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2022 DIGILAW 338 (TRI)

Oil And Natural Gas Corporation Ltd. , v. Swapan Kumar Paul

2022-08-17

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - The Oil and Natural Gas Corporation Ltd. (ONGC for short) [appellant in Arbitration Appeal No.3 of 2019] has filed this petition in terms of Order 47, Rule 1, CPC seeking review of the judgment and order dated 22.06.2022 passed by this Court in Arbitration Appeal No.3 of 2019. 2. Heard Mr. D.K. Biswas, learned senior advocate appearing along with Mr. G.K. Nama, learned advocate for the petitioner(s). Also heard Mr. Raju Datta learned advocate appearing along with Mr. Kundan Pandey, advocate for the respondent(s). 3. The perspective facts which are relevant for appreciation of the challenge, briefly stated, are as under: The review petitioner (appellant in Arbitration Appeal No.3 of 2019) filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Act for short) before the learned District Judge, West Tripura, Agartala for setting aside the arbitral award dated 29.03.2010 passed by the sole Arbitrator. The said application came to be registered as Civil Misc. (Arbitration) 18 of 2018 before the learned District Judge, West Tripura at Agartala. The following facts were brought to the notice of the learned District Judge by filing the said application under Section 34 of the Arbitration Act: (i) Different types of vehicles including car, taxi, hard top ambulance, non-AC TATA Indigo LX etc were hired by the review-petitioner from respondent Sri Swapan Kumar Paul under 04 different contracts which were executed between the review-petitioner and said Sri Swapan Kumar Paul on different dates. Contract No.9010014028 was executed on 16.03.2011, contract No. 9010014069 was executed on 22.03.2011, contract No.9010016874 was executed on 07.12.2012 and contract No.9010018962 was executed on 18.12.2013. Other than the hard top ambulance and the emergency vehicles, all other vehicles were hired by the review-petitioner for carrying out duty for 12 hours per day and the hard top ambulance and all other emergency vehicles were hired for performing duty for 24 hours per day. (ii) In terms of the contracts executed between the parties, the respondent placed his vehicles at the disposal of the review-petitioner within the stipulated time. Log books were maintained for each of the vehicles to record the kms/distance run by the vehicle. The respondent had asserted in his claim statement before the arbitrator that the review-petitioner often used to keep many of the hired vehicles off the road without assigning any duty to those vehicles. Log books were maintained for each of the vehicles to record the kms/distance run by the vehicle. The respondent had asserted in his claim statement before the arbitrator that the review-petitioner often used to keep many of the hired vehicles off the road without assigning any duty to those vehicles. This apart, the review-petitioner in breach of the contract, used to keep the vehicles out of duty without any advance intimation to the respondent which caused huge loss to the respondent. When the respondent raised bills claiming the hiring charges, the review-petitioner arbitrarily reduced the bill amount on the ground that excess kms was recorded in the log books. The review-petitioner arbitrarily reduced the kms in the log book without consulting the claimant and refused to sanction the bill amount. As a result, dispute cropped up between the parties. 4. In terms of the Arbitration clause contained in the contract, the disputes were referred to the sole Arbitrator for adjudication. 5. The review-petitioner claimed that the claims of the respondent having been raised beyond the permissible period of 01 year, such claims would be hit by clause 7.6 of the contract. The review-petitioner further claimed that no wrongful deductions from the bills raised by the claimants were made. Deductions which were made from those bills were in accordance with the contract executed between them. 6. The Arbitrator framed separate issues for determination of the disputes and passed the following award(s): 'AWARD(S) In view of the foregoing discussions, the instant five arbitral proceedings succeed and the claims of the Claimants in all the five matters are allowed in full. The Respondent-ONGC shall pay the Claimants: (i) The sum of Rs.6,87,563.09 in Matter No.1, arising out of Contract No.9010014028 dated 16/03/2011 (ii) The sum of Rs.26,72,500/- only in Matter No.2, arising out of Contract No.9010014069 dated 22/03/2011 (iii) The sum of Rs.7,66,357.30 only in Matter No.3, arising out of Contract No.9010016874 dated 7/12/2012; (iv) The sum of Rs.2,63,822.07 only in the Matter No.4, arising out of Contract No.9010018962 dated 18/12/2013; and (v) The sum of Rs.8,52,406.86 only in Matter No.5, arising out of contract No.9010011736 dated 29/03/2010. The Respondent shall also pay the Claimants interest on the amounts so awarded in