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TMI Blog2023 (7) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... t litigation giving rise to the present review petitions are briefly summarized hereunder: 3.1. D.M.C. Management Consultants Limited [In short 'DMC'] was incorporated as a public limited company under the Companies Act, 1956 in July 1995. A Representation Agreement was executed on 18.09.2000 to be effective from 03.10.2000 between DMC and Integrated Sales Service Ltd. (Respondent No.1). The said agreement was signed by Rattan Pathak (Managing Director) on behalf of DMC and Terry L. Peteete, Director on behalf of Respondent No.1. 3.2. Under the said agreement, Respondent No. 1 was to find customers for DMC on commission basis. Under the terms of the agreement, Respondent No. 1 as the representative was to assist DMC in selling its goods and services to prospective customers and to receive commission in consideration thereof. Further, as per Clause 8(d), any dispute between the two companies was agreed to be subjected to the laws of the State of Missouri, USA and the same were to be referred to a sole Arbitrator appointed by agreement between the parties. Upon failure to agree to Arbitrator, the appointment was to be made according to the rules of the American Arbitration Associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a signatory to the agreement. 3.9. The Tribunal on 23.12.2009 passed an interlocutory order holding that the Tribunal had jurisdiction to decide whether the non-signatory to the Representation Agreement were appropriately named in the arbitration or not; the issue of piercing of the corporate veil and joinder of non-signatory parties could be decided after evidence is received and is not a preliminary issue; the claims of the Review Petitioner and GBTL would not be jeopardized and would not constitute a waiver of their rights of claims as non-signatory parties; that they must contest the arguments and factual claims made by Respondent No.1; their non-participation in the arbitration would potentially expose them to an adverse award or an award by default. According to the Review Petitioner, the above order was passed in his absence and GBTL. 3.10. The application under Order 39 Rules 1 & 2 CPC filed in the Special Civil Suit No. 1035 of 2009 was rejected by Civil Judge, Nagpur vide order dated 25.01.2010. 3.11. The Arbitrator gave an award on 28.03.2010 in favour of Respondent No.1 with the finding that DMC was in breach of their Representation Agreement and further holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Civil) Nos. 8899-8900 of 2017 (Civil Appeal Nos.8345-8346 of 2018). GBTL as also DMC filed separate SLPs before this Court. In the SLP filed by DMC, this Court granted leave subject to condition that it deposits US $ 2.5 million. This Court vide judgment dated 10.08.2021 dismissed all the appeals. The present Review Petitions have been preferred only by Arun Dev Upadhyaya (Review Petitioner) to review the judgement dated 10.08.2021. 4. In the impugned judgement, it has been held that it would not be permissible to review the award on merits even on the ground of existence and validity of the arbitration and the only ground on which the enforcement of foreign awards could be resisted or refused are contained in Section 48 of the Act. It also held that the canvas of Section 46 of the Act is wider than that of Section 35 of the Act and as such would apply to all the persons who are not even parties to the Arbitration Agreement. It also held that the tortious dispute can also be referred to arbitration because it is in connection with the agreement. 5. Mr. Salve submitted that essential points in the submissions made on behalf of the Review Petitioner before this Court have not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be final and binding on the parties and persons claiming under them respectively. 46. When foreign award binding.- Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award." (ii) In the impugned judgment this aspect of the matter has not been considered although it was a vital issue and goes to the root of the matter as to whe ther a foreign award could be treated as binding and enforceable against the non-party to the agreement. (D) Lastly, according to the Review Petitioner, damages were calculated not in any quantified manner but only on basis of Mr. Peteete's intimate understanding of the business, not supported by any documentary material. 7. On the other hand, Sri Naphade, learned Senior Counsel appearing for respondent No.1 sought to justify the impugned judgment referring to various findings therein. He also sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be reviewed. It shall set out clearly the grounds for review. 3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. 4. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the courtfee paid on the application in whole or in part, as it may think fit. 5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter." A perusal of the above provision makes it amply clear that in a civil proceeding review could not be entertained except on the grounds mentioned in Order XLVII Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'error apparent on the face of record'. The challenge before this Court in the said case was the judgment of the High Court 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. In paragraph 8 of the report, the issue which was to be considered is reflected. The same is reproduced hereunder: "8. The main question that arises for our consideration in this appeal by special leave granted by this Court is whether there is any error apparent on the face of the record so as to enable the superior court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was "a mere error not so apparent on the face of the record", which can only be corrected by an appeal if an appeal lies at all." 10. After discussing the relevant material on record, the conclusion is stated in paragraph 17 of the report. The view was that where an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect all manners of errors committed by the subordinate courts. The following judgments may be referred: (1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909 (2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; AIR 1979 SC 1047 (3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary (Smt.); (1995) 1 SCC 170. (4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40 13. Recently, this Court in a judgment dated 24th February, 2023 passed in Civil Appeal No.1167- 1170 of 2023 between S. Murali Sundaram Vs. Jothibai Kannan and Others, observed that even though a judgment sought to be reviewed is erroneous, the same cannot be a ground to review in exercise of powers under Order XLVII Rule 1 CPC. Futher, in the case of Perry Kansagra Vs. Smriti Madan Kansagra [(2019) 20 SCC 753] , this Court observed that while exercising the review jurisdiction in an application under Order XLVII Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. 14. In another case between Shanti Conductors (P) Ltd. Vs. Assam SEB, [(2020) 2 SCC 677] this Court observed that scope of review under Order XLVII Rule 1 read with Section 114 CPC is limited and under the gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinction between Section 46 and Section 35 of the Arbitration Act, and argued that under Section 46, a foreign award is to be treated as binding only on persons as between whom it was made and not on persons who 25 may claim under the parties. He also argued that insofar as his client was concerned, there was no evidence to show his involvement in any manner and that the findings against his client are unreasoned and perfunctory, and on this ground also the Award stands vitiated." (emphasis supplied) 19. Paragraph 29[1] of the judgment deals with the analysis and interpretation of Section 44 of the Act. This Court noticed that there would be six ingredients to qualify an arbitral award to be a foreign award. Paragraph 29 is reproduced hereunder: "29. A reading of Section 44 of the Arbitration and Conciliation Act, 1996 would show that there are six ingredients to an award being a foreign award under the said Section. First, it must be an arbitral award on differences between persons arising out of legal relationships. Second, these differences may be in contract or outside of contract, for example, in tort. Third, the legal relationship so spoken of ought to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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