the way of administration of justice. Law has to
bend before justice. If the Court finds that the error pointed
out in the review petition was under a mistake and the
earlier judgment would not have been passed but for
erroneous assumption which in fact did not exist and its
perpetration shall result in a miscarriage of justice nothing
would preclude the Court from rectifying a the error."
(emphasis supplied)
11. Mr. Mitra has submitted that the order passed disregarding
Section 21(c) of the Indian Stamp Act is a clear error of law apparent
on the face of the record for which the review application is required to
be allowed by deleting the said sentence as mentioned above. Mr.
Mitra has submitted that it is well-settled that the person who intends
to rely on an insufficient/improperly stamp instrument has the option
to submit the scope of Section 34 of the Act pay duty and penalty.
7
Section 34 of the Indian Stamp Act also provides that instrument not
duly stamped is inadmissible in evidence.
12. In view of the fact that the Efcalon in the said proceeding was
intended to rely on the said instrument, the learned Single Judge
directed impounding of the said instrument and the Hon'ble Division
Bench while accepting the said finding of the learned Single Judge by
mistake had directed payment of stamp duty in equal proportion which
is clear mistake of law.
13. Mr. Mitra has submitted that the Indian Stamp Act, 1899 is a
fiscal statute the principles of equity of hardship are inapplicable in
interpreting the fiscal statute. It is the consistent view of the Hon'ble
Supreme Court and this Hon'ble Court that the principles of equity
and hardship are inapplicable in a fiscal statute namely, Indian Stamp
Act and in this regard reliance is placed on Seetharama Shetty v.
Monappa Shetty4, paragraph 17.3.
14. However, Mr. Mitra has not urged the said point for the
purpose of review of the order under consideration in short the
submission of Mr. Mitra is that in the order under review their exists a
mistake an error apparent on the face of record which needs to be
corrected. The power of the Code under Order 47 Rule I of the Code of
Civil Procedure, 1998 is wide enough to include the misconception of
fact or law by the Court. An application for review may be necessitated
4
2024 SCC OnLine SC 2320
8
by way of invoking the doctrine the act of court are not prayed any
other parties.
15. Per contra, Mr. Sabyasachi Chowdhury learned Counsel
appearing on behalf of Efcalon has submitted that the review
application is not maintainable as the Hon'ble Division Bench at the
time of hearing the appeal has consciously passed an order after
narrating the facts and thereby the contention of the Corporation that
it was an error of law apparent on the face of the record is not
acceptable. Mr. Chowdhury has referred to the Section 47 of the Code
of Civil Procedure and submits that the Hon'ble Division Bench was
conscious of the fact the MOU in some part creates a right in respect of
immovable property and also created some right in respect of movable
properties on the basis of which Efcalon has made the present claim in
the suit. The whole facts were before the Hon'ble Division Bench. The
entire proceeding before the Debt Recovery Tribunal was conducted by
the respondent and it was only after the property was sold by DRT in
the execution proceeding the Corporation failed, neglected and refused
to transfer the sale proceeds to the respondents in breach of his
obligation under the MOU. It cannot be presumed that the Hon’ble
Division Bench was unaware of a relevant provision of law and has
passed an order in ignorance of law. If the judgment of the Hon’ble
Division Bench is erroneous on law remedy lies elsewhere.
16. Mr. Chowdhury has submitted that although dismissal of the
SLP may not bar filing of a review application, the court in review
9
jurisdiction is not exercising its appellate power and does not sit in
appeal over the order. Unlike the power of the appellate court a
reviewing court cannot correct all manner of errors. It is only when
there is a patent error in the order a review court can correct such
error in exercise of its power under Section 47 of the Code of Civil
Procedure.
