Bombay High Court
Advanced Technology Products Inc. vs Oriental Export Corporation on 23 February, 2026
Author: R.I. Chagla
Bench: R.I. Chagla
2026:BHC-AS:9107
comao-2-2026.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL APPEAL FROM ORDER NO.2 OF 2026
Digitally
WITH
signed by
JITENDRA
JITENDRA SHANKAR
SHANKAR NIJASURE
NIJASURE Date:
INTERIM APPLICATION NO.372 OF 2026
2026.02.23
17:03:03
+0530
Advanced Technology Products Inc. ...Appellant /
Applicant
Versus
Oriental Export Corporation ...Respondent
----------
Mr. Gaurav Mehta with Mr. Ravitej Chilumuri, Ms. Afreen Noor, Mr.
Prince Todi and Ms. Sanya Gandhi i/b. Khaitan & Co. for the
Appellant / Applicant.
Ms. Ankita Singhania, Burzin Somandy, Ariana Somandy, Rina Ram,
and Nikita H. Joshi i/b. Somandy and Associates for the
Respondents / Ori. Plaintiffs.
----------
CORAM : R.I. CHAGLA
ADVAIT M. SETHNA, JJ.
Reserved on : 4TH FEBRUARY, 2026.
Pronounced on : 23RD FEBRUARY, 2026.
J U D G M E N T (PER - R.I. CHAGLA J.)
1. By this Commercial Appeal from Order, the Appellant /
Original Defendant has challenged the exparte order dated 25th
April, 2025 passed by the Presiding Judge, Court No.2, City Civil
Court, Dindoshi (alternate Judge, Court No.3), in Review Application
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No.2 of 2025 in Commercial Suit No.149 of 2025.
2. By the impugned Order, the alternate Judge has set aside
the order dated 17th April, 2025 (Original Order) passed by the
Presiding Judge, Court No.3, City Civil Court, Dindoshi exparte and
in review by inter alia allowing registration of the Suit without the
Respondent / Original Plaintiff complying with the mandatory
requirement of pre-institution mediation under Section 12A of the
Commercial Court’s Act, 2015.
3. The relevant facts are as under:-
(i) The Appellant is a Corporation based in Ohio and is
engaged in the manufacturing and distribution of pneumatic hose
and tubing products.
(ii) The Appellant vide multiple purchase Orders
between August, 2022 to September, 2024 purchased fitting and
tubing products from the Respondent for use in air brake systems.
The Appellant sold the products it purchased from the Respondent
to its clients based in Ohio and in other parts of United States.
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(iii) The Appellant’s customers informed it by Email
dated 4th September, 2024 that they discovered quality defects in
the products. The Email was forwarded by the Appellant to the
Respondent immediately.
(iv) Thereafter correspondences were exchanged
between the Appellant and Respondent in September, 2024
whereby the Appellant requested the Respondent to furnish lab
reports and other documents demonstrating that Respondent’s
tubing complied with the industry standards in North America. It
is the Appellant’s case that the Respondent failed to provide any
such response and / or attend meetings held by the Appellant and
its customers to resolve the quality issues in the tubing products.
(v) In view of the Appellant having no clarity and / or
information from the Respondent regarding the quality issues
encountered in the Respondent’s tubing products, the Appellant
had in public interest and in compliance with the laws applicable
in the United States issued a press release dated 13th September,
2024 inter alia stating that it had received a report of potential
deterioration of the tubing (supplied by the Respondent), when
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exposed to prolonged sunlight and is evaluating the said issue.
The Appellant recommended that until such evaluation, any sale
or use of the tubing be suspended. Pertinently, the Respondent’s
name was not mentioned in the press release.
(vi) The Appellant’s customer, viz. Stoughton Trailers
LLC (“Stoughton”) engaged a third party lab viz. Element
Materials Technology to get the Respondent’s tubing products
tested for UV and Ozone resistance tests and to ascertain their
compliance with the industry standards. From the test report
dated 7th October, 2024, it was found that one sample of
Respondent’s tubing (from the production lot dated 6th January,
2024) failed the UV resistance test.
(vii) Based on the test report obtained by the Appellant,
the Appellant submitted the part 573 Safety Recall Report (“Recall
Report”) in respect of tubing supplied by the Respondent with
National Highway Transportation Safety Administration, in
accordance with the requirements of National Traffic and Motor
Vehicle Safety Act, applicable in the US where the Appellant is
domiciled. It was mandatory for this Appellant to issue the said
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Recall Report in 2024 under Section 6, part 573 title 49 of the
Code of Federal Regulations.
