9911796707
TMI Blog2023 (7) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt on the ground whether it suffers from an error apparent on the face of the record. The High Court had issued a writ of certiorari and had quashed order of the Tribunal and restored that of the Mamlatdar. A power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. There are no good ground to allow the review petitions - review petition dismissed. - B.R. Gavai And Vikram Nath, JJ. For the Petitioner : Mr. Harish N. Salve, Sr. Adv., Ms. Anurudha Dutt, Adv., Ms. B. Vijayalakshmi Menon, AOR. For the Respondent : Mr. Rameshwar Prasad Goyal, AOR, Mr. Shekhar Naphade, Sr. Adv., Mr. Gagan Sanghi, Adv., Mr. Farah Hashmi, Adv., Ms. Aishwarya Dash, Adv., Dr. Prashant Pratap, Adv. JUDGMENT VIKRAM NATH,J. 1. These are Review Petitions preferred by Arun Dev Upadhyaya (Review Petitioner) praying for review of the judgment dated 10.08.2021 passed in Civil Appeal Nos. 8345-8346 of 2018 titled G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view Petitioner who was holding the office of Director in DMC tendered his resignation on 31.03.2009. On 22.06.2009, Respondent No. 1 issued a demand for Arbitration to the Review Petitioner under the Commercial Arbitration Rules of the AAA. The statement of claim was also against DMC and GBTL seeking damages to the tune of US $ 4.8 million. 3.6. GBTL filed its objections on 21.07.2009 to the effect that the Arbitral Tribunal has no jurisdiction to include it as a party in the arbitration as it was not a party to the agreement. On the same day, the Review Petitioner also filed a without prejudice response to the Statement of Claim stating, inter alia that he was not signatory in the agreement between DMC and Respondent No. 1; secondly, that he never consented to or agreed to be bound by any arbitration agreement; and thirdly, any demand for arbitration against him in his individual capacity was not acceptable and was denied. 3.7. The signatory to the Representation Agreement i.e. DMC filed its reply on 21.07.2009 to the Statement of Claim made by Respondent No.1. 3.8. In October, 2009, GBTL filed Special Civil Suit No. 1035 of 2009 before the Civil Judge, Senior Division, Nagpur, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.02.2016. A second set of objections were filed by the Review Petitioner on 03.03.2016 under Sections 44 to 49 of the Act challenging the recognition of the award as a foreign award as it did not satisfy the requirements both under the Act and also under the provisions of the New York Convention. DMC and GBTL filed separate objections under Section 49 of the Act to which replies were filed by Respondent No.1. 3.13. The learned Single Judge vide judgment dated 18.04.2016 held that the award was a foreign award and enforceable against DMC only. It accepted the objections raised by Review Petitioner and GBTL that the award was not enforceable against them. The Letters Patent Appeal preferred by Respondent No.1 was registered as Arbitration Appeal No.3 of 2016. In the meantime, objections were raised regarding maintainability of the appeal and also Review Petitions were filed before the Single Judge. 3.14. The Division Bench rejected the objection regarding the maintainability against which the matter was carried to this Court by the Review Petitioner but the same was dismissed on 30.09.2016. The Division Bench finally vide judgment dated 04.01.2017 allowed the Arbitration Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings, objections were raised by Review Petitioner which have not been dealt with in the impugned order. C) The contention specifically raised at the time of argument before this Court were not considered and in fact misconstrued or misunderstood resulting into an error apparent on the face of record. Reference has been made to the written submissions submitted on behalf of the Review Petitioner at the time of arguments before this Court which specifically included the following points: (i) Though under the Delaware law, a nonparty to the agreement could have been included in the arbitration proceedings but when the same is being enforced in India, then, the award will have to be tested as to whether it could be enforced against the non-party to the agreement as per the Indian law. The submission is that there was no foreign award as against the Review Petitioner which could be enforced in India. The language of Section 35 and Section 46 of the Act are not pari materia. Under Section 35, an arbitral award shall be final and binding on parties and persons claiming under them respectively meaning that, to a non-party claiming under the party to the agreement, the arbitral aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers by the Supreme Court.-- Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it. 8.2. According to the said provision, the Supreme Court would have power to review any judgment or order made by it subject to the provisions of any law made by the Parliament or any Rules made under Article 145. The Supreme Court Rules 2013 have been framed under Article 145 by this Court and duly approved by the President. It may be stated that no law has been made by the Parliament in that respect and, as such, the power of review vested in this Court would be governed by the Rules. 8.3. Order XLVII of Part-IV of the Supreme Court Rules, 2013 provides for the powers of review and the procedure for hearing such review. The said provision is reproduced hereunder: PART-IV ORDER XLVII REVIEW 1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (emphasis supplied) (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review. Explanation. The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 9. A plain reading of the above provisions in uncertain terms states that the power to review can be exercised only upon existence of any of the three conditions expressed therein. 'A mistake or an error apparent on the face of the record' is one of the conditions. It is only on this ground that review has been preferred. The above phrase has been consistently interpreted by authoritative pronouncement of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal, viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari. 11. Another case which may be briefly dealt with is the case of Parison Devi Vs. Sumitri Devi [(1997) 8 SCC 715] , where, this Court ruled that under Order XLVII Rule 1 CPC, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. It also observed that a review petition cannot be allowed to be treated as an appeal in disguise. 12. A series of decisions may also be refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, we have considered not only the oral submissions advanced by Mr. Salve, learned Sr. Counsel, but have also perused all the grounds raised in the review petition. A close perusal of the judgment dated 10.08.2021 reflects that all the grounds taken in the review have been discussed in detail and findings returned not accepting the claim of the Review Petitioner. What is sought to be argued is basically that the view taken is erroneous and therefore, impugned judgment deserves to be reviewed. 18. We may briefly refer to the relevant argument and the findings returned by this Court in the impugned judgment dated 10.08.2021. In paragraph 26 of the impugned judgment, this Court summarized the four points argued by Mr. Salve. The said paragraph is reproduced hereunder: 26. Shri Harish Salve, learned Senior Advocate appearing on behalf of Arun Dev Upadhyaya, argued that the commission of a tort would be outside contractual disputes that arise under the Arbitration Agreement and that since the cause of action really arose in tort, the Award was vitiated on this ground. He also argued relying heavily upon Dallah Real Estate and Tourism Co v Ministry of Religious Affairs of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible under Section 48(1) of the Act and held against the Review Petitioner as none of the grounds therein were available to the Review Petitioner. 22. In paragraph Nos.66 to 70 of the report, this Court dealt with the argument that damages awarded in tort would be outside the scope of the arbitration agreement and rejected the said argument. 23. In paragraph 71 of the report of the judgment, this Court compared the scope of Section 35 and 46 of the Act and further observed that once the award was not challenged in the State where it was made it could not be said that the arbitral award had infracted the substantive law of the agreement. 24. Paragraphs 72 and 73 of the report dealt with the issue of violation of any public policy and this Court found that there was no such violation. 25. In paragraphs 74 to 76, this Court justified the quantification of the damages and the basis for determining the same even if it was based on best judgment assessment. 26. Each and every argument having been considered by this Court in its judgment dated 10.08.2021, the arguments advanced if accepted would result in expressing a different opinion on the points raised and decided, which we are a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
