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2007 DIGILAW 589 (ORI)

Narendra Nath Panda v. Union of India

2007-07-31

body2007
JUDGMENT A. K. GANGULY, C.J. This review petition has been filed for reviewing the order dated 10.11.2006 passed by the Hon’ble Chief Justice in exercise of His Lordship’s power under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter called “ABC”). The Hon’ble Chief Justice, after considering the facts of the case, was pleased to hold that since no arbitration clause exists between the parties it is not possible for His Lordship to exercise power under Section 11 of ABC to appoint an Arbitrator. 2. When arguments commenced in this matter it appeared to me that an application for review of an order passed by the Hon’ble Chief Justice under Section 11 of ABC is prima facie not maintainable. As such, before considering the matter on merits, the application was heard fully on the question of maintainabili¬ty. In this matter the Court while hearing the learned counsel for the petitioners also appointed Mr. R.K.Rath, learned Senior Counsel of this Court to assist the Court as an amicus curiae and Mr. Rath has ably argued and admirably assisted the Court. 3. Both the learned counsel for the petitioners and the learned amicus curiae urged that the Review Petition is maintain¬able and cited certain judgments which this Court will consider. But this Court is of the opinion that the main judgment which the Court should consider is the Constitution Bench judgment of the Hon’ble Supreme Court in the case of M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd., reported in AIR 2006 SC 450. 4. In Patel Engineering the Constitution Bench of the Supreme Court consisting of seven learned Judges dealt in detail with various aspects of Section 11 including its several sub-sections. According to the majority view of the said Constitution Bench, the power exercised by the Chief Justice of a High Court under Section 11(6) of ABC is not an administrative power but it is a judicial power. In the course of reaching the aforesaid finding, Hon’ble Justice P.K.Balasubramanyan speaking for the majority held that Sub-section (7) of Section 11 of ABC gives a finality to the decision taken by the Hon’ble Chief Justice or any Judge designated by the Chief Justice in respect of matters falling under Sub-sections (4), (5) and (6) of Section 11. The learned Judge held that this finality is one of the aspects which makes the power a judicial power. The learned Judge held that this finality is one of the aspects which makes the power a judicial power. (See para 8 at page 460). 5. Elaborating the said concept of finality, the learned Judge held in para 11 at page 461 of the report that the decision of the Chief Justice over the issue of jurisdiction and on the existence of a valid arbitration agreement would be binding on the parties at subsequent stages of the proceeding “except in an appeal in the Supreme Court in the case of the decision being by the Chief Justice of the High Court or by a Judge of the High Court designated by him.” 6. Elaborating on the nature of power conferred on the Chief Justice under Section 11(6) of ABC, the Supreme Court held that the “possible reason” for conferring power on the Chief Justice and not on the Court is that if power had been conferred on the Court “the matter would have been governed by the normal procedure of that Court, including the right of appeal” and the Court held “Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by Courts in the arbitral process. (See para 17 at page 464). The learned Judge has also discussed about the remedy of an aggrieved party like the petitioner against the order of the Hon’ble Chief Justice. That was discussed in para 31 at page 469 of the report, and it has been held that the remedy of an aggrieved party is to approach the Supreme Court under Article 136 of the Constitution. That would give this Court, meaning the Supreme Court “an oppor¬tunity of scrutinizing the decision of the Chief Justice on merits and deciding whether it calls for interference in exercise of its plenary power”. The learned Judge held that this reasoning of allowing the aggrieved party only to file an appeal in the Supreme Court is “supported by Sub-section (7) of Section 11 making final, the decision of the Chief Justice on the matters decided by him while constituting the arbitral tribunal”. The learned Judge held that this will be “more conducive to minimiz¬ing judicial intervention in matters coming under the Act.” (see para 31, at page 469). 7. The learned Judge held that this will be “more conducive to minimiz¬ing judicial intervention in matters coming under the Act.” (see para 31, at page 469). 