(viii) The Appellant’s Advocates issued a Demand
Notice dated 17th December, 2024 to the Respondent inter alia
calling upon the Respondent to indemnify and hold the Appellant
harmless from all damages, attorney’s costs and fees it had
incurred due to the non-compliant products supplied by the
Respondent.
(ix) Notice dated 17th December, 2024 was addressed by
the Respondent inter alia seeking outstanding dues payable
towards goods supplied and calling upon the Appellant to cease
and desist from making alleged disparaging statements which
they claimed caused loss and damage to them, including damage
to their reputation.
(x) The Respondent’s Advocates issued their response to
the demand notice on 20th January, 2025 inter alia requesting for
test reports received by the Appellant from Stoughton.
(xi) The Appellant’s Advocates addressed an email dated
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6th February, 2025 to the Respondent’s Advocates whereby it
expressly stated that the Appellant was compelled to remit an
amount of USD 44,464.50 to Stoughton as reimbursement of the
expenses incurred by Stoughton for third party lab testing of the
Respondent’s products. The Appellant agreed to share test report
provided the Respondent remitted the amount of USD 44,464.50
to it.
(xii) The Respondent filed Commercial Suit No.149 of
2025 against the Appellant before City Civil Court, Dindoshi in
April, 2025.
(xiii) The Presiding Judge, Court Room No.3, City Civil
Court, Dindoshi rejected the plea of the Respondent to register the
Suit without exhausting the remedy of pre-institution mediation
vide Order dated 17th April, 2025.
(xiv) The Presiding Officer, Court Room No.2, City Civil
Court, Dindoshi (alternate Judge, Court No.3) passed an exparte
Order dated 25th April, 2025 (“impugned order”) in Review
Application No.2 of 2025 filed by the Respondent and set aside
the Order dated 17th April, 2025. It is an admitted position that
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no prior notice of the Review Application was given to the
Appellant.
(xv) The Presiding Judge, Court Room No.3, City Civil
Court, Dindoshi passed an Order dated 9th May, 2025 in the Suit
inter alia directing the Respondent to serve the Writ of Summons
upon the Appellant and submit a service report on or before the
next date of hearing i.e. 18th June, 2025.
(xvi) The Respondent filed Notice of Motion NO.1735 of
2025 on 25th April, 2025 seeking interim relief in the form of an
injunction against the Appellant to stop making alleged
defamatory and disparaging statements which the Respondent
claims affected their business reputation and causing loss.
(xvii) The Appellant received Writ of Summons on 27th
May, 2025.
(xviii) The Appellant’s Advocate served an unregistered
copy of its Notice of Motion under Order VII Rule 11 of the CPC
on the Respondent’s Advocate on 20th September, 2025.
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(xix) The Respondent’s Advocate served a copy of their
Reply to the Notice of Motion on the Appellant’s Advocates on
17th October, 2025. In this Reply, the Respondent for the first
time, referred to and reproduced a copy of the impugned Order.
(xx) The Appellant’s Advocate applied for the certified
copy of the impugned Order and the Review Application. The
certified copies were received on 15th December, 2025.
(xxi) Notice of Motion No.4349 of 2025 filed by the
Respondent inter alia seeking ad-interim relief restraining the
Appellant from selling, alienating, transferring, creating third
party rights in or otherwise dealing with the goods supplied by the
Respondent.
(xxii) The present Commercial Appeal from Order was
thereafter filed.
(xxiii) The Respondent claimed that the Appellant has
thereafter continued to advertise and sell the goods being subject
matter of the Commercial Suit No.149 of 2025 including on the
website and on third party platforms.
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(xxiv) The Reply to the present Commercial Appeal from
Order was filed by the Respondent on 28th January, 2026.
4. Mr. Gaurav Mehta, the learned Counsel appearing for the
Appellant / Original Defendant has submitted that under Order XLVII
Rule 4(2) of the CPC, it is provided that no application for review
should be granted without previous notice to the “Opposite Party” to
enable him to appear and be heard in support of the order of which
review is sought. He has submitted that the Review Application was
filed on 23rd April, 2025 and disposed of by the impugned Order on
25th April, 2025 without notice being given to the Appellant. He has
submitted that notice to the “Opposite Party” under Order XLVII Rule
4 of the CPC is mandatory and non-compliance invalidates the Order.
