Rachna Jaiswal And Anr vs Srei Equipment Finance Limited
2023 Latest Caselaw 1575 Cal/2

OD-11 & 16
                              ORDER SHEET

                   IN THE HIGH COURT AT CALCUTTA
                    Ordinary Original Civil Jurisdiction
                             ORIGINAL SIDE

                            IA NO. GA/1/2023
                                    In
                             RVWO/35/2023

                      RACHNA JAISWAL AND ANR.
                               Versus
                   SREI EQUIPMENT FINANCE LIMITED

                                   AND

                              EC/212/2022

                   SREI EQUIPMENT FINANCE LIMITED
                               Versus
                      RACHNA JAISWAL AND ANR.


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA

Date : 14th July, 2023.

Appearance:

Mr. Swatarup Banerjee, Adv.

Ms. Archana Chowdhary, Adv.

Mr. Siddhartha Banerjee, Adv.

Mr. Supratic Roy, Adv.

Mr. Raushan Kr. Roy, Adv.

Ms. Shahina Parveen, Adv.

Mr. Soumajit Majumder, Adv.

The Court: The judgment-debtors have filed an application for review of

the order passed by this Court on 9th June, 2023 in Execution Case No.

212/2022. The other prayer is that all further proceedings in the execution

case be stayed till disposal of the application for review.

The order under review records that the judgment-debtors have raised a

dispute at the stage of the execution proceedings to the effect that the

judgment-debtors were not served with a copy of the Award dated 16th March,

2016 and came to know of the Award only from the execution petition. Apart

from noting the submissions of learned counsel appearing for the parties, the

order further records that the judgment-debtors, for some inexplicable reason,

did not apply for setting aside of the Award and did not even take steps to that

effect by writing to the Arbitrator for a copy of the Award. The fact of the

judgment-debtors not taking any steps for setting aside of the Award despite

receiving the execution petition more than one year before the date of the order

i.e., 9th June, 2023, was further recorded. The execution petition was hence

listed on 16th June, 2023 for examination of the judgment-debtor no.1.

The application accompanied by the memorandum of review was filed on

10th July, 2023.

Learned counsel appearing for the judgment-debtors as well as the

award-holder have made their respective submissions.

According to counsel appearing for the judgment-debtors/applicants, the

order under review suffers from an error apparent on the face of the record

since the order omits to mention that the Arbitrator passed away much before

service of the execution petition on the judgment-debtors. The other point is of

the unilateral appointment of the Arbitrator which according to counsel

renders the Award a nullity.

The point of unilateral appointment and the consequence of such form

the substance of the judgment-debtors' objections to continuation of the

execution case. Surprisingly enough, none of these contentions from the

subject matter of an independent application filed by the judgment-debtors. All

these contentions have now sought to be raised in the application for review of

the order dated 9th June, 2023. The reason for not filing a separate and

independent application to seek the relief of a declaration of the Award being

rendered null and void for the reasons argued, if that option is at all available

to the judgment-debtors at this stage of the proceedings, seems to be clear. The

judgment-debtors perhaps know fully well that the objection to unilateral

appointment of an Arbitrator may not be available to them at the stage of

execution of an Award.

The Arbitration and Conciliation Act, 1996 charts out a route for an

aggrieved award-debtor both under Sections 34 and 37 (subject to the limited

instances) for arguing these points. The judgment-debtors have not availed any

of the routes provided under the statute and have raised these objections at the

stage of the execution proceedings. The argument with regard to unilateral

appointment will at best be considered by the Court at a later stage, if at all,

but certainly not at the stage of review of the order dated 9th June, 2023.

The review must be confined to the grounds provided under Order XLVII

Rule 1(1) of The Code of Civil Procedure, 1908. Counsel appearing for the

applicants submits that the case would come under the ground of error

apparent on the face of the record. The other grounds provided under Order

XLVII Rule 1(1) may not be attracted to this case.

The ground of error apparent on the fact of the record must be an error

which is stark and obvious to a Court without requiring further enquiry. The

error must not be such that the Court is led to a protracted fact-finding

mission to locate the error. The Court must, at first blush, be convinced that

the order contains a clear and unequivocal error on the face of the order. The

omission to record that the Arbitrator passed away long before the service of

the execution petition on the judgment-debtors does not fit within a common

sense understanding or even the settled position of law with regard to an error

apparent on the fact of the record.

First, the fact of the Arbitrator's passing away was pointed out by

counsel appearing for the judgment-debtors when the Court had already

started dictating the order. Second, the fact of the Arbitrator's passing away

before service of the execution case would not even be a material fact since the

judgment-debtors failed to seek recourse against the Award under Section 34

even after one year from the date of service of the execution case on the

judgment-debtors. Third, there is nothing on record to show that the judgment-

debtors were prevented from seeking the statutory remedies available to the

judgment-debtors under the 1996 Act by reason of the passing away of the

Arbitrator.

Although Order XLVII Rule 1 provides for "any other sufficient reason" for

seeking review of an order/judgment, this Court finds no other reason to be

sufficient, credible or tenable in the facts brought before the Court.

GA/1/2023 and RVWO/35/2023 are, accordingly, dismissed for the

above reasons. There will be no order as to costs.

List EC/212/2022 on 28th July, 2023, as prayed for, for continuing the

examination of the judgment-debtor, Hansraj Jaiswal.

The examination of the other judgment-debtors is closed.

The deponent will produce the documents, as undertaken on the last

occasion, on the returnable date.

(MOUSHUMI BHATTACHARYA, J.)

sg/R.Bhar