The Doctrine of Merger does not apply if no leave is granted in a Special Leave Petition, allowing for a maintainable Review Petition.

ORDER :

1. Issue notice.

2. Mr. Sumit Goel, learned counsel accepts notice on behalf of respondent Nos.1 and 4.

3. It is not necessary to serve the other respondents in view of the order we propose to pass in the instant matter.

4. Leave granted.

5. The instant Civil Appeal is directed against the order dated 19.03.2024, passed by a Division Bench of the High Court of Judicature at Bombay in Review Petition (Writ Petition)(L) No.4048 of 2024 in Writ Petition No.277 of 2024 (Writ Petition (L)No.35792 of 2022). The said Review Petition was moved by the appellant seeking to recall the judgment dated 11.01.2024, whereby the Division Bench of the High Court dismissed a batch of Writ Petitions filed against various banks, inter alia, claiming that the statutory Notifications/guidelines issued by the Reserve Bank of India were not followed by these banks while classifying the loan accounts of the writ petitioners as NPA. It was claimed that the banks were mandated to follow those Circulars in the case of Micro, Small and Medium Enterprises (for short, `MSME’). Vide the said judgement dated 11.01.2024, the High Court dismissed the challenge on the ground that the banks were not obligated to follow such process until the MSME had applied for restructuring.

6. It is not in dispute that the said Division Bench judgment was unsuccessfully challenged by the Writ Petitioners before this Court in SLP(C)No.2112/2024, which was dismissed on 29.01.2024, in terms of the following order:

“We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed.

Pending applications, if any, shall stand disposed of.”

7. Thereafter, the appellant filed a Review Petition before the High Court seeking recall of the judgment dated 11.01.2024.

8. The issue that arose for consideration before the High Court was whether such a Review Petition was maintainable. Vide the impugned judgment, the High Court has held that the Special Leave Petition against the original judgment dated 11.01.2024 having been dismissed by this Court, the subsequent Review Petition was not maintainable.

9. The short question, thus, which requires to be answered is whether the High Court has rightly held against the non- maintainability of the Review Petition for the reason that the Special Leave Petition against the High Court’s main judgment stood declined.

10. We have heard learned counsel for the parties and gone through the decisions of this Court including (i) Kunhayammed and Others vs. State of Kerala and Another, (2000) 6 SCC 359 (ii) Khoday Distilleries Ltd. vs. Sri Mahdeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376 and a recent decision of this Court in Govt. of NCT of Delhi & Anr. vs. M/s BSK Realtors LLP & Anr., (2024) 6 Scale 724.

11. It seems that as per the settled law, which holds the field as of date, the applicability of Doctrine of Merger is contingent upon leave being granted by the Court in the Special Leave Petition. To wit, the dismissal of a Special Leave Petition— regardless of whether it is through a speaking or a non-speaking order—does not attract the Doctrine of Merger; thereby making a Review Petition before the High Court maintainable as ruled in the above-cited decisions. Conversely, where this Court grants leave, and thereafter dismisses the Civil Appeal, be that by way of a speaking or non-speaking order, the order under appeal merges with the order passed by this Court. In such cases, the Doctrine of Merger is applicable squarely.

12. Though, we are conscious of the fact, as noticed by the High Court in para 6 of the impugned order, that the correctness of Kunhayammed’s case (supra) appears to have been doubted and the matter has been referred to a larger Bench, however, so long as this Court does not take a view contrary to what has been held in Kunhayammed’s case (supra) or Khoday Distilleries Ltd. case (supra), the same shall be the binding law in terms of Article 141 of the Constitution.

13. Reverting to the c