7. It is further highlighted by the learned Judge in para 37 at page 472 of the report by holding that “the decision on all these aspects rendered by the Chief Justice would attain finality and it is obvious that the decision on these aspects could be taken only after notice to the parties and after hearing them.” In para 43 at page 474 of the report, the learned Judge further said that once an order is passed under Section 11(6) of ABC ‘the same, as far as the High Court is concerned, would be final and the only avenue open to a party feeling aggrieved by the order of the Chief Justice would be to approach to the Supreme Court under Article 136 of the Constitution of India’. (emphasis supplied). 8. In the context of exercise of power by the Chief Justice, the learned Judge held that in view of Section 5 of ABC and the finality clause under Section 11(7) of ABC, the Court reached the conclusion that power of the Chief Justice under Section 11(6) is judicial in nature. (Para 39, page 473). There¬fore, the Constitution Bench judgment of the Supreme Court has made principles of Section 5 of ABC applicable to the exercise of power by the Chief Justice under Section 11(6) and which has been given finality under Sub-section (7) of Section 11. 9. After giving all these findings in different paragraphs of the said judgment on the finality of the Chief Justice’s order under Section 11(7) and possible remedy against the same by the aggrieved party, the learned Judge summed up the conclusion in para 46 and while coming to the conclusion the learned Judge held in Clause (vii) of paragraph 46 that since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order “only under Article 136 of the Constitution of India to the Supreme Court”. In the context of the aforesaid authoritative pronouncement of the Supreme Court on the construction of the nature of power of the Chief Justice under Section 11(6) of ABC, it is difficult for this Court to hold that the order of the Hon’ble Chief Justice under Section 11(6) is subject to review. Such a finding in my judgment would be contrary to the scheme and purport of Section 11(6) of ABC. (Emphasis supplied). 10. However, the learned counsel for petitioner and learned Amicus Curiae argued that the power being a judicial power and the High Court being a Civil Court will have the inherent jurisdiction of review of the said power. In support of such contention some judgments have been cited. 11. However, a power of review is not necessarily an inherent power. Such a power has to be conferred by law either expressly or by necessary implication (see Patel Narshi Thakershi v. Pradyuman Singh etc., reported in AIR 1970 SC 1273 (para 4). This has been affirmed in Kashinath G. Jalmi v. The Speaker, reported in AIR 1993 Supreme Court 1873 at 1883). 12. Reliance was placed by the learned counsel for the petitioner on the judgment of the Supreme Court in the case of Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. reported in (2006) 5 SCC 501 in which a learned Judge of the Supreme Court held that the review is maintainable against an order passed by a learned Judge of the Supreme Court or by Hon’ble Chief Justice of India under Section 11(6) of ABC since the same is an order within the meaning of Article 137 of the Constitution and is subject to review under the said Article. The learned Judge of the Hon’ble Supreme Court held that once the function performed by the Chief Justice of India or his nominee is held to be judicial, it cannot be said that an application for review of an order passed by the Chief Justice of India or his nominee is not maintainable since such a power is available to the Hon’ble Supreme Court under Article 137 of the Constitution. The learned Judge held that since the order passed by the Hon’ble Chief Justice or his nominee is an order within Article 137 of the Constitution, same is subject to review. 13. The learned Judge held that since the order passed by the Hon’ble Chief Justice or his nominee is an order within Article 137 of the Constitution, same is subject to review. 13. I am of the humble opinion that in so far as the High Court is concerned, Article 137 is not applicable. The review power available to the High Court normally flows from the Code of Civil Procedure under Order 47 and Section 114 thereof. The Constitution does not vest the High Court with any power of review. In so far as Supreme Court is concerned it enjoys a constitutional power of Review which is very special power and is part of Chapter IV of the Constitution. Supreme Court’s powers under Article 141, 142 are also part of that Chapter. Therefore, the ratio in the case of Jain Studios is applicable only in the case of an order passed by the Hon’ble Chief Justice of India or the nominated Judge appointed by the Hon’ble Chief Justice of India but the same is not attracted to the orders passed by the Hon’ble Chief Justice of a High Court or his nominee. The ratio in the case of Jain Studios is therefore not attracted to the order passed by the Hon’ble Chief Justice of a High Court or his nominee in respect of an order under Section 11(6) of ABC. 14. Reliance was placed on a judgment of Delhi High Court in the case of