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2023 (7) TMI 1411
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....l on record. 3. Relevant facts of the present 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 accordin....
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....uld not be compelled to participate in the arbitration as it was 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 D....
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....2017 were challenged before this Court by the Review Petitioner by way of SLP (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 s....
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.... of the Act are reproduced below: "35. Finality of arbitral awards.- Subject to this Part an arbitral award shall 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, le....
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....he grounds admissible under the Rules. 2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought 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....
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....ch of this Court comprising of Hon'ble Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of Satyanarayan Laxminarayan Hegde and others Vs. Millikarjun Bhavanappa Tirumale [AIR 1960 SC 137] , discussed the scope of the phrase '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 r....
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....to wherein, it has been held that power to review may not be exercised on the ground that decision was erroneous on merits as the same would be the domain of the Court of appeal. Power of review should not be confused with appellate powers as the appellate power can correct 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....
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....ourism Co v Ministry of Religious Affairs of the Government of Pakistan [2010] 3 WLR 1472 ["Dallah"] that a full review based on oral and/or documentary evidence ought to have been undertaken which was not done on the facts of this case, the Division Bench merely echoing the Arbitrator's findings. He then made a distinction 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 i....