TaxTMI 
TaxTMI 
2013 (4) TMI 361
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....e petitioner. The work was completed by the petitioner on 31st March, 2000. The dispute arose between the parties during the execution of the work in respect of hidden expenses. The petitioner invoked arbitration clause. On 27th April, 1998, first arbitration proceedings started. The matter was referred to the arbitration. On 26th June, 2003, the Arbitral Tribunal made an award in favour of the petitioner awarding a sum of Rs. 17,81,25,152/-. Being aggrieved by the said award, the State Government filed Arbitration Application No. 44 of 2003 on 22nd March, 2003 in the court of District Judge, Ratnagiri challenging the said award under section 34 of the Arbitration and Conciliation Act, 1996. By an order and judgment dated 29th June, 2006, the learned District Judge dealt with five objections which were raised by the Government by way of preliminary objections only and negatived each of such objection and rejected the said arbitration application. Being aggrieved by the said order and judgment dated 29th June, 2006, the State Government filed appeal (6 of 2007) under section 37 of the Arbitration and Conciliation Act, 1996 in this Court. 4. At the stage of final hearing of the said....
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....ces, discloses the mistake and an error apparent on the face of the record and is required to be reviewed and the said order and judgment dated 1st February, 2013 be restricted only to the said claim nos. 3 to 5. It is submitted that the present review petition is restricted to paragraphs 35, 36 and 46 of the said judgment and order dated 1st February, 2013 which hold that the said claim nos. 1 and 2 are barred by limitation. 8. Mr.Chinoy, the learned senior counsel placed reliance upon the judgment of the Supreme Court in case of Shivdeo Singh and others vs. State of Punjab and others AIR 1963 SC 1909 and in particular paragraph 8 thereof in support of his plea that High Court can exercise 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. Paragraph 8 of the said judgment reads thus :- 8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second orde....
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....that any order of the High Court in an appeal under Section 8A (including an order against which an appeal to the Supreme Court has not been admitted by that Court) has been passed on the basis of concessions made before the High Court without the authority in writing of the Government or due to the failure to produce relevant date or other particulars before the High Court or that an appeal against such order could not be filed before the Supreme Court by reason of the delay in applying for and obtaining a certified copy of such order, may, during the period beginning with the commencement of the Kerala Private Forests (Vesting and Assignment) Amendment Act, 1986 and ending on the 31st day of March 1987, make an application to the High Court for review of such order. " 8. A Division Bench of the High Court of Kerala in State of Kerala v. Subramonian Namboodiri , has taken the view that a remedy of review under the sub-section is not available merely because the State feels that the decision is wrong on the merits. "Section 8C(2) envisages a review only if the decision of this Court had been made on the basis of a concession made before it without the authority in writing of the ....
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....State of Maharashtra [1966]3SCR744 , a nine Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of Record. 15. In Halsbury's Laws of England (4th Edn. Vol. 10, para 713) it is stated thus: "The chief distinctions between superior and inferior Courts arc found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court, unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court. An objection to the jurisdiction of one of the superior Courts of general jurisdiction must show what other Court has jurisdiction, so as to make it clear that the exercise by the superior Court of its general jurisdiction is unnecessary. The High Court, for example, is a Court of universal jurisdiction and superintendence in certain classes of actions, and cannot be deprived of its ascendency by showing that some other Court could save entertained the particular action." (Though t....
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....ng a large number of workmen. It was prayed that the Award may be recalled which was in fact an ex-parte Award, and the question of fairness of the settlement be decided after providing an opportunity to the parties to produce evidence. 12. This application filed by the appellant-Union was strongly opposed by the respondent-Management, but the successor Presiding Officer of Industrial Tribunal No. II, Delhi allowed the application. It observed that a perusal of the order dated June 12, 1987 showed that the then Tribunal did not make a single observation as to whether the settlement dated May 17, 1983 was just and fair. No issue was framed nor any evidence was recorded on that point. No argument was advanced and no finding was given by his learned predecessor on this point. Relying upon the judgment of this Court in Satnam Verma v. Union of India (1985)ILLJ79SC and Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors . (1981)ILLJ327SC it was held that where the Tribunal proceeds to make an Award without notice to a party, the Award is a nullity and, therefore, the Tribunal has not only the power but also the duty to set aside such an ex-parte Award. It was he....
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....supports from the judgment of this Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra). This Court after noticing the provisions of Sub-section (3) of Section 20 of the Act which provides that the proceedings before the Tribunal would be deemed to continue till the date on which the Award become enforceable under Section 17A, held that till the Award becomes enforceable the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date it has the power to entertain the application in connection with such dispute. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. The judgment in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) has been reiterated by this Court in Satnam Verma v. Union of India (supra), J.K. Synthetics Ltd. v. Collector of Central Excise 1996(86)ELT472(SC) and M.P. Electricity Board v. Hariram etc . (2004)IIILLJ1144SC . 18. It was, therefore, submitted before us relying upon Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) that e....
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....ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter mu....