Laltech Engineering Projects Pvt. Ltd. v. Indian Oil Corporation Ltd. and another, reported in 2005 (Supp.) Arb.LR 163. The said judgment was confined to the scope of power of review. The question whether an order passed by the Hon’ble Chief Justice of a High Court or his nominee under Section 11(6) of ABC can be subjected to review was not an issue in Laltech Engineering. Apart from that, this Court finds that in Laltech Engineering the decision of the Hon’ble Supreme Court in Patel Engineering could not be considered as the decision in Laltech Engineering was rendered on 1.9.2005 and the judgment in Patel Engineering was rendered on 26.10.2005. Therefore, the said decision in Laltech Engineering need not detain us in view of clear enunciation of the law on Section 11 in Patel Engineering. 15. Therefore, the said decision in Laltech Engineering need not detain us in view of clear enunciation of the law on Section 11 in Patel Engineering. 15. Learned counsel for the petitioner also relied on a judgment in the case of Avinash Hansraj Gajbhiye v. Official Liquidator, M/s. V. Phrama (P) Ltd., reported in AIR 2006 SC 1317 . In that case a review petition was filed before the Bombay High Court at Nagpur Bench for review of its judgment in Company Appeal No. 3 of 2002 dated 19.9.2002 by which the Division Bench dismissed the appeal. The power of the High Court to review its order was not in issue in that decision. Apart from that, the power in that case, namely, under Section 483 of the Companies Act was conferred on the High Court and not on the Chief Justice. When the power is conferred on a Court then, in the absence of any indication to the contrary in the conferring statute, all the powers of the High Court or a Superior Court of Record available to that Court. But here power has been conferred on the Chief Justice. 16. In para 18 at pages 464-465 of the judgment in Patel Engineering, while dealing with the power conferred on a Court under Section 9 of ABC, the Supreme Court held, that in the absence of any indication that the powers of the Court are cur¬tailed, the Court is competent to exercise all the powers for making orders as it has for the purpose of and in relation to any proceeding before it. 17. Considering the aforesaid provision of Section 9, the Court in Patel Engineering held that “when a matter is entrusted to a Civil Court in the ordinary hierarchy of Courts without anything more, the procedure of that Court would govern the adjudication”. But here power has been conferred on the Chief Justice. Even though such power has not been conferred on the Chief Justice as a persona designata but the rationale behind conferment of such power on the Chief Justice is to minimize judicial interference as far as possible, specially when such power has been given finality under Section 11(7) of ABC. There¬fore, the power conferred on the Chief Justice of a High Court or his nominee under Section 11(7) is completely different from the power on the Company Court under Section 483. There¬fore, the power conferred on the Chief Justice of a High Court or his nominee under Section 11(7) is completely different from the power on the Company Court under Section 483. So the decision in Avinash Hansraj Gajbhiye is of no assistance to the present case. 18. Reliance was also placed on a judgment of the Delhi High Court in the case of M.G.F. (India) Ltd. v. Daily Pratap & Ors, reported in 2003 (2) Arb.LR 309 . That was a case under the Arbitration Act, 1940 and in that case the facts were that the sole Arbitrator filed in Court the award dated 10.10.1994 and the parties were issued notice of filing of the award which was made returnable on 18.9.1995. Learned counsel for the petitioner in that case accepted the notice but did not choose to file objec¬tion within the stipulated period. The objection to the award was filed on 23.8.1995 and not on 19.1.1996 as noted in the Court’s order. That was stated to be an error on the face of the record. It was found that there was no delay in filing the objection to the award. So along with the review application an application under Section 5 of the Limitation Act was filed seeking condona¬tion of one day’s delay in filing the objection on the ground that the learned counsel made wrong calculation. In the circum¬stances, a preliminary objection was raised about maintainability of the review petition on the ground that no case was made out for review of the judgment. Several such other grounds were also taken. In the background of those facts, the learned Judge held that the review petition is maintainable. 