TaxTMI 
TaxTMI 
2025 (12) TMI 1854
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....HSANUDDIN AMANULLAH & PRASHANT KUMAR MISHRA, JJ. Heard learned senior counsel Mr. Kapil Sibal, Mr. Kavin Gulati and Mr. Shadan Farasat, for their respective parties, alongwith learned counsel assisting them. PRELIMINARY OBJECTION: 2. At the outset, Mr. Kavin Gulati, learned senior counsel for respondent no.1, raised the issue of non-maintainability of the instant Special Leave Petition under Article 136 of the Constitution of India (hereinafter referred to as the 'Constitution'). The parties have, thus, addressed us on the same. RESPONDENT NO. 1'S CONTENTIONS : 3. Mr. Gulati, learned senior counsel, submitted that the present petition is not maintainable for the reason that the original Judgment dated 15.05.2012 in CWP No. 1679/2010 [2012: HHC: 4682], as passed by the learned Single Judge of the Himachal Pradesh High Court (hereinafter referred to as the 'High Court'), as upheld by the Division Bench of the High Court on 26.02.2024 in LPA No . 316/2012 [2014: HHC: 11898-DB], was further challenged before this Court by the petitioner in SLP (C) No. 16819/2024. But the said challenge was dismissed by Order dated 23.09.2024 in SLP (C) No. 16819/2024. It was ....
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....ICICI Bank, (2024) 9 SCC 573. He vehemently disputed the applicability of T K David (supra) to the instant case. 5. Mr. Sibal, learned senior counsel, concluded his arguments by urging that if the judgment impugned is not interfered with, it may result in the closure of the petitioner-Bank itself, and being a Cooperative Bank, ultimately, the customers of the Bank would suffer as there would be no purpose for the petitioner-Bank to grant them any loan for any work in District Kangra, State of Himachal Pradesh. He submitted, hence, that the financial condition and future prospects of the petitioner-Bank as also its customers would be jeopardized and seriously prejudiced. Moreover, it was contended that the financial condition of the petitioner-Bank was not conducive to cushion the payment outflow. He further submitted that the petitioner-Bank has an inherent right to consider/reconsider any scheme/policy especially, relating to pension regarding its employees based on bona fide financial constraints. In the present matter, when the outflow/liability to pay far exceeds what is received by the petitioner-Bank, equity also is in its favour as there are no sources of money from which....
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....veator-respondent. We see absolutely no occasion to interfere with the order dated 26.02.2024 of the High Court of Himachal Pradesh at Shimla, in exercise of our jurisdiction under Article 136 of the Constitution of India. The present petition is, accordingly, dismissed. Pending application(s), if any, shall stand disposed of. However, the question of law is kept open.' III. 20.12.2024: 'Delay condoned. This misc. application has been filed for recalling of the order dated 23.09, 2024. After arguing the matter for some time, learned senior counsel appearing for the applicant seeks leave to withdraw this misc. application so as to approach the High Court in Review Petition. With liberty as above, the misc. application is disposed of as withdrawn.' 11. The principle that a review is maintainable even after dismissal simpliciter of an SLP by this Court is not in dispute. Reference in this regard to the pronouncements in Kunhayammed v State of Kerala, (2000) 6 SCC 359 and Khoday Distilleries Limited v Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal, (2019) 4 SCC 376, both by Benches of 3-Judges, is sufficient. ....
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....arely. XXX 10. Reverting to the case at hand, the special leave petition was dismissed [Perfect Infraengineers Ltd. v. ICICI Bank Ltd., 2024 SCC OnLine SC 1843] as this Court was not "inclined to interfere with the impugned judgment [Manisha Nimesh Mehta V. ICICI Bank, 2024 SCC OnLine Bom 2407]". Indisputably, no leave was granted and consequently, the merger principle was not invoked. That being so, the High Court may not be legally correct in dismissing the review petition at the threshold for want of maintainability.' (emphasis supplied) 14. Upon a perusal of the judgment impugned in Manisha Nimesh Mehta (supra), we find that the Bombay High Court had found it 'not necessary to comment on the arguments advanced by Mr. Nedumpara, which are about the merits of the Review Petitions.' Thus, as the Bombay High Court dismissed the review petitions on the ground of maintainability alone, statedly, there entailed no consideration on merits whatsoever. 15. In T K David (supra), Bussa Overseas and Properties Private Limited v Union of India, (2016) 4 SCC 696 was noted with approval. In Bussa Overseas and Properties Private Limited (supra), a 2-Judge ....
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....e, in every such dismissal, even in cases where the dismissal is by way of a withdrawal, the remedy of filing a fresh special leave petition would still persist. Further, if on the said reasoning, a remedy to file a review in the High Court is allowed, then the same reasoning cannot arbitrarily exclude the filing of a subsequent special leave petition. 38. We are painfully aware of the fact that such an interpretation, if expanded beyond the specific scope of filing a review in the High Court is allowed, it would open the floodgates of litigation, and would essentially mean that every dismissal of special leave petition must be accompanied with reasons declaring the same.' 17. Notably, in S Narahari (supra), the initial SLP was withdrawn and not dismissed. Next in sequence come the Orders dated 29.07.2024 and 13.08.2024 (where one of us, Prashant Kumar Mishra, J., was part of the coram) in SLP(C) Nos. 17501-17502/2024 [N. F Railway Vending and Catering Contractors Association Lumding Division v The Union of India & Ors. ], which stand duly considered in Satheesh V K v Federal Bank Limited, (2025) 259 Comp Cas 354. In SLP (C) Diary No. 36933/2025 [Vasantalata Kom Vim....
