The court dismissed a review petition seeking to recall an order dismissing an arbitration appeal. The petitioner failed to establish an error apparent on the face of the record and refused to deposit the award amount, leading to the rejection of the review prayer.
The review petition is dismissed; the order dated 09.01.2009 remains valid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RAP1_09.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.1 OF 2009
IN
ARBITRATION APPEAL NO.19 OF 2008
Madhusudan Goswami … Petitioner Vs. STCI Commodities Limited and another … Respondents
Mr. Ram Upadhyay i/b. Law Competere Consultus for Petitioner. Mr. M. K. Jariwalla i/b. R. K. Asso. for Respondent No.1.
CORAM : R. G. KETKAR, J. DATE : JULY 14, 2017
P.C. :
Heard Mr. Upadhyay, learned Counsel for the petitioner and Mr. Jariwalla, learned Counsel for the respondent No.1 at length.
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Application as an Appeal under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'Act'). He, therefore, submitted that this is a fit case for exercising powers under Section 114 read with Order XLVII thereby recalling the order dated 09.01.2009. In support of this proposition, he relied upon the decision of the Apex Court in the case of Chairman & Managing Director, Central Bank of India and others Vs. Central Bank of India SC/ST Employees Welfare Association & others , AIR 2006 SC 326 , and in particular paragraph 9 where the Apex Court reproduced paragraph 25 of State of Rajasthan Vs. Surendra Mohnot , (2014) 14 SCC 77 as also paragraphs 13 and 14. In paragraph 14, the Apex Court referred to its earlier decision in S. Nagaraj Vs. State of Karnataka , 1993 Supp (4) SCC 595 . Relying upon these decisions, Mr. Upadhyay submitted that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. In paragraph 14, the Apex Court reproduced paragraph 18 of S. Nagaraj ( supra ) wherein it was observed that justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone.
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even in the grounds in paragraph 11, petitioner has described himself as 'appellant'. The matter was heard before this Court on 09.01.2009 when the following order was passed:
“An appeal under the Arbitration and Conciliation Act, 1996 has been filed in order to challenge an arbitral award dated 12th March, 2008 of the Arbitral Tribunal. In view of the provisions of section 34, an appeal would not be maintainable for the purposes of challenging the arbitral award since under the provisions of section 37 of the Act, an appeal lies against the original decree of the Court setting aside or refusing to set aside the arbitral award under section 34. The Arbitration Appeal is accordingly disposed of on the ground that it is not maintainable leaving it open to the appellant to take recourse to such remedies as are available in law. In the event the appellant does so, all questions including the question of limitation are kept open.”
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petitioner, I called upon Mr. Upadhyay to indicate as to whether petitioner is willing to deposit amount under the Award so that his request for recalling the order can be considered. This is in view of the fact that the award was made as far back as on 11.03.2008 and during the penency of the proceedings, the Act was amended with effect from 23.10.2015. Amended Section 36(2) lays down that where an application to set aside the arbitral award has been filed under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of subsection (3), on a separate application made for that purpose. Sub-section (3) lays down that upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court, may subject to such conditions as it may deem fit, grant stay to the operation of such award for reasons to be recorded in writing. Proviso thereto lays down that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (for short 'C.P.C.').
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power will result in realisation of the fruits of the decree. The provision made under Order 41, Rule 1(3) of Civil Procedure Code appears to be in public interest with intention to shorten the length and width of the unnecessary litigation and to prevent multiplicity of the proceedings and at the same time to help the decree holder to realise the fruits of the decree obtained by him. This often not used provision needs to be activated and put into operation considering the flooded corridors of the Court which, in my view, would not only serve the ends of justice between the parties but serve the cause of administration of justice.
(R. G. KETKAR, J.)
Minal Parab
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3 issues framed by the court
Whether the review petition filed under Section 114 CPC is maintainable in light of the petitioner's refusal to deposit the award amount.
Whether an error apparent on the face of the record exists regarding the characterization of proceedings as an appeal under Section 34.
Whether the petitioner satisfies the conditions required for recalling the order dismissing the arbitration appeal.
Colour shows how this judgement treated each authority
Chairman & Managing Director, Central Bank of India and others Vs. Central Bank of India SC/ST Employees Welfare Association & othersRelied on¶15
Chairman & Managing Director, Central Bank of India and others Vs. Central Bank of India SC/ST Employees Welfare Association & others, AIR 2006 SC 326
State of Rajasthan Vs. Surendra MohnotReferred¶15
State of Rajasthan Vs. Surendra Mohnot, (2014) 14 SCC 77 · Who else cites this
S. Nagaraj Vs. State of KarnatakaReferred¶15
S. Nagaraj Vs. State of Karnataka, 1993 Supp (4) SCC 595 · Who else cites this
Bhogvati Sahakari Sakhar Vs. Chaugule and SonsRelied on¶26
Bhogvati Sahakari Sakhar Vs. Chaugule and Sons, AIR 2003 Bom. 185 · Who else cites this
2 provisions across 2 enactments
Madhusudan Goswami
STCI Commodities Limited
R. G. KETKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