19. This Court fails to understand the relevance of the ratio in MGF (India) Ltd. to the facts of the present case inasmuch as the present case is under a different statute and the issues rest here on the construction of totally different provi¬sions. No provision similar to Section 11 of ABC is there in the 1940 Act. 20. Reliance was also placed on the judgment of the Supreme Court in the case of M.M.Thomas v. State of Kerala and another, reported in (2000) 1 SCC 666 . The facts of that case were that all the private forests in the State of Kerala vested under Kerala Private Forests (Vesting and Assignment) Act, 1971, but the Act provided for two exceptions. The facts of that case were that all the private forests in the State of Kerala vested under Kerala Private Forests (Vesting and Assignment) Act, 1971, but the Act provided for two exceptions. M.M.Thomas claimed exemption in respect of 20 acres of the forest and filed a petition before the Forests Tribunal and it was rejected. Thomas then came to the High Court under Section 8-A of the Act and the Division Bench held that Thomas was not entitled to exemption under Section 3 (2) of the Act, but it allowed the appeal holding that he was entitled to exemption under Section 3(2) of the Act in respect of 12 acres of his land. Then the Act was amended adding Section 8-C(2) where the power of review was conferred on the Tribunal as well as on the High Court. Government then filed an application for review of the judgment in view of the newly created provi¬sions and as a result of the review, a Division Bench of the High Court dismissed the Forest Appeal filed by Thomas against the order of the Forest Tribunal, inter alia, on the ground that the High Court’s order was vitiated by errors apparent on the face of the record. 21. Before the Supreme Court Thomas contended that the High Court’s power of review was limited by Section 8-C(2) and the said power could not be exercised in the manner it was done and the State’s application for review was not based on any of the provisions of Review. The Supreme Court dismissed the appeal and held that the High Court, as a Court of Record under Article 215 of the Constitution, has inherent power to correct its record and as a Superior Court of Record it has all the powers to keep its record correct and in accordance with law. So if an apparent error is noticed by the High Court in respect of an order passed by it, the High Court not only has the power but also it has the duty to correct it. 22. In the instant case, the said position is not preva¬lent. As noted above, the power under Section 11(6) is not conferred on the High Court but on the Chief Justice. The distinction between the conferment of power on the High Court and that on the Chief Justice is well known. Even the Constitution recognizes this distinction. 22. In the instant case, the said position is not preva¬lent. As noted above, the power under Section 11(6) is not conferred on the High Court but on the Chief Justice. The distinction between the conferment of power on the High Court and that on the Chief Justice is well known. Even the Constitution recognizes this distinction. As for instance, Article 229 confers power on the Chief Justice whereas the power under Article 235 is vested on the High Court. Under ABC also the power under Section 11(6) is conferred on the Chief Justice whereas power under Section 9 is conferred on a Court. When power is conferred on a Court and specially the High Court which is a Court of Record with all incidental and ancillary powers one of which is its power to correct its records. But, here as has been indicated above, in Patel Engineering, the power has not been conferred on the High Court. Distinction between the two forms of power, one on the High Court and the other on the Chief Justice has been discussed. Since we are dealing with a statutory provision which confers power on the Chief Justice under Section 11(6) of ABC, the decision in the case of M.M.Thomas has no relevance to decide the issues in this case. 23. Reliance was also placed on the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Laxmi Narain Dhut, reported in 2007 (4) SCALE 36. Reliance was placed on the said judgment in order to highlight the need of purposive inter¬pretation. It is a well-known cannon of interpretation that when intention of the Statute is clear there is no scope for an inter¬pretation. In the instant case, Section 11(6) of the said Act clearly confers power on the Chief Justice and Section 11(7) of the said Act clearly confers a statutory finality decision to be taken by the Chief Justice under Section 11(6). So for the pur¬pose of construing these two provisions the plain words of the Statute should guide us. One of the avowed object of ABC is to shorten the period of initiation of arbitration proceeding. So for the pur¬pose of construing these two provisions the plain words of the Statute should guide us. One of the avowed object of ABC is to shorten the period of initiation of arbitration proceeding. Now if I hold that the decision of the Chief Justice which has a statutory finality is open to review, though no such review is contemplated and is contrary to Sections 5 and 11 (7) of ABC, such an interpretation runs counter to the scheme of ABC and obviously cannot be made. 24. Learned counsel