Resources International, represented herein by its Partner, Dipak M. Rajani v. Ana Bertha do Rego e Fernandes
2014-02-07
U.V.BAKRE
body2014
DigiLaw.ai
JUDGMENT The above review applications are taken up together as they seek to review the common judgment and order, on the same grounds. 2. Heard Mr. Lotlikar, learned Senior Counsel appearing on behalf of the applicants and Mr. Nadkarni, learned Senior Counsel appearing on behalf of the respondents. 3. Admit. By consent, heard forthwith. 4. The applicants, who were the petitioners in Writ Petitions No. 852, 853 and 854 of 2012 have filed the present review applications praying for review of and setting aside the common judgment and order dated 22/10/2013 passed by the learned Single Judge of this Court in the said Writ Petitions. 5. The applicants have filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act, for short), before the Principle District Judge-I, South Goa, Margao, to challenge the award passed by the majority of the Arbitrators on 29/03/2008 in the Arbitration Proceedings. The said Applications under Section 34 of the Act were presented to the Registry of the District Court, South Goa and were admitted there and numbered as Arbitration Applications No. 18, 19, 20 of 2008. To the said Arbitration Applications, on 25/09/2008, the respondents filed their replies along with applications under Order VII, Rule 11 and Section 151 of C.P.C., for rejection of the said Arbitration Applications No.18, 19 and 20 of 2008, inter alia, on the grounds that the Court fee paid was not adequate and that the Arbitration Applications were not filed within the prescribed time limit. The applicants filed their replies to the applications under Order VII, Rule 11. To the said replies, the respondents filed their rejoinders dated 25/11/2008. Subsequently, on 05/01/2010, the applicants filed an application under Section 149/151 of C.P.C. which contained similar statements, which were mentioned in the replies to the applications filed under order VII, Rule 11 of C.P.C. Along with the said applications, the affidavits of Advocate on record namely Mr. V. L. Braganza, who had filed the Arbitration Applications under Section 34 of the Act, were annexed.
V. L. Braganza, who had filed the Arbitration Applications under Section 34 of the Act, were annexed. The respondents filed their replies dated 09/02/2010 opposing the said applications under Sections 149/151 of C.P.C. and in the said replies, the respondents prayed for an opportunity to cross-examine the witnesses/deponents which the petitioners may choose to examine in the course of enquiry which the Court would conduct in respect of the applications filed under Section 149/151 of C.P.C. By orders dated 16/11/2012, the learned Principal District Judge, South Goa, Margao allowed the said applications for permission to cross-examine the person, who had sworn the affidavit in the applications filed under Section 149/151 of C.P.C. i.e. Shri Dipak Rajani. The said Shri Dipak Rajani was directed to submit himself for cross-examination. It is against the said orders dated 16/11/2012 that Writ Petitions No. 852, 853 and 854 of 2012 were filed, all of which came to be dismissed by a common judgment dated 22/10/2013. 6. Mr. Lotlikar, learned Senior Counsel appearing on behalf of the applicants submitted that the respondents had relied upon the judgment of the Apex Court in the case of “Buta Singh (dead) by L.Rs. Vs. Union of India” reported in [ (1995) 5 SCC 284 ] and this Court had even quoted some portion of the observation of the Apex Court in the said judgment which, inter alia, is as follows: “It is the duty of the Registrar before admitting the appeal, to point out to the appellant or his counsel that the deficit court fee is payable on the MOA, and some reasonable time may be given for payment of the Court fee. The MOA would be returned to do the needful. If the deficit court fee is not made up and presented within the time enlarged under Section 148 of C.P.C., there would be no appeal in eye of law unless the delay is condoned.” Mr. Lotlikar submitted that the learned Single Judge did not record any finding as to why the request of the applicants, made in terms of Order VII, Rule 11, duly supported by the Civil Manual and further supported by above observations of the Apex Court, was not liable to be granted.