the aforesaid five matters at the rate of 12% per annum from 14.03.2016 till this date, in the facts and circumstances contended by the latter. The Respondent shall also pay the Claimants interest on the amounts so awarded in the aforesaid five matters at the rate of 12% per annum from 14.03.2016 till this date, in the facts and circumstances contended by the latter. The sums so directed to be paid by these arbitral awards in all these five matters shall also carry interest @18% p.a from this date to the date of payment. For the reasons amply and appallingly indicated above, the Claimants shall also get costs of these proceedings in all five matters. Since no statement/account had been submitted on behalf of the Claimants regarding the expenses incurred by them in respect of the instant proceedings, the Claimants shall get lumpsum cost of Rs.1.5 Lac in each of the instant five matters for the expenses incurred by them towards Arbitrator's fees, travelling expenses and accommodation charges etc. Advocate's fees, Legal and Miscellaneous expenses, which seems to me to be reasonable, fair and modest for the parties concerned. The Awards have been transcribed on stamp papers worth Rs.100/- only in the five matters. The parties shall be at liberty to get the exact value of the stamp papers assessed by the Collector of Stamps, and pay the same before the Awards are sought to be enforced, if so required. It is placed on record that no original document has been filed by any of the parties in these arbitral proceedings. Since the Arbitral Tribunal is not a court of records, the parties are directed to take back their pleadings and documents etc. filed before it, on condition to produce the same before any competent forum/court, as and when required, in the absence of any provision for preservation of the same. The Arbitral Awards having thus been made, all the five arbitral proceedings shall stand terminated under Section 32(1) of the Arbitration and Conciliation Act, 1996, as amended by the Amendment Act of 2015 (3 of 2016)' 7. As stated, the review petitioner filed a petition under Section 34 of the Arbitration Act in the Court of the learned District Judge, West Tripura, Agartala challenging the said arbitral award which was registered as Civil Misc. (Arbitration) 18 of 2018 against Shri Swapan Kumar Paul. As stated, the review petitioner filed a petition under Section 34 of the Arbitration Act in the Court of the learned District Judge, West Tripura, Agartala challenging the said arbitral award which was registered as Civil Misc. (Arbitration) 18 of 2018 against Shri Swapan Kumar Paul. The review petitioner filed a separate application under Section 34 of the Arbitration Act against Smt. Namita Paul, wife of said Shri Swapan Kumar Paul challenging the same arbitral award which was registered as Civil Misc.(Arbitration) 17 of 2018 before the learned District Judge, West Tripura, Agartala. 8. The learned District Judge by his judgment and order dated 28.06.2019 passed in Civil Misc. (Arbitration) 18 of 2018 decided the case of the review petitioner declining to interfere with the arbitral award except to the extent of interfering with the rate of interest granted by the sole Arbitrator. The order passed by the learned District Judge in the Civil Misc. (Arbitration) 18 of 2018 is as under: 'Now, therefore, the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 by the petitioner is partly allowed only to the extent that the portion of impugned award granting interest to the opposite party @ 12% per annum from 14.03.2016 till the date of award is hereby quashed. The petition is accordingly disposed of on contest.......' 9. By a separate judgment dated 04.01.2021 passed in Civil Misc. (Arbitration) No.17 of 2018 arising out of the application filed by the review-petitioner under Section 34 of the Arbitration Act against Smt. Namita Paul, wife of the present respondent, the learned District Judge remitted the matter back to the sole Arbitrator for fresh decision after setting aside the arbitral award. The judgment reads as under: 'In view of above discussions, the impugned award dated 28.07.2018 passed by the Sole Arbitrator, so far it relates to O.P., Smti Namita Paul in respect of contract no.9010011736 dated 29.03.2010, is set aside and matter is remanded to the Ld. Arbitrator for fresh decision of the connected disputes between the parties. The case is accordingly disposed of on contest.......' 10. Aggrieved by and dissatisfied with the judgment and order dated 28.06.2019 passed by the learned District Judge in civil Misc. (Arbitration) 18 of 2018 (ONGC v. Sri Swapan Kumar Paul), review-petitioner filed an appeal under Section 37 of the Arbitration Act which came to be registered as Arb. The case is accordingly disposed of on contest.......' 