Union Of India ...Review vs M/S D. Khosla & Co
2025 Latest Caselaw 2396 J&K

Jammu & Kashmir High Court

Union Of India ...Review vs M/S D. Khosla & Co on 17 October, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                       =h475




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                               RP No. 115/2022 in
                                               CFA No.18/2014

                                       Reserved on: 14.10.2025
                                       Pronounced on : 17.10.2025
                                       Uploaded on: 17.10.2025
                                       Whether operative part or full
                                       judgment is pronounced: Full
Union of India                               ...Review Petitioner
                            Through:- Mr. Vishal Sharma DSGI with
                                      Mr. Eishan Dadeechi CGSC
      V/s

M/S D. Khosla & Co.                                ...Respondent(s)
                           Through:- Mr. Sourabh Malhotra Advocate

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                           JUDGMENT

1. This petition by the Union of India seeks review of an order

and judgment dated 09.05.2022 passed in CFA No. 18/2014 titled „Union

of India vs M/S D Khosla and Company‟ to the extent this Court has

remitted the claims of the respondent-Contractor being claim Nos. (1),

(2),(4) (8), (15) and (16) back to the Arbitrator for fresh adjudication.

2 The judgment dated 09.05.2022 is sought to be reviewed on

the ground that this Court has committed an error apparent on face of

record, in that, while setting aside the award of the Arbitrator impugned in

CFA No. 18/2014 in respect of claim Nos. (1), (2),(4) (8), (15) and (16)

being beyond the terms and conditions of the contract, this Court has

remitted the said claims for fresh adjudication yet again by the Arbitrator.

My attention was drawn to the discussion made in the order dated

09.05.2022 in respect of each item of claims and para (52) of the judgment

whereby the matter was remanded/remitted to the Arbitrator for fresh

adjudication.

3 Per contra, Mr. Malhotra, learned counsel appearing for the

respondent-contractor, would argue that the judgment dated 09.05.2022

(supra) cannot be subjected to review by this Court in view of the order of

Hon‟ble Supreme Court dated 14.07.2022 passed in SLP(C)

No. 10816/2022 dismissing the SLP filed by the respondent-contractor and

leaving claims Nos.(2),(3),(8), (16), (18) (19) & (20) to be re-adjudicated

upon by the Arbitrator. He would argue that the judgment sought to be

reviewed by the Union of India has merged with the order dated

14.07.2022 (supra) of the Hon‟ble Supreme Court, and therefore, cannot be

reviewed. Learned counsel for the respondent-contractor would place

reliance upon a judgment of the Supreme Court in V.Senthur and another

vs. M. VijayKumar and another (Contempt Petition (Civil) No. 638/2017

in Civil Appeal No. 4954 of 2016, decided on 01.10.2021) to buttress his

submission that once the Hon‟ble Supreme Court has dismissed the SLP

filed against the judgment sought to be reviewed, it is not open to this

Court to review the judgment even if good grounds are made out for such

review.

4 Having heard learned counsel for the parties and perused the

material on record, it needs to be recapitulated that there are broadly three

permissible grounds on which a review petition may be entertained: (i)

discovery of new and important evidence. The evidence must be relevant

and material and should not have been available at the time of judgment

despite due diligence; (ii) mistake or error apparent on the face of record.

The error must be obvious, self-evident, and not requiring elaborate

reasoning. A wrong decision on merits is not the same as an error apparent

on the face of the record; and (iii) any other sufficient reason. The

expression "any other sufficient reason" must be read ejusdem generis with

the above two grounds and cannot be interpreted as granting a blanket

licence for litigation or re-adjudication of matters. While exercising the

review jurisdiction, it must be borne in mind that review proceedings are

not by way of an appeal and have to be strictly confined to the scope and

ambit of Order XLVII and Rule 1 CPC. A review petition has a limited

purpose and cannot be allowed to be an appeal in disguise .

5 In light of the aforesaid parameters subject to which the

review jurisdiction can be exercised, I have examined the review petition

filed by the Union of India and the grounds urged for seeking review of the

judgment dated 09.05.2022.

6 From a reading of judgment dated 09.05.2022, which is sought

to be reviewed to the extent mentioned in the review petition, it clearly

transpires that with regard to claim No. 1, this Court has clearly held that

the same has been awarded by the Arbitrator without reference to Clause-

11 of the contract agreement which is very specific and categoric to the

extent that if any change occurs in design/construction procedure due to

variation of soil strata, it shall be the contractor‟s own responsibility for

which he would not be paid anything extra but the amount incurred on

account of such variation shall be deemed to be included in the lumpsum

amount. This Court has, thus, held claim No.1 awarded by the Arbitrator

contrary to Clause-11 of the contract agreement. That being the position,

this Court definitely committed an error apparent on the face of record by

remitting claim No.1 to the Arbitrator for fresh adjudication.

7 With regard to claim No.2, this Court has, in the judgment

sought to be reviewed, clearly held that the same was contrary to Clause

3.2 of the contract agreement which makes it abundantly clear that

lumpsum quoted rates by the contractor were to carry out trench excavation

and span excavation. Having held thus, there was no warrant to refer claim

No.2 to the Arbitrator for fresh adjudication. It seems that due to oversight,

claim No.2 too came to be remitted to the Arbitrator for adjudication,

particularly when this Court had found claim No.2 contrary to Clause 3.2

of the contract agreement.

