Delhi High Court

Modern Food Industries vs Paper Mate Private Ltd. on 4 July, 2008

Author: A.K.Sikri

                              Unreportable
*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Review Petition No. 9/2007
                                          In
                            CS (OS) No. 1014/1991

                                                    Reserved on : May 16, 2008
%                                               Pronounced on : July 04, 2008

Modern Food Industries                                    . . . Petitioner

                    through :                  Mr. Valmiki Mehta, Sr. Advocate
                                               with Mr. Abhishek Khare,
                                               Mr. Nikhil Majithia and
                                               Mr. Amit G. Singh, Advocates

               VERSUS

Paper Mate Private Ltd.                                   . . . Respondent

                    through :                  Mr. Shyam Kishore, Advocate


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI

       1.      Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
       2.      To be referred to the Reporter or not?
       3.      Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. In view of the disputes between the parties, matter was referred to

the arbitration. The learned arbitrator had given his award dated

20.2.1991. The respondent herein had filed objections to the said

award, which were registered as IA No. 721/1993. These objections

came up for hearing on 11.1.2007. Counsel for both the parties had

appeared in the pre-lunch session. However, the petitioner's counsel

requested that the matter be taken in the after-lunch session on the

plea that the Senior Counsel who had to argue the matter was not

available. His request was accepted. When the matter was called up

in the afternoon at 2.26 p.m., nobody appeared on behalf of the

petitioner. In these circumstances, on the basis of submissions made

by learned counsel for the objector, order was passed in the Court

on the said application/objections of the respondent. There were

three objections to the award which are taken note of in the order

dated 11.1.2007. One of these objections was that the award in

question is a non-speaking award. This objection was accepted

taking note of the fact that though clause 22 of the agreement

mandated the arbitrator to give his reasons, the learned arbitrator

had passed a non-speaking award. Without going into the other two

objections, the award was set aside and order was passed remitting

back the matter to the arbitrator for passing a speaking award after

giving an opportunity to the parties of being heard.

2. The present application is filed seeking review of the said order dated

11.1.2007. It is stated in the application that counsel for the

petitioner could not appear for some reason on 11.1.2007 and,

therefore, could not assist the Court. It is further stated that the

award in question is a reasoned award and, therefore, order dated

11.1.2007 contains errors apparent on the face of the record. This

review petition is contested by the respondents by filing reply. The

maintainability of the review petition is objected on the ground that

there is no resolution of the Board of Directors to file the said review

petition; the petition is not presented properly by any authorized

person as the Advocate who has presented the petition is not

appointed by the petitioner as its Advocate, inasmuch as, he is

appointed as an Advocate by Mr. Atam Parkash, and not by the

company, who had no authority from the company; and there is no

error on the face of the record and no injustice has been done in

passing the impugned order.

3. Insofar as objections to the maintainability of the review petition are

concerned, I hardly find any justification to the same. The

petition/suit was filed by the petitioner for making the award Rule of

the Court. In case the impugned order has gone against the

petitioner and it is decided to file review application, I do not think

that any further or special resolution is necessary in this behalf once

there is already an authorization for filing and prosecuting the

petition for making the award Rule of the Court.

4. As far as signing of vakalatnama by Mr. Atam Parkash in favour of

the counsel is concerned, no doubt while signing the vakalatnama he

has not stated "for Modern Food Industries (I) Ltd.". However, it is

clear from the stamp put therein that he had signed in the capacity of

"Consultant-cum-Secretary" of "Modern Food Industries (India)

Ltd.". It is not disputed that Mr. Atam Parkash is the Secretary of the

company. As Secretary, he is authorized to engage a counsel.

Therefore, he has the necessary authority to give vakalatnama in

favour of the counsel. In any case, apart from signatures of the

counsel, the review petition bears signature of Mr. Atam Parkash as

well and, therefore, the review petition is properly instituted.

5. With these impediments having cleared, I proceed to deal with the

merits of the review petition. The dispute is as to whether the award

in question is a speaking award or not. I have held in my order

dated 11.1.2007 that the award in question is not a speaking award.

Whether there is an error apparent on the face of the record

committed in arriving at this finding?

6. In the case of Surjit Singh & Ors. v. Union of India & Ors., (1997) 10

SCC 592, the Supreme Court, while dealing with the grounds for

review, defined as to what could be termed as patent error in the

following words :-

"7. In the light of these directions, it is obvious that the Government of India had prepared the seniority list. The contention of the promotees which was found acceptable to the Tribunal that preceding the date of amendment the Government was devoid of power to carry forward all unfilled vacancies to the direct recruits and that all these vacancies are meant to be thrown open to the promotees, is clearly a misinterpretation fo the rules and on that basis the directions came to be issued by the Tribunal. This Court had suggested on earlier occasion that vacancies meant for the direct recruits may be carried forward for two years after the recruitment year and thereafter the unfilled vacancies would be thrown open to the respective cadres. Under these circumstances, the view of the Tribunal is clearly illegal; unfortunately, the Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the Tribunal is duty-bound to correct, with grace, its mistake of law by way of review of its order/directions."

(emphasis supplied)

He also referred to the judgment of the Apex Court in Green

View Tea & Industries v. Collector, Golaghat, Assam & Anr., (2004)

4 SCC 122, in which it was held that where material evidence on

record is not taken into consideration in the judgment sought to be

reviewed, "it would constitute error apparent on the face of the

record".

7. Learned counsel for the petitioner had argued that the award in

question is speaking award as contentions of both the parties were

noted and some reasons given on the second page of the award. He

further submitted that it was not necessary to give detailed reasons in

the award and law on this aspect was settled by the Supreme Court

in various judgments, including one in the case of Gujarat Water

Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. &

Anr., AIR 1989 SC 973.

8. In the present case, as already pointed out above, counsel for the

petitioner was not present when the matter was heard and there was

no assistance on behalf of the petitioner. There is another important

aspect of the matter which needs to be highlighted. The award is in