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....on, whereas the one [Civil Appeal No. 11753 of 2025.] subsequently registered is directed against the dismissal of the review petition. XXX 14. Since the question of examining the merits of the appellant's claim would arise if the objection to the maintainability were overcome, we proceed to examine the maintainability aspect first. XXX 16. The question we are tasked to decide, though of frequent occurrence now-a-days, is not res integra. It is, whether a special leave petition (second in the series) would be maintainable against a judgment and order which was earlier challenged before this court but such challenge turned out to be abortive because the special leave petition before this court is_either (i) withdrawn unconditionally, or (ii) dismissed on merits by a brief order not containing reasons, or (iii) withdrawn with liberty to apply for review but without the liberty to approach this court once again, should the review too fail. XXX 19. Having noticed S. Narahari v. S. R. Kumar [ (2023) 7 SCC 740; 2023 SCC OnLine SC 772], a stark dissimilarity in facts is discernible. There, the unsuccessful petitioner at the time of....
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.... of suit or abandonment of part of the claim. Sub-rule (3) says that the court may in certain contingencies grant permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub- rule (4) reads thus: '1. (4) Where the plaintiff- (a) abandons any suit or part of a claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. ' 13. The aforesaid ban for filing a fresh suit is based on public policy. This court has made the said rule of public policy applicable to jurisdiction under article 226 of the Constitution (Sarguja Transport Service v. State Transport Appellate Tribunal [(1987) 1 SCC 5; 1987 SCC (Cri) 19; 1986 SCC OnLine SC 233]). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard....
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....which precedes Kunhayammed v. State of Kerala [(2000) 245 ITR 360 (SC); (2000) 119 STC 505 (SC); (2000) 6 SCC 359; 2000 SCC OnLine SC 1008] in point of time, is still the law holding the field declaring in no certain terms that the principle flowing from Order XXIII Rule 1 of the Code of Civil Procedure is also applicable to special leave petitions presented before this court. Reading Upadhyay and Co. v. State of U.P. together with Sarguja Transport Service v. State Transport Appellate Tribunal [(1987) 1 SCC 5; 1987 SCC (Cri) 19; 1986 SCC OnLine SC 233. ], which had the occasion to deal with a subsequently filed writ petition under article 226 of the Constitution of India after unconditional withdrawal of the first writ petition under the same article, the position in law seems to be this-a second special leave petition would not be maintainable at the instance of a party, who elects not to proceed with the challenge laid by him in an earlier special leave petition and withdraws such petition without obtaining leave to file a fresh special leave petition; if such party applies for a review before the court from whose order the special leave petition was initially carried and the re....
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....sequent to the order dated July 29, 2024 which, in the opinion of the Bench, required a further consideration. The order dated August 13, 2024, for such reason, recalled the earlier order dated July 29, 2024 and issued notice on the special leave petition as well as on the application for stay together with interim protection. The order dated August 13, 2024 recalled the order dated July 29, 2024 whereby hearing was adjourned sine die awaiting the reference made in S. Narahari v. S.R. Kumar [(2023) 7 SCC 740; 2023 SCC OnLine SC 772]. No assistance can, thus, be drawn by the appellant from such order. 35. We have no doubt that entertaining a special leave petition in a case of the present nature would be contrary to public policy and can even tantamount to sitting in appeal over the previous order of this court which has attained finality. The maxim interest reipublicae ut sit finis litium (it is for the public good that there be an end to litigation) would apply in all fours when it is found that proceedings challenging an order were not carried forward by withdrawing the special leave petition and the litigant has returned to the same court after some time mounting a chal....
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....ring it within the ambit of the purview of the review jurisdiction. Thus, we have no option but to dismiss the review petition. ' ... 20. Undoubtedly, only the Judgment rendered in review is impugned herein. That said, it is evident that the afore-quoted Paragraph 10 was unnecessary, for once liberty was granted to the petitioner to invoke review jurisdiction by this Court on 20.12.2024, the Division Bench need not have felt inhibited by the dismissal of the SLP on 23.09.2024, despite it expressly keeping the question of law open. At first blush, this could have prompted us to go down the route adopted by this Court in Manisha Nimesh Mehta (supra). However, the difference here is that it is seen that the Division Bench of the High Court has recorded that it did not find any infirmity or illegality in the matter, warranting review of the concerned Judgment dated 26.02.2024. In the extant facts, on a holistic conspectus, the said reasoning is deemed enough to sustain the Impugned Judgment, duly keeping in mind that the same was not rendered in substantive writ or appellate proceedings, but only in review jurisdiction, which is limited and circumscribed. We are satisfied t....
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....eproduce the relevant passages from Union Territory of Ladakh v Jammu and Kashmir National Conference, 2023 SCC OnLine SC 1140, where the Court (speaking through one of us, Ahsanuddin Amanullah, J. ), held as under [We have followed Union Territory of Ladakh (supra) in our recent judgment in Sankar Padam Thapa v Vijaykumar Dineshchandra Agarwal, 2025 SCC OnLine SC 2194]: '32. ... That apart, it is settled that mere reference to a Larger Bench does not unsettle declared law. In Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608, a 2-Judge Bench said: "15. Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross- examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because the correctness of a portion of the judgment in Mohd. Shafi [(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR 1023 : (2007) 5 Scale 611] has been doubted by another Bench, the same would not mean that we should....