17. It is further submitted that in a similar situation where a
subsequent Division Bench interfered with an order of the previous
Division Bench in review jurisdiction the Hon’ble Supreme Court held
that the Division Bench dealing with the review proceeding had
overstepped its jurisdiction in interfering with the merits of the order
decided by the earlier Division Bench. Reliance is placed on the
decision in Chandmall Chopra & Anr. v. State of West Bengal5 and
Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt)6 . Merely
because the present Division Bench it is of the opinion that a different
view is possible on the same set of facts and law cannot interfere with
the order in its review jurisdiction and pass any fresh direction. It is
not permissible in law. The liberty granted by the Hon’ble Supreme
Court cannot be construed to be a permission to file a review petition
as the liberty was granted on the basis of a submission made on behalf
of the corporation before the Hon’ble Supreme Court that they wish to
file a review petition. The said order of the Hon’ble Supreme Court
5
AIR 1986 Cal 111
6
1995 (1) SCC 170
10
cannot be construed to mean that the Division bench in hearing the
review application could be precluded from deciding whether the
review application is maintainable under Section 47 of the Code of Civil
Procedure. The purported grounds, on which the review petition has
been sought for by the defendant, if at all entertained, would amount
to re-hearing of the appeal being APO No. 174 of 2018 and substituting
and/or inserting a new view in place and stead of the view as
contained in the Judgment and Order dated 25th August, 2023. In this
regard reliance is placed upon the judgement of the Hon’ble Supreme
Court of India Kamlesh Verma -Vs- Mayawati & Ors reported in7
paragraph 20.1.
18. The law only allows the Court to interfere in review only in
case of mistake or error. Even if it is assumed through not admitted
that the order under review is erroneous on merits the court has no
power to review its own order unless it confirms to Order 47 CPC and
attracts any of the grounds specified therein for review. There is no
mistake or error apparent on the face of the record or existence of any
reason for exercise of the power of review under Order XLVII of the
Code of Civil Procedure. Mr. Chowdhury in this regard has placed
reliance on the following Judgments:
a. Chandmall Chopra v. State of West Bengal,8
b. Meera Bhanja v. Nirmala Kumari Choudhury,9
7
2013(8)SCC 320
8
AIR 1986 Cal 111
9
(1995) 1 SCC 170
11
19. However, Mr. Chowdhury has fairly submitted that the review
application filed on behalf of the Efcalon contending that the MOU
cannot be termed as conveyance because the document records
transfer of only actionable claim of the defendant in TA no. 41 of 2002
and not of any right, title and interest of the property and hence the
direction to bear the stamp duty in equal proportion was an apparent
error is not pressed as it cannot be considered to be a ground for
review of the order under consideration.
Observation:
20. The power of review is circumscribed by order 47 Rule 1 CPC.
Review jurisdiction is distinct from appellate jurisdiction. The review
proceedings are not meant for rehearing of appeal. The power of review
can be exercised, inter alia, where some mistake or error is appellant
on the face of the record. It may also be exercised on any analogous
ground, but under no circumstances on the ground that the decision
was erroneous on merits, that would fall within the exclusive domain
of a court of appeal.
21. It is also well-settled that mistake or error apparent on the
face of the record has to be self-evident and does not require a process
of reasoning and the same is clearly distinct from erroneous decision
10
AIR 1996 Cal 4 at 6
11
(1999) 9 SCC 596
12
as has been held in Parsion Devi & Ors. vs. Sumitri Devi & Ors.
reported in 1997(8) SCC 715. In the said decision, the Hon’ble
Supreme Court was considering the phrase “mistake or error apparent
on the face of record”. It was held, an error which is not self-evident
and has to be detected by a process of reasoning, can hardly be said t
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”. There is a clear
distinction between an erroneous decision and an eггor apparent on
the face f the record. While the first can be corrected by the higher
forum, the latter can only be corrected by exercise of the review
jurisdiction. A review petition has a limited purpose and cannot be
allowed to be “an appeal in disguise”. [See. Paragraphs 19 and 20 in
Barun Kumar Das v. State of West Bengal reported in 2012(2) CHN
617].
22. In Hari Sankar Pal v. Anath Nath Mitter,12 considering the
a five Judge Bench of the Federal Court while question whether the
Calcutta High Court was justified in not granting relief to nonappealing
party, similar to that of the successful whose position was appellant,
held: (FCR p.48) “That a decision is erroneous in law is certainly no
ground for ordering review. If the court has decided a point and
decided it erroneously, the error could not be one apparent on the face
12
1949 FCR 36
13
of the record or even analogous to it. When, however, the court
disposes of a case without adverting to or applying its mind to a
provision of law which gives it jurisdiction to act in a particular way,
that may amount to an error analogous to one apparent on the face of
the record sufficient to bring the case within the purview of Order 47
Rule 1, Civil Procedure Code.