5. Mr. Mehta has submitted that the Appellant is the
“Opposite Party” and the fact that the Suit was yet to be instituted as
contended by the Respondent does not do away with the requirement
of Notice. He has placed reliance upon the judgment of the Kerala
High Court in Thirumangalath Nelliotan Ammu v. Thirumangalath
Nelliotan Govindar Nair1, paras 3, 4, 5 and 10 and the judgment of
the Andhra Pradesh High Court in B.F. Pushpaleela Devi v. State of
1 AIR 1966 Ker 294.
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A.P.2, paragraphs 13 – 15 in support of this contention.
6. Mr. Mehta has submitted that the Order dated 17th April,
2025 had been passed by Justice Takalikar (Court No.3). However,
the impugned Order in review has been passed by Justice Mohiuddin
(Court Room 2) in charge of Court Room No.3, while Justice
Takalikar was on leave for two weeks. He has submitted that this is
not a case where the learned Judge who passed the Order dated 17th
April, 2025 sought to be reviewed was not available permanently. He
has submitted that Justice Mohiuddin who passed the impugned
Order had no jurisdiction to pass the impugned Order. The impugned
Order is passed in contravention of Order XLVII Rule 5 of the CPC. He
has referred to the Order XLVII Rule 5 which provides that where the
Judge, or Judges, or any one of the Judges who passed the decree or
made the Order, of which review is applied for continues or continue
to be attached to the Court at the time when the application for a
review is presented and is not or are not precluded by absence or
other cause for a period of two months next after application from
consideration of the decree or order to which the application refers,
such Judge or Judges or any of them shall hear the application and
2 (2002 SCC OnLine AP 716.
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no other Judge or Judges of the Court shall hear the same.
7. Mr. Mehta has submitted that the learned Judge by
passing the impugned Order has in effect sat in appeal over the Order
dated 17th April, 2025 passed by the co-ordinate bench. The
impugned Order (i) in terms sets aside order dated 17th April, 2025
and (ii) provides no reasoning / grounds for review and (iii) treats
the review application like an appeal.
8. Mr. Mehta has submitted that it is well settled that the
application for review can only be on (i) discovery of new facts /
evidence which was not within the Applicant’s knowledge despite
due diligence or could not be produced when the Order was passed
or (ii) on account of mistake or error apparent on the face of the
record or (iii) for other sufficient reasons. He has submitted that
none of these grounds have been made out or even referred to in the
Review Application or impugned Order.
9. Mr. Mehta has submitted that the Review Application
does not plead any grounds for review under Order XLVII of the CPC.
He has submitted that apart from re-arguing merits, the Review
Application proceeds on the basis that the Order dated 17th April,
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2025 incorrectly records the Plaintiff’s submissions. He has submitted
that the Review Application is nothing but an Appeal.
10. Mr. Mehta has submitted that the impugned Order is
really an Order passed in Appeal recording ‘erroneous’ findings and
reappreciating / rehearing the request for waiver of pre-filing
mediation. Review is not a rehearing of an original matter. The power
of review cannot be confused with appellate power which enables a
superior Court to correct errors. He has in this context placed
reliance upon Kamlesh Verma v. Mayawati3, at paragraphs 14 -15.
11. Mr. Mehta has submitted that in paragraph 5 of the
Review Application, it is contended that the Order dated 17th April,
2025 incorrectly records the Plaintiff’s submissions. He has submitted
that it is impermissible for the Plaintiff / Respondent herein to
contend before an in-charge alternative co-ordinate Court that the
Order dated 17th April, 2025 incorrectly records submissions. He has
submitted that it is well settled by the Supreme Court in State of
Maharashtra v. Ramdas Shrinivas Nayak & Anr4, Paragraph 4 that
the statement of facts as to what transpired at the hearing, recorded
3 (2013) 8 SCC 320.
4 (1982) 2 Supreme Court Cases 463.
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in the judgment of the Court, are conclusive of the facts so stated and
no one can contradict such statements by Affidavit or other evidence.
If a party thinks that the happenings in Court have been wrongly
recorded in a judgment, it is incumbent upon the party, while the
matter is still fresh in the minds of the judges, to call attention of the
very judges who have made the record to the fact that the statement
made with regard to his conduct was a statement that had been
made in error.
