Full Judgment Text
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CASE NO.:
Review Petition (civil) D5970 of 2006
PETITIONER:
M/S JAIN STUDIOS LIMITED THROUGH ITS PRESIDENT
RESPONDENT:
SHIN SATELLITE PUBLIC CO. LTD.
DATE OF JUDGMENT: 11/07/2006
BENCH:
C.K. THAKKER
JUDGMENT:
JUDGMENT
REVIEW PETITION (C) NO. D5970 OF 2006
IN
ARBITRATION PETITION NO.1 OF 2005
C.K. THAKKER, J.
The present review petition is filed against an order
dated January 31, 2006 passed in Arbitration Petition
No.1 of 2005, in Shin Satellite Public Co. Ltd v. M/s Jain
Studios Ltd., (2006) 2 SCC 628. The prayer is to review
the said order and restore the Arbitration Petition to the
file for reconsideration. A further prayer is made to
permit the applicant to nominate Hon’ble Mr. Justice
Satpal, Retd. Judge, High Court of Punjab and Haryana
as one of the arbitrators.
Notice was issued by me on May 4, 2006 by making
it returnable on May 11, 2006. On returnable date, the
parties were heard.
It is not necessary to narrate the facts in detail in
the present review petition since they had been stated in
the main order. It was submitted by the learned counsel
for the applicant that there were two obvious errors in
the order wherein it was observed as if the applicant
(respondent in the Arbitration Petition) submitted that
arbitration may be held in London or in Singapore where
arbitration proceedings were going on between the
parties and the applicant had no objection if the matter
was referred to arbitration in London or in Singapore.
On merits, it was submitted by the learned counsel
for the applicant that the dispute between the parties
under the agreement was to be finally resolved by
arbitration under the rules of UNCITRAL. Article 5 relates
to composition of arbitral tribunal and provides that if
the parties had not previously agreed to the number of
arbitrators and if within fifteen days after the receipt by
the respondent of the notice of arbitration, the parties
had not agreed that there should be only one arbitrator,
three arbitrators should be appointed. According to the
applicant, Shin Satellite, through its advocate, served a
notice and called upon the applicant herein to appoint an
arbitrator but no appointment was made by the
applicant. On that eventuality, submitted the counsel,
three arbitrators ought to have been appointed. It is not
disputes that the applicant contested the matter urging
that there was no legal and valid arbitration agreement
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between the parties. It is also not disputed that in the
light of the objection by the applicant herein, an
application was made by Shin Satellite to the Hon’ble the
Chief Justice of India for appointment of arbitrator under
sub-section (6) of Section 11 of the Aarbitration and
Conciliation Act, 1996 (’Act’ for short) and as a nominee
of the Hon’ble the Chief Justice of India, by an order
dated January 31, 2006, I allowed the application and
appointed Hon’ble Mr. Justice M.L. Pendse, Retd. Judge
as the sole arbitrator. The counsel, however, submitted
that as per UNCITRAL Model, three arbitrators ought to
have been appointed. To that extent, therefore, the order
deserves to be reviewed and an appropriate order
requires to be passed for appointment of three
arbitrators.
The learned counsel for the respondent contested
the review petition. He raised a preliminary objection that
review petition is not maintainable and it is liable to be
dismissed on that ground alone. He submitted that there
is no inherent power of review in a Court or in any other
authority. Such power must be conferred expressly by a
statutory provision. It is also submitted that the
judgment of a larger Bench of this Court in SBP &
Company v. Patel Engineering Ltd., (2005) 8 SCC 618
makes it clear that the power exercised by the Chief
Justice of a High Court or his nominee or by the Chief
Justice of India or his nominee under sub-section (6) of
Section 11 of the Act is ’judicial’. Relying on sub-section
(7) of Section 11 of the Act, the counsel submitted that
the decision of the Chief Justice or his nominee is ’final’
and no review lies against such order.
On merits, it was submitted that the applicant
seeks to re-agitate the same point which was advanced at
the time of hearing. A prayer was made when the main
matter was argued that the applicant may be granted
time to make the appointment of an arbitrator but the
prayer was rejected. By invoking review jurisdiction,
virtually the same prayer has been made, which was
expressly negatived earlier. The learned counsel
submitted that the review is yet another dilatory tactic
adopted by the applicant who is not interested in speedy
resolution of dispute between the parties. He, therefore,
submitted that the review application may be dismissed
with costs.
So far as the maintainability of review petition is
concerned, in my opinion, the preliminary objection
raised by the learned counsel for the respondent is not
well-founded. In Patel Engineering Ltd., this Court by
majority of 6:1 held the function performed by the Chief
Justice of a High Court or his nominee or by the Chief
Justice of India or his nominee to be a ’judicial’ one.
Once the function performed by the Chief Justice of India
or his nominee is held to be judicial, it cannot be
contended that an application for review of an order
passed by the Chief Justice of India or his nominee is not
maintainable. In my opinion, the learned counsel for the
applicant is right in relying upon Article 137 of the
Constitution which reads thus:
137. Review of judgments or orders by
the Supreme Court.\027 Subject to the
provisions of any law made by Parliament
or any rules made under article 145, the
Supreme Court shall have power to
review any judgment pronounced or order
made by it.
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An order passed by the Chief Justice of India
or his nominee under Section 11(6) of the Act is
indeed an ’order’ within the meaning of Article 137
of the Constitution and is subject to review under
the aforesaid provision.
I accordingly hold the review petition to be
maintainable and proceed to consider it on merits.
Regarding correction of errors shown by the
applicant, the learned counsel for the opponent
does not dispute the position and accordingly the
submission is accepted by observing that it was not
the case of the applicant herein (respondent in the
main matter), that arbitration be held in London or
in Singapore. The mistake is ordered to be
corrected accordingly.
So far as the grievance of the applicant on
merits is concerned, the learned counsel for the
opponent is right in submitting that virtually the
applicant seeks the same relief which had been
sought at the time of arguing the main matter and
had been negatived. Once such a prayer had been
refused, no review petition would lie which would
convert rehearing of the original matter. It is
settled law that the power of review cannot be
confused with appellate power which enables a
superior Court to correct all errors committed by a
subordinate Court. It is not rehearing of an
original matter. A repetition of old and overruled
argument is not enough to reopen concluded
adjudications. The power of review can be exercised
with extreme care, caution and circumspection and
only in exceptional cases.
When a prayer to appoint an arbitrator by the
applicant herein had been made at the time when
the Arbitration Petition was heard and was
rejected, the same relief cannot be sought by an
indirect method by filing a review petition. Such
petition, in my opinion, is in the nature of ’second
innings’ which is impermissible and unwarranted
and cannot be granted.
For the aforesaid reasons, the limited prayer
to the extent of clarification of the order as to the
stand taken by the applicant and the statement
made on its behalf is granted. The larger prayer for
reconsideration of the order passed in the
Arbitration Petition and allowing the applicant to
nominate Hon’ble Mr. Justice Satpal, Retd. Judge
of the High Court of Punjab & Haryana as one of
the arbitrators, however, is rejected. In the facts
and circumstances of the case, however, there shall
be no order as to costs.