23. The power of review, it is trite to say, should not be confused
with appellate power. An Appellate Court is competent to correct errors
committed by the Court subordinate thereto. In this regard, we can
rely upon the judgement of Hon’ble Supreme Court pronounced in the
case of Thungabhadra Industries Ltd. vs. The Government of Andhra
Pradesh reported in AIR 1964 SC 1372 wherein Hon’ble Supreme
Court held:-
“A review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only for
patent error. We do not consider that this furnishes a suitable
occasion for dealing with this difference exhaustively or in any
great detail, but it would suffice for us to say that where without
any elaborate argument one could point to the error and say here
is a substantial point of law which stares one in the face, and
there could reasonably be no two opinions entertained about it, a
clear case of error apparent on the face of the record would be
made out.” (emphasis supplied)
24. In this regard we can profitably relied upon the judgement of
Hon’ble Apex Court in State of West Bengal and Others Vs. Kamal
Sengupta & Another reported in (2008) 8 SCC 612 to understand what
can be said to be mistake or error apparent on the face of record.
14
25. In State of West Bengal and Others vs. Kamal Sengupta
and Anr.13 wherein the Hon’ble Apex Court held :-
“22. The term “mistake or error apparent” by its very connotation
signifies an error which is evident per se from the record of the
case and does not require detailed examination, scrutiny and
elucidation either of the facts or the legal position. If an error is
not selfevident and detection thereof requires long debate and
process of reasoning, it cannot be treated as an error apparent on
the face of the record for the purpose of Order 47 Rule 1 CPC or
Section 22(3)(f) of the Act. To put it differently an order or decision
or judgment cannot be corrected merely because it is erroneous in
law or on the ground that a different view could have been taken
by the court/tribunal on a point of fact or law. In any case, while
exercising the power of review, the court/tribunal concerned
cannot sit in appeal over its judgment/decision.”
23. xxxxxx
24. xxxxxx
25. In Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36 a five
Judge Bench of the Federal Court while considering the question
whether the Calcutta High Court was justified in not granting
relief to nonappealing party, whose position was similar to that of
the successful appellant, held: (FCR p.48)
“That a decision is erroneous in law is certainly no ground for
ordering review. If the court has decided a point and decided it
erroneously, the error could not be one apparent on the face of
the record or even analogous to it. When, however, the court
disposes of a case without adverting to or applying its mind to a
provision of law which gives it jurisdiction to act in a particular
way, that may amount to an error analogous to one apparent
on the face of the record sufficient to bring the case within the
13
(2008) 8 SCC 612
15
purview of Order 47 Rule 1, Civil Procedure Code.” (emphasis
supplied)
26. In Shri Ram Sahu (Dead) through LRS vs. Vinod Kumar
Rawat & Ors. reported in (2020) 11 SCR 865 power of a review
court is stated in following words:
“7. The dictionary meaning of the word “review” is “the act of looking,
offer something again with a view to correction or improvement”. It
cannot be denied that the review is the creation of a statute. In the case
of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3
SCC 844, this Court has held that the power of review is not an
inherent power. It must be conferred by law either specifically or by
necessary implication. The review is also not an appeal in disguise.
8. What can be said to be an error apparent on the face of the
proceedings has been dealt with and considered by this Court in
the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440. It is held
that such an error is an error which is a patent error and not a mere
wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque,
AIR 1955 SC 233, it is observed as under:
“It is essential that it should be something more than a mere
error; it must be one which must be manifest on the face of the
record. The real difficulty with reference to this matter, however,
is not so much in the statement of the principle as in its
application to the facts of a particular case. When does an error
cease to be mere error, and become an error apparent on the face
of the record? Learned counsel on either side were unable to
suggest any clearcut rule by which the boundary between the
two classes of errors could be demarcated.”