12. Mr. Mehta has also placed reliance upon the judgment of
Supreme Court in Ram Bali v. State of U.P5, at paragraph 9 which is
to the same effect. He has also placed reliance upon the judgment of
this Court in Priyanka Communications (India) Pvt. Ltd. & Ors. v.
Tata Capital Financial Services Ltd6, at paragraphs10, 11, 19, 20-21
which is also to this effect.
13. Mr. Mehta has submitted that though the Respondent has
contended that the Appellant’s conduct subsequent to the filing of the
Suit demonstrates urgency as the Appellant continues to advertise
and sell goods that are the subject matter of the Suit, in this Appeal,
5 (2004) 10 Supreme Court Cases 598.
6 2021 SCC OnLine Bom 1595.
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this Court is not deciding whether there was any urgency in filing the
Suit or not. This question is within the domain of the learned Trial
Court. This Court is to consider the legality of the impugned Order
and not to adjudicate the merits of the Respondent’s claims regarding
the alleged urgency in filing of the Commercial Suit. He has
submitted that the Commercial Appeal from Order accordingly
requires to be allowed and the impugned Order set aside.
14. Ms. Ankita Singhania, the learned Counsel appearing for
the Respondent / Original Plaintiff has supported the impugned
Order. She has submitted that in an application to obtain exemption
from the Court of the requirement of undertaking pre-institution
mediation, there is no “Opposite Party” as admittedly, the Suit has
not yet been registered or numbered till such time the Court grants
exemption to pre-institution mediation. Thus, Clause (a) of Sub
Section 2 of Rule 4 of Order XLVII of the CPC, which provides for
giving notice to “Opposite Party” is not applicable at the stage of
deciding the Review Application for dispensation of pre-institution
mediation.
15. Ms. Singhania has submitted that the requirement to
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obtain exemption from the Court of requirement of undertaking pre-
institution mediation is clearly prior to the institution of a
Commercial Suit. A bare reading of Section 12A of the Commercial
Courts Act, 2015 makes it clear that a Suit which does not
contemplate any urgent interim relief shall not be instituted unless
the Plaintiff exhausts the remedy of pre-institution mediation. Thus,
it is clear from the plain reading of Section 12 that unlike clause 14
of the Letters Patent, there is no requirement to give notice
contemplated thereunder.
16. Ms. Singhania has submitted that at the stage of deciding
whether pre-institution mediation requirement can be dispensed with
or not, the lis is only between the Plaintiff and the Court. The reason
being that it is settled law that the Court must decide the application
for dispensation of pre-institution mediation requirement only on the
basis of averments in Plaint taken on a demurer as if the same were
true. Further, the defence of the Defendant is not considered at this
stage at all. She has placed reliance upon the judgment of this Court
in Ultra Media and Entertainment Private Ltd. v. Y Not Films LLP and
Anr7. She has submitted that the Court is only considering whether
7 2024 SCC OnLine Bom 3085 (CCC 15).
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interim relief has been sought and not whether ultimately the Court
accedes to the Plaintiff’s request for interim relief. She has in this
context placed reliance upon Supreme Court judgment in Yamini
Manohar v. TKD Keerthi8.
17. Ms. Singhania has submitted that in an application for
dispensation of pre-institution mediation, the Court is only
considering the Plaint and the documents annexed thereto and
examining if the Plaintiff has pleaded a case for interim relief, as if
the same were true. In this scenario, there is no role of a proposed
Defendant since it is not as if the Defendant is permitted to make out
a case at this stage as to why the interim relief ought not to be
granted. She has submitted that this is also clear from the language
of Section 12A of the Commercial Courts Act, 2015 which states that
the only enquiry that the Court is conducting is whether “a Suit
which does not contemplate any urgent interim relief…”
18. Ms. Singhania has submitted that the Court at the stage
of considering the application for dispensation of the requirement of
pre-institution mediation is only considering whether the Suit
contemplates urgent interim relief or not. She has referred to the
8 (2024) 5 Supreme Court Cases 815.
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definition of the word “contemplate” as contained in Oxford Learners
Dictionary which is “to think about whether you should do something
or how you should do something”.
19. Ms. Singhania has submitted that just as in the case of
Clause 12 of the Letters Patent in Section 12 A of the Commercial
Courts Act, there is no role that the Defendant plays. It cannot be
termed as an “Opposite Party”. She has relied upon the judgment in
M/s. Harman Overseas & Ors. v. Dongguan TR Bearing Co. Ltd. &
Anr9., wherein this Court has held that there is no requirement of
giving notice under Clause 12 of the Letters Patent to a Defendant.
