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1996 DIGILAW 217 (PAT)

Anand Electricals And Another v. New India Assurance Company Limited

1996-04-02

P.K.DEB

body1996
Judgment P.K.Deb, J. 1. This review petition has been filed by the above named petitioners who were opposite parties in Civil Revision No. 332 of 1994 (R), for review of the order passed in the above civil revision petition vide order dated 11.7.95, under Order XLVII, Rule 1 of the C.P.C. read with Sec. 151, C.P.C. 2. The main grounds of this review petition are that the order passed in the civil revision petition No. 332 of 1994 (R) is in direct contradiction of the judgment of the Apex court as , Union of India and Anr. V/s. L.K. Ahuja and Co., which could not be made available to the petitioners at the time of hearing of the above revision petition and as such this Court come to an erroneous decision. His further contention is with reference to 1982 SCC page 624, State of Gujarat and Anr. V/s. Prabhat Solvent Extraction Industries Private Limited, when there is discrepancy in view of the contrary decision by the Apex Court, the review petition is required to be allowed. His third ground is that the arbitration clause although referred in the impugned order was not correctly interpreted and as such erroneous decision has been arrived at. 3. Mr. Debt Prasad appearing for and on behalf of the petitioners above named strenuously argued on this point, by referring to some sentences of the above mentioned order thiether and thiether pressed for allowance of this review petition and at the very out set, he argued that revision petition is not practically maintainable when the order passed in the lower court was under Sec. 20 of the Arbitration Act, and as such only appeal is maintainable as per Sec. 39(IV) of the Act. 4. Mr. Equal appearing for and on behalf of the opposite parties Insurance Company refuted the above submissions by submitting that the revision petition was very much maintainable as the order was passed by the learned court below on a petition filed under Sec. 33 of the Arbitration Act, and only revision is maintainable against such order and not appeal as contemplated under Sec. 39 of the Act. His further contention is that when there are two decisions of the Supreme Court and this Court has taken one view in passing the impugned order is which very much akin to the facts and circumstances of the case, there is no scope of review of the order. The grounds stated in the review petition can very well be assailed before the appellate/higher court. 5. The petitioners shop was insured with the insurance company and several electrical goods lying in the shop were looted away in a baraglary and the policy of the petitioner was covered, under baraglary risk up to the limit of Rs. 1,00,000.00 which after surveyors report assessed at Rs. 46,031.00 towards loss and the same was offered by the insurance company to the petitioner. The petitioner accepted the same on full and final satisfaction after signing all papers including the indemnity bond and then made a claim under Arbitration clause of the policy and referred to the same to the Arbitrator, on such reference being made to the Arbitrator, the insurance company filled a petition under Sec. 33 of the Act challenging the appointment of the Arbitrator and invoking of the Arbitration clause as per the contract. 6. The learned court below rejected the petition and then the above mentioned Civil Revision petition was preferred which was disposed of on 11.7.95 giving full length hearing to both the parties. At the time of hearing, the judgment referred as 1988 SC page 1172, Union of India and Anr. V/s. L.K. Ahuja and co., was not referred to and it is stated that due to inadvertance, the same was not referred. It must be seen that the above mentioned decision of the Apex Court is on a petition under Sec. 20 of the Arbitration Act, there a contractor executing construction works and accepted payments and give no claim declaration but afterwards he claimed certain amount as due on contracts and claiming reference to the Arbitrator by government within three years. It was held that whether the claims subsists or not is arbitrable and reference to Arbitrator was maintainable. In the present case, quantum of the claim is the matter of arbitration as per the Arbitration clause itself and when that quantum has been discharged on full and final satisfaction, the question of arbitration does not arise. Moreover, if there is any force in the submission of Mr. In the present case, quantum of the claim is the matter of arbitration as per the Arbitration clause itself and when that quantum has been discharged on full and final satisfaction, the question of arbitration does not arise. Moreover, if there is any force in the submission of Mr. Debi Prasad, the same can be assailed only before the appellate court and can not be a point to be considered in the review petition whose scope is very limited. When a view the review petition whose scope is very limited. When a view has been taken by this Court on the legal and factual position of the case, their is no scope of reverting the same by way of review, if another view is also possible on the facts and circumstances. 7. Regarding maintainability of revision petition, there is no force at all as the order passed on a petition under Sec. 33 of the Arbitration Act is not appealable one and the same is only revision able as is held by this Court as reported in AIR 1954 Patna page 6 Abdul Karim and Anr. V/s. Mst Maniran and Anr. The contention of Mr. Debi Prasad that quantum including the subsisting of further claim or not even after discharges on full and final satisfaction is also a point to be arbitrable is not applicable in the present case. 8. I do not find any force in this review petition and hence the same is rejected.