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Modern Food Industries v/s Paper Mate Private Ltd.

    Review Petition No.9 of 2007 in CS (OS) No.1014 of 1991
    Decided On, 04 July 2008
    At, High Court of Delhi
    For the Petitioner : Valmiki Mehta, Sr. Advocate with Abhishek Khare, Nikhil Majithia, Amit G. Singh, Advocates. For the Respondent : Shyam Kishore, Advocate.

Judgment Text
A.K. Sikri, J.

1. In view of the disputes between the parties, matter was referred to the arbitration. The learned arbitrator had given his award dated 20.2.1991. The respondent herein had filed objections to the said award, which were registered as IA No. 721/1993. These objections came up for hearing on 11.1.2007. Counsel for both the parties had appeared in the pre-lunch session. However, the petitioner?s counsel requested that the matter be taken in the after-lunch session on the plea that the Senior Counsel who had to argue the matter was not available. His request was accepted. When the matter was called up in the afternoon at 2.26 p.m., nobody appeared on behalf of the petitioner. In these circumstances, on the basis of submissions made by learned counsel for the objector, order was passed in the Court on the said application/objections of the respondent. There were three objections to the award which are taken note of in the order dated 11.1.2007. One of these objections was that the award in question is a non-speaking award. This objection was accepted taking note of the fact that though clause 22 of the agreement mandated the arbitrator to give his reasons, the learned arbitrator had passed a non-speaking award. Without going into the other two objections, the award was set aside and order was passed remitting back the matter to the arbitrator for passing a speaking award after giving an opportunity to the parties of being heard.

2. The present application is filed seeking review of the said order dated 11.1.2007. It is stated in the application that counsel for the petitioner could not appear for some reason on 11.1.2007 and, therefore, could not assist the Court. It is further stated that the award in question is a reasoned award and, therefore, order dated 11.1.2007 contains errors apparent on the face of the record. This review petition is contested by the respondents by filing reply. The maintainability of the review petition is objected on the ground that there is no resolution of the Board of Directors to file the said review petition; the petition is not presented properly by any authorized person as the Advocate who has presented the petition is not appointed by the petitioner as its Advocate, inasmuch as, he is appointed as an Advocate by Mr. Atam Parkash, and not by the company, who had no authority from the company; and there is no error on the face of the record and no injustice has been done in passing the impugned order.

3. Insofar as objections to the maintainability of the review petition are concerned, I hardly find any justification to the same. The petition/suit was filed by the petitioner for making the award Rule of the Court. In case the impugned order has gone against the petitioner and it is decided to file review application, I do not think that any further or special resolution is necessary in this behalf once there is already an authorization for filing and prosecuting the petition for making the award Rule of the Court.

4. As far as signing of vakalatnama by Mr. Atam Parkash in favour of the counsel is concerned, no doubt while signing the vakalatnama he has not stated ?for Modern Food Industries (I) Ltd.?. However, it is clear from the stamp put therein that he had signed in the capacity of ?Consultant-cum-Secretary? Of ?Modern Food Industries (India) Ltd.?. It is not disputed that Mr. Atam Parkash is the Secretary of the company. As Secretary, he is authorized to engage a counsel. Therefore, he has the necessary authority to give vakalatnama in favour of the counsel. In any case, apart from signatures of the counsel, the review petition bears signature of Mr. Atam Parkash as well and, therefore, the review petition is properly instituted.

5. With these impediments having cleared, I proceed to deal with the merits of the review petition. The dispute is as to whether the award in question is a speaking award or not. I have held in my order dated 11.1.2007 that the award in question is not a speaking award. Whether there is an error apparent on the ace of the record committed in arriving at this finding?.

6. In the case of Surjit Singh and Ors. vs. Union of India and Ors., (1997) 0 CC 592, the Supreme Court, while dealing with the grounds for review, defined s to what could be termed as patent error in the following words :-

7. In the light of these directions, it is obvious that the Government of India had prepared the seniority list. The contention of the promotees which as found acceptable to the Tribunal that preceding the date of amendment the government was devoid of power to carry forward all unfilled vacancies to the direct recruits and that all these vacancies are meant to be thrown open to the promotees, is clearly a misinterpretation for the rules and on that basis the directions came to be issued by the Tribunal. This Court had suggested on earlier occasion that vacancies meant for the direct recruits may be carried forward for two years after the recruitment year and thereafter the unfilled vacancies would be thrown open to the respective cadres. Under these circumstances, the view of the Tribunal is clearly illegal; unfortunately, the Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the Tribunal is duty-bound to correct, with grace, its mistake of law by way of review of its order/directions.? (emphasis supplied) He also referred to the judgment of the Apex Court in Green View Tea and Industries vs. Collector, Golaghat, Assam and Anr., (2004) 4 SCC 122), in which it was held that where material evidence on record is not taken into consideration in the judgment sought to be reviewed, ?it would constitute error apparent on the face of the record?.

7. Learned counsel for the petitioner had argued that the award in question is speaking award as contentions of both the parties were noted and some reasons given on the second page of the award. He further submitted that it was not necessary to give detailed reasons in the award and law on this aspect was settled by the Supreme Court in various judgments, including one in the case of Gujarat Water Supply and Sewerage Board vs. Unique Erectors (Gujarat) (P) Ltd. and Anr., AIR 1989 SC 973.

8. In the present case, as already pointed out above, counsel for the petitioner was not present when the matter was heard and there was no assistance on behalf of the petitioner. There is another important aspect of the matter which needs to be highlighted. The award is in three pages. The original award, as tagged in the file, is not properly arranged. After page one is the third page, which is signed by the arbitrator and second page is placed at the end. Therefore, at the time when the matter was argued, I had seen the first two pages only, namely the first and third page of the award. Had second page been also seen at that stage, it would have provided

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arguable point as to whether the award in question is a speaking award or not. Therefore, when entire award was not read and only the first and last pages were seen, order passed on that basis would amount to error apparent on the face of the record as entire material which is relevant was not taken into account. Therefore, without going into the question at this stage as to whether the award in question is a reasoned award or not, I am of the opinion that the matter needs to be heard afresh after hearing the arguments of both the parties. 9. This application is allowed and the impugned order is recalled on this ground. Matter be listed, for hearing on the objections of the respondent to the award, on 4th August 2008. On that date the matter be listed before the Regular Bench.