Bombay High Court
Centre vs The Maharashtra State Road Development on 23 January, 2013
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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RAPST16618.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (ST) NO. 16618 OF 2010
IN
ARBITRATION APPEAL NO. 5 OF 2008
M/s.Madhav Structural Engineering Ltd.,)
(A Public Limited Company incorporated)
under the Companies Act, 1956)having its)
office at 29/1, Juhu Supreme Shopping )
Centre, Gulmohor, X Road No. 9, J.V.P.D.)
Road, Mumbai - 400 049, ig )
Through its Chairman & Managing )
Director ) ..... Petitioner
VERSUS
The Maharashtra State Road Development)
Corporation Limited, ( An undertaking )
of the Government of Maharashtra) )
having its registered office at Napean Sea )
Road, Pradarshani Park, Mumbai )
400 036, Through its Executive Engineer ) ..... Respondents
Mr.Aniruddha Rajput, a/w. Mr.Sachin Pawar for the Petitioner.
Mr.Prashant P.Chawan, a/w. Mr.Ravindra R.Chile, i/b. Reshmarani Nathani for
Respondent No.1.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 10th JANUARY, 2013
PRONOUNCED ON : 23rd JANUARY, 2013
JUDGMENT :
By this review petition, the petitioner seeks that the order and judgment dated 18th July, 2008 passed by this court rejecting appeal filed by the ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 2/14 RAPST16618.10 petitioner under section 37 of the Arbitration and Conciliation Act, 1996 be recalled. Some of the relevant facts for the purpose of deciding review petition are as under :-
2. The petitioner was awarded a contract by the respondents on 26th June, 2001 for a project "Improvement to Existing Katraj-Kondhwa-Hadapsar-
Saswad Road" of length 3.675 kilometers. Disputes arose betwen the parties.
The matter was referred to the arbitration.
3. On 8th November, 2004 the learned arbitrator dismissed the claims made by the petitioner. On 4th October, 2007, the District Court dismissed the petition filed under section 34 of the Arbitration and Conciliation Act, 1996 by the petitioner. On 18th July, 2008 this court dismissed Arbitration Appeal No. 5 of 2008 filed by the petitioner under section 37 of the Act. The Supreme Court thereafter dismissed the Special Leave Petition on 6th February, 2009 filed by the petitioner. Review petition filed by the petitioner before the Supreme Court also came to be dismissed on 10th September, 2009.
4. The petitioner thereafter filed the present review petition in this court.
5. Mr.Chawan, the learned counsel appearing for the respondents to this review petition raises a preliminary objection about maintainability of this ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 3/14 RAPST16618.10 review petition on the ground that under section 5 of the Arbitration and Conciliation Act, 1996 notwithstanding any other law for the time being in force, matters which are governed by part I, no judicial authority shall intervene except where so provided in that part. It is submitted that proceedings seeking review of the order is not provided under any of the provisions under part I of the Act and are thus not maintainable. The learned counsel placed reliance upon the judgment of this court in case of M/s.Thanikkudam Bhagwati Mills vs. Mrs.Reena Ravindra Khona delivered on 9th October, 2006 in Review Petition No. 24 of 2006 in Arbitration Petition No. 351 of 2005 and submits that this court has held that review petition is not maintainable of the order passed by the court under the provisions of Arbitration and Conciliation Act, 1996. Paragraphs 4 to 6 of the said judgment read thus :-
4. Now if in the light of these rival submissions record is perused, it becomes clear that according to the petitioner, the present petition has been filed under Section 114 of the Civil Procedure Code. The order of which the review is sought is dated 18.4.2006 and has been passed by the Court under Section 34 of the Arbitration and Conciliation Act. It it nobody's case that there is any provision in the Arbitration Act conferring power on the Court to review its order. Perusal of the judgment of the Supreme Court in the case of "Patel Narshi Thakershi" as also in the case of "Kapra Mazdoor Ekta Union" shows that there is no inherent power of review vested in any court. The power of review is creation of statute and therefore, unless the statute which creates power in the Court confers on the Court power to review its order, the Court does not get power of review.::: Downloaded on - 09/06/2013 19:35:18 :::
kvm 4/14 RAPST16618.10 It is admitted position before me that the Arbitration Act as such does not confer power on the Court to review the order made by it under Section 34 of the Arbitration Act.