10. Aggrieved by and dissatisfied with the judgment and order dated 28.06.2019 passed by the learned District Judge in civil Misc. (Arbitration) 18 of 2018 (ONGC v. Sri Swapan Kumar Paul), review-petitioner filed an appeal under Section 37 of the Arbitration Act which came to be registered as Arb. A.03 of 2019 and the same was decided by us by judgment and order dated 22.06.2022. Having found no ground to interfere with the judgment of the learned District Court, we passed the following order: '[24] As discussed, no cross appeal has been filed by the claimant contractor against the impugned judgment. Having gone through the entire facts and circumstances of the case and the materials placed on record, we are of the considered view that there is no error in the impugned judgment and therefore, we decline to interfere with the same in appeal. Resultantly, the appeal stands dismissed.' 11. The review petitioner has sought for review of the said judgment passed in Arb. A. 03 of 2019 mainly on the following grounds: (i) No ground has been assigned by this Court as to why Arbitration Appeal No.03 of 2019 of the review-petitioner was dismissed. (ii) Interpretation of Clause 7.6 of contract No.9010014028 in the judgment was uncalled for because there was no ambiguity in the said clause. (iii) Argument of appellant's (review-petitioner's) counsel that the arbitrator should have passed separate order against each of the separate contracts has not been accepted and the ratio decided by the Hon'ble Apex Court in the case of Duro Felguera, S.A v. Gangavaram Port Limited reported in (2017) 9 SCC 729 has not been applied in deciding the appeal. (iv) Without hearing petitioner's counsel on the issue of non-payment of charges for non-working days, a finding has been given on the issue and that too against the terms of the contract. (v) Interest has been awarded against the terms of the contract. 12. In the course of hearing of the review-petitioner, Mr. D.K. Biswas, learned senior advocate raised the issues aforesaid and contended that the errors as entered in the judgment dated 22.06.2022 are apparent on the face of the record. Therefore, learned counsel has urged for a review of the said judgment. 13. Mr. 12. In the course of hearing of the review-petitioner, Mr. D.K. Biswas, learned senior advocate raised the issues aforesaid and contended that the errors as entered in the judgment dated 22.06.2022 are apparent on the face of the record. Therefore, learned counsel has urged for a review of the said judgment. 13. Mr. Raju Datta, learned advocate appearing on behalf of the respondent on the other hand, opposes the contentions of the petitioner's counsel. Mr. Datta, learned counsel contends that there is no self-evident error which can be treated as an error apparent on the face of record justifying exercise of the power of review. Counsel contends that for an error which can be discovered only by a long process of reasoning and which is not manifest on the face of the record, review of a judgment is not permissible. It is argued by Mr. Datta that petitioner's counsel could not point out to such manifest error in the judgment and therefore, the review-petition is devoid of merit. Counsel urges the Court to reject the petition. 14. Considered the submissions made by learned counsel representing the parties. Perused the entire record. 15. This Court having due regard to the facts and circumstances of the case, submissions made by the counsel of the parties and the decisions which were referred to by learned counsel representing the parties, came to a conclusion that the impugned judgment dated 28.06.2019 passed by the learned District Judge in Civil Misc. (Arbitration) 18 of 2018 did not call for any interference in appeal and accordingly, dismissed the appeal lodged by the present review-petitioner. 16. Having gone through the review-petition and having appreciated the submissions made by the counsel of the petitioner, we are of the considered view that the grounds which have been cited in the petition cannot build up a case for interference with the judgment and order dated 22.06.2022 passed by us in Arb. A. 03 of 2019. When a Court can review its judgment is almost settled. 17. In Hari Bishnu Kamath v. Ahmad Ishaque reported in AIR 1955 SC 233 , the Hon'ble Apex Court has succinctly held that there should be something more than a mere error to exercise the power of review. A. 03 of 2019. When a Court can review its judgment is almost settled. 17. In Hari Bishnu Kamath v. Ahmad Ishaque reported in AIR 1955 SC 233 , the Hon'ble Apex Court has succinctly held that there should be something more than a mere error to exercise the power of review. Observation of the Apex Court in the said judgment is as under:- '...it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.' 18. In Lily Thomas and Others v. Union of India and Others reported in (2000) 6 SCC 224 the Apex Court clearly observed that there must be mistake or an error apparent on the face of the records for review of a judgment. It was held by the Hon'ble Apex court that error as contemplated under the rule of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence [Para 58]. 