IMPORTANT POINT
Curative petition – One of pre-conditions for filing a curative petition is that petitioner must specifically aver that grounds mentioned in such petition had been taken in review petition and that it was dismissed by circulation – A curative petition arising from an order dismissing a review petition upon hearing in open Court must contain a plea or prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of 2013 Rules.

JUDGMENT :

ANIRUDDHA BOSE, J.

1. The appellants before us are firms who are aggrieved by an order of a Registrar (J-IV) of this Court passed on 31.10.2022 declining registration of a set of petitions labelled as “curative petitions.” This was a common order passed in six similar petitions (including the one instituted by the appellant in the Miscellaneous Application No. 2045 of 2022, instituted by Brahmaputra Concrete Pipe Industries) founded on similar factual and legal grounds. These appeals have been filed under Rule 5 of Order XV of the Supreme Court Rules, 2013 (hereinafter the “2013 Rules”). In this judgment, we shall refer to the pleadings and orders made in Misc. Application No. 2045 of 2022 treating it as the lead matter. The said Rule reads:

“Order XV

PETITIONS GENERALLY

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5. The Registrar may refuse to receive a petition on the ground that it discloses no reasonable cause or is frivolous or contains scandalous matter but the petitioner may within fifteen days of the making of such order, appeal by way of motion, from such refusal to the Court.

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2. The order of the Registrar, which is under appeal before us, reads:

“The above mentioned Curative Petitions filed by M/s. Nuli & Nuli, Advocates against the judgment dated 18.12.2019 passed in the Review Petitions were heard and disposed of in the Open Court.

In this regard the relevant Rule 2(1), Order XLVIII, S.C.R. 2013 reads as under:

“The petitioner, in the curative petition, shall aver specifically that grounds mentioned therein had been taken in the Review Petition and that it was dismissed by circulation.”

Since the aforesaid Review Petitions were disposed of in open court and not by circulation, the aforementioned Curative Petitions are declined for registration and are lodged under Order XV Rule 5 of Supreme Court Rules, 2013.

Inform the Advocate accordingly.”

3. The origin of the dispute ultimately leading to passing of the aforesaid order relates to maintainability of a suit instituted by the appellant under “The Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993” (the 1993 Act). The suit of the appellant was decreed by the Civil Judge, Senior Division, Tinsukia, Assam (Trial Court) but was dismissed by the High Court in appeal mainly on the ground of the suit not being maintainable. The High Court, inter-alia, held that the suit under the 1993 Act would not lie in respect of the transactions which had taken place prior to 23.09.1992, the date on which the Act became operational. The appeal against the High Court judgment was dismissed by a three Judge Bench of this Court on 23.01.2019. The plea of review of the said judgment also failed and the review petition was dismissed on 18.12.2019 after open court hearing. In this judgment, we shall deal with the legality of the Registrar’s order refusing to receive the curative petitions of the appellants.

4. The 1993 Act was preceded by an ordinance permitting certain small scale industrial undertakings to claim interest on delayed payment. That ordinance was promulgated on 23.09.1992. The ordinance later transformed into the aforesaid statute. A question arose as to whether the right to sue for interest under the said Act could relate back to delayed payments made under agreements entered into before the date of promulgation of the ordinance or not. A Full Bench of the Gauhati High Court opined that the right to claim interest under the said statute would not extend to agreements or contracts entered prior to 23.09.1992.

5. In this judgment, we shall discuss the factual position involved in the petition filed by the appellant in the lead matter. Its case had ultimately reached this Court and in the judgment delivered on 23.01.2019, it was held by the three Judge Bench that the material date for instituting the suit for interest would depend on whether delivery was made by the supplier after coming into operation of the said statute or not. If that was the case, then a suit f