Delhi High Court
M/S. Metal Closures & Ors vs Religare Finvest Ltd. & Ors on 8 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : January 27,2017
% Decided on: March 08, 2017
+ Review Pet. No. 531/2016 and CM Appl. Nos. 44824/2016
(stay) and 44825/2016 (delay) in FAO(OS)(COMM).
50/2016
M/S. METAL CLOSURES & ORS. ..... Appellants
Through: Ms. Pritha Srikumar Iyer and Ms. Neha
Mathen, Advocates.
versus
RELIGARE FINVEST LTD. & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE V.KAMESWAR RAO
JUDGMENT
INDIRA BANERJEE, J
1) This is an application filed by the appellants under Section 114
read with Order 47 and Section 151 of the Code of Civil Procedure
1908, for review of a judgment and order dated 7.10.2016,
whereby the appeal being FAO(OS)(COMM) 50/2016 filed by the
appellants under Section 37 of the Arbitration and Conciliation
=====================================================================.
FAO(OS)(COMM). No.50/2016
Act, 1996, hereinafter referred to as the 1996 Act, has been
dismissed.
2) The respondent no.1, Religare Finvest Ltd., a non-banking
financial company, executed a Loan Facility Agreement with the
appellants on 29.11.2011.
3) Pursuant to the said agreement, the respondent no.1 disbursed a
loan of Rs.2,10,00,000/- to the appellant no.1, hereinafter referred
to as the appellant company, on terms and conditions contained in
the said Loan Facility Agreement.
4) As security for the loan advanced by the respondent no.1 to the
appellant Company, the appellants mortgaged their property,
specified in the petition, in favour of the respondent no.1, by
depositing the original title deeds of the said property with the
respondent no.1.
5) On or about 15.3.2014, the respondent no.1 recalled the loan
facility and demanded repayment of the outstanding amount with
interest.
=====================================================================.
FAO(OS)(COMM). No.50/2016
6) Disputes and differences arose between the respondent no.1 and
the appellants. The respondent no.1 invoked the arbitration clause
in the Loan Facility Agreement, appointed Mr. Lalit Kumar as Sole
Arbitrator and filed its statement of claim.
7) The learned arbitrator allowed the claim of the respondent no.1 by
an ex parte award made and published on 17.9.2014.
8) The appellants filed an application under Section 34 of the 1996 Act
before a Single Bench of this Court for setting aside the said arbitral
award dated 17.9.2014.
9) By a judgment and order dated 17.5.2016, the said application under
Section 34 of the 1996 Act, for setting aside the said arbitral award,
was dismissed by the Learned Single Bench.
10) Being aggrieved the appellants filed an appeal before the Division
Bench being FAO(OS)(COMM) 50/2016 which has been
dismissed by the judgment and order dated 07.10.2016 of which
review has been sought.
11) The appellants have sought review of order on the purported
ground of apparent errors.
=====================================================================.
FAO(OS)(COMM). No.50/2016
12) The appellants have submitted that this Court committed an error
in accepting the factual finding of the learned Single Judge that
notice of arbitration had duly been served on the appellant
company.
13) The appellants have contended that the learned Single Judge had
erroneously held that notice for arbitration sent on 3.7.2014 had
been served and that the AD cards were available on record.
14) The appellants submit that the arbitral records do not contain any
acknowledgement cards in relation to the notice sent on 3.7.2014.
Assuming that this finding in the judgment and order of which
review has been sought is erroneous, it cannot be said that the error
is apparent on the face of the judgment and order.
15) In any case admittedly the notice dated 17.07.2014 was served on
the appellant company. It cannot, therefore, be said that the
appellants had no notice.
16) The next ground urged is that the judgment and order under review
wrongly concluded that there were no third party rights involved in
=====================================================================.
FAO(OS)(COMM). No.50/2016
the disputes, merely because there were no pleadings to that effect.
This is also not an apparent error.
17) There is a typographical error in paragraph 19 of the judgment
under review. After the judgment was dictated and typed out,
some corrections were incorporated. Unfortunately, certain
typographical errors crept into the final print out, as some words
got deleted inadvertently. The typographical errors and / or
inadvertent deletions escaped the attention of this Court. The
paragraph should have read "In the unreported judgment in Aditya
Ganapa and Anr. Vs. Religare Finvvest Ltd. a Single Bench of
this Court referred to the judgment of the Supreme Court in the
State of Haryana Vs. Navir Singh, (2014) 1 SCC 105, in the
Context of requirement of registration of a contract evidencing the
terms of mortgage by deposit of title deeds, but held that the loan
agreement containing the arbitration clause did not create any
mortgage and was therefore, not compulsorily registrable. On
facts the Single Bench found that the Arbitrator, Mr.Nitin Chadha
virtually an in house arbitrator had acted as arbitrator for Religare
=====================================================================.
FAO(OS)(COMM). No.50/2016
Finvest Ltd., the respondent no.1 in this appeal in more than 28
arbitrations, which was not disputed. The award passed by such an
award was opposed to public policy and violative of natural
justice. The judgment is distinguishable on facts, as the arbitrator
is different and in any case, the decision of the Single Bench is not
binding on the Division Bench." A part of the paragraph got
deleted. The words referred to Booz Allen (supra) were
inadvertently not deleted.
18) The circumstances, in which review can be sought of a final
judgment and order disposing of an appeal is provided in Order 47
of the Code of Civil Procedure. A review is by no means an appeal
in disguise, whereby an erroneous decision is reheard and
corrected, but lies only to correct a patent error.
19) The first and foremost requirement for entertaining a Review
application is, that the judgment and order, review of which is
sought, should suffer from such an error apparent on the face of the
judgment and order, that permitting the error to remain would lead
=====================================================================.
FAO(OS)(COMM). No.50/2016
to failure of justice. In the absence of any such error, the finality
attached to the judgment/order cannot be disturbed.
20) An error apparent on the face of the record must be such a patent
error, which can be detected in one glance without long running
arguments on either side.
21) An error, which is not evident and has to the detected by the
process of reasoning and/or reassessment of evidence can hardly
be said to be an error apparent on the face of the record, justifying
exercise of the Court's power of review.
22) Every erroneous decision does not call for exercise of the Court's
power of review. For exercise of power of review, it is imperative
that the error should be apparent on the face of the judgment and
order and that apparent error renders the decision itself erroneous
and causes gross miscarriage of justice.
23) There are no grounds for review of the judgment and order dated
16.10.2016. The alleged errors pointed out do not go to the root of
=====================================================================.
FAO(OS)(COMM). No.50/2016
the decision in the appeal. The final outcome of the appeal would
not have been any different.
24) The application for review is dismissed along with CM Appln.
Nos.44824/2016 and 44825/2016.
INDIRA BANERJEE, J
V.KAMESWAR RAO, J
March 08, 2017/ n
=====================================================================.
FAO(OS)(COMM). No.50/2016