5. So far as reliance place by the learned Counsel appearing for petitioner on the judgment of the Supreme Court in the case "ITI Ltd." is concerned, perusal of that judgment shows that the question that was considered by the Supreme Court in that case was whether revision under the provisions of Section 115 of CPC is maintainable against an order passed in appeal. The appeal is provided by the Arbitration Act under Section 37 of that Act. Section 37 of the Arbitration Act reads as under:-
"37. Appealable orders - (1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order, namely:-
(a) granting or refusing to grant any
measure under section 9;
(b) setting aside or refusing to set aside an arbitral award under section 34.
(2) An appeal shall also lie to a court from an order of the arbitral tribunal-
(a) accepting the plea referred to in sub-
section (2) or sub- section (3) of section 16;
or
(b) granting or refusing to grant any interim measure under section 17.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."
Perusal of section 37 of the Act shows that section itself does not name or designate appeal court or forum. It says an appeal shall lie from the orders which are mentioned in that section to the Court which hears appeals from the ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 5/14 RAPST16618.10 original decrees passed by the Court which has passed the order. This obviously refers to hierarchy of the Courts under Civil Procedure Code and therefore, the Supreme Court by its judgment in "ITI Ltd" has held that the revision application against the order passed by the appeal court under Section 37 of the Act is maintainable and it is only for that reason that the Supreme Court has held that bar under Section 5 of the Arbitration Act would not be attracted. In my opinion, Section 5 of the Arbitration Act clearly excludes any power to the Court which is not specifically conferred on the Court by the Act. Section 5 of the Arbitration Act reads as under:-
" 5. Extent of judicial intervention-
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part."
Section 5 of the Act clearly indicates that judicial authority or court shall exercise only such powers in relation to arbitration as is conferred on it by the Act.
Therefore, unless power of review is specifically conferred on the Court by the Act, it will not have power to review its order. In paragraph 13 of the judgment in the case "ITI Ltd." the Supreme Court has held that the provisions under Section 5 of the Arbitration Act cannot be read to deny power of revision to the High Court against the order passed in Appeal under Section 37 of the Act. Paragraph 13 reads as under :-
"We also do not find much force in the argument of learned counsel for the appellant based on Section 5 of the Act. It is to be noted that it is under this Part, namely, Part I of the Act that Section 37(1) of the Act is found, which provides for an appeal to a civil court. The term "court" referred to in the said provision is defined under Section 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a civil court. In such a situation, the proceedings before such court will have to be controlled by the provisions of the Code, therefore, the remedy by way of revision ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 6/14 RAPST16618.10 under Section 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under Section 37 provided for an appeal to the civil Court and the application of the Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under Section 5 will not be attracted because conferment of appellate power on the civil court in Part I of the Act attracts the provisions of the Code also."
Reading of the above paragraph no.13 makes it absolutely clear that the judgment of the Supreme Court is turns on the construction of provision of sub- section (1) of Section 37 of the Act.
6. Taking overall view of the matter therefore, in my opinion, as there is no provisions in the Act specifically conferring power of review on the Court under Section 34 of the Act, there is no power vested in the Court to review its order.
6. The learned counsel submits that though the appeal was preferred by the petitioner in the said order passed by the Learned Single Judge, the appeal court though disposed of the said appeal, however did not set aside the view taken by the learned Single Judge. The Division Bench observed that it was not necessary for the Division Bench to go into the issue as to whether there was a review remedy available under the Arbitration and Conciliation Act, 1996 or not.
7. The learned counsel appearing on behalf of the petitioner on the other hand submits that in view of the Division Bench in case of M/s.Thanikkudam ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 7/14 RAPST16618.10 Bhagwati Mills vs. Mrs.Reena Ravindra Khona had kept the issue of maintainability of review petition open, and thus the order and judgment delivered by the Learned Single Judge cannot be relied upon by the respondents and is not binding.