8.1 In the case of Parsion Devi vs. Sumitri Devi, (Supra) in paragraph 7
to 9 it is observed and held as under:
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
16Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372
this Court opined:
“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 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.”
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC
170 while quoting with approval a passage from Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma (supra) 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 selfevident 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 supplied)
17
27. In a fairly recent decision in S. Murali Sundaram vs. Jothibai
Kannan & Ors., reported in 2023 SCC Online SC 185 the Hon’ble
Supreme Court has discussed the scope and ambit of Order 47 Rule
1, Code of Civil Procedure in paragraphs 15 to 17. On a review of its
earlier decisions it was held:
15. While considering the aforesaid issue two decisions of this
Court on Order 47 Rule 1 read with Section 114 CPC are
required to be referred to? In the case of Perry Kansagra
(supra) this Court has observed that while exercising the
review jurisdiction in an application under Order 47 Rule 1
read with Section 114 CPC, the Review Court does not sit in
appeal over its own order. It is observed that a rehearing of the
matter is impermissible in law. It is further observed that
review is not appeal in disguise. It is observed that 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. It is
further observed that it is wholly unjustified and exhibits a
tendency to rewrite a judgment by which the controversy has
been finally decided. After considering catena of decisions on
exercise of review powers and principles relating to exercise of
review jurisdiction under Order 47 Rule 1 CPC this Court had
summed upon as under:
“(i) Review proceedings are not by way of appeal and have to
be strictly confined to the scope and ambit of Order 47 Rule 1
CPC.
(ii) Power of review may be exercised when some mistake or
error apparent on the fact of record is found. But error on the
face of record must be such an error which must strike one on
mere looking at the record and would not require any long-
18
drawn process of reasoning on the points where there may
conceivably by two opinions.
(iii) Power of review may not be exercised on the ground that
the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient
reason which is wide enough to include a misconception of fact
or law by a court or even an advocate.
(v) An application for review may be necessitated by way of
invoking the doctrine actus curiae neminem gravabit.”
16. It is further observed in the said decision that an error
which is required to be detected by a process of reasoning can
hardly be said to be an error on the face of the record.
17. In the case of Shanti Conductors (P) Ltd. (supra), it is
observed and held that scope of review under Order 47 Rule 1
CPC read with Section 114 CPC is limited and under the guise
of review, the petitioner cannot be permitted to reagitate and
reargue questions which have already been addressed and
decided. It is further observed that 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 record
justifying the court to exercise its power of review under Order
47 Rule 1 CPC.” (emphasis supplied)
28. It appears from the order under review that the previous
Division Bench has considered that the memorandum of
understanding dated 7th July, 2008 and made a detailed analysis of
the said document as would be evident from the following paragraphs:
“On 7th July, 2008 a Memorandum of Understanding was
executed between the Corporation described therein as the
creditor and Efcalon described as the purchaser. The preamble
part of this Memorandum made it abundantly plain that the
19entire claims of the Corporation including actionable claims
against the company-in-liquidation were being transferred to
Efcalon. 2 In the Memorandum, Recital F is of paramount
importance. It narrates that the parties with the view to settle
their disputes and differences “against the said order dated 6th
January, 2005” have agreed that the Corporation would
transfer “its entire claim against the company-inliquidation and
against its directors, Gouranga Sundar Das and Sunil Kr. Das
to Efcalon and had assigned all its actionable claims including
those mentioned in TA No. 41 of 2003.” In those circumstances,
the appeal (before the division bench) would be withdrawn.
Now, I come to the habendum portion. Clause 3 is of most
significance. The Corporation would be “deemed to have
transferred, conveyed, assured and assigned all its claims
against the company-in-liquidation and against the said
Gouranga Sundar Das and Sunil Kr. Das…..including its claim
in TA No. 41 of 2003 and charge being claimed by it over and in
respect of the premises of Biren Roy Road (West) at and for the
consideration of Rs.53,70,000/-.” The Corporation relinquished
its rights over these claims. Only Efcalon would have the right
to enforce them against the company-in-liquidation and against
the two directors. In Clause 4 the Corporation recorded its no-
objection to the Official Liquidator executing and registering a
deed of conveyance of the front portion of the said premises in
favour of Efcalon. Under Clause 5 the Corporation would
execute a purported irrevocable power of attorney in favour of
Efcalon.”