for the petitioner has, however, relied on an unreported decision of the Hon’ble Chief Justice dated 18.2.2002 wherein a review petition for reviewing an order of the Chief Justice for making appointment of an Arbitrator under Section 11 was entertained. The said judgment was rendered in the case of M/s. National Aluminium Co. Ltd. v. Shree Rayalaseema Alkalies & Allied Chemicals Limited, in Civil Review Petition No. 86 of 2001. It appears from the said judgment that in that case the Arbitrator was appointed without notice to the review petitioner. The learned Chief Justice held that such an appoint¬ment is contrary to the Rules framed by the High Court under Section 11 of the said Act in the matter of making appointment of an Arbitrator. Apart from that, the said judgment was rendered at a point of time when the decision in Patel Engineering was not delivered and at that time as was noted in that unreported deci¬sion the aggrieved party could not challenge the order of ap¬pointment of Arbitrator under Article 136 of the Constitution. At that point of time the decision of M/s. Konkan Railway Corpora¬tion Ltd. and another v. M/s. Rani Construction Pvt. Ltd., re¬ported in 2002 (1) Supreme 419 , was holding the field. In para 7 of the aforesaid unreported judgment, the learned Chief Justice held that since the aggrieved person has no remedy against the order of the Chief Justice, till the arbitration proceeding reaches the stage of Section 16 of the Act and inasmuch as par¬ticipation in the arbitration proceeding also involves substan¬tial expenses, the learned Chief Justice held that review is permissible. But now the decision in Patel Engineering has given a new interpretation of Section 11 of ABC. In the context of the decision in Patel Engineering the unreported judgment is no longer good law. 25. But now the decision in Patel Engineering has given a new interpretation of Section 11 of ABC. In the context of the decision in Patel Engineering the unreported judgment is no longer good law. 25. The learned Amicus Curiae relied on some judgments in support of his contention that the review petition is maintain¬able. He relied on the decision in the case of R.R.Verma and others v. The Union of India and others, reported in AIR 1980 SC 1461 . That was a decision in a service matter and in paragraph 5, the learned Judges held that the principle that power to review must be conferred by the Statute specifically or by necessary implication is not applicable to decisions purely of an administrative nature. The learned Judges held that if that principle of review is extended to administrative decision the same might lead to untoward and starling results. In the instant case, it has been held authoritatively by the Supreme Court in Patel Engineering that the decision given by the Chief Justice or his nominee under Section 11(6) of ABC is not an administrative decision and it is adjudicatory in nature and judicial in character. So the ratio of the decision in the case of R.R.Verma is of no assistance here. 26. Learned Amicus Curiae also relied on a decision of the Supreme Court in the case of Shreedharan Kallat v. Union of India, reported in AIR 1996 SC 640 . This Court fails to appreciate the ratio of the said decision in the fact of the present case inasmuch as in the said decision it has been held that the action of the Central Administrative Tribunal in inter¬fering with the judgment of the High Court at the instance of a party who was not adversely affected is against judicial comity and propriety. 27. Reliance was also placed by Mr. Rath on the judgment of the Supreme Court in the case of Jamal Uddin Ahmad v. Abu Saleh Najmuddin and another, reported in (2003) 4 SCC 257 . Learned counsel referred to paragraph 11 of the said judgment where justice Lahoti (as His Lordship then was) speaking for the Court held that the power to do an act includes within itself the power of doing all such acts as are essentially necessary to its execu¬tion. Learned counsel referred to paragraph 11 of the said judgment where justice Lahoti (as His Lordship then was) speaking for the Court held that the power to do an act includes within itself the power of doing all such acts as are essentially necessary to its execu¬tion. In coming to the said conclusion, the learned Judge relied on various treaties on statutory interpretation by learned Authors like Maxwell, Sutherland, Craies and G.P.Singh, and relied on the proposition formulated by the Supreme Court in Chief Executive Officer & Vice Chairman, Gujarat Maritime Board v. Haji Harun Abu, reported in (1996) 11 SCC 23 . In that judgment the Supreme Court held : “It is well settled that where a substantive power is conferred upon a Court or tribunal, all incidental or ancillary powers necessary for an effective exercise of the substantive power have to be inferred.” Those observations were made in the context of the controversy about presentation of the Election Petition in view of the provi¬sion of Sub-section (2) of Section 80A of the Representation of the People Act. In the group of cases which were decided in that judgment such petition was presented before the Stamp Reporter. The learned Judges relying on the aforesaid principles in para¬graph 11 held that it is absurd to think that either the Chief Justice or the High Court alongwith all Judges or the designated Election Judge has to be personally present to accept the petition. When the petition as presented before the Stamp Reporter it amounts to the presentation of the petition before the High Court. 