The High Court of Calcutta, while dismissing an application filed, seeking review of a judgment and order dated 5.3.2021 arising out of an arbitration petition filed by the award-debtor (respondent in the present application), held that a judgment that fails to consider a decision that was available at the time of pronouncing the judgment, but was not shown to the Court, by the same logic, is not reviewable on the ground of being per incuriam.
Brief Facts:
The judgment and order dated 5.3.2021 was passed in an application by the judgment debtor for a stay of the award dated 31.1.2020. The application was made under section 36(3) of The Arbitration and Conciliation Act, 1996. The application was disposed of by directing the award-debtor (respondent herein) to put in an amount of Rs. 1,30,51,678/- in an interest-bearing fixed deposit. The award-holder was restrained from taking any steps for execution of the award on the compliance of the directions by the award-debtor.
Contentions of the Applicant:
The learned counsel appearing on behalf of the Applicant submitted that the Court directed the award-debtor to secure only the principal amount and not the interest component of the award dated 31.1.2020 overlooking the decision of the Supreme Court in Hyder Consulting (UK) Limited vs. Governor, State of Orissa; (2015) 2 SCC 189 where the arbitral award + interest has been described as the “sum”. He argued that since Hyder Consulting was not placed before the Court at the time of pronouncement of the order, the review becomes automatically maintainable on the Court having overlooked a settled principle of law.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the review application is not maintainable since there is an absence of any error apparent on the face of the judgment. He argued that the application is essentially an appeal in disguise and relied on Explanation to Order XLVII Rule 1 of The Code of Civil Procedure, 1908 to urge that Hyder Consulting cannot be a ground for review of the judgment dated 5.3.2021.
Observations of the court:
The court noted that the Explanation to Order XLVII Rule 1 is not relevant to this matter and does not assist the respondent award-debtor since Hyder Consulting was pronounced on 25.2.2014 which is before the judgment under review was decided on 5.3.2021. Therefore, the position of law which was before the Court as of 5.3.2021 cannot be said to have been reversed or modified by any subsequent decision of a superior Court and bar review on that ground.
The court observed that a judgment containing an erroneous point of law is not reviewable; it is an appealable judgment. A judgment pronounced on a question of law that is subsequently reversed or modified by a superior Court is also not a reviewable judgment. A judgment that fails to consider a decision that was available at the time of pronouncing the judgment, but was not shown to the Court, by the same logic, is not reviewable on the ground of being per incuriam.
The decision of the Court:
The Calcutta High Court, dismissing the application, held that there is no error apparent on the face of the judgment and order dated 5.3.2021.
Case Title: Everest Infra Energy Limited vs Transmission (India) Engineers & Anr.
Coram: Hon’ble Mr. Justice Moushumi Bhattacharya
Case No.: IA No: GA 2 of 2022
Advocate for the Applicant: Mr. Shuvasish Sengupta
Advocate for the Respondent: Mr. Sakya Sen
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