20. Ms. Singhania has submitted that in the present case,
since at the time of passing of the Order dated 17th April, 2025 as
well as the impugned Order dated 25th April, 2025, the Suit wasn’t
even registered, there is no question of giving the Defendant a notice.
21. Ms. Singhania has submitted that the Defendant has not
been prejudiced by lack of notice and / or not being present at the
time of passing of the Order dated 17th April, 2025 as there was no
role of the proposed Defendant at that stage. She has submitted that
9 Appeal No.340 of 2015 in Leave Petition No.286 of 2013 in Suit No.674 of 20134 with
companion matters dated 4th August, 2017.
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a proposed Defendant could in no way have contributed to the facts
under review in the impugned Order dated 25th April, 2025, which
were once again between the Court and the Plaintiff. She has placed
reliance upon the judgment of the Calcutta High Court in Surendra
Prosad Lahiri Choudhuri v. Aftabuddin Ahmed10 and Janki Nath Hore
and Ors. v. Prabhasini Dasi11 in this context.
22. Ms. Singhania has submitted that in Patil Automation
Private Ltd. & Ors. v. Rakheja Engineers Private Ltd 12, the Supreme
Court has considered what constitutes institution of Suit and in that
context has held that the act of numbering the Plaint and inclusion in
the register of Suits alone would constitute the institution of Suit.
She has submitted that in the present case the Suit had not been
instituted as it had not been numbered and the application for
exemption from pre-institution mediation was prior to the institution
of the Suit.
23. Ms. Singhania has also dealt with the submission of the
Appellant that the alternate Judge had no jurisdiction. She has
submitted that under Order XLVII Rule 5 of the CPC, the time
10 AIR 2022 Calcutta 234.
11 1915 (22) CLJ 99.
12 (2022) 10 Supreme Court Cases 1.
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stipulated viz. period of two months of non-availability of regular
Court of the learned Judge who had passed the Order, is not
sacrosanct. She has submitted that this period of time varies and the
two months of absence cannot be held to be mandatory. She has
submitted that in the event of urgency, the Plaintiff may move the
alternate Judge to review the Order passed by the regular Court. She
has referred to the impugned Order and in particular the finding
therein that the Plaintiff had brought to the notice of the alternate
Judge the relevant pleadings in the Plaint and prayer clause (c) in
which the Plaintiff was seeking injunction and certain directions to
the Defendant and upon considering these aspects the alternate
Judge has considered urgency and heard the Review Petition.
24. Ms. Singhania has also referred to the paragraph 3 of the
impugned Order wherein the alternate Judge has referred to the
decision of the Karnataka High Court in Shivappa Mallappa Jigalur
and Ors. v. The LAO and Asstt. Commissioner and Ors 13, as well as
the judgment of the Delhi High Court in Rajiv Lochan v. Shri
Narender Nath14 which have been cited by the Counsel for the
Plaintiff. The Delhi High Court has held that it is true that the general
13 MANU/KA/0163/2004.
14 AIR 2004 Delhi 48.
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principle, for very good reason, is that a review must always be heard
by the same Judge or by the same Court but there are situations in
which this is not possible particularly where the same judicial officer
is not available and in this situation it is very well settled law that
any other Court of competent jurisdiction can hear the case. She has
submitted that this is one such situation where the Plaintiff having
pleaded urgency and sought prayer had made out a case for moving
the alternate Judge.
25. Ms. Singhania has accordingly submitted that there is no
merit in the present Commercial Appeal and that the same may be
dismissed.
26. Having considered the submissions, there have been
arguments addressed regarding the applicability of Order XLVII Rule
4(2)(a) to a review of an Order passed in an application for
dispensation of pre-institution mediation. The said provision provides
for giving notice to the “Opposite Party” and that no application for
review should be granted without previous notice to the “Opposite
Party” to enable him to appear and be heard in support of the order
of which review is sought. However, these arguments are not
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required to be considered in the present matter and are best reserved
to a matter where the issue requires consideration. This is in view of
the fundamental issue which arises herein namely whether in the
present circumstances the alternate Judge could have entertained the
application for review of the Order passed by a coordinate bench. In
answering this issue it is pertinent to note that the alternate Judge in
the present case has entertained the Review Application and passed
the impugned Order when the coordinate bench who had passed the
Order in review was on a leave for merely two weeks.