8. In my view, there is no substance in the submissions of the learned counsel appearing for the petitioner that the order and judgment delivered by the Learned Single Judge taking a view that review petition is not maintainable as no such remedy is provided under the provisions of Arbitration and Conciliation Act, 1996 is not binding and/or cannot be relied upon in view of the Division Bench keeping the said issue open. On perusal of the order passed by the Division Bench, it is clear that the Division Bench felt that it was not necessary to go into the issue as to whether there was a review remedy available under the Arbitration and Conciliation Act or not. The Division Bench has not set aside the judgment delivered by the learned Single Judge and thus the said judgment is binding.
9. The learned counsel appearing for the petitioner placed reliance upon the judgment Shyam Sunder Agarwal & Co. vs. Union of India1 and more particularly para 26 which reads thus :-
26. In our view, a revisional application before 1 (1996) 2 SCC 132 ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 8/14 RAPST16618.10 the High Court against an appellate order passed Under Section 39 of the Arbitration Act is maintainable. There is no express provision in the Arbitration Act putting an embargo against filing a revisional application against appellate order Under Section 39 of the Act. The Arbitration Act has put an embargo on filing any second appeal from appellate order Under Section 39 of the Act.
The Arbitration Act is a special statute having limited application relating to matters governed by the said Act. Such special statute, therefore, must have its application as provided for in the said statute. The revisional jurisdiction of the High Court under the Code or under any other statute therefore shall not stand superseded under the Arbitration Act if the Act does not contain any express bar against exercise of revisional power by the High Court provided exercise of such revisional power does not mitigate against giving effect to the Provisions of the Arbitration Act.
10. On perusal of the judgment in case of Shyam Sunder Agarwal & Co. vs. Union of India (supra) it is clear that the Supreme Court was considering the provisions under section 39 of the Arbitration Act 1940 and took a view that there was embargo of filing second appeal from the appellate order passed under section 39 of the Act. It was held that the revisional jurisdiction of the High Court under Code therefore shall not stand superseded under the Arbitration Act if the Act does not contain any express bar against exercise of revisional power by the High Court provided exercise of such revisional power does not mitigate against giving effect to the Provisions of the Arbitration Act.
This judgment of the Supreme Court is delivered under the provisions of the Arbitration Act, 1940. This judgment does not decide whether review petition ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 9/14 RAPST16618.10 is maintainable under the provisions of the Arbitration Act, 1940 or not. In my view, in view of the express bar provided under section 5 that notwithstanding contained any other law for the time being in force, matters which are governed by part I, no judicial authority shall intervene except where so provided in that part. As the review is not having been provided in any of the provisions of Part I of the Arbitration and Conciliation Act, 1996, in my view review petition is not maintainable. In my view the judgment of the Supreme Court in case of Shyam Sunder Agarwal & Co. vs. Union of India (supra) is thus not applicable to the facts of this case and is of no assistance to the petitioner.
11. The learned counsel appearing for the petitioner then placed reliance on the judgment of the Supreme Court ITI Ltd. vs. Seimens Public Communications Network Ltd.2 and more particularly paragraphs 8 to 13 which reads as under :-
8. The question still remains as to whether when a second appeal is statutorily barred under the Act and when the Code is not specifically made applicable, can it be said that a right of revision before the High Court would still be available to an aggrieved party ? As pointed out by Mr. Chidambaram, this Court in the case of Nirma Ltd. (supra) while dismissing an SLP by a reasoned judgment has held : (SCC P.521, para 1) "In our opinion, an efficacious alternate remedy is available to the petitioner by way of filing a revision in the High Court under Section 115 of the Code of Civil Procedure. Merely because a second appeal against an appellate order is barred 2 (2002) 5 SCC 510 ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 10/14 RAPST16618.10 by the provisions of Sub-section (3) of Section 37, the remedy of revision does not cease to be available to the petitioner, for the City Civil Court deciding an appeal under Sub-section (2) of Section 37 remains a court subordinate to the High Court within the meaning of Section 115 of the C.P.C."
9. But Mr. Parasaran contended that the said order is based on an earlier reported judgment of this Court in the case of Shyam Sunder Agarwal & Co. v. Union of India MANU/SC/0350/1996 : [1996]1SCR245 .
According to Mr. Parasaran, the Court in the case of Nirma Ltd. (supra) has erroneously founded its conclusion on the said judgment in Shyam Sunder Agarwal's case. Learned counsel argued that the case of Shyam Sunder Agarwal (supra) arose under the Arbitration Act, 1940 which Act had made the provisions of the Code specifically applicable to proceedings arising under the said Act in the civil court whereas in the present Act such provision making the Code applicable is not found. Therefore, there is a substantial difference in law between the cases of Shyam Sunder Agarwal (supra) and Nirma Ltd. (supra).