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.... the order. It is submitted that this court is not the court of record under Article 215 of the Constitution while hearing appeal under section 37 of the Arbitration and Conciliation Act, 1996 and thus in absence of any power under review under section 37, this court cannot correct any error even if apparent on the face of the record. It is submitted that this court exercising power under section 37 of the Arbitration and Conciliation Act does not have any plenary jurisdiction to correct any errors made by this court itself. The learned counsel submits that under section 47 (5) of the Bombay Public Trust Act, Court is designated as High Court for hearing appeal, whereas there is no such provisions exist in section 37 of the Arbitration and Conciliation Act, 1996. It is submitted that this court has heard the appeal as Appellate Court and not as a High Court being the court of record. The learned counsel placed reliance upon the judgment of this court delivered on 23rd January, 2013 in case of M/s.Madhav Structural Engineering Ltd. vs. The Maharashtra State Road Development Corporation Limited in Review Petition (St.) No. 16618 of 2010 in Arbitration Appeal No. 5 of 2008 and in part....
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....cision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 10. Considered in the light of this settled position we find that Sharma, J. clearly over-stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181, cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record....
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....the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed v. Onkar Partap Narain Singh , and contended that since the court is bound under the provisions of s. 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says that s. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the ....
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....espect of the claim nos. 1 and 2 also which error goes to the root of the matter and is error apparent on the face of the record and would come under the purview of procedural review which could be exercised by the High Court by exercising its plenary jurisdiction. The learned senior counsel distinguished the judgment of the Supreme Court in case of Parsion Devi (supra) and relied upon by Mr.Kumbhakoni and submits that the Supreme Court came to the conclusion that there was no error or mistake apparent on the face of the record and in view thereof, the power under Order 47 Rule 1 of the Code of Civil Procedure could not have been exercised by the court. It is submitted that the Supreme Court in the said judgment was dealing with the matter in which the High Court had exercised the power under Order 47 Rule 1 on the merits of the matter and had not exercised plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It is submitted that the judgment of the Supreme Court in case of Parsion Devi (supra) is thus clearly distinguishable in the facts of this case. 18. Mr.Chinoy, the learned senior counsel then submits that it is not i....
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.... Court in exercising plenary jurisdiction by procedural review to correct the procedural error apparent on the face of the record. The learned senior counsel placed reliance upon the said judgment and in particular paragraphs 10 to 13, 19 and 21 which reads thus :- 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 be an inference the s....
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.... attracts the provisions of the Code also. 19. Revisional jurisdiction of superior court cannot be taken as excluded simply because subordinate courts exercise a special jurisdiction under a special act. The reason is that when a special Act on matters governed by that Act confers a jurisdiction on an established court, as distinguished from a 'persona designata', without any words of limitation, then the ordinary incident of procedure of that Court right of Appeal or revision against its decision is attracted. The right of Second Appeal to the High Court has been expressly taken away by Sub-section (3) of Section 37 of the Act, but for that reason it cannot be held that the right of revision has also been taken away. See National Telephone Company Ltd. v. Postmaster-General [1913 Appeal Cases 546] and decision of the Privy Council in Adaikappa Chettiar v. Chandresekhara Thevar which have been relied by Supreme Court in case of National Sewing Thread Co. Ltd. v. James Chandwick [1953]4SCR1028 . In National Telephone Company's case (Supra), Viscount Haldane L.C. observed thus:- "When a question is stated to be referred to an established Court without more, it in ....
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....ding or claim is within the period of limitation or barred by the statutes of limitation. The duty so cast upon the court under aforesaid section 3 is mandatory, peremptory and is not whittled down for the lack or absence of pleadings or oral submissions made in this regard by a contesting party. In my view, Mr.Chinoy, the learned senior counsel is right in his submission that in absence of any such plea raised by the respondents on the issue of limitation in respect of the claim nos. 1 and 2 either in the written submission or across the bar, the review petitioner had no opportunity to deal with any such plea which was not raised by the respondents. 21. In my view, merely because the "High Court" is not described as persona designata in section 37 of the Arbitration and Conciliation Act, 1996, would not mean that if any such appeal is entertained by the High Court under section 37 (1) of the Arbitration and Conciliation Act, 1996, it would not be the High Court exercising its power under Article 215 of the Constitution of India and would not be the court of record. In my view, there is no substance in the submission made by Mr.Kumbhakoni that while exercising power under section ....
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....mitation in respect of claim nos. 1 and 2, there was no opportunity given to the review petitioner to address this court on issue of limitation in respect of those two claims. In my view there is error apparent on the face of the record in paragraphs 35, 36 and 46 of the judgment holding that claim nos. 1 and 2 also barred by law of limitation and were set aside on the ground of limitation. 24. In my view, judgment of this court in case of M/s.Madhav Structural Engineering Ltd. (supra) does not deal with the submission that in view of section 5 of the Arbitration and Conciliation Act, 1996, this court cannot even exercise the procedural review by exercising plenary jurisdiction. On perusal of the said judgment it is clear that the power of High Court to exercise procedural review by exercising plenary jurisdiction under Article 215 of the Constitution of India was not an issue before this court in the said judgment. The judgment of the Supreme Court relied upon by the review petitioner in this proceedings were not brought to the notice of this court. In my view, thus the said judgment of this court is clearly distinguishable in the facts of this case and is of no assistance to the....