19. In the case of Board of Control for Cricket in India and Another v. Netaji Cricket Club and others, reported in (2005) 4 SCC 741 , the Hon'ble Apex Court revisited the relevant precedents including Lily Thomas (supra) and observed as under: '90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine 'actus curiae nemimem gravabit'. 91. It is true that in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius this Court made observations as regards limitations in the application of review of its order stating: (SCR p. 529) 'Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, at least analogous to those specified in the rule'.' but the said rule is not universal. 92. Yet again in Lily Thomas v. Union of India [ (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court has laid down the law in the following terms: (SCC pp. 247-48, para 52) '52. The dictionary meaning of the word 'review' is 'the act of looking, offer something again with a view to correction or improvement'. It cannot be denied that the review is the creation of a statute. 247-48, para 52) '52. The dictionary meaning of the word 'review' is 'the act of looking, offer something again with a view to correction or improvement'. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [ (1971) 3 SCC 844 : AIR 1970 SC 1273 ], held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.' 93. It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent even. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29-9-2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake.' 20. In a subsequent decision in State of West Bengal and Others v. Kamal Sengupta and Another reported in (2008) 8 SCC 612 , the Apex Court in a different factual context observed as under on the power of review: '35. The principles which can be culled out from the above noted judgments are: (i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression 'any other sufficient reason' appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. (vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.' 21. In Yashwant Sinha and Others v. Central Bureau of Investigation reported in (2020) 2 SCC 338 the Apex Court reiterated that review petition is maintainable if the impugned judgment discloses an error apparent on the face of the records. Observation of the Apex Court is as under: '77. A review petition is maintainable if the impugned judgment discloses an error apparent on the face of the record. Unlike a proceeding in certiorari jurisdiction, wherein the error must not only be apparent on the face of the record, it must be an error of law, which must be apparent on the face of the record, for granting review under Article 137 of the Constitution read with Order 47 Rule 1 CPC, the error can be an error of fact or of law. No doubt, it must be apparent on the face of record. Such an error has been described as a palpable error or glaring omission. No doubt, it must be apparent on the face of record. Such an error has been described as a palpable error or glaring omission. As to what constitutes an error apparent on the face of record, is a matter to be found in the context of the facts of each case. It is worthwhile to refer to the following discussion in this regard by this Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque [Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233 ], wherein this Court held as follows : (AIR p. 244, para 23) '23. It may therefore be taken as settled that a writ of 'certiorari' could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? The learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Salim M. Merchant [Batuk K. Vyas v. Salim M. Merchant, 1952 SCC OnLine Bom 46 : AIR 1953 Bom 133 ] that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' 78. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' 78. The view of this Court, in Girdhari Lal Gupta (supra) as also in Deo Narain Singh (supra), has been noticed to be that if the relevant law is ignored or an inapplicable law forms the foundation for the judgment, it would provide a ground for review. If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be per incuriam. No doubt, the concept of per incuriam is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to review as it would betray a clear error in the decision. 79. As regards fresh material forming basis for review, it must be of such nature that it is relevant and it undermines the verdict. This is apart from the requirement that it could not be produced despite due diligence.' [Emphasis added] 22. Apparently, the petitioner could not make out any such manifest error in the judgment. 23. Having scrutinized the entire judgment vis-a-vis the grounds cited in the petition, we could not find out any ground for review of the judgment dated 22.06.2022. Resultantly, the review petition, being untenable, stands rejected. 24. In terms of the above, the matter is disposed of. Pending application(s), if any, shall also stand disposed of.