M/S. AVIJIT TEA CO. PVT. LTD. versus M/S. TERAI TEA CO. AND ORS.

Citation: [1996] SUPP. 4 S.C.R. 411 · Decided: 08-08-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Case Partly allowed

Judgment (excerpt)

• 
..... 
I 
M/S. AVIJIT TEA CO. PVT. LTD. 
v. 
M/S. TERA! TEA CO. AND ORS. 
AUGUST 8, 1996 
(K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
Code of Civil Procedure, 1908 : 
A 
B 
Order 47, Rule I-Review-Scope of-Under an agreement between the 
parties for sale of green tea leaves, appellant advanced Rs. 20 lakhs to C 
respondellt-Appellant filed suit for specific peifonnance and the amount of 
Rs. 20 lakhs were deposited with cowt receive1-In appeal Division Bench of 
the High Cowt dismissed the suit for specific pe1fomzance and directed refund 
of the amount deposited with court receiva---bt review application, Single 
Judge of the Hig/1 Cowt held that direction for refund of the amount was bad 
in law-Held, notwithstanding the controversy and wisdom whether Single D 
judge could review the decree in the appeal of a Division Bench, on nwits 
the order of Single Judge is unsustainable. 
CIVIL APPELLATE JURISDICTION : Civil appeal No. 10871 of 
1996 Etc. 
From the Judgment and Order dated 25.4.94 of the Calcutta High 
Court in Appeal No. 514 of 1992. 
Dr. Shankar Ghosh, N.R. Choudhary and Somnath Mukherjee for 
E 
the Appellant. 
F 
Kapil Sibal, V.N. Dwivedi, U. Banerjee, H.K. Puri, Dilip Sinha and 
J.R. Das for the Respondent. 
The following Order of the Court was delivered : 
Leave granted. 
We make it clear at the outset that we are not expressing any opinion 
G 
on merits as regards the contentious controversy between the parties in the 
dispute in several suits in the High Court on the original side and appeals 
arising thereunder and some order passed by this Court in that behalf. We H 
411 
412 
SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R. 
A 
are concerned in this appeal with the legality of the order of the learned 
Single Judge in review order dated December 23, 1994 in appeal No. 
514/92. 
B 
c 
The admitted position is that there was an agreement between Terai 
Tea Co. P\1. Ltd. said to be having shares and represented by A.jit Kumar 
Agrawal as its Managing Director who was said to be in the management 
of Dharanipur Tea Estate and the appellant for sale of tender and good 
quality green tea leaves of the Dharanipur Tea Estate and in consideration 
thereof a sum of Rs 20 lakhs was advanced. It is not in dispute that Rs. 20 
lakhs came to be deposited with a Court Receiver in a pendin1~ suit. The 
appellant filed the suit No. 89/91 for specific performance of the said 
agreement. In that suit, an application for ad i11te1im injunction under 
Order 39, Rule 1, CPC was filed but the same was dismissed. On appeal, 
by consent of the parties, the suit itself was taken up. While dismissing the 
suit for specific performance, the Division Bench by judgment dated April 
D 25, 1994 directed refund of a sum of Rs. 19,33,873.74 which was with the 
Court Receiver with interest thereon to the account of the suit maintained 
by the Court Receiver. Thereafter an application for review came to be 
filed. In the impugned order the learned Single Judge held that the 
direction for refund of the amount was bad in law. Calling that order in 
quest.ion, this appeal has come to be filed. 
E 
It is contended by Dr. Shankar Ghosh, learned senior counsel for the 
appellants that the view of the learned Single Judge is clearly erroneous 
for the reason that it is not an error apparent on the face of the record 
warranting review under Order 47, Rule 1, CPC. At best, it would be a 
F 
case for an appeal against the judgment of the Division, but, admittedly, 
no appeal came to be filed. We find force in the contention advanced for 
the appellants. It is an admitted position that in respect of the management 
of the estate of Dharanipur Tea Estate a contract came to be executed 
between Terai Tea Estate which was said to be in its management at the 
relevant time, and the appellant for sale of tender green leaves of the tea 
G grown in the said estate. The suit for specific performance of that agree-
ment came to be dismissed. One of the convenants in the agreement was 
that he was entitled to the specific performance . .Since the specific perfor-
mance was not granted alternative relief sought for refund of the amount 
was granted. Therefore, when the decree for refund was granted, whatever 
H may be the demerits in the grant of decree that will be only correctable in 
A VIJIT TEA CO. PVf. LTD. v. TERA! TEA CO. 
413 
an appeal. The ground given by the learned Single Judge to review the A 
order was that since the amount came to be deposited

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