27. It is provided in Order XLVII Rule 5 of the CPC that
where the learned Judge who has made the Order for which the
review is applied for, continues to be attached to the Court at the
time when the application for review is presented, and is not
precluded by absence or other cause for a period of two months next
after the application from consideration of the Order to which the
application refers, such Judge shall hear the application, and no
other Judge of the Court shall hear the same. Thus, in our considered
view there is a clear violation of this provision in the present case by
the alternate Judge having heard the Review Application of the
Respondent and passing the impugned Order, when the coordinate
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bench who had passed the Order under review was available after
the two weeks leave.
28. The alternate Judge in the impugned Order has
proceeded on the premise of urgency for hearing the Review Petition
on the ground that the Plaintiff had pleaded urgency in the Plaint,
particularly paragraphs 3 and 8 of the Plaint and sought prayer
Clause (c) viz., injunction and direction to the Defendant. However,
the alternate Judge lost sight of the cause of action pleaded in
paragraph 11 of the Plaint viz. having arisen on 4th September, 2024.
29. Although, we are not called upon to determine urgency
in the filing of the Suit, the alternate Judge was enjoined to consider
the pleadings as a whole and from which it is apparent that the
Respondent could very well have moved the learned Judge who had
passed the Order under review upon his having resumed charge of
Court Room No.3 after two weeks.
30. It has been contended by Ms. Singhania on behalf of the
Respondent that the period of two months absence prescribed in
Order XLVII Rule 5 of the CPC of non-availability of the Judge who
passed the Order under review, is not mandatory. However, it is clear
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from this provision that the Judge who has passed the order under
review and no other Judge of the Court shall hear the application for
review, if the judge is available within the prescribed period of two
months. This period of absence may be shorter provided the
Applicant cannot wait any longer for hearing of his review
application which certainly is not the case here. Further, there is no
pleading which would warrant the application of review to be moved
before the alternate Judge by not waiting for an additional week
when the coordinate Court who had passed the Order under review
was available.
31. There is much merit in the submission on behalf of the
Appellant that the alternate Judge who has passed the impugned
Order has infact sat in appeal over the Order dated 17th April, 2025
passed by the coordinate bench. This is borne out from the impugned
Order which sets aside the Order dated 17th April, 2025 by providing
no reasons / grounds of review and treating the Review Application
like an Appeal. It is well settled that the power of review cannot be
confused with appellate power which enables a superior Court to
correct errors. The judgment of the Supreme Court in Kamlesh Verma
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v. Mayawati15, is apposite.
32. From a perusal of the Review Application and in
particular paragraph 5 thereof, it is apparent that the Respondent has
contended that the Order dated 17th April, 2025 incorrectly records
the Plaintiff’s submissions. It is impermissible for the Respondent to
contend before an in-charge alternate coordinate Court that the
Order dated 17th April, 2025 incorrectly records submissions. The
judgments of the Supreme Court in State of Maharashtra v. Ramdas
Shrinivas Nayak & Anr (Supra) and Ram Bali (Supra) as well
Judgment of this Court in Priyanka Communications (India) Pvt. Ltd.
& Ors. (Supra) have held that, if a party thinks that the happenings
in a Court have been wrongly recorded in a judgment, it is incumbent
upon the party while the matter is still fresh in the minds of the
judges, to call attention of the very judges who have made the record
to the fact that the statement made with regard to his conduct was a
statement that had been made in error. From these judgments it is
clear that the learned Judge who had passed the Order dated 17th
April, 2025 should have been moved in the event the Plaintiff sought
for correction of alleged errors in the statements of the Plaintiff
15 (2013) 8 SCC 320.
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recorded in the said Order.
33. Accordingly, we find that the alternate Judge could not
have heard the Review Application filed by the Respondent herein
and passed the impugned Order.
34. We make the Commercial Appeal absolute by setting
aside the impugned Order.
35. The Commercial Appeal from Order is accordingly
disposed of. There shall be no order as to costs.
[ ADVAIT M. SETHNA, J. ] [ R.I. CHAGLA J. ]
36. The learned Counsel appearing for the Respondent has
sought a stay of the said judgment and order. We do not consider it
appropriate to grant a stay in favour of the Respondent in view of the
findings that the alternate Judge could not have entertained the
application for review or passed the impugned order thereon, having
regard to the provisions of Order XLVII Rule 5 of the Code of Civil
Procedure, 1908.
37. Accordingly, the request for stay stands rejected.
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