Calcutta High Court
Radha Bhattad vs Rashmi Cement Limited on 1 September, 2023
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
(Commercial Division)
Present :
Hon'ble Justice Moushumi Bhattacharya.
IA NO: GA 1 of 2023
In
RVWO 34 of 2023
Radha Bhattad
vs
Rashmi Cement Limited
For the petitioner : Mr. Suddhasatva Banerjee, Adv.
Mr. Dyutimoy Paul, Adv.
Mr. Soumyadip Panda, Adv.
For the respondents : Mr. Soumabho Ghose, Adv.
Mr. Rishav Dutt, Adv.
Mr. Siddhartha Sharma, Adv.
Ms. Shalini Basu, Adv.
Last heard on : 11.08.2023
Delivered on : 01.09.2023.
Moushumi Bhattacharya, J.
1. The present application has been filed for review of a judgment delivered
by the Court on 26.6.2023. The said judgment was passed in AP 327 of 2023
which was an application for appointment of an arbitrator under section 11 of
The Arbitration and Conciliation Act, 1996. The AP was allowed and disposed
of by appointing a former judge of this Court to act as the Sole Arbitrator. The
respondent (review applicant) was represented and heard in the proceedings.
2. The grounds of review contained in the Memorandum are essentially on
the point that the judgment suffers from an error apparent on the face of the
record and also that the review applicant has discovered new and important
evidence which was not within his knowledge and could not be produced at the
time of delivery of the judgment despite due diligence.
3. Learned counsel for the respondent in the present application (petitioner
in AP 327 of 2023) raises a point of maintainability of the present application
on the ground that the applicant cannot seek review of the judgment as the
1996 Act does not contain any provisions for review of orders passed by a
Court under the Act including under section 11 of the said Act. Counsel also
submits that the applicant must satisfy the conditions of Order XLVII Rule 1 of
The Code of Civil Procedure, 1908 which have also not been satisfied in this
case. Counsel relies on several decisions to urge that the 1996 Act is a
complete Code and does not provide for review. Counsel further seeks to draw a
distinction between the power of recall and of review to urge that the High
Court can exercise its plenary jurisdiction to recall its order but that the same
cannot be construed to confer the power to review unless the concerned statute
specifically provides for it.
4. Learned counsel appearing for the review applicant (respondent in the AP
who suffered the order) contests the above view to say that Article 215 of the
Constitution vests the High court with the power to correct its records which
would also include the power of review its judgment and orders.
5. The view of the Court is stated in the following paragraphs.
6. Article 215 of the Constitution of India declares the High Courts to be
Courts of record and is set out below :
"215. High Courts to be courts of record.- Every High Court shall be
a court of record and shall have all the powers of such a court including
the power to punish for contempt of itself. "
7. In M.M Thomas v. State of Kerala; (2000) 1 SCC 666, one of the issues
before the Supreme Court was whether the power to review a decision rendered
under the Kerala Private Forests (Vesting and Assignment) Act, 1971 could
have been exercised in the absence of any of the conditions specified in section
8-C of the said Act. The other issue was whether the High Court has the power
to review its own decision rendered in an appeal filed under the Act. The
Supreme Court came to the view that the High Court is a Court of records as
envisaged under Article 215 of the Constitution and therefore has inherent
powers to correct the records. The Supreme Court proceeded to hold that;
"A court of Record involves all such powers whose acts and proceedings are to be
enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a
superior court which is itself competent to determine the scope of its jurisdiction. The
High Court, as a court of record, has a duty to itself to keep all its records correctly
and in accordance with law."
8. M.M. Thomas relied on Halsbury's Laws of England (4th Edn., Vol. 10,
para 713) which makes a distinction between superior and inferior Courts in
connection with jurisdiction. The explanation on the distinction is reproduced
below.
"Prima facie, no matter is deemed to be beyond the jurisdiction of a superior
court unless it is expressly shown to be so, while noting is within the
jurisdiction of an inferior court unless it is expressly shown on the face of the
proceedings that the particular matter is within the cognizance of the
particular court. An objection to the jurisdiction of one of the superior courts of
general jurisdiction must show what other court has jurisdiction, so as to
make it clear that the exercise by the superior court of its general jurisdiction
is unnecessary. The High Court, for example, is a court of universal
jurisdiction and superintendency in certain classes of actions, and cannot not
be deprived of its ascendancy by showing that some other court could have
entertained the particular action."
