Madhuban Chemicals & Fertilizer Limited v. National Highway Authority of India
2015-07-03
P.K.LOHRA
body2015
DigiLaw.ai
JUDGMENT : P.K. Lohra, J. The applicant-appellant has laid this review application under Section 114 read with Order 47 of the Code of Civil Procedure, 1908 (for short, 'CPC') seeking review of judgment dated 11th August, 2014, rendered in S.B. Civil Misc. Appeal No. 647 of 2014. By the judgment under review, appeal of the applicant under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, 'Act') is rejected after examining the matter on merits in absence of counsel. 2. The appeal is filed by the applicant to challenge the order dated 17.02.2014 passed by Addl. District & Sessions Judge No.1, Udaipur on its application under Section 34 of the Act for setting aside arbitral award dated 21st of November, 2006. The learned Addl. District Judge rejected application of the applicant for setting aside arbitral award on the ground of limitation by treating it to be time barred. In the judgment under review, matter is examined threadbare and, while relying on some of the decisions of the Hon'ble Apex Court, found that in an application under Section 34 of the Act, Section 5 of the Limitation Act, 1963 is not applicable. 3. Precisely, for seeking review of the judgment, applicant has taken shelter of Section 31(5) of the Act which envisages delivery of signed copy of arbitral award to each party and it is contended that as the signed copy was not delivered to the applicant, limitation has not reckoned. While laying emphasis on Section 31(5) of the Act, it is urged in the review application that invocation of Section 34 (3) of the Act in the instant case does not arise and as this aspect has not been examined by the Court, judgment is liable to be reviewed. In support of his contentions, learned counsel has placed reliance on a decision of Hon'ble Apex Court in Union of India v. Tecco Trichy Engineers & Contractors [ (2005) 4 SCC 239 ]. In this verdict, there was a delay of 27 days and therefore Hon'ble Apex Court while taking into account the facts and circumstances of the case condoned the delay of 27 days.
In this verdict, there was a delay of 27 days and therefore Hon'ble Apex Court while taking into account the facts and circumstances of the case condoned the delay of 27 days. In yet another judgment, on which the learned counsel for the applicant has relied, is the case of National Projects Construction Corporation Limited v. Bundela Bandhu Construction Company, 2007 (2) Arb.LR 239 (Delhi) (DB), wherein Division Bench of Delhi High Court has held that in want of delivery of copy of arbitral award by the sole arbitrator question of delay has not arisen and accordingly proceeded to set aside the order under Section 34 of the Act. It goes without saying that before the sole arbitrator applicant was represented by its counsel, who was absent at the time of passing of the arbitral award as he was absent at the time of hearing of the appeal also. The learned Addl. District Judge has considered this aspect of the matter and rejected application of the applicant under Section 34 by observing that applicant remained dormant for almost 8 months from the date of passing of the arbitral award and has not made any endeavour to inquire about the arbitral proceedings or for obtaining copy of the arbitral award. While feeling satisfied with the aforesaid finding of the learned Addl. District Judge, the judgment impugned is rendered by this Court dismissing the appeal. 4. In totality, in the considered opinion of this Court, the so called mistake or error pointed out by the applicant is not an error or mistake apparent on the face of record warranting exercise of review jurisdiction. The whole endeavour of the applicant is to rehear and thrash out the matter on merits de-novo, which is beyond the scope of review. One more redeeming fact is that when the appeal was called out for hearing, neither the applicant nor its counsel was present to render assistance to the Court and therefore while examining the matter at its own, the judgment under review was passed. Therefore, it is not in fitness of things to grant indulgence to the applicant for reviewing the judgment. Hon'ble Apex Court, while examining the nature and scope of review, in Sow Chandra Kante & Anr. v. Sheikh Habib [ (1975) 1 SCC 674 ], has held: "Mr.
Therefore, it is not in fitness of things to grant indulgence to the applicant for reviewing the judgment. Hon'ble Apex Court, while examining the nature and scope of review, in Sow Chandra Kante & Anr. v. Sheikh Habib [ (1975) 1 SCC 674 ], has held: "Mr. Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to rehearing. May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different Counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of Counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for Counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as Counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality." 5. This Court in Uda Ram v. The Central State Farm & Ors.
May be, as Counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality." 5. This Court in Uda Ram v. The Central State Farm & Ors. [ 1998 (2) WLC 256 ], while considering scope of review has held that if the party has not agitated points urged in the application/appeal at the time of hearing, Court is not under obligation to decide all issues and review the judgment or order. The Court held: "... It is difficult to understand how the review petition is maintainable as the case certainly does not fall within the ambit of principle enshrined in Order 47, Rule 1 of the Code of Civil Procedure. A party may raise various points in the petition but if all of them are not agitated at the time of hearing, the Court is under no obligation to decide all the issues taken in the petition. The Court is not supposed to find out all the issues involved in a given case, conduct full-fledged research on them and then decide all of them on merit. Rather, it is not permissible for the Court to deal with such issues as other party could not have been in a position to reply the submissions so raised by the Court suo motu. The principle or fairness, equity, justice and good conscience requires that other party must be given an opportunity to answer the line of reasoning adopted on a particular issue and if an issue not agitated by a party at the time of hearing is dealt with by a Court, it may cause grave injustice to the other party. This view stands fortified by a judgment of nine Judges Bench of Hon'ble Supreme Court in New Delhi Municipal Council v. State of Punjab (1997) 7 SCC 339 . 6. Therefore, viewed from any angle, I am not persuaded to grant any indulgence to the applicant in this review application and consequently the review petition fails and the same is hereby dismissed.