28. But the issue in this case is not as trivial as all that. So, the decision in Jamaluddin does not assist this Court in this case. 29. Reliance was also placed by the learned Amicus Curiae on a decision of the Supreme Court in the case of Kailash v. Nanhku and others, reported in AIR 2005 SC 2441 . In that case the learned Judge was construing the provisions of Order 8, Rule 1, CPC which prescribes the time bound schedule for the defendant to file written statement. Chief Justice Lahoti (as His Lordship then was) construing the said provision held that the said provi¬sion does not restrict the power of the Court to take a written statement on record though filed beyond time as provided for. Chief Justice Lahoti (as His Lordship then was) construing the said provision held that the said provi¬sion does not restrict the power of the Court to take a written statement on record though filed beyond time as provided for. In coming to the conclusion the Court held that the provision of Order 8, Rule 1, CPC is procedural and same is not to operate to nullity substantive law. As all rules of procedure are handmaid of justice the language employed in procedural law must be con¬strued in such a manner as to advance the cause of justice and no party should ordinarily be denied the opportunity of participat¬ing in the process of justice dispensation by filing the written statement unless prevented by express and specific language of the Statute. 30. A provision for review is not normally procedural at all. Review is in the nature of a remedy and is a substantive part. Therefore, when the Legislature has consciously given under Section 11(7) finality to a decision of the Chief Justice or his designate under Section 11(6) of ABC and has not provided for review, then to read a right of review in such provisions by an interpretation process would, in my opinion, amount to amending the statute by reading something into it which is clearly not there. Such an interpretation would fall foul of Section 5 of ABC. Therefore, decision on the construction of purely procedural aspect of law does not cover the present situation. 31. In the context of statutory dispensation under Sections 5, 11 and various sub-clauses including the finality clause under Section 11(7), the Court must hold that the intention of the Legislature is clear that the Parliament seeks to restrict the intervention by Court with the decision of the Chief Justice under Section 11(6), except of course the Constitutional provi¬sions like Article 136 which cannot be controlled by Statute. 32. It is obvious when Statute implies a finality clause the same operates as a bar to any statutory remedy of appeal or review. But such finality clause does not exclude the review under constitutional provisions and that is why it has been held in Patel Engineering that the decision of the Chief Justice under Section 11(6) is subject to appeal under Article 136 of the Constitution. But such finality clause does not exclude the review under constitutional provisions and that is why it has been held in Patel Engineering that the decision of the Chief Justice under Section 11(6) is subject to appeal under Article 136 of the Constitution. The exact language which has been used in this regard in para 37 at page 472 is set out below: “..... Therefore, a decision on jurisdiction and on the existence of the arbitration agreement and of the person making the request being a party to that agreement and the subsistence of an arbitrable dispute require to be decided and the decision on these aspects is a prelude to the Chief Justice considering whether the requirements of Sub-section (4), Sub-section (5) or Sub-section (6) of Section 11 are satisfied when approached with the request for appointment of an arbitrator.... Viewed from that angle, the decision on all these aspects rendered by the Chief Justice would attain finality and it is obvious that the decision on these aspects could be taken only after notice to the parties and after hearing them.” 33. If the said finality clause is considered in the con¬text of Section 5 of ABC, it acquires a renewed vigour. Section 5 of ABC is as follows : “5. