Dismissed

S.E.C.L. Thr. Chairmancum M.D.and Ors. v. M/S Shrikishan and Co. Engineer and Contra.

Chhattisgarh HC9 Aug 2012REVP/103/2012

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed a review petition filed to challenge an order dismissing an application for appointment of an arbitrator. The court held that no new facts were disclosed and the petition amounted to an impermissible attempt to convert a review into an appeal.

What did the court decide?

Review application dismissed. No order as to costs.

S.E.C.L. Thr. Chairmancum M.D.and Ors. Vs M/S Shrikishan… — Arbitration | Chhattisgarh HC (2012)

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(S)

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HIGH COURT OF CHHATTISGARHATBHASPUR

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ReviewPetition No. 103 of2012

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PETITIONERS

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South • Eastem Coalfields Limited, Through the Chairmancum-Managing Du-ector, S.E.C.L. Seepat Road, Bilaspur (C.G.).

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The Geaeral Manager (Civil), S.E.C.L. Seepat Road, Bilaspur (C.G.).

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T&e StafF Officer, (Civil), S.E.C.L. Dipika Area, District Korba, (C.G.)

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VERSUS

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RESPONDENT

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M/s. Shrikishan & Company, Engineer & Contractors, B-4, Commercial Complex, T.P. Nagar, Korba, District Korba (C.G.) Through : Proprietor - Shushil Agrawal, R/o T.P. Nagar, Korba (C.G.)

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REVEW PETITION UNDER SECTION 1 14 R/W ORDER 47 RULE O) OF THE CODE OF CTVIL PROCEDURE

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fSB: Hon'ble Mr. N.K AsarwaL J.)

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ORAL ORDER

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(Passed on 09.08.2012)

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Delay in filing review petition is condoned.

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The matter is considered in chamber under the provisions of Rule 90(2) ofthe High Court ofChhattisgarh Rules, 2007.

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By this review petition, the review petitioners seek review of the order dated 29.02.2012 passed in Arbitration Application No. 10 of 2008 (M/s Shrikishan & Company v. South Eastern Coalfields Limited & others).

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In reply to the application filed by the respondent for appointment of arbitrator, the petitioners herein denied existence of arbitration agreement pleading vide amendment in the Civil Engineering Manual, which came into effect in July, 2004, clause 14.1 stands amended and matter cannot be referred for arbitration. By way ofadditional submission/reply, it was further pieaded, on 2 July, 2009, the petitioners herein have taken a decision to cancel the contract awarded to flie respondent; decided to forfeit EMD Security Dqiosits amouating Rs. 54,31,698.98, to recover compensation amounting to Rs. 53,31,061.26 as per clause 6.2 ofthe General Terms and Conditions of the contract and to recover Rs. 71,84,199.62 against the loss sustained by the petitioners under clause 10.2 of the General Terms and Conditions of the contract.

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This court answered the contentions raised by the petitioners herein in negative in the following manner:

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"14. According to respondents, fhe arbitration clause 14 is subject to revisions and modifications from time to time. The above clause stands amended w.e.f. July, 2004 aad in place ofclause 14.1, clause 15 has been inserted and in view of clause 15, the matter cannot be referred for arbitration.

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Surprisingly, no document has been field by the respondents to substentiate the above stand

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taken by them in tiie reply. On the contrary, the petitioner has filed the infonnation (Annexure B & Annexure C) received under Right to Information Act, which shows, Civil Engineering Manual was amended with due approval in December, 2007 only.

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In view of above, it cannot be said that in view of alleged amendment in Civil Engineering Manual w.e.f. July, 2004 arbitrati5n clause 14 stands deleted and matter camiot be referred for arbitration.

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This Court in MCC No. 128/05 (Annexure A/3), while dealing with the similar contract md the similar provision of Civil Engineering Manual has reached to a finding that the agreement refers to applicability of the Civil Engineering Manual and agreement does have arbitration clause."

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While dismissing Special Leave to Appeal (Civil) No. 15383/2012 filed by the petitioners herein, the Supreme Court passed the following order

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"Having heard leamed counsel for the petitioner, we are not inclined to entertain the special leave petition, which is accordingly dismissed."

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Respondent filed an application for appointment ofarbitrator in the year 2008. The petitioners herein have filed their additional reply on 22.06.2011. The fact of filing of alleged civil suit No. 4-B/l 1 in the year 2011 before the District Judge, Bilaspur, was neither relevant nor disclosed by the petitioners eifher in the reply filed by Ifaem or at the time ofhearing.

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The review petitioners thus have failed to brought into the notice of any new fact which could not be produced earlier despite diligent efforts made by the petitioners.

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The parameters are prescribed in Order 47 of CPC which pennit a reheuing "on account of some mistake or error apparent on tfae face of the records and/or for any other '-^ sufficient reason". The former. part of the mle deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postiilate a rehearing ofthe dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefally and/or binding precedents to the court and thereby enjoyed a favourable verdict. Tliat is amply evident from the explanation to Order 47 Rule 1 of'CPC.

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Principle of law is well settled by several judicial pronouncements ofthe Hon'ble Supreme Court in the cases of Smt. Meera Bhanja vs. Smt. Nimiala Kumari Choudhary^, Lily Thomas, etc. vs. Union oflndia and other^, Ajit Kiimar Rath vs. State ofOrissa and other/, Govemment ofT.N. and others vs. M. Ananchu Asari and others and Kerla State Electricity

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%i^

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'AIR. 1995 SC 455 2AIR2000SC1650 3 AIR 2000 SC 85 4 2005(2)5cc 332

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Board vs. Hitech Electrothermics & Hydropower Ltd and other^.

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Applying the well setded principles of law to the facts of the present case, there is no ground available for review of the order dated 29.02.2012. Under the garb ofthe review petition, the petitioners seek an opportunity to argue the entire case afresh which would amount to 'convert the review petition into appeal andthe same is not sustainable in law.

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