Calcutta High Court (Appellete Side)
The Howrah Municipal Corporation & Ors vs M/S Production Enterprise & Anr on 13 August, 2025
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
2025:CHC-AS:1545
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(Appellate Side)
Present: THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
R.V.W 161 of 2022
With
CAN 1 of 2023
In
WPA 5193 of 2019
Reserved on : 01.08.2025
Pronounced on: 13.08.2025
The Howrah Municipal Corporation & Ors.
...Applicants
-Vs-
M/s Production Enterprise & Anr. ...Respondents
Present:-
Mr. Sandipan Banerjee
Mr. Ankit Sureka
… … for the applicants
Mr. Sandip Ghosh
Mr. Subrata Das
Mr. D. Ghosh
… … for the private respondentsRajarshi Bharadwaj, J:
1. The present review petition filed by the respondents seeks review of the
Judgment and Order dated December 22, 2020, delivered by Hon’ble Justice
Arindam Sinha, in W.P. No. 5193(W) of 2019 and related interlocutory
applications. The applicants/respondents are constrained to move this review
petition, being aggrieved by and dissatisfied with the aforementioned order.
2. The present matter relates to a dispute over payments claimed by the
respondents/writ petitioners from the Howrah Municipal Corporation for
services purportedly rendered in repairing the Hot Mix Plant and Paver
Finisher. The writ petitioners submitted bills amounting to Rs.16,96,706/-.
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The Chief Officer of Finance of the Corporation internally approved the bill on
July 19, 2018. However, this approval was not from the final competent
authority authorized to sanction such payments. The respondents/writ
petitioners were engaged through a contract characterized as a work contract,
specifically related to repair services of machinery, rather than a supply
contract. The tender documents and subsequent work order executed in their
favour did not include any clauses incorporating the provisions of the MSME
Act. After initial disputes regarding the payment, the Howrah Municipal
Corporation disbursed the aforesaid amount pursuant to the judgment and
order dated December 22, 2020 passed by the learned Single Judge. However,
the Controller of Finance of the Corporation, who is the highest authority in
the accounts section, raised serious concerns in an official note-sheet about
the quality and satisfactory completion of the repair work claimed by the
respondents/writ petitioners. Following the judgment, the Controller of
Finance sought to summon the writ petitioners for a hearing on August 31,
2021, seeking relevant documents to verify entitlement to interest under the
MSME Act, but the respondents/writ petitioners declined to appear, asserting
that the court order did not empower the Controller for such further inquiries.
The matter originally arose in 2015 and due to its antiquity, relevant
documents and instructions were not available to the Corporation’s counsel at
earlier stages, resulting in delayed proceedings, including a dismissed appeal
filed subsequently before the Division Bench.
3. It is submitted on behalf of the applicants/respondents that the writ
petitioners do not fall within the purview of the MSME Act in this case. The
learned Single Judge erred in holding that the writ petitioners were entitled to
the entire billed amount of Rs.16,96,706 based solely on the internal approval
by the Chief Officer of Finance, who is not the competent final authority.
Reliance on this internal note is misplaced and does not confer any legal
entitlement. The sum claimed pertains to a works contract for repair services
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and does not qualify as a supply contract regulated under the MSME Act.
Accordingly, the writ petitioners are not entitled to the principal amount.
4. The impugned judgment/order further misapplied Sections 2(b), 15 and
16 of the MSME Act by awarding interest to the writ petitioners on the
amount, despite their lack of entitlement to the principal sum. This is contrary
to the statutory scheme and relevant legal principles. The learned Single
Judge overlooked Government Order No. 4245-S(4), Kolkata, dated May 28,
2013, issued by the Principal Secretary to the Government of West Bengal,
Department of Finance, which explicitly excludes work contracts from
coverage under the MSME Act. The Government Order distinguishes small-
scale industrial units’ participation in government tenders by categorizing
work contracts differently from supply contracts, only the latter attract the
protections of the Act. Since the writ petitioners were awarded a work
contract, the Government Order conclusively bars them from claiming benefits
under the MSME Act.
5. Furthermore, the contract documents do not contain any provision
applying the MSME Act and such terms cannot be unilaterally amended post-
contract. The Controller of Finance’s note-sheet calls into question the
completion and quality of the work, indicating that payment even of the
principal amount was premature and unwarranted. Given these
circumstances, the respondents/writ petitioners cannot claim interest on a
sum they were not entitled to in the first place. Following the judgment, the
writ petitioners’ refusal to attend the hearing and provide supporting
documents demonstrates an unwillingness to substantiate their entitlement
further.
6. At the time the judgment/order was pronounced, the Corporation’s
counsel lacked adequate instructions and documentary evidence to contest
the writ petitioners’ claims effectively and the Court precluded further
argument on these points. Although the matter dates back to 2015 and
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delayed document production impeded an earlier presentation of evidence,
upon collecting the necessary materials, the Corporation filed an appeal which
was dismissed, with liberty granted to seek review before the Single Bench as
presently done.
