Andhra Pradesh High Court - Amravati
Chinnari Suryanarayana vs Nagireddy Srinivasa Rao, on 30 September, 2022
IN THE HIGH COURT OF ANDHRA PRADESH
***
Rev. I.A.No.1 of 2022
In
Arbitration Application No.138 of 2017
Rev.I.A.No.1 of 2022
BETWEEN:
# Nagireddy Srinivasa Rao, S/o. Prabhakara Rao,
R/o. MIG-1, Plot No.54, Sector - III,
MVP Colony, Visakhapatnam,
Visakhapatnam District.
... Petitioner
AND
$ 1. Chinnari Suryanarayana, S/o. Satyanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
2. Chinnari Rayalakshmi, W/o. Suryanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
3. Chinnari Rajesh, S/o. Suryanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
4. Chinnari Ganesh, S/o. Suryanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
... RESPONDENTS
Date of Judgment pronounced on : 30.09.2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2 RRR,J
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*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+ Rev. I.A.No.1 of 2022
In
Arbitration Application No.138 of 2017
% Dated:30.09.2022
Rev.I.A.No.1 of 2022
BETWEEN:
# Nagireddy Srinivasa Rao, S/o. Prabhakara Rao,
R/o. MIG-1, Plot No.54, Sector - III,
MVP Colony, Visakhapatnam,
Visakhapatnam District.
... Petitioner
AND
$ 1. Chinnari Suryanarayana, S/o. Satyanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
2. Chinnari Rayalakshmi, W/o. Suryanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
3. Chinnari Rajesh, S/o. Suryanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
4. Chinnari Ganesh, S/o. Suryanarayana, R/o. 12-31 (1)-1A,
Official Colony, Srikakulam Town and Mandal, Srikakulam District.
... RESPONDENTS
! Counsel for Petitioner : Sri A. K. Kishore Reddy
^Counsel for Respondents : Sri T.V.P. Sai Vihari
<GIST :
>HEAD NOTE:
? Cases referred:
1. 2006 (5) SCC 501
2. 2005 (8) SCC 618
3. (1971) 3 SCC 844 at page 847,
4. 1980 Supp SCC 420 : 1981 SCC (L&S) 309
5. AIR 2008 All 56
6. AIR 2008 All 95
3 RRR,J
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HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Rev. I.A.No.1 of 2022
In
Arbitration Application No.138 of 2017
ORDER:
The respondent in the Arbitration Application is the review
petitioner herein. The respondents in this review petitioners are being
referred to as the applicants.
2. The applicants had entered into a development agreement
dated 14.12.2011 with the respondent for development of land belonging
to them for the purpose of constructing apartment complex in the said
land in Pata Srikakulam Village, Srikakulam Mandal and District. On
account of the disputes that arose between the parties, an application was
filed before this Court under Section 11 of the Arbitration and Conciliation
Act, 1996 (for short 'the Act') for appointment of an arbitrator. This
application was allowed on 27.08.2021 and an Arbitrator was appointed to
adjudicate the disputes between the parties.
3. After the said order had been passed, the respondent in the
arbitration application has filed the present review application. The
contention of the review petitioner is that the learned Judge while allowing
the application had recorded, in paragraph 14 of the order, the contention
of the review petitioner, that the application is barred by limitation and, in
paragraph 15 of the order, the contention of the applicants that the
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application is not barred by limitation and observed, in paragraph 20 of
the order, as follows:
"In the instant case, no plea is taken in the counter-affidavit
that the dispute raised by the applicants is a stale claim and
barred by limitation and, therefore, it is not necessary for
this Court to dilate on the aforesaid issue."
4. The review petitioner contends that even though such a
claim had been raised by the review petitioner, the learned Judge had not
taken the said claim into account, due to which, the right of the review
petitioner to object to the arbitration on the ground of limitation is lost.
5. Sri A.K. Kishore Reddy would submit that the counter
affidavit filed by the review petitioner had specifically adverted to various
dates and even though the express, specific contention, that the
application is barred by limitation, may not have been raised, the fact
would remain that a reading of the pleadings would clearly show that such
a plea has been raised by implication.
6. Sri T.V.P. Sai Vihari, learned counsel appearing for the
respondents in the present application would submit that a review petition
under Section 11 of the Act is not maintainable.
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7. He relies upon the judgment of the Hon'ble Supreme Court
in Jain Studios Ltd., vs. Shin Satellite Public Co. Ltd.,1 (paragraphs 6
and 8) for this proposition.
8. Heard Sri A.K. Kishore Reddy, learned counsel appearing for
the review petitioner and Sri T.V.P. Sai Vihari, learned counsel appearing
for the respondents in this application.
9. In view of the judgment of SBP & Co. vs, Patel
Engineering Ltd., and Anr.,2 it is now well settled that the proceedings
under Section 11 of the Act are judicial proceedings.
10. However, the question - whether a review is available
against the orders passed under Section 11 of the Act ?, has to be
considered.
11. In Jain Studios Ltd., vs. Shin Satellite Public Co. Ltd.,
the Hon'ble Supreme Court was considering a case where a review
application was moved against an order under Section 11 of the Act. While
considering this issue, the Hon'ble Supreme Court had held that by virtue
of Article 137 of the Constitution of India, a review is provided against any
judicial order of the Hon'ble Supreme Court and as such a review would
be maintainable. However, the Hon'ble Supreme Court did not go into the
question, whether a review against an order under Section 11 of the Act
would be available, de hors Article 137 of the Constitution of India.
2006 (5) SCC 501
2005 (8) SCC 618
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12. The present application is before the High Court, which does
not have the benefit of Article 137 of the Constitution of India. In such
circumstances, it would have to be seen whether such review is
permissible on the basis of any provision of law or judgment.
