Manmohan Singh, J.@mdashBy this order I propose to decide the review application filed by the respondent No. 1 under Article 215 of the Constitution of India read with Section 151 and Order 41 Rule 47 of the CPC for review of the judgment dated 4th July, 2011. The main argument of the respondent No. 1 is that while passing the earlier order dated 5th May, 2003, the Court issued a direction that the objections filed by the petitioner under Sections 30 & 33 of the Arbitration Act, 1940 (hereinafter referred to as "old Act") would be treated as an application u/s 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "new Act"). However, by the said order time was never extended as far as period of limitation in filing the objection u/s 34 of the new Act is concerned. Mr. Chetan Sharma, learned Senior counsel appearing on behalf of respondents has also referred another order passed by the same Court on 5th May, 2003 in execution proceeding pending at that time whereby the petitioner was directed to file an affidavit to show when the petitioner had received a copy of the award in terms of Section 34 of the new Act. His submission is that the period of limitation for entertaining the application u/s 34 of the new Act had been prescribed as three months from the date on which a party had received the copy of the award for filing the application and in view of passing of the order dated 5th May, 2003 directing the petitioner to file the affidavit, it was clear understanding that the period of limitation for filing the application u/s 34 of the new Act was different from the period of limitation prescribed for filing the objections under Sections 30 and 33 of the old Act. Mr. Sharma had referred the decision of the Apex Court in the case of
2. The respondent No. 1 has referred the following decisions in support of submissions that the review is maintainable in the matter.
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2. A.R. Antulay vs. R.S. Nayak & Anr., AIR 1998 SC 1531.
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6. Pundlik Jalam Patil vs. Executive Engineer Jalagaon Medium Project & Anr., (Supra)
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3. Mr. Ravi Sikri, learned counsel appearing on behalf of the petitioner, has raised preliminary objection that the review application filed by the respondent No. 1 is not maintainable. By virtue of the same, the respondent No. 1 wishes to re-argue the entire matter which is not permissible in law. Mr. Sikri states that all the grounds taken in the review application were already argued when main order was passed. The following decisions are referred by him, in support of his submissions, wherein the scope of review has been discussed:
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4. After hearing both the parties for sometime, I feel that following certain facts are necessary to mention while deciding the present review application:
i) The petitioner had filed the present petition challenging the Award dated 29th December, 2000 and the Corrigendum to the said Award dated 19th January, 2001 passed by the Sole Arbitrator.
ii) On 27th January, 2001, the petitioner had filed an application under Sections 14 and 17 of the old Act seeking directions from this Court to the learned Arbitrator to file the award which was numbered as CS(OS) 266-A/2001. The said suit came up for hearing before this Court on 13th February, 2001 wherein this Court was pleased to issue notice to the learned Arbitrator/respondent No. 2 herein for 8th August, 2001.
iii) On 8th August, 2001, the petitioner came to know that the record of the arbitral award was filed by the respondent No. 2 and immediately thereafter on 6th September, 2001 i.e. within one month from the date of knowledge of filing of the award, the petitioner filed its objections to the said award under Sections 30 and 33 of the old Act.
iv) In the meantime, the respondent No. 1/review applicant filed the execution petition, being EP 163/2001, under the new Act and this Court was pleased to issue the attachment order against the petitioner by order dated 10th August, 2001. By order dated 5th May, 2003, this Court passed an order in the said execution and was pleased to hold that the new Act would apply to the present dispute between the parties and not the old Act and as such the objections filed by the petitioner, being I.A. No. 3170/2002, in Suit No. 266-A/2001 be numbered as OMP 387 of 2009 as an objection petition under the new Act.
By order dated 5th May, 2003, this Court held that the petitioner, who had filed the objections to the award under the old Act cannot be left remediless and as such the objections under the old Act were converted into Section 34 of the new Act.
v) The petitioner had challenged the order dated 5th May, 2003 before the Division Bench of this Court by filing appeal, being FAO (OS) No. 284/2003. The appeal was dismissed by this Court by order dated 17th December, 2008 as being not maintainable u/s 39 of the old Act. However, while dismissing the said appeal, the Division Bench had duly noted the fact that the learned Single Judge had converted the objections filed by the petitioner under the old Act into the objections u/s 34 of the new Act. It was further observed that the contentions of the review applicant regarding the period of limitation in filing the objections u/s 34 of the new Act already stood settled by the learned Single Judge by converting the petitioner''s objections under the new Act.
vi) The Division Bench while dismissing the appeal in para 14 has held as under:
14. Consequently, we are of the view that since the Appellant''s objections to the Award under Sections 30 and 33 under the old Arbitration Act have not been refused, the present appeal is not maintainable. In case, the Respondents were to raise the plea that the Appellant''s objections u/s 34 of the new Arbitration Act, 1996 were beyond limitation, the Appellant would be well advised to take all its defences including the plea that the issue of limitation already stood settled by the learned Single Judge''s order by converting or treating the Appellant''s objections filed by way of IA No. 3170/2002 u/s 34 of the new Arbitration Act, 1996. Moreover, in case, the Appellants are still aggrieved by any subsequent order, they would be at liberty to challenge the same.