9. M.M. Thomas placed reliance on an earlier decision of the Supreme Court
in Naresh Shridhar Mirajkar v. State of Maharashtra; AIR 1967 SC 1 and M.V
Elisabeth v. Haewan Investment & Trading (P) Ltd.; AIR 1993 SC 1014 both of
which held that the High Courts in India are superior Courts of records and
have inherent plenary powers. Paragraph 17 of the Report in M.M. Thomas
concludes that it is only proper that the plenary powers of the High Court
would include the power of review relating to errors apparent on the face of the
records.
10. In Municipal Corporation of Greater Mumbai v. Pratibha Industries Limited;
(2019) 3 SCC 203, the Supreme Court relied on M.M. Thomas and on Shivdev
Singh; AIR 1963 SC 1909 wherein Article 226 of the Constitution had been
invoked to declare that there is nothing in Article 226 to preclude the High
Court from exercising the power of review which inheres in every Court of
plenary jurisdiction in order to prevent miscarriage of justice or to correct grave
and palpable errors committed by it. In Municipal Corporation of Greater
Mumbai, the Supreme Court considered the issue of recalling an order passed
under section 9 of The Arbitration and Conciliation Act, 1996 but expanded its
view to include the argument of review in similar situations.
11. A Division Bench of this Court in Accord Advertising Pvt. Ltd. v. Airports
Director, The Airports Authority of India; MANU/WB/1919/2019 relied on
Shivdev Singh. M.M. Thomas as well as Municipal Corporation of Greater
Mumbai to reject the argument that a Court which passes an order in an
appeal under section 37 of the 1996 Act cannot review its own order since the
power is expressly excluded under the 1996 Act. The Division Bench opined
although the 1996 Act is a complete Code, the power of review is not restricted
by the provisions of the Act and the order can indeed be reviewed if it conforms
to the requirements of Order XLVII Rule 1 of the Code of Civil Procedure. In
Hindustan Construction Company Ltd. v. State of Maharashtra (Review Petition
No. 2 of 2013 in Arbitration Appeal No. 6 of 2007 in Arbitration Application No.
44 of 2003), a Single Bench of the Bombay High Court came to the same view,
namely, that the High Court has plenary powers to correct any apparent error
in respect of any orders passed by the High Court.
12. The objection to the maintainability of the present application is
primarily based on the distinction between review and recall of an order and
also the necessity of conforming to the conditions under Order XLVII Rule 1 of
The Code of Civil Procedure which stipulates the threshold benchmark for
allowing a review application to go through the gates. The first objection with
regard to the distinction of review and recall fails as the Supreme Court in M.M
Thomas clearly included apparent errors noticed by the High Court in respect
of the order passed by the High Court within its competence as a superior
Court of record. The second objection requires a separate paragraph for
discussion.
13. It is important to demarcate the source if invocation of the power of
review and the power to enter into a substantive review of the order on merits.
Article 215 of the Constitution declares High Courts to be Courts of records.
Being Courts of records, the High Courts are invested with inherent powers to
correct the records. The term "Courts of records" does not simply mean keepers
of records but that the High Courts have an obligation, indeed a duly, to
maintain correct records within its jurisdiction in accordance with law. The
power to correct orders, including where there is an apparent error on the face
of the record, falls within the plenary powers of the High Court as a Court of
record. The power under Article 226 of the Constitution, although emanating
from a different source, reinforces the power as held in Shivdev Singh where
the Supreme Court specifically held that there is nothing in Article 226 to
preclude a High Court from exercising the power of review as a Court of plenary
jurisdiction for preventing miscarriage of justice.
14. Therefore, this Court is of the view that Article 215 can be invoked for
exercising the power to review the judgment passed by this Court on 26th June,
2023. The High Court, in exercise of its plenary powers, cannot be fettered by
the limitations of the 1996 Act in respect of review or be hemmed-in by the
strictures of Order XLVII Rule 1 of The Code of Civil Procedure at the stage of
allowing the application to enter through the gates. The first, that is invocation
of the powers under Article 215 of the Constitution is a question of
maintainability which is answered in the affirmative; the second that is Order
XLVII Rule 1 of The Code of Civil Procedure is a question on merits which will
determine the review-ability of the order within the contours of Order XLVII
Rule 1 of The Code of Civil Procedure.
15. This Court is therefore of the view that the present application succeeds
in clearing the threshold test and entering the arena of review. The Court will
consider whether the application succeeds on the merits and the tests of Order
XLVII Rule 1 once the matter is taken up for hearing.
16. RVWO 34 of 2023 is therefore held to be maintainable. The parties shall
be at liberty of mentioning the matter for hearing at an early date.
Urgent photostat certified copies of this judgment, if applied for, be
supplied to parties upon fulfilment of requisite formalities.
(Moushumi Bhattacharya, J.)