Therefore, the order of this Court in Nirma Ltd. (supra) is not a good law, hence, requires reconsideration.
10. We do not agree with this submission of the learned counsel. It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a civil court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable.
11. It has been held by this Court in more than one case that the jurisdiction of the civil court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the civil courts have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 11/14 RAPST16618.10 be an inference the same should be in favour of the jurisdiction of the court rather than the exclusion of such jurisdiction and there being no such exclusion of the Code in specific terms except to the extent stated in Section 37(2), we cannot draw an inference that merely because the Act has not provided the CPC to be applicable, by inference it should be held that the Code is inapplicable. This general principle apart, this issue is now settled by the judgment of a 3-Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A. and Anr. MANU/SC/0185/2002 : [2002]2SCR411 in C.A. No. 6527/2001 -- decided on 13.3.2002 where in while dealing with a similar argument arising out of the present Act, this Court held :
"While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion."
12. In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question.
13. We also do not find much force in the argument of learned counsel for the appellant based on Section 5 of the Act. It is to be noted that it is under this Part, namely, Part I of the Act that Section 37(1) of the Act is found, which provides for an appeal to a civil court. The term 'Court' referred to in the said provision is defined under Section 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a civil court. In such a situation, the proceedings before such court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under Section 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under Section 37 provided for an appeal to the civil court and the application of Code not having been expressly barred, the revisional jurisdiction of the High ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 12/14 RAPST16618.10 Court gets attracted. If that be so, the bar under Section 5 will not be attracted because conferment of appellate power on the civil court in Part I of the Act attracts the provisions of the Code also.
12. Relying upon these paragraphs, the learned counsel would submit that after considering section 5 of the Arbitration and Conciliation Act, 1996, the Supreme Court took a view that remedy by way of revision under section 115 of the Code of Civil Procedure will not amount to judicial intervention not provided for by Part I of the Act.
13. The judgment in case of ITI Ltd. vs. Seimens Public Communications Network Ltd. (supra) has been considered by this court in case of Mausmi SA Investments LLC vs. Keystone Realtors Pvt. Ltd. & Ors. Delivered on 6th November, 2012 in Company Appeal (L) NO. 47 of 2012 and other connected matters and has held that the Supreme Court had considered the provisions under Section 37(3) of the Act and has held that no second appeal was maintainable against the order passed by the court under section 37(1) or 37(2) of the Act and in view thereof revision application was not barred. The question whether review petition is maintainable or not was not the issue before the Supreme Court in case of ITI Ltd. vs. Seimens Public Communications Network Ltd. (supra). After considering the said judgment and provisions of sections 5, 34 and 37 of the Arbitration and Conciliation Act, 1996, this court took a view that under section 37, only such orders which are ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 13/14 RAPST16618.10 specifically referred therein are appealable and no other orders. This judgment of the Supreme Court has also been dealt with by this Court in case of M/s.Thanikkudam Bhagwati Mills (supra) and has held that review petition is not maintainable under the provisions of the Arbitration and Conciliation Act, 1996.
14. On the issue of maintainability of review, a reference of the judgment of the Supreme Court in case of Kalabharati Advertising vs. Hemant Vilalnath Narichania and others3 would be relevant. Para (12) of the said judgment reads thus :-
12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v.
Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh.
15. In my view, the Arbitration and Conciliation Act is a self contained code and as the said Act does not provide any remedy of review, it is manifest that review could not be made. In my view, remedy of review is substantive remedy and would not be maintainable unless the statute/rules permits. If, the right of review is not provided and is allowed to be exercised, any order if 3 (2010) 9 SCC 437 ::: Downloaded on - 09/06/2013 19:35:18 ::: kvm 14/14 RAPST16618.10 passed would be ultra-virus and without jurisdiction. In my view, the present proceedings filed by the petitioner are totally without jurisdiction.
16. I, therefore, pas the following order :-
(a) Review petition is dismissed as not maintainable.
(b) No order as to costs.
ig (R.D. DHANUKA, J.)
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