Tag Archives: Appeal

Appellate Jurisdiction vis-à-vis Revisional Jursidiction

A revision petition has a narrower scope than an “appeal”. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC, the dictinction between “appellate jurisdiction” and “revisional jurisdiction” was discussed as follows:

        “Appeal” and “revision” are expressions of common usage in Indian statute and the distinction between “appellate jurisdiction” and “revisional jurisdiction” is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice.”

        In Hindustan Petroleum Corpn. Ltd.  v.  Dilbahar Singh  (2014) 9 SCC 78 it was held that:

“Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute.” Ordinarily, the power of revision can be exercised only when illegality, irrationality, or impropriety is found in the decision making process of the for a below. Karnataka Housing Board v. K.A. Nagamani. (2019) 6 SCC 424

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Second Marriage – When Permissible during Pendency of Appeal

Section 15 of the Hindu Marriage Act provides that it shall be lawful for either party to marry again after dissolution of a marriage, if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

       In case during the pendency of the appeal, there is a settlement between the husband and wife, and after entering into a settlement, he does not intend to contest the decree of divorce, his intention can be made clear by filing an application for withdrawal. In that case, he does not have to wait till a formal order is passed in the appeal or otherwise his marriage is unlawful. Following the principles of purposive construction, it was held that the restriction placed on a second marriage in Section 15 of the Hindu Marriage Act, till the dismissal of an appeal, would not apply to a case where parties have settled and decided not to pursue the appeal. Anurag Mittal v. Mrs. Shaily Mishra Mittal, 2019 (132) ALR 725.

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Filed under Matrimonial Dispute, Second Marriage

Time Barred Appeal – Delay of only 6 days

Initially, the appeal was presented in time and it was for the reason of removing the discrepancies that the period of additional 6 days went by. During this period of six days, the appellant has shown that he was running from pillar to post to remove the discrepancies and in the circumstances, the view taken by the Learned Real Estate Appellate Tribunal, Lucknow appears to be harsh. It can also be seen that it is settled principle of law that discretion should be exercised in favour of hearing rather than shutting it out when there was a delay of only five days in filing the appeal and the appellant was making the best efforts to remove the discrepancies as pointed out by the office of the Appellate Tribunal and immediately thereafter he with all promptitude took necessary steps to file the appeal without any inordinate delay. The circumstances should have been considered in its proper perspective by the Appellate Tribunal. M/s Capital Infra Projects Pvt. Ltd. v. Surinder Bhaiya, 2018 (131)ALR 182.

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Filed under Real Estate (Regulation and Development) Act,, Time Barred Appeal

SARFAESI Act – Appeal under Section 17 of the Act

The “appeal” under Section 17 is available to the borrower against any measure taken under Section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditors. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under Section 13(4). Alienating the asset either by lease or sale, etc., and appointing a person to manage the secured asset are some of those possible measures. On the other hand, Section 14 authorises the Magistrate only to take possession of the property and forward the asset alongwith the connected documents to the borrower. Therefore, the borrower is always entitled to prefer an “appeal” under Section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under Section 14. By whatever manner the secured creditor obtains possession either through the process contemplated under Section 14 or without resorting to such a process, obtaining of the possession of a secured asset is always a measure against which a remedy under Section 17 is available. Dheerendra Kumar v. Authorised Officer, 2018 (129) ALR 32.

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Filed under Appeal Under Section 17 of SARFAESI Act, Debt Recovery Law

Companies Act – Right to Appeal

In the case of M/s Videocon International Ltd. v. S.E.B.I., (2015) 4 SCC 33 a right of appeal has been understood to be a substantive right and not a mere procedural right so as to affect it’s applicability upon any amendment. The forum of appeal as provided under Section 483 of the Companies Act would not stand altered as no such provision in such a situation is contemplated so as to transfer the right of appeal before the Company Appellate Tribunal.
The enforcement of Section 303 of the Companies Act w.e.f. 15.12.2016 would not repeal the right or abrogate the right of a person to file an appeal against the order of a learned Single Judge in a company petition for which the High Court continues to have jurisdiction to decide the matter. The Company Appellate Tribunal has not been conferred with any such authority specifically as an alternative, granting a right of appeal as against an order of a learned Single Judge passed in a company petition. In the absence of any such specific conferment of power on the Company Appellate Tribunal the powers statutorily granted under Section 483 of the Companies Act would stand revealed, cannot be repealed. The doctrine of implies repeal, therefore, will have no application in view of the aforesaid background of the legislation as no such express intention can be gathered from the same. J.R. Organics Ltd. v. Jupiter Dyechem Pvt. Ltd., 2017 (1) AWC 751.

