M/S. Gemini Power Systems vs M/S. Karnataka Vidyuth Kharkhane ...
2021 Latest Caselaw 5895 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF DECEMBER, 2021

                         PRESENT

            THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              REVIEW PETITION No.191 OF 2020


BETWEEN

M/S. GEMINI POWER SYSTEMS
NO.96, 6TH CROSS, GANDHINAGAR
BENGALURU - 560 009
REPRESENTED BY ITS
PROP.: SRI M.S.BADARINATH.
                                           ... PETITIONER
(BY SRI RAMESH ANANTHAN, ADVOCATE (VIDEO CONFERENCING))


AND

M/S. KARNATAKA VIDYUTH KHARKHANE LTD.,
A GOVERNMENT OF KARNATAKA UNDERTAKING
POST BOX NO.2610, MYSURU ROAD
BENGALURU - 560 026
REPRESENTED BY ITS
COMPANY SECRETARY.
                                            ... RESPONDENT
(BY SRI S.SRIRANGA, ADVOCATE (PHYSICAL HEARING))

      THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1
READ WITH SECTION 114 OF THE CODE OF CIVIL PROCEDURE,
                                 2




PRAYING TO (A) THAT THIS HON'BLE COURT BE PLEASED TO
REVIEW THE JUDGMENT AND ORDER DATED 10/03/2020 AND
FURTHER BE PLEASED TO MODIFY IT TO ALLOW THE AMOUNT OF
RS. 63,42,554-00 TO BE WITHDRAWN FROM THE DEPOSITS MADE
BY THE APPELLANT AND ORDER FOR THE DISCHARGE OF THE
BANK GUARANTEE AS EXECUTED BY THE PETITIONER.

      (B) SUCH OTHER AND FURTHER RELIEF AS THIS HON'BLE
COURT MAY DEEM FIT AND PROPER IN THE CIRCUMSTANCES OF
THE PRESENT CASE BE GRANTED.

      THIS REVIEW PETITION COMING ON FOR ADMISSION, THIS
DAY, NAGAPRASANNA J., MADE THE FOLLOWING:

                             ORDER

The subject review petition is preferred by the respondent

in M.F.A.No.9224/2013, seeking review of the judgment

rendered on 10-03-2020.

2. Heard Sri Ramesh Ananthan, learned counsel appearing

for the petitioner, Sri S. Sriranga, learned counsel appearing for

the respondent and perused the material on record.

3. This Court by the judgment dated 10.03.2020, disposed

the appeal by setting aside the impugned judgment and award

with liberty to the respondent to take recourse to such remedy

as would be available in law with regard to pre tender services.

4. The review petition is now preferred by the respondent

in M.F.A.No.9224/2013, with regard to the observations made in

paragraph No.13 of the judgment. The observations read thus:

"13. xxxxxxxxx The award passed by the arbitrator and the judgment passed by the trial court insofar as it decrees the claim of the respondent for pre tender work is clearly beyond the scope of service agreement, which contains arbitration clause and the dispute being outside arbitration clause could not have been referred for adjudication to the arbitrator. Even assuming that the same was an arbitral dispute, the claim of the respondent for payment of amount for the work done during the pre tender period could not have been decreed in the absence of any stipulation either in the letter of appointment, Resolution of the board or under any of the clauses of the service agreement."

It is the contention of the learned counsel appearing for the

review petitioner that there is an error apparent on the face of

the record as the award did contain such observations with

regard to the pre tender work and the observation of this Court

while disposing the appeal, was erroneous.

5. On the other hand, learned counsel appearing for the

respondent would take this Court through the award to refute

the contentions of the learned counsel appearing for the review

petitioner that the award did not contain any observation with

regard to the work performed - pre tender work. Since it is not

a part of the award, it is his contention that the review petition

preferred is on the face of it, is erroneous. He would also place

reliance upon the latest judgment of the Apex Court in the case

of PROJECT DIRECTOR, NATIONAL HIGHWAYS NO.45 E AND

220, NATIONAL HIGHWAYS AUTHORITY OF INDIA reported in

(2021) 9 SCC 1 to buttress his submission that the modification

of the arbitral award, while hearing a challenge to the award, is

not permissible. Be that as it may.

6. We have given our anxious consideration to the

submissions made by the learned counsel for the respective

parties.

7. The submissions that are now made in support of the

review petition, by the review petitioner, have all been

considered by this Court while hearing and disposing

M.F.A.No.9224/2013, including the claim of pre tender that the

learned counsel for the respondent in M.F.A.No.9224/2013,

seeks to point out. Any further consideration of the submissions

of the learned counsel for the review petitioner would

tantamount to rehearing the matter. The review petitioner

cannot seek rehearing of the appeal in the guise of review, this

would fall foul with the judgment of the Apex Court in the case

of KAMLESH VERMA Vs. MAYAWATI reported in (2013) 8 SCC

320, wherein the Apex Court at paragraphs 20.1 and 20.2 has

held as follows:

"Summary of the principles

XXXXXXX

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

(Emphasis supplied)

Wherefore, we find no error apparent on the face of the record to

consider the review petition, seeking to review, the judgment

passed in M.F.A.No.9224/2013, disposed on 10-03-2020.

8. For the aforesaid reasons, the review petition being

devoid of merit, stands dismissed.

SD/-

JUDGE

SD/-

JUDGE

nvj CT:MJ