29. The subsequent conduct of the parties in relation to the said
memorandum of understanding was also considered as would be
evident from the following paragraphs:
20
“The appeal against the order dated 6th January, 2005 was
withdrawn. The Corporation issued a power of attorney in
favour of Efcalon in the Debts Recovery proceedings. In the
proceedings before the Debts Recovery Tribunal by an order
dated 6th August, 2013 the rear portion of the said property
was sold for Rs.2,63,61,000/-. By its final order on 21st
August, 2015 the tribunal directed payment of
Rs.1,91,14,712.78/- along with simple interest @ 2% per
annum from 1st 3 April, 2003 till realization to the Corporation.
By virtue of this order dated 21st August, 2015 the Corporation
recovered Rs.2,38,72,006.94/- from the sale proceeds lying
with the tribunal. What is recorded in the judgment and order
of the tribunal is also of great importance for the purpose of the
decision on the issue involved. It appears in paragraph 41 of
the tribunal’s order that there was a conflict between the
Corporation and United Bank of India over alleged concurrent
charges of these parties over the said property and their
respective claims. In paragraph 44 of its order the tribunal
recorded that the original title deeds of the said property were
deposited by the directors of the said company with the
Corporation. The bank could not show any charge. The tribunal
held “the Corporation is entitled to receive the sale proceeds of
the landed property of the mortgage towards recovery of their
dues. The rear portion of the said property has been sold by the
tribunal. The said amount of sale proceeds is liable to be
remitted to the Corporation towards recovery of their dues.” The
Corporation was entitled to recover Rs.1,91,14,712.78/- as
principal amount from the sale proceeds of the mortgaged
property. On the basis of the said Memorandum of
Understanding Efcalon instituted the present suit CS 138 of
2016 in this court and claimed the said amount of
Rs.2,38,72,006.094/- from the Corporation together with
interest.”
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30. The Coordinate Bench has also taken into consideration that on
or about 13th February, 2017 the corporation affirmed and filed its
written statement in court broadly narrating the facts alluded to above
and during the cross examination-in-chief of the witness for the
plaintiff the learned Counsel for the plaintiff tried to tender the
memorandum of understanding in evidence. It was made on Rs.500
non-judicial stamp papers. The admission of the said document was
objected to by the learned Counsel for the Corporation on two
grounds, first, it was required to be stamped under Section 35 of the
Indian Stamp Act, 1899 and secondly it was registrable under Section
17 of the Indian Registration Act.
31. The previous Hon’ble Division Bench has recorded the nature of
the controversy in the following words.
“The entire argument of learned counsel for both the parties
centered around the point whether what was being acquired from
the Corporation by Efcalon was an actionable claim or whether it
was immovable property, movable property and actionable claim
all rolled into one. If the former was true, the document required
neither registration nor stamping. If the latter was the case, it
required both stamping and registration. For insufficient stamping
it was inadmissible in evidence.”
32. The submissions of the parties have been elaborately recorded
thereafter from which it would appear that it was specifically argued
on behalf of the review applicant that the memorandum of
understanding was a conveyance, inter alia, transferring immovable
property valued at over Rs.100 and unstamped or an insufficiently
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stamped document could not be used or relied upon even for a
collateral purpose and hence it required both registration and stamp
duty. An insufficiently stamped instrument was inadmissible in
evidence under Section 35 of the Indian Stamp Act 1899.
33. After hearing the learned counsels for the parties and taking
into consideration Section 3 and Section 130 of the Transfer of
Property Act and Section 3(a) read with the definition of “conveyance”
in Section 2(10)and Entry Number No.23 of Schedule I of the Indian
Stamp Act 1899, the Hon’ble Division Bench made the following
observation:-
“The memorandum of Understanding is atleast partly a
conveyance, in my view.
