Laltech Engg. Projects Pvt. Ltd. A ... vs Indian Oil Corporation Ltd. ...
2005 Latest Caselaw 1231 Del

JUDGMENT

Swatanter Kumar, J.

1. This is an application filed by the applicant under Section 114 read with Section 151 of the Code of Civil procedure (hereinafter referred to as 'the Act') for review of the order dated 11.08.2005.

2. According to the applicant, the order of this court dated 11th August, 2005 suffers from errors of law and fact and is liable to be reviewed on the following grounds:-

A.During the course of hearing, the applicant had shown to the court proof of service of notice and reminders. The order appointing an arbitrator by the respondents which was passed on 28th May, 2005 was received by the applicant on and after 30th May, 2005 while the petition u/s 11(6) of the Arbitration & Conciliation Act, was filed in this court on 28th May, 2005. As such, the respondents had forfeited their right to appoint an arbitrator.

B.The principle of law as enunciated by the Supreme Court in the case of Dattar Switchgears Ltd. v. Tata Finance Ltd. 2000 (3) Arb.LR 447 (SC) has not been applied to the facts of the present case and the case is squarely covered by the judgment of this court in the case of R.S. Avtar Singh & Co. v. India Tourism Development Corporation Ltd. 2003 (2) Arb.LR 503 (Delhi.).

C.Lastly, that a technical error should not come in the way of justice and the petition of the applicant should have been allowed and an independent arbitrator appointed.

3. The present review application is mis-conceived and in fact, is an abuse of the process of law. All the facts and the judgments cited by the counsel appearing for the parties were taken into consideration and the view has been expressed by the court which does not suffer from any error apparent on the face of the record or a finding which is manifestly contrary to the record or would cause injustice to the parties constituting any other sufficient cause within the scope and meaning of provisions of Order 47 read with Section 114 of the Code. Once the court takes a view on the factual matrix of the case in view of the law applicable to the case, an application for review would hardly lie on the ground that a different view was possible or ought to have been taken by the court on the same facts. Jurisdiction of review is a limited jurisdiction and cannot be permitted to be invoked by the applicant in a routine manner and without satisfying any of the ingredients spelled out in the relevant provisions of the Code.

4. All that is stated in the application is that in view of the judgment in R.S. Avtar Singh's case (supra), the court should have taken a different view and allowed the petition and that the view of the court that dispatch of the letter by the respondents would be sufficient compliance of the applications contemplated under Section 11 of the Arbitration & Conciliation Act.

5. This argument is no more re integra and has been squarely answered by the Supreme Court in different judgments. It has been held that power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. The Supreme Court also held that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 of the Code and cannot be converted into an appellate proceedings. The object of these judgments is obviously to avoid filing of frivolous applications like the present case. Reference in this regard can be made to the judgments of the Supreme Court in Lily Thomas etc. etc. v. UOI & Ors. and Parsion Devi & ors v. Sumitra Devi & Ors. .

6. In the opinion of the Court, the present application certainly does not fall within the ambit and scope of the provisions of Order 47 read with Section 114 of the Code. While referring to the merits of this application, it may be noticed that admittedly the appointment was made vide letter dated 21st May, 2005 while the petition under Section 11(6) of the Act was filed on 28th May, 2005 and the communication was received by the applicant on 30th May, 2005.

7. In these facts and as already noticed, the case of R.S. Avtar Singh's (supra) is of no help to the applicant as in that case the petition was filed on 22nd September, 2001 while the letter of appointment was issued on 5th October, 2001. The view taken by the court that once a letter is dispatched and is out of the control of the respondents, it would be sufficient compliance to the provisions of Section 11(6) of the Act and the respondents would not forfeit their right to appoint an arbitrator as per the judgment of the Supreme Court in Dattar Switchgears's case (supra)

8. For the reasons afore-recorded, I find no merit in this review application. The same is dismissed, however, without any order as to costs.