Lotlikar submitted that the learned Single Judge did not record any finding as to why the request of the applicants, made in terms of Order VII, Rule 11, duly supported by the Civil Manual and further supported by above observations of the Apex Court, was not liable to be granted. He, therefore, submitted that the impugned judgment and order suffers from an error apparent on the face of record and the same, therefore, deserves to be reviewed and set aside, since the import of the provision of Section 148 of C.P.C. has not at all been considered. 7. Per contra, Mr. Nadkarni, learned Senior Counsel appearing on behalf of the respondents submitted that in the said writ petitions, the challenge was only to the orders dated 16/11/2012 passed by the Principal District Judge, Margao by which order, the applications filed by the respondents for being permitted to cross-examine the person, who had sworn the affidavit in the applications filed under Section 149/151 of C.P.C., came to be allowed. He submitted that the question of grant of enlargement of time under Section 148 of C.P.C. was not the question for consideration in the said writ petitions. He pointed out that in paragraph 13 of the impugned judgment, the learned Single Judge of this Court has held that having regard to the nature of the orders passed i.e. permitting the respondents to cross-examine the witnesses/deponents of the affidavits filed on behalf of the petitioners in the applications filed by them under Section 149/151 of C.P.C., no case for interdiction in the writ jurisdiction of this Court under Article 227 of Constitution of India is made out. He pointed out that the above finding was in addition to whatever that has been held prior to paragraph 13 of the judgment. He, therefore, submitted that there is absolutely no substance in the present review applications and the same deserve to be dismissed with costs. He relied upon the judgment of the Apex Court in the case of “M/s. Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi”, [ 1980 (2) SCC 167 ]. 8.
He, therefore, submitted that there is absolutely no substance in the present review applications and the same deserve to be dismissed with costs. He relied upon the judgment of the Apex Court in the case of “M/s. Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi”, [ 1980 (2) SCC 167 ]. 8. Upon perusal of the impugned judgment and order and the other material on record made available to me and having considered the submissions made before me by the learned Senior Counsel for the respective parties and also the judgment relied upon by the learned Counsel for the respondents, I am of the considered view that no omission or mistake or any error apparent on the face of the record in the impugned judgment and decree, which would affect the decision, has been urged or shown. 9. Section 148 of C.P.C. provides for enlargement of time and it states that where any period is fixed or granted by the Court for doing of any act prescribed or allowed by this Code, the Court may in its discretion, from time to time, enlarge the said period, even though the period originally fixed or granted may have expired. Writ Petitions No. 852, 853 and 854 of 2012 were not filed challenging any orders either granting or rejecting any application under Section 148 of C.P.C.. The said writ petitions were filed against the order dated 16/11/2012, whereby the prayers made in the replies filed by the respondents for being permitted to cross-examine the person, who had sworn the affidavit in the applications filed under Section 149/151 of C.P.C., came to be allowed. The said applications under Section 149/151 of C.P.C., which are filed by the applicants are still pending for adjudication. From the observations of the Hon'ble Apex Court made in the cases of “Buta Singh (dead) by L.Rs” (supra); “A. Nawab John and others Vs. V.N. Subramaniyam” [ (2012) 7 SCC 738 ]; and “Land Acquisition Officer-cum-Collector, Kalahandi Vs. Sambaru Bartha.” ( AIR 1994 Ori.
From the observations of the Hon'ble Apex Court made in the cases of “Buta Singh (dead) by L.Rs” (supra); “A. Nawab John and others Vs. V.N. Subramaniyam” [ (2012) 7 SCC 738 ]; and “Land Acquisition Officer-cum-Collector, Kalahandi Vs. Sambaru Bartha.” ( AIR 1994 Ori. 90 ), which observations have been incorporated by the learned Single Judge of this Court in paragraphs 10 of the impugned judgment and order, the learned Single Judge found that the above judgments lay down the proposition that the power conferred on the Court under Section 149 of the C.P.C. has to be exercised in accordance with the settled principles of law and is not to be exercised in a manner conferring unfair advantage on one of the parties to the litigation. The question that was involved in the said writ petitions was whether the learned District Judge was right in allowing the applications filed by the respondents for cross-examination of the person, who has verified the contents of the applications under Section 149/151 of C.P.C. The question whether the Registrar of the District Court ought to have given an opportunity to the petitioners to make good the deficit court fee or not, has not been decided by the learned single Judge of this Court. In the circumstances above, there is absolutely no merit in the present review applications. 10. In the case of “Northern India Caterers (India) Ltd.” (supra), it has been held by the Apex Court that a review under Order XLVII, Rule 1 of C.P.C. can be granted only in case of glaring omission, patent mistake like grave error and not for rehearing of the case. A party is not entitled to seek review of the Court's judgment merely for the purpose of rehearing and for a fresh decision of the case. The Apex Court has held that the normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when the circumstances of a substantial and compelling character make it necessary to do so. It has been held that a plea for review unless it is judicial review is manifestly distorted and is like asking for moon. 11. Considering all the aspects, I am of the view there is no substance in the present review applications. Hence, all the Review Applications are dismissed.