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Filed under Corporate Law, Right of Appeal

Securitisation Act – Deposit under Section 18

Though no principle of law has been laid by the Hon’ble Supreme Court in the Judgment of Persn Medicinal Plants Pvt. Ltd. v. Indian Bank, decided on 25.02.2011 but it clearly indicates that in a given situation where an amount more than the amount due from the borrower/guarantor had already been realized by auction sale, which stands confirmed and the possession of the property also had been handed over to the Bank which is utilizing the same or is utilizing the property having purchased the same in the said auction, insistence on the deposit referred to under proviso to Section 18 would be contrary to the legislative intent as also the express provision as is evident from the use of the words “50% of the amount of debt due from him”.
A similar view has been taken by a Division Bench of the Punjab and Haryana High Court in similar fact situation in the case of S.R. Forging Ltd. v. UCO Bank and another, 2013 (1) DRTC 734, which reads as under:
“At this stage, we find that out of total due amount of Rs. 18.24 crores, Rs. 17.75 crores have been received by the bank in a public auction. Therefore, the deposit of 50% of the amount due prior to sale from the petitioner would be wholly unjustified. The proviso to section 18 of the Act restricts the entertainment of the appeal unless the borrower deposits 50% of the amount of the debt claimed by the Secured Creditors. Once Rs. 17.75 crores have been received by the secured creditors, that is more than 50% of the debt due from the petitioners, the purpose of the proviso stands satisfied”. Akash Ganga Airlines Ltd. v. DRAT, 2015 (5) AWC 5186.

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Filed under Debt Recovery Law, Deposit under Section 18 of Securitisation Act

Delay in Filing Appeal under Section 18(1) of SARFAESI Act – Can be condoned

The Andhra Pradesh High Court in Sajida Begum v. State Bank of India, AIR 2013 AP 24 in holding the tribunal to be court has relied on Sections 22 and 24 of the Recovery of Debts Due to Banks and Financial Institutions Act. Section 22 vests power of Civil Court on the Tribunal only for purposes mentioned therein, such as summoning witnesses etc. and deems Tribunals to be courts for specified purposes, such as for Sections 193, 196 and 228 of the Indian Penal Code and Section 195 of the Criminal Procedure Code. These provisions may not be conclusive of the question of the Tribunal being court for section 29(2) of the Limitation Act without further examining the scheme of the statutes in question. In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646, the Court examined the scheme of the two Acts in question and held that the tribunal was a court but not a civil court for purposes of Section 24 of the CPC. Power of condonation of delay was expressly applicable by virtue of Section 18(2) of the SARFAESI Act read with proviso to Section 20(3) of the RDB Act and to that extent, the provisions of Limitation Act having been expressly incorporated under the special statutes in question, Section 29(2) stands impliedly excluded. Even though Section 5 of the Limitation Act may be impliedly inapplicable, principle of Section 14 of the Limitation Act can be held to be applicable even if Section 29(2) of the Limitation Act does not apply as laid down by the court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, (2008) 7 SCC 169.
Delay in filing an appeal under Section 18(1) of the SARFAESI Act can be condoned by the Appellate Tribunal under proviso to Section 20 (3) of the RDB Act read with Section 18(2) of the SARFAESI Act. Baleshwar Dayal Jaiswal v. Bank of India, 2015 (112) ALR 645.

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Filed under Delay condonation under Securitisation Act, Recovery Laws

Doctrine of Merger

The “doctrine of merger” is not a “doctrine of universal or unlimited application”. It is not that in every case where there are two orders, one by the inferior authority and the other by a superior authority, it is to be deemed that former had merged in the latter thereby losing its identity completely. The applicability of the doctrine of merger will depend on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid. It will depend upon the subject matter of the appeal or revision or the scope of proceedings in which final orders are passed.
The same legal position has been laid down in the case of Kunhay Ahmed v. State of Kerala, (2000) 6 SCC 359. The court referred to another decision of the Hon’ble Supreme Court in State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681, wherein it had held that the doctrine of merger is not a doctrine of rigid and universal application and the applicability of the same are dependent upon the scope of the appeal or revision contemplated by the particular statute, the nature of the appeal or revisional order and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. State of U.P. v. Vivekanand Singh, 2015 (4) AWC 4130.

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