TaxTMI 
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2025 (10) TMI 2
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...., the appellant having defaulted in his obligation to repay the loan, the respondent classified the loan account as 'Non-Performing Asset' (NPA) and initiated measures under section 13(4) of the SARFAESI Act. 2. Aggrieved by the action taken by the respondent, the appellant invoked the jurisdiction of the High Court of Kerala at Ernakulam under Article 226 of the Constitution by presenting a Writ Petition (C) No.33280 of 2024. According to the respondent, the total outstanding amount was Rs. 7,77,41,321/-. The order dated 1st October, 2024 passed by the High Court disposing of the writ petition required the appellant to pay Rs. 2,00,00,000/- on or before 30th October, 2024 and the remaining amount along with future interest in 12 (twelve) equal monthly instalments. The first instalment was to be paid on or before 15th November, 2024 and the remaining eleven (11) instalments were to be paid on or before 15th day of each succeeding month. The impugned order further directed that in case of failure to make payment of Rs. 2,00,00,000/- or any of the subsequent instalments, as directed, the respondent would be free to proceed against the appellant under the SARFAESI Act for realisation....
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....as no right in law to approach this Court once again after withdrawing the initial challenge. Also, in view of Order XLVII Rule 7 (1) of the Code of Civil Procedure, 1908 [CPC], there can be no appeal against an order refusing review. 8. The objection to the maintainability of the appeal against the order dated 1st October, 2024 was sought to be countered by Mr. Menon, learned counsel for the appellant, by citing the decision of a coordinate Bench of this Court in S. Narahari and Others v. S.R. Kumar and Others (2023) 7 SCC 740. It was pointed out that a reference was made for constitution of a larger Bench to deliberate and adjudicate the issue as to whether a second special leave petition would be maintainable against an order which was previously challenged in a special leave petition but the challenge had either been withdrawn or spurned. Our attention was further drawn by Mr. Menon to orders dated 29th July, 2024 and 13th August, 2024 passed by another coordinate Bench of this Court [of which one of us (Dipankar Datta) was a member] in N.F. Railway Vending and Catering Contractors Association Lumding Division vs. Union of India & Ors. Special Leave Petition (C) Nos.17501-1750....
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....44, S. Nagaraj and Others v. State of Karnataka and Another 1993 Supp (4) SCC 595, Lily Thomas and Others v. Union of India & Ors. (2000) 6 SCC 224, Kunhayammed and Others v. State of Kerala & Another (2000) 6 SCC 359, Ramnik Vallabhdas Madhvani and Others v. Taraben Pravinlal Madhvani (2004) 1 SCC 497, Union of India v. Amrit Lal Manchanda and Another (2004) 3 SCC 75, and Khoday Distilleries Limited (Now Known as Khoday India Limited) and Others v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (Under Liquidation) Represented by the Liquidator (2019) 4 SCC 376. 12. Of these decisions, Kunhayammed (supra) and Khoday Distilleries Limited (supra) have relevance and, therefore, we propose to consider the same in some detail for deciding the question arising before us at a later part of this judgment. The other decisions not being directly related to the point under consideration are not separately considered. Suffice to record, these decisions lay down general principles of law, inter alia, of what is a review, that power to review is not an inherent power and has to be statutorily conferred, whether res judicata is applicable in a case where there is inherent lack of ....
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....a) was seized of the question as to whether, upon dismissal of a special leave petition against the parent order as withdrawn with liberty to file a review before the high court but without liberty to approach this Court again against the parent order should the review fail, a fresh special leave petition filed against both the parent order and the review rejection order would be maintainable. The Bench pondered whether liberty granted by this Court to approach the high court in review automatically places the said matter in the "escalation matrix", and makes the remedy of a special leave petition available again. The Bench traced the first line of cases, Vinod Kapoor v. State of Goa (2012) 12 SCC 383 and Sandhya Educational Society v. Union of India (2014) 7 SCC 701 which ruled that when no liberty has been granted to approach the Supreme Court once again, a subsequent special leave petition is not maintainable. This was contrasted with the decision rendered in Khoday Distilleries (supra) wherein after placing reliance on Kunhayammed (supra), a three-Judge Bench came to the conclusion that even after dismissal of a special leave petition, a review before the high court is maintain....
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....e, the petitioner challenged the order of the Allahabad High Court dated 3-5-1996 by filing SLP (C) No. 12673 of 1996 in this Court. But for reasons better known to the petitioner he withdrew the SLP on 9-7-1996. Thereafter, he filed an application before the High Court for clarification of the order dated 3-5-1996, but the Division Bench did not find anything to be clarified about that order and hence dismissed the petition on 10-10-1997. 10. The present special leave petitions are filed against the two orders of the High Court, one dated 3-5-1996 and the other dated 10-9-1997. 11. We made a recapitulation of the events as above for the purpose of showing that the petitioner has absolutely no case in the present SLPs. He cannot, at any rate, now challenge the order of the High Court dated 3-5-1996 over again having withdrawn the SLP which he filed in challenge of the same order. It is not a permissible practice to challenge the same order over again after withdrawing the special leave petition without obtaining permission of the court for withdrawing it with liberty to move for special leave again subsequently. 12. The above principle has been incorporated as a rule in th....
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....itioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in the High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.' 14. *** 15. We have no doubt that the above rule of public policy, for the very same reasoning, should apply to special leave petitions filed under Article 136 of the Constitution also. Even otherwise, the order passed by the Division Bench of the High Court on 3-5-1998 does not warrant interference on merits as the learned Judges of the High Court have taken into account all the relevant facts and come to the correct conclusion." (emphasis ours) 22. Upadhyay & Co. (supra), which precedes Kunhayammed (supra) in point of time, is still the law holding the field declaring ....
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.... the decisions relied upon by Mr. Menon. 26. The passage from the decision in Dhakeswari Cotton Mills Ltd. (supra) referred to by Mr. Menon has no application on facts and in the circumstances of the present case. We are inclined to the view that the nature of power exercisable by this Court under Article 136, as elaborately laid down there, would apply in the first round when a judgment and order is challenged and not when the challenge to the same judgment and order is withdrawn in the first round and a second bite at the cherry is attempted without having obtained the permission of the Court to re-approach it. 27. Reliance placed by Mr. Menon on the decisions in Kunhayammed (supra) and Khoday Distilleries Limited (supra) also do not aid the appellant's cause for the reasons that follow. 28. In Kunhayammed (supra), the facts were these. After the special leave petition of the State of Kerala which was directed against an appellate judgment and order of the High Court dated 17th December, 1982 was dismissed on 18th July, 1983 by a single line order ["Special Leave Petition is dismissed on merits."], the State had invoked the review jurisdiction of the High Court in January, &nb....
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....using special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of....