8 Claim No. 4 has also been found by this Court, in the

judgment sought to be reviewed, to be contrary to the specific terms and

conditions of the contract agreement contained in Clause 11(b) thereof. The

same is the position with regard to Claim No. 8, which this Court has held

to be contrary to Clause 17(g) of the contract agreement and, therefore, not

sustainable. That being the clear position held by this Court, there was no

good reason or justification to remit claims No. (4) and (8) also to the

Arbitrator for de novo consideration/adjudication.

9 Claim No. 15 and 16 pertain to grant of interest. The

Arbitrator had awarded 18% interest per annum on the claims awarded, and

the same was not found favour with this Court as is evident from the

discussion made in para (45) of the judgment sought to be reviewed. This

Court came to the conclusion that instead of 18%, the contractor would be

entitled to 6% interest per annum on the claims allowed by the Arbitrator

and upheld by this Court. Once the issue of interest stood determined by

this Court, there was no reason or justification to send that claim/item for

fresh adjudication. It seems that in the concluding paragraph (52) of the

judgment, this Court has inadvertently remitted the matter with regard to

claims Nos. 1, 2, 4, 8, 15 & 16 to the Arbitrator for fresh adjudication when

the Arbitrator could not have adjudicated and granted any relief in respect

thereof, the same being contrary to the specific terms and conditions of the

contract. These matters were beyond the jurisdiction and competence of

the Arbitrator and, therefore, could not have been remitted back to him.

This aspect has inadvertently escaped the attention of this Court, resulting

in an error apparent on the face of record.

10 The plea of the learned counsel for the respondent that the

judgment sought to be reviewed has merged with the judgment of the

Supreme Court passed in SLP (supra) is without any merit and deserves to

be rejected.

11 From a reading of the judgment passed in SLP (supra), it is

abundantly clear that the Supreme Court has simply dismissed the SLP

without even notice to the Union of India and allowed the respondent-

contractor to pursue the matter before the Arbitrator, and, therefore, the

judgment passed by this Court cannot, by any stretch of reasoning, be said

to have merged with the judgment of the Supreme Court. Paras (21) & (22)

of the judgment rendered in V.Senthur's case (supra), relied upon by

learned counsel for the respondent-contractor, is relevant and is, therefore,

set out hereinbelow:

21. It will be relevant to refer to the following observations of this Court in the case of Kunhayammed v. State of Kerala:

"27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of

Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court."

22. It is thus clear that this Court in unequivocal terms has held that if the order of dismissal of SLPs is supported by reasons, then also the doctrine of merger would not be attracted. Still the reasons stated by the court would attract applicability of Article 141 of the Constitution of India, if there is a law declared by this Court which obviously would be binding on all the courts and the tribunals in India and certainly, the parties thereto. It has been held that no court, tribunal or party would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. Such an order would mean that it has declared the law and in that light, the case was considered not fit for grant of leave.

12 From a reading of the aforesaid paragraphs, it is crystal clear

that even if the order of dismissal of an SLP is supported by reasons, the

doctrine of merger would not be attracted. However, the reasons stated by

the Court would attract the applicability of Article 141 of the Constitution

of India, if it is tantamount to a law declared by the Supreme Court. Such

law laid down would be binding on all Courts and tribunals in India. The

mere dismissal of an SLP, with or without reasons, would not attract the

doctrine of merger so as to stand substituted in place of the order impugned

before it, nor would it amount to a declaration of law by the Supreme Court

under Article 141 of the Constitution unless there is a specific declaration

of law made while dismissing the SLP by a reasoned order.

13 In the instant case, the Supreme Court has simply dismissed

the SLP without even indicating reasons for dismissing such SLP. The net

result of the dismissal of the SLP filed by the respondent-contractor is that

the judgment passed by this Court has not been interfered with, without

saying anything more. In such situation, the doctrine of merger would not

apply, and the judgment passed by this Court would still be open to review,

of course, on permissible grounds. This Court, therefore, does not find any

substance in the objection raised by the learned counsel for the respondent

contractor to the maintainability of this review petition.

14 For the foregoing reasons, I find merit in this review petition

and the same is accordingly allowed. The judgment dated 09.05.2022

passed in CFA No. 18/2014 is recalled to the extent of claim Nos. (1) ,(2),

(4), (8), (15) & (16). Accordingly, the operative portion of the judgment

i.e., para No. (52) is recast as under:

" For determination of claims of the contractor, i.e, claim Nos. 1 , 2, 4, 8, 15 & 16 shall be deemed to have been set aside and only claim No. 13 shall be remitted back to the Arbitrator for fresh adjudication".

15 We are informed that the Arbitrator has already entered upon a fresh

reference and adjudicated all the claims in terms of the judgment dated

19.05.2022. It is, therefore, clarified that the award to the extent it pertains

to Claims No. 1, 2, 4, 8, 15, and 16 would be beyond the jurisdiction and

competence of the Arbitrator, and any adjudication thereon would be a

nullity.

The review petition is accordingly disposed of.

(Sanjeev Kumar) Judge JAMMU.

17 .10.2025 Sanjeev.

Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No