13. The Hon'ble Supreme court, while considering the decision of
a quasi judicial authority to set aside an earlier order, on merits, in the
case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji3,
had held as follows:
4. The first question that we have to consider is whether
Mr Mankodi had competence to quash the order made by the
Saurashtra Government on October 22, 1956. It must be
remembered that Mr Mankodi was functioning as the
delegate of the State Government. The order passed by Mr
Mankodi, in law amounted to a review of the order made by
Saurashtra Government. It is well settled that the power to
review is not an inherent power. It must be conferred by law
either specifically or by necessary implication. No provision in
the Act was brought to notice from which it could be
gathered that the Government had power to review its own
order. If the Government had no power to review its own
order, it is obvious that its delegate could not have reviewed
its order. The question whether the Government's order is
correct or valid in law does not arise for consideration in
these proceedings so long as that order is not set aside or
declared void by a competent authority. Hence the same
cannot be ignored. The Subordinate Tribunals have to carry
(1971) 3 SCC 844 at page 847,
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out that order. For this reason alone the order of Mr Mankodi
was liable to be set aside.
14. This decision was cited before a division bench of the hon'ble
Supreme Court, in Grindlays Bank Ltd. v. Central Govt. Industrial
Tribunal4, at page 425, where the Hon'ble Supreme Court was
considering the power of the Industrial tribunal to set aside an ex parte
order. The Hon'ble Supreme Court distinguished this judgement by
holding as follows:
13. We are unable to appreciate the contention that
merely because the ex parte award was based on the
statement of the manager of the appellant, the order setting
aside the ex parte award, in fact, amounts to review. The
decision in Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273] is
distinguishable. It is an authority for the proposition that the
power of review is not an inherent power, it must be
conferred either specifically or by necessary implication. Sub-
sections (1) and (3) of Section 11 of the Act themselves
make a distinction between procedure and powers of the
Tribunal under the Act. While the procedure is left to be
devised by the Tribunal to suit carrying out its functions
under the Act, the powers of civil court conferred upon it are
clearly defined. The question whether a party must be heard
before it is proceeded against is one of procedure and not of
power in the sense in which the words are used in Section
11. The answer to the question is, therefore, to be found in
sub-section (1) of Section 11 and not in sub-section (3) of
1980 Supp SCC 420 : 1981 SCC (L&S) 309
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Section 11. Furthermore, different considerations arise on
review. The expression "review" is used in the two distinct
senses, namely (1) a procedural review which is either
inherent or implied in a court or Tribunal to set aside a
palpably erroneous order passed under a misapprehension
by it, and (2) a review on merits when the error sought to be
corrected is one of law and is apparent on the face of the
record. It is in the latter sense that the court in Patel Narshi
Thakershi case [(1971) 3 SCC 844 : AIR 1970 SC 1273] held
that no review lies on merits unless a statute specifically
provides for it. Obviously when a review is sought due to a
procedural defect, the inadvertent error committed by the
Tribunal must be corrected ex debito justitiae to prevent the
abuse of its process, and such power inheres in every court
or Tribunal.
15. The issue, whether an application for review of an order,
under section 11 of the Act, would be maintainable, came up before the
Hon'ble High Court at Allahabad in Manish Engineering Enterprises
vs. Managing Director, IFFCO, New Delhi & Ors.5. The judgement in
this case was followed in Smt. Chandra Dickshit vs. Smart Builders6.
In both the cases, the Hon'ble High Court of Allahabad took the view that
the power of review is a creature of the statute and in the absence of
such specific power it would not be appropriate to hold that a review is
maintainable, unless the review is a procedural review.. The observations
of the Hon'ble High Court of Allahabad, on this count, are as follows:
AIR 2008 All 56
AIR 2008 All 95
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"In Grindlays Bank v. Central Government Industrial
Tribunal, reported at 1980 Supp SCC 420 : AIR 1981 SC 606,
the Apex Court held that a procedural review, where to
remove a wrong suffered by a party for no fault of the party,
would be maintainable. In Kapra Mazdoor Ekta Union v. Birla
Cotton Spinning and Weaving Mills Ltd., reported at (2005)
13 SCC 777 : (AIR 2005 SC 1782), the Apex Court has
observed in para 19 that where a court or quasi-Judicial
authority having Jurisdiction to adjudicate on merits
proceeds to do so, its judgment or order can be reviewed on
merit only if the court or the quasi-judicial authority is vested
with power of review by express provision or by necessary
implication. However, if there is a procedural irregularity, the
order can be reviewed by exercise what is described as
procedural review. "
16. There is no provision in the Arbitration and Conciliation Act,
1996, providing for a review of an order passed under Section 11 of the
Act. The provisions of the Act also do not make out a case for holding
that such a power of review is available by implication. It is now necessary
to see whether the review sought by the review petitioner falls under the
category of review, on account of procedural irregularity or a review on
merits.
17. In the present case, there is no procedural irregularity in
terms of non-service of notice to the affected party or passing of an order
without hearing the affected party. The complaint of the review petitioner
is on the merits of the order passed by the learned judge. In such
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circumstances, the review sought by the review petitioner would have to
be treated as a review on merits.
18. As a review petition, on merits, is not permissible unless
there is a specific provision for such review, the present application would
have to be rejected on the ground that this Court does not have the
power to undertake the review on merits of an earlier order passed under
Section 11 of the Act. Accordingly the review application is dismissed.
__________________________
R. RAGHUNANDAN RAO, J.
30th September, 2022.
Js.
11 RRR,J
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HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Rev. I.A.No.1 of 2022
In
Arbitration Application No.138 of 2017
30th September, 2022
Js.
