At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE T.V. ANILKUMAR
For the Petitioner: S. Sreekumar, Sr. Advocate, P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, R. Githesh, Ajay Ben Jose, Manjunath Menon, Sachin Jacob Ambat, S. Harikrishnan, Advocates. For the Respondents: R1, N.N. Sugunapalan, Sr. Advocate, V. Santharam, Lakshmeesh. S. Kamath, Advocates.
1. This review petition is filed by the appellant seeking review of order dated 24.11.2020 passed by this Court in Arb.Appeal No.1/2020.2. When the review petition came up for hearing, the learned Senior counsel for the respondents Adv.Sri.N.N.Sugunapalan submitted relying on Section 5 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act') that the court lacks power to review its own order in the absence of such a power being specifically conferred on it by the provisions of the said Act. Section 5 of the Act reads as follows;“5. Extent of judicial intervention.-- Notwithstanding anything contained in any other law for ht time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.”It was further submitted by the learned Senior counsel that the provisions in the Code of civil Procedure, 1908 (for short, 'the CPC') relating to review do not help the review petitioner. The learned Senior Counsel submitted that correctness of celebrated decision in ITI Ltd. v. Siemens Public Communications Network Ltd. [(2002)5 SCC 510], which took the view that applicability of the CPC is not prohibited in such cases, is under active reconsideration before larger Bench of the Apex Court. In this respect, he drew my attention to paragraphs 27 to 29 of the decision reported in Mahanagar Telephone Nigam Ltd. v. M/s.Applied Electronics Ltd. [(2017) 2 SCC 37], in which the correctness of Siemens's case (supra) was doubted.3. On the other hand, the learned Senior counsel Adv.Sri.S.Sreekumar appearing for the review petitioner submitted that the Seimens Public Communications' case (supra) still holds the field and power of review under Order XLVII Rule 1 of the CPC is still available to Court. In this regard, he relied on Maheshwari Brothers Ltd. v. National Highways Authority of India (MANU/WB/0184/2006) and Srikumar Textiles (P) Ltd. and ors. v. Sundaram Finance Ltd. (MANU/TN/9057/2007).4. The learned Senior counsel for the respondents, however, conceded that regardless of Section 5 of the Act, the High Court has inherent power as 'Court of record' under Article 215 of the Constitution of India to recall its own orders and undo the mistakes committed by it.5. I have gone through the contentions raised in the memorandum of review and I heard the learned Senior counsel appearing on both sides.6. I do not find that there is any such an apparent error on the face of the record as would justify the review of the legal conclusion arrived at by this Court in the impugned order. The contentions urged were already considered in detail and rehearing of the matter cannot be permitted in a review proceeding.7. The substantial grievance of the appellant against the order dated 24.11.2020 is pointed out in ground Nos.(1) and (4) of the review memorandum. It is submitted that the appellant never raised a contention that the appeal became infructuous and for that reason, it was liable to be closed. It is submitted that what, in fact, canvassed was an argument that by virtue of Section 9(3) of the Act, the Court was not required to delve into the disputed questions of facts which could be resolved by the Arbitral Tribunal and therefore, parties were to be relegated to the Tribunal by keeping the order passed by the District court to be in abeyance for a while. What is pointed out to me is that the learned Senior counsel never submitted that the appeal became infructuous and he never intended to make such a submission also.8. The submission herein made by the learned Senior counsel for the appellant may be sometimes correct and this Court may have probably mistaken him. He might not have submitted that his own appeal became infructuous. What he, infact, had submitted might be that he wanted the parties to be relegated to the Arbitral Tribunal by keeping the order of the District court in abeyance.9. Be that it may, I fail to understand as to how could the legal conclusion arrived at by this Court nevertheless be wro
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ng. I am satisfied that the legal conclusion in the order dated 24.11.2020 was arrived at after appreciating the contentions raised by the appellant on merits. Since rehearing of the contentions is impermissible in a review proceeding, I find that review must necessarily fail.In the result, this review petition fails and is dismissed subject to what the observations made in paragraph No.8 above.All pending interlocutory applications are closed.