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TMI Blog2018 (12) TMI 2002X X X X Extracts X X X X X X X X Extracts X X X X ..... ny decision regarding appointment of an Arbitrator. This being the undisputed position before the Court, it is clear that an oral agreement between the parties de hors Clause 13 and Clause 22 could not have been arrived at. It is also reminded that this agreement was arrived at during the course of hearing of a Section 9 petition. In the present case, nobody has applied Under Section 11 to appoint an Arbitrator in accordance with either Clause 13 or Clause 22. It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. The impugned judgment of the Division Bench of the High Court is set aside. Shri Naphade urges to continue the order dated 23.06.2017 for a period of four weeks from today so that he may approach the appropriate forum - Appeal disposed off. - ROHINTON FALI NARIMAN AND M.R. SHAH, JJ. For Parties : Ranjit Kumar, Dhruv Mehta, Shekhar Naphade, Sr. Advs., Ashish Wad, Priti Purandare, Jayashree Wad, Sidharth Mahajan, Sukriti Jaggi, Advs. for J.S. Wad and Co., Tamana Goyal, Chandra Prakash, Advs. for D.S.K. Legal, Vipin Kr. Jai, Vipul Jai, Shail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the encashment of the first and third bank guarantees that were given by the Respondent in pursuance of the Tender, amounting to a sum of Rs. 16,23,400/- (Rupees Sixteen Lakhs, Twenty Three Thousand and Four Hundred only) and Rs. 6,23,00,000/- (Rupees Six Crores, Twenty Three Lakhs only) respectively. On 23.06.2017, this petition was allowed and the injunction that was prayed for was granted. On the next date of hearing, i.e., on 27.06.2017, Justice K.R. Shriram recorded what transpired as follows: 1. Mr. Makhija, counsel for Petitioners, on instructions states that Petitioners are ready and willing to go for arbitration and suggest that Mr. Justice V.M. Kanade (retired) be appointed as the Sole Arbitrator. Mr. Bharucha, Senior Counsel for Respondent (MCGM), on instructions from Mr. Agashe, Assistant Engineer (Meter Work Shop) City-representative of Respondent, who is present in court, states that Respondents have no objection to the suggestion made by Mr. Makhija and Mr. Justice V.M. Kanade (retired) be appointed as the Sole Arbitrator. 2. In view of the above, Mr. Justice V.M. Kanade (retired) is appointed as the Sole Arbitrator to decide on all issues between parties arisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Clause 22, no arbitration is provided for and that these are only in-house procedures. He went on to state that it is always inherent in a High Court, being a court of record, to recall its own orders, and has cited certain judgments together with the High Court (Original Side) Rules. According to him, the appeal Under Section 37 itself was not maintainable and for all these reasons, the impugned order should be set aside. 9. On the other hand, Shri Shekhar Naphade, learned senior Counsel argued on behalf of the Respondent, stating that the Arbitration Act is a self-contained Code, and, this being so, it is not possible to look outside the four corners of the Act to find a review power. This may apply even to Article 215 of the Constitution of India. He argued that Clause 13 and Clause 22 are clearly arbitration clauses inasmuch as a dispute has to be referred for decision to a Committee and thereafter to an Appellate Committee, after which, the decision rendered by the Appellate Committee is final and binding. According to Shri Naphade, the correct course could only have been to apply to Justice V.M. Kanade (retired) Under Section 16 of the Act on whether an arbitration Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Courts are courts of record, set up Under Article 215 of the Constitution of India. Article 215 of the Constitution of India reads as under: Article 215. High Courts to be courts of record.-- Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognized in several of our judgments. 12. In National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd., 1953 SCR 1028, this Court has held as under: ...The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make Rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the Rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act. 13. To similar effect is our judgment in Shivdev Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909, wherein this Court has stated as under: 10. ... It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.... 14. Also, in M.M. Thomas v. State of Kerala and Anr. (2000) 1 SCC 666, this Court has held as follows: 14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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