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2017 DIGILAW 835 (DEL)

METAL CLOSURES v. RELIGARE FINVEST LTD.

2017-03-08

INDIRA BANERJEE, V.KAMESWAR RAO

body2017
JUDGMENT : INDIRA BANERJEE, J 1. This is an application filed by the appellants under Section 114 read with Order 47 and Section 151 of the Code of Civil Procedure 1908, for review of a judgment and order dated 7.10.2016, whereby the appeal being FAO(OS)(COMM) 50/2016 filed by the appellants under Section 37 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the 1996 Act, has been dismissed. 2. The respondent no.1, Religare Finvest Ltd., a non-banking financial company, executed a Loan Facility Agreement with the appellants on 29.11.2011. 3. Pursuant to the said agreement, the respondent no.1 disbursed a loan of Rs.2,10,00,000/- to the appellant no.1, hereinafter referred to as the appellant company, on terms and conditions contained in the said Loan Facility Agreement. 4. As security for the loan advanced by the respondent no.1 to the appellant Company, the appellants mortgaged their property, specified in the petition, in favour of the respondent no.1, by depositing the original title deeds of the said property with the respondent no.1. 5. On or about 15.3.2014, the respondent no.1 recalled the loan facility and demanded repayment of the outstanding amount with interest. 6. Disputes and differences arose between the respondent no.1 and the appellants. The respondent no.1 invoked the arbitration clause in the Loan Facility Agreement, appointed Mr. Lalit Kumar as Sole Arbitrator and filed its statement of claim. 7. The learned arbitrator allowed the claim of the respondent no.1 by an ex parte award made and published on 17.9.2014. 8. The appellants filed an application under Section 34 of the 1996 Act before a Single Bench of this Court for setting aside the said arbitral award dated 17.9.2014. 9. By a judgment and order dated 17.5.2016, the said application under Section 34 of the 1996 Act, for setting aside the said arbitral award, was dismissed by the Learned Single Bench. 10. Being aggrieved the appellants filed an appeal before the Division Bench being FAO(OS)(COMM) 50/2016 which has been dismissed by the judgment and order dated 07.10.2016 of which review has been sought. 11. The appellants have sought review of order on the purported ground of apparent errors. 12. The appellants have submitted that this Court committed an error in accepting the factual finding of the learned Single Judge that notice of arbitration had duly been served on the appellant company. 13. 11. The appellants have sought review of order on the purported ground of apparent errors. 12. The appellants have submitted that this Court committed an error in accepting the factual finding of the learned Single Judge that notice of arbitration had duly been served on the appellant company. 13. The appellants have contended that the learned Single Judge had erroneously held that notice for arbitration sent on 3.7.2014 had been served and that the AD cards were available on record. 14. The appellants submit that the arbitral records do not contain any acknowledgement cards in relation to the notice sent on 3.7.2014. Assuming that this finding in the judgment and order of which review has been sought is erroneous, it cannot be said that the error is apparent on the face of the judgment and order. 15. In any case admittedly the notice dated 17.07.2014 was served on the appellant company. It cannot, therefore, be said that the appellants had no notice. 16. The next ground urged is that the judgment and order under review wrongly concluded that there were no third party rights involved in the disputes, merely because there were no pleadings to that effect. This is also not an apparent error. 17. There is a typographical error in paragraph 19 of the judgment under review. After the judgment was dictated and typed out, some corrections were incorporated. Unfortunately, certain typographical errors crept into the final print out, as some words got deleted inadvertently. The typographical errors and / or inadvertent deletions escaped the attention of this Court. The paragraph should have read “In the unreported judgment in Aditya Ganapa and Anr. Vs. Religare Finvvest Ltd. a Single Bench of this Court referred to the judgment of the Supreme Court in the State of Haryana Vs. Navir Singh, (2014) 1 SCC 105 , in the Context of requirement of registration of a contract evidencing the terms of mortgage by deposit of title deeds, but held that the loan agreement containing the arbitration clause did not create any mortgage and was therefore, not compulsorily registrable. On facts the Single Bench found that the Arbitrator, Mr.Nitin Chadha virtually an in house arbitrator had acted as arbitrator for Religare Finvest Ltd., the respondent no.1 in this appeal in more than 28 arbitrations, which was not disputed. On facts the Single Bench found that the Arbitrator, Mr.Nitin Chadha virtually an in house arbitrator had acted as arbitrator for Religare Finvest Ltd., the respondent no.1 in this appeal in more than 28 arbitrations, which was not disputed. The award passed by such an award was opposed to public policy and violative of natural justice. The judgment is distinguishable on facts, as the arbitrator is different and in any case, the decision of the Single Bench is not binding on the Division Bench.” A part of the paragraph got deleted. The words referred to Booz Allen (supra) were inadvertently not deleted. 18. The circumstances, in which review can be sought of a final judgment and order disposing of an appeal is provided in Order 47 of the Code of Civil Procedure. A review is by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only to correct a patent error. 19. The first and foremost requirement for entertaining a Review application is, that the judgment and order, review of which is sought, should suffer from such an error apparent on the face of the judgment and order, that permitting the error to remain would lead to failure of justice. In the absence of any such error, the finality attached to the judgment/order cannot be disturbed. 20. An error apparent on the face of the record must be such a patent error, which can be detected in one glance without long running arguments on either side. 21. An error, which is not evident and has to the detected by the process of reasoning and/or reassessment of evidence can hardly be said to be an error apparent on the face of the record, justifying exercise of the Court’s power of review. 22. Every erroneous decision does not call for exercise of the Court’s power of review. For exercise of power of review, it is imperative that the error should be apparent on the face of the judgment and order and that apparent error renders the decision itself erroneous and causes gross miscarriage of justice. 23. There are no grounds for review of the judgment and order dated 16.10.2016. The alleged errors pointed out do not go to the root of the decision in the appeal. The final outcome of the appeal would not have been any different. 24. 23. There are no grounds for review of the judgment and order dated 16.10.2016. The alleged errors pointed out do not go to the root of the decision in the appeal. The final outcome of the appeal would not have been any different. 24. The application for review is dismissed along with CM Appln. Nos.44824/2016 and 44825/2016.