Delhi High Court
M/S. Progressive Newspaper (P) ... vs Sharda Motor Industries Ltd. And ... on 10 November, 1994
Author: V Jain
Bench: V Jain
JUDGMENT
Vijender Jain, J.
1. This application for review of the judgment dated 4.3.1994 has been filed by the respondent. The case of the respondent is that on 9.2.1994 when the matter was fully argued by both the sides the court had orally stated that it had decided to set aside the award and on the objections of Mr. V. N. Saraf, the director of the plaintiff company who was also present in the court few names for referring the matter for arbitration were suggested and matter was adjourned to 22.2.1994, matter was not taken upon 22.2.1994 and the same was adjourned to 4.3.1994 when judgment was pronounced. Besides, other objections it has been stated in that the matter was not argued. The review application was filed by the respondent on 16.4.1994. It has been brought to my notice that subsequently respondent has also filed an appeal against the judgment and order passed by this court dated 4.3.1994. The same is pending before a Division Bench of this court. Mr. M. S. Vohra learned counsel for the respondent at the outset has argued that filing of appeal against the judgment and decree is no bar in maintaining the review application. In support of his arguments he has cited Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others (AIR 1954 SC 526), and Pandivi Satayanandan and others v. Paramkusam Nammayua and another .
2. On 9.2.1994 the court passed the following order :
"Mr. Vohra, learned counsel for the defendants, will seek instructions from his client what is the amount of license fee admittedly due in terms of the agreement. Mr. Vohra will bring a cheque for the admitted amount, according to him, of license fee in court on the next date.
Both parties will be present in court on the next date.
Refortify on 22nd February, 1994 as part heard.
P. N. Nag, J."
3. The matter was again listed before me on 22.2.1994 and as the counsel for the parties submitted that the matter was part heard and the same may be listed before P. N. Nag, J. on 4.3.1994. On 4.3.1994 P. N. Nag, J. passed the following order :
"The is a petition under Sections 14, 17 and 29 of the Arbitration Act, 1940 for making an award dated 11.11.1988 a rule of court along with interest @ 18% p.a. from the date of decree till realisation.
The disputes and differences having been arisen between the parties, the same were referred to the sole arbitration of Wing Commander N. N. Bahal who after having entered upon the reference gave his award dated 11.11.1988. This award has been filed into this court. Notice of filing of the award into court was given to both the parties. The petitioner has not filed any objections against the award whereas the respondents have filed objections by way of I.A. 8608/89.
After hearing learned counsel for the parties at length, on 9th February, 1994 Mr. Vohra, learned counsel for the respondent sought time to seek instructions from his clients as to what amount of license fee was admittedly due in terms of the agreement and that he would bring a cheque for the admitted amount in court for payment to the petitioner in spite of the order namely the cheque has not been given to the petitioner in spite of the order dated 9.2.1994. Today, counsel for the respondents is not present to substantiate his objections. I have gone through the objection filed on behalf of the respondents and find no merit therein. In these circumstances, IA 8608/89 is dismissed.
I have persued the award dated 11.11.1988 on merits. There is no error apparent on the fact of the record. The award, marked Ext. C-1 is, therefore made a rule of the court. Decree be drawn up in terms of the award. The award shall from part of the decree. The plaintiff shall also be entitled to interest on the awarded at the rate of 12% p.a. from the date of the decree till realisation.
Suit stands disposed of.
4.3.1994 P. N. Nag, J.
4. Mr. Vohra has argued that the court has not decided the additional issue which was framed on 15.5.1991 and on this ground alone the judgment is to be set asided. No case has been made for review in the application by Mr. Vohra and this plea does not find place in the review application. What is not agitated in the application cannot be allowed to be urged in review jurisdiction. Even otherwise, the learned predecessor has mentioned in the order dated 4.3.1994 that learned counsel for parties were heard at length on 9.2.1994.
5. On the other hand, learned counsel for the plaintiff has argued that review is not a routine procedure and unless and until there is material error which is manifest on the face of earlier order resulting in miscarriage of justice review cannot be granted. He has also cited in support of his arguments Col. Avtar Singh Sekhon v. Union of India and others , Aribam Pishak Sharma and others v. Aribam Tuleswar Sharma and others (AIR 1968 Man 74), G. S. Gupta v. Basheer Ahamed and others , and Chandrakant Jagannath Manjrekar and another v. Shripad Vaikunth Naik (1989 Bom 91), Supreme Court in (supra) observed.
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring commission or patent mistake or like grave error has crept in earlier by judicial fallibility. The present stage is not a virgin ground but review of an earlier order which was the normal feature of finality.
6. I may also point out that this court also tried though in vain, to impress upon the respondent the efficacy of settling the matter. However, the respondent seems adamant to go on protracting the matter. The application is without merit. The same is dismissed with costs of Rs. 2,000/-. Costs shall from part of decree.