7. Finally, as the funds in question constitute public money, their
disbursement must comply with due legal process to ensure transparency and
avoid audit difficulties. Payment of interest absent valid entitlement threatens
public financial propriety. For these reasons, the applicants/respondent urge
that the findings of the learned Single Judge be reconsidered and the present
review petition be allowed in the interest of justice.
8. Learned counsel appearing for the respondent/writ petitioners submit
that the present review petition is not maintainable in law, as there is no error
apparent on the face of the record nor any sufficient cause to warrant review
of the consent order dated December 22, 2020passed by this Hon’ble Court.
The Hon’ble Appellate Court has also dismissed the review petitioner’s appeal,
noting the consented nature of the original order. It is a settled position that a
court of review cannot sit as an appellate court, nor can it modify statutory
interest rates prescribed under special legislation.
9. In this context, the MSMED Act, 2006 provides a clear and mandatory
framework under Sections 15 and 16 regarding payment timelines and
interest rates. Section 16 unambiguously requires the buyer to pay compound
interest with monthly rests at the prescribed statutory rate from the
‘appointed day’ for delayed payments, notwithstanding any contrary
agreement. Courts are bound to apply these statutory rates as enacted,
without modification.
10. In the present facts, the Review Petitioner has failed to comply with the
consent order and the statutory mandate under the MSMED Act. It is thus
prayed that this Court directs payment of interest strictly in terms of Section
16, as calculated by the Chartered Accountants, maintaining the sanctity of
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the statute and the previous orders dated December 22, 2020 and June 26,
2022 of this Hon’ble Court.
11. In the matter of S. Madhusudhan Reddy vs. V Arayana Reddy and
Others reported in 2022 SCC OnLine SC 1034, Hon’ble Supreme Court has
summarized the principles for exercising of review jurisdiction as under:
“24.After discussing a series of decisions on review jurisdiction in Kamlesh
Verma v. Mayawati, this Court observed that review proceedings have to be
strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as
the point sought to be raised in the review application has already been dealt
with and answered, parties are not entitled to challenge the impugned judgment
only because an alternative view is possible. The principles for exercising review
jurisdiction were succinctly summarized in the captioned case as below:
a. 20. Thus, in view of the above, the following grounds of review are
maintainable as stipulated by the statute:
i. 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.
ii. The words “any other sufficient reason” has been interpreted in Chajju
Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v.
Most Rev. Mar Poulose Athanasius 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.
iii. 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.
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(ii) Review proceedings cannot be equated with the original hearing of the
case.
(iii) Review is not maintainable unless the material error, manifest on the face
of the order, undermines its soundness or results in miscarriage of justice.
(iv) 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.
(v) The mere possibility of two views on the subject cannot be a ground for
review.
(vi) The error apparent on the face of the record should not be an error which
has to be fished out and searched.
(vii) 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.
(viii) Review is not maintainable when the same relief sought at the time of
arguing the main matter had been negatived.”
12. Earlier also the Hon’ble Supreme Court in the matter of Northern India
Caterers (India) Ltd. v. Lt. Governor of Delhi reported in 1980 (2) SCC 167 had
held as under:
“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. 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: G.L. Gupta v. D.N. Mehta. 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. Distt. Judge,
Delhi. Power to review its judgments has been conferred on the Supreme Court
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by Article 137 of the Constitution, and that power is subject to the provisions ofany law made by Parliament or the rules made under Article 145. In a civil
proceeding, an application for review is 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,
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.
Sheikh Habib.”
13. The Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma as reported in (1979) 4 SCC 389 speaking through Chinnappa Reddy,
J. has made the following pertinent observations:
”It is true there is nothing in Article 226 of the Constitution to preclude the High
Court from exercising the power of review which inheres in every court of
plenary jurisdiction to prevent miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are definitive limits to the exercise of
the power of review. The power of review may be exercised on the discovery of
new and important matter or evidence which, after the exercise of due diligence
was not within the knowledge of the person seeking the review or could not be
produced by him at the time when the order was made; it may be exercised
where some mistake or error apparent on the face of the record is found, it may
also be exercised on any analogous ground. But, it may not be exercised on the
ground that the decision was erroneous on merits. That would be the province of
a court of appeal. A power of review is not to be confused with appellate power
which may enable an appellate court to correct 20 all manner of errors
committed by the subordinate court.”
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14. Having regard to the aforesaid fact, this Court finds that there is no
dispute to the said proposition but for seeking review, petitioner is required to
show error apparent on the face of record which he has failed in the present
case. The applicants’ review of a consent order dated 22nd December, 2020,
cannot be entertained into a limited field of review. Therefore, as there is no
apparent error on the face of the record, no ground for review is made. Hence,
the review petition and connected applications are dismissed.
15. There shall be no order as to costs.
16. Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties upon fulfillment of requisite formalities.
(RAJARSHI BHARADWAJ, J)
Kolkata
13.08.2025
PA (BS)