5. It is not disputed by the respondent No. 1/review applicant that the objections under Sections 30 and 33 of the old Act were filed on 5th September, 2001 i.e. within one month time from 8th August, 2001 within the prescribed period under the old Act when it came to the knowledge of the petitioner that the respondent No. 2 had filed the award with the Registry of this Court.
6. In case the order dated 5th May, 2003 as well as para 14 of the order dated 17th December, 2008 of the Division Bench are read, it appears that the intention of the Court was that the objections filed by the petitioner under the old Act were to be converted into objections u/s 34 of the new Act. It is admitted that the order dated 5th May, 2003 passed in I.A. No. 3170/2002 as well as order of the Division Bench passed on 17th December, 2008 were not challenged by the respondent.
7. It is necessary to reproduce here para 14 and 15 of the impugned order dated 4th July, 2011 against which the review is sought by the respondents:
14. By order dated 05.05.2003, the petitioner''s petition, i.e., suit No. 266A/2001 u/s 14 and 17 of the Indian Arbitration Act, 1940 was dismissed as not maintainable, inter alia, on the grounds that in view of the Arbitration Clause contained in the contract between the parties, the 1996 Act regulated all proceedings after its promulgation and the Arbitration and Conciliation Act, 1996 alone applies to the dispute.
15. However, in the objections numbered as I.A. No. 3170/2002 already filed under Sections 30 and 33 of the Act, 1940, the Court passed the following order in that regard:
It has already been held that this statute has no further applicability to the disputes between the parties. Does this mean that the Objections have to be dismissed on this precise premise, leaving the Objector without remedy. I prefer to eschew a narrow and pedantic approach in favour of a holistic treatment of these Objections which, in essence, assail the Award dated 29.12.2000. An envisaged in the 1996 Act such Objection can be filed u/s 34 and in order to ensure substantial justice I shall treat the application as having been moved under this statutory provision. The Registry is directed to place this application in the file of execution proceedings viz. Ex. No. 163 of 2001.
8. Mr. Sikri, has admitted that the separate order passed on the same date i.e. 5th May, 2003 in EA No. 306/2001 and Ex. No. 163/2001 wherein the direction was issued to the petitioner to file an affidavit of its Managing Director stating therein the date on which it received the award dated 29th December, 2000, however, his submission is that the said directions have no relevance in view of objection under the old Act which was filed within the prescribed period of time as admittedly the knowledge of the petitioner about the filing of the award came to the notice of the petitioner on 8th August, 2001 when the following order was passed:
Award and proceedings has been filed. Notice be issued to defendant no. 1 on filing of PF and RC within two weeks for 28.2.2002. Counsel for plaintiff states that he has now come to know that award has been filed and objection if any shall be filed by him within the prescribed period.
9. The objections to the award were filed on 5th September, 2001 under the old Act. Counsel states that there is no force in the submission of Mr. Chetan Sharma, learned Senior counsel for the respondents in view of specific order passed on 5th May, 2003 in I.A. No. 3170/2002. As the said order is not challenged by the respondent No. 1 who is now estopped from raising the issue of limitation in the presence of specification order by converting the objection u/s 34 of the new Act. His argument is that by this means, the respondent No. 1 is trying that the petitioner does not get the benefit when the said order was passed in the presence of the parties and the respondents have not challenged the same.
10. I think there is force in the submission of the counsel for the petitioner that once the objections filed within the prescribed period of time under the old Act were converted into the objections u/s 34 of the new Act, the objection raised by the respondent No. 1 that the same were not filed in time within the meaning of Section 34 of the new Act becomes irrelevant. The main object of the Court at that time was that objections filed by the petitioner are to be treated under the new Act. The respondent No. 1/review-applicant cannot again raise the same plea of limitation in the review application as the respondent No. 1 has not challenged the order dated 5th May, 2003 passed in IA No. 3170/2002 as well as the order passed by the Division Bench on 17th December, 2011.
11. The review application, therefore, filed by the respondent No. 1/review applicant is not maintainable as the applicant has failed to demonstrate any error apparent on the face of the record on the order passed by this court and is trying to re-argue its case as if it was an appeal which is beyond the scope of the Order XLVII Rule 1 CPC and as such the review application is liable to be dismissed. The Apex Court in the case of K.A. Ansari and Anr. Vs. Indian Airlines Ltd. (supra) in para 17 was pleased to hold that an application for review cannot be entertained only for the purpose of rehearing of the case. The Apex Court further held in the case of The State of West Bengal and Ors. vs. Kamal Sengupta and Anr. (supra) that the application of review cannot be entertained merely because a different view could have been taken by the Court. The Apex Court was further pleased to hold that while dealing with the application of review, the Court cannot sit as a court of appeal.
12. For the abovementioned reasons, the review application is hereby dismissed. No costs.
OMP No. 378/2009
List before the roster Bench on 2nd May, 2014.