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” 34. Argument has been made by the learned counsel for the petitioner that Section 5 does not apply at the stage of Section 11 but will apply only to the jurisdiction of the Arbitration Tribunal and conduct of Arbitral Proceedings under Chapters IV and V of Part-I of ABC. 35. This argument is obviously wrong. From a plain reading of Section 5 it is clear that the said Section applies to the whole of ‘this part’ and this part is Part I, which includes Section 11. 36. In Patel Engineering, the majority judgment in coming to the conclusion that the power on the Chief Justice under Section 11 is judicial in nature, took note of Section 5. The relevant observation on this aspect is set out below : “..... 36. In Patel Engineering, the majority judgment in coming to the conclusion that the power on the Chief Justice under Section 11 is judicial in nature, took note of Section 5. The relevant observation on this aspect is set out below : “..... Taking note of Section 5 of the Act and the finality attached by Section 11(7) of the Act to his order and the conclusion we have arrived at that the adjudication is judi¬cial in nature.....” (Para 39, page 473 of the report) It is therefore clear that the majority judgment in Patel Engi¬neering while construing the provisions of Section 11 has taken note of the content of Section 5. Therefore, the argument that Section 5 does not apply to Section 11 is contrary to the provisions of the Statute and also to the majority judgment in the Patel Engineering. Apart from the majority judgment in Patel Engineering. Section 5 of ABC has been construed in other judgments by the Supreme Court as expressing the Legislative intent and object of ABC. 37. In P. Anand Gajapathi Raju and others v. P.V.G. Raju and others, reported in (2000) 4 SCC 539 , the Hon’ble Supreme Court while construing the Section 5 has stated as follows : “...... Section 5 which is contained in Part I of the new Act, defines the extent of judicial intervention in arbitration proceedings. It says that notwithstanding anything contained in any other law for the time being in force, in mat¬ters governed by Part I, no judicial authority shall intervene except where so provided in that Part. Section 5 brings out clearly the object of the new Act namely, that of encouraging resolution of disputes expeditiously and less expensively and when there is an arbitration agreement, the Court’s intervention should be minimal.” (emphasis supplied) 38. It is clear that Section 5 is not confined in its application only to Chapters IV and V of ABC, but it governs all the Chapters in Part I of ABC in view of the clear legislative intent expressed in Section 5. The same view has also been expressed by Hon’ble Supreme Court in the case of Union of India v. Popular Construction Co., reported in (2001) 8 SCC 470 . 39. The same view has also been expressed by Hon’ble Supreme Court in the case of Union of India v. Popular Construction Co., reported in (2001) 8 SCC 470 . 39. While construing Section 34 of ABC, learned Judges described the sweep of Section 5 at paragraph 15 which is as follows : “The ‘Part’ referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is con¬tained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act.” 40. In view of such clear finding by the Hon’ble Supreme Court, it is difficult for this Court to uphold the argument of the learned counsel that Section 5 applies only to Arbitral process under Chapters IV and V of Part I. This Court is of the opinion that Section 5 applies to all the Chapters of Part I including Section 11. 41. Learned counsel for the petitioner also relied on a decision of the Division Bench of Calcutta High Court in the case of Maheswari Brothers Limited v. National Highways Authority of India, reported in 2007 (1) Arb.LR 64 (Calcutta) to which I was a party. In that case, the Division Bench held that an order passed under Section 9 of ABC, in a given case, is open to review. The said judgment is clearly distinguishable in view of the ratio in the case of Patel Engineering. In Patel Engineering, it has been held when power is conferred on a Court, as in the case of power under Section 9 of ABC, in such a case, all the powers which are available to a Civil Court are also attracted to the power exer¬cised under Section 9. But here, the power has been given to the Chief Justice which is different from the power conferred on a Court. (See para 18, Page 465 of the report in Patel Engineer¬ing). 42. Therefore, considering the matter from all its angle, this Court, for the reasons discussed above, is of the opinion that a review petition for reviewing the order of the Chief Justice passed under Section 11(6) of the Act is not maintain¬able. 43. This Court records its deep appreciation of the assist¬ance rendered by the amicus curiae Mr. Rajat Kumar Rath. 44. As such, the present review petition is dismissed. 43. This Court records its deep appreciation of the assist¬ance rendered by the amicus curiae Mr. Rajat Kumar Rath. 44. As such, the present review petition is dismissed. There will be no order as to costs. Petition dismissed.