For all those reasons, I find no infirmity in the judgment of the
learned court below.
We affirm the impugned judgment and order. The parties are
directed to take steps before the learned single judge for
implementation of the said impugned judgment and order so that
the stamp duty can be assessed and paid and the defect in the
instrument with regard to deficit stamp duty be cured as soon as
possible. In the special facts and circumstances of the case, the
parties Efcalon and the Corporation shall bear the stamp duty
equally.”
34. By the time the review application was filed, the author of the
judgment, Hon’ble Justice I P Mukherji was elevated as the Chief
Justice of the Meghalaya High Court and accordingly both these
review applications have been assigned to this bench in which one of
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us, Hon’ble Mr. Justice Biswaroop Chowdhury, was a party to the
aforesaid decision. In my interaction with Justice Chowdhury it
appears that their Lordships have consciously directed apportionment
of payment of stamp duty in equal measure in the facts and
circumstances narrated in the body of the judgment which appeared
to the Hon’ble judges of the said bench as special facts and
circumstances for directing payment in equal measure. In view of the
fact that it appears to be a conscious decision of the previous Division
Bench and is not in ignorance or overlooking the relevant provisions of
the Indian Stamp Act we are unable to accept the submission of Mr.
Anindya Mitra, Senior Advocate, that the review application is
maintainable.
35. On such consideration, both the applications for review and all
connected applications relating thereto are dismissed.
36. On the same analogy, the application for review of the plaintiff is
also dismissed.
37. However, there shall be no order as to costs.
(Soumen Sen, J.)
Biswaroop Chowdhury, J.:-
38. I have read the Judgment of my learned brother and have
agreed with the conclusions. However I would like to add briefly
reasons in support of the conclusions arrived at by Hon’ble Justice
Sen.
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39. It is well settled that when a Court delivers a judgment, or
passes a decree or Order it becomes functus officio and cannot recall
or vary its own order, only clerical or arithmetical mistakes in
judgments, decrees or orders or errors arising therein from any
accidental slip or omission may at any time be corrected by the Court
either of its own motion or on the application of any of the parties
under Section 152 of the Code of Civil Procedure.
40. It is true that a Court which has delivered a judgment can
review its own judgment in accordance with the provisions contained
in Order 47 Rule 1 of the Code of Civil Court. A Judge cannot sit in
appeal over the judgment delivered by him. Thus a petition for Review
cannot be an Appeal in disguise as elaborately discussed my Learned
brother in the above paragraphs.
41. A judge when passes an order in his conscious mind by
assigning reason cannot review his Order in which reason has been
assigned even if the reasons appears to be cryptic. It is only when an
error appears on the face of the record and detected after Judgment or
Order is passed, which if brought to the notice of the Judge would
have been taken into consideration by the Learned Judge while
delivering judgment and the judgment in whole or in part would not
have been passed can be taken up in Review Application.
42. In the instant the former Division Bench in which I was also a
member upon considering the facts of the case and the relevant
provision of law observed that the ‘Memorandum of understanding’
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relied upon by the plaintiff was indeed an agreement for sale and
subject to the payment of deficit stamp duty.
43. The former Division Bench also took into consideration the
conduct of the parties by acting on the said Memorandum of
understanding by taking steps before Debt Recovery Tribunal. The
Corporation being Government undertaking and a state within Article
12 of the Constitution permitted the plaintiff Efcalon to act on the said
document without insisting on its registration by paying the required
stamp duty. Upon acting on the basis of the said documents and
allegedly depriving the plaintiff of its dues the point of stamp duty is
taken in the suit. Although special Circumstances were not discussed
in the Order but the same were considered. Indian Stamp Act does not
provide by whom stamp duty is to be paid, but it provides the
obligation to pay stamp duty on the document. Upon considering the
facts and circumstances the previous Bench thought it fit to direct
sharing of stamp duty by the parties equally. As reason is assigned for
directing the parties to share stamp duty equally it is not an error
apparent on the face of the record but a decision supported by reason.
Thus there is no ground for Review.
44. However, there shall be no order as to costs.
(Biswaroop Chowdhury, J.)