Madras High Court
M/S.Ashok Leyland Limited vs State Express Transport Corporation on 27 November, 2023
Author: Anita Sumanth
Bench: Anita Sumanth
2023:MHC:5288
Rev.P.No.2 of 2018 in OP.No.25 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27.11.2023
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
Rev.P.No.2 of 2018
in O.P. No.25 of 2017
M/s.Ashok Leyland Limited,
Rep. by its Authorised Signatory
No.1, Sardar Patel Road,
Guindy, Chennai-600 032. ... Petitioner
Vs.
State Express Transport Corporation,
Tamil Nadu Limited (SETC),
Rep. by its Managing Director,
Thiruvallur House,
No.2, Pallavan Salai,
Chennai-600 002. ... Respondent
Prayer: Review Petition filed under Order 47 read with Section 114 of the
Code of Civil Procedure to review the orders passed in O.P.No.25 of 2017 dated
23.08.2017.
For Petitioner: Mr.V.Kuberan
For M/s.Rank Associates
For Respondent: Mr.Silambanan, Additional Advocate General
Assisted by
Mr.L.S.M.Hassan Fizal,
Additional Government Pleader
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1
Rev.P.No.2 of 2018 in OP.No.25 of 2017
ORDER
This application for review has been filed by Ashok Leyland Limited
seeking review of an order passed by this Court in O.P.No.25 of 2017 on
23.08.2017. The original petition had been filed under Section 11(6) of the
Arbitration and Conciliation Act, 1986 (in short ‘Act’) read with Clause 5 of the
Madras High Court appointment of Arbitrator's Scheme, 1996.
2. The petitioner had participated in a tender for supply of (BS-III and
BS-IV) passenger bus chassis in Tender No.15/chassis/CP/IRT/2011 (tender
document). The tender document refers to arbitration of disputes arising out of
that contract in clause CC-33 thereof.
3. The petitioner had produced the following documents at the time of
hearing of the Original Petition:
(i) IRT contract No.15/CP/IRT/2011 dated 21.11.2011 along with the following
annexures:
1)Annexure A ... Approved rate details
2)Annexure B ... Allotment of chassis to STUs wise
3)Annexure C ... Terms & Conditions
4)Annexure D ... Specimen forms for Contract Agreement
5)Annexure E ... Spare Parts Requirements and its price list
(ii) Purchase Order dated 28.11.2011
(iii) Amended Purchase Order dated 02.02.2012
(iv) Performance Bank Guarantee dated 12.04.2012.
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4. The respondent had filed a copy of the letter in Lr.No.15/CP/IRT/2011
dated 21.11.2011 along with annexures, being the same as those set out in point
(i) above. This Court had dismissed the Original Petition being of the view that
there had been no document produced by the petitioner that would establish
consensus ad idem between the parties to the effect that they intended to resolve
the disputes by alternate dispute redressal mechanism.
5. The cases that had been cited had been distinguished on the ground
that in those matters, the tender, including the specific page containing the
arbitration clause had been signed by both the parties and hence the meeting of
minds between the parties on the method of dispute resolution had been
established.
6. The Petition had thus come to be dismissed accepting the stand of the
respondent that agreement dated 12.04.2012 being the Performance Bank
Guarantee in terms of which the appointment of Arbitrator had been sought,
was a unilateral document executed only by the petitioner and nowhere had the
respondent acquiesced to the same.
7. Mr.Kuberan, learned counsel appearing for the Review Petitioner
reiterates the submissions made at the time of hearing of the Original Petition
relying additionally on the following decisions:
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Rev.P.No.2 of 2018 in OP.No.25 of 2017
(i)M.Dayanand Reddy v. A.P.Industrial Infrastructure Corporation Ltd.
and Ors.1
(ii)J.K.Jain and others v. Delhi Development Authority and others 2
(iii)Laxmikant Revchand Bhojwani and another v. Pratapsing
Mohansing Pardeshi 3
(iv)Pyrites, Phosphates and Chemicals Ltd. v. Sebilan Compania and
another 4
8. He would also rely upon the fact that the transactions between the
parties are admitted, supplies have been effected and payments made. Hence,
the factum of the transactions qua the parties and is not in dispute. In these
circumstances, the respondent cannot shy away from the arbitration clause that
is part of the tender document.
9. He draws attention to letter dated 21.11.2011 issued by the Institute of
Road Transport (‘IRT’) appointed as a nodal agency for and on behalf of Tamil
Nadu State Transport Corporation Limited (TNSTC/Respondent) to receive the
bids from chassis manufacturers.
10. In letter dated 21.11.2011 reference is made to Tender
No.15/chassis/CP/IRT/2011 and the letter itself states that the offer of the
petitioner for supply of 2029 passenger buses has been accepted (as per the
terms and conditions laid down in the tender vide reference cited). The terms
1 [1993 AIR 2268]
2 (1995) 6 SCC 571)
3 [(1995) 6 SCC 576]
4 [(2002) 9 SCC 353]
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Rev.P.No.2 of 2018 in OP.No.25 of 2017
and conditions that have accompanied letter dated 21.11.2011 contains an
arbitration clause at being Clause 31 of Annexure-D.
11. Additionally, respondents circulate a copy of G.O.Ms.No.125
Transport (A) Department, dated 26.08.2011 reading as follows::
‘ABSTRACT
Transport – Purchase of 3000 New buses to all STUs for the year
2011-12 with the Government Share Capital Assistance / Short Term
Loan and with the Financial assistance of Tamil Nadu Transport
Development Finance Corporation Ltd., - Orders – Issued.
Transport (A) Department
G.O.(Ms). No.125 Dated: 26.8.2011
ORDER:
In the Floor of Assembly, on 04-08-2011, the Hon’ble Minister for
Finance has in his Budget Speech announced that 3000 new buses
will be purchased for all STUs for the year 2011-12. In the Budget
Estimate for the year 2011-12, a sum of Rs.125/- crore as Share
Capital and a sum of Rs.137.50 crore as Short Term Loan have been
allocated.
2.The Government accord sanction for the purchase of 3000 new
buses to all STUs with the financial assistance of Government and
loan from Tamil Nadu Transport Development Finance Corporation
Ltd., as Indicated below:- .........
.........
5.In respect of State Express Transport Corporation Ltd., 60 chassis
bus body building shall be constructed in its in-house body building
unit and the remaining 413 chassis bus body building shall be
constructed by outsourcing by following the Transparency Tender
Act. In respect of other STUs, the chassis bus body building shall be
constructed in their own in-house body building units.
6.This order issued with the concurrence of Finance Department vide
its U.O.No.43392/BPE/2011, dated 25.08.2011.
(By Order of the Governor)
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Md.Nasimuddin,
Secretary to Government.’
12. Some correspondences between the petitioner and the respondent are
now produced by the petitioner. In some of those letters the respondent makes
reference to its Purchase Order dated 28.11.2011 wherein reference is made to
communication dated 21.11.2011 from IRT that, in turn, incorporates the
Tender document containing the arbitration clause.
13. In all, the submissions of the petitioner are that the above documents
unambiguously indicate that the respondents had consented to arbitration as a
method of dispute resolution. The terms and conditions in the tender had been
incorporated in letter dated 21.12.2011 issued by IRT and hence the arbitration
clause stood incorporated by reference.
14. The respondents represented by Mr.Silambanan, learned Additional
Advocate General for Mr.L.S.M.Hassan Fizal, learned Additional Government
Pleader, for their part, rely on the order sought to be reviewed stating that all
material has been brought to the notice of the Court at the first instance.
15. The parameters for review of an order have been set out in Order 47
Rule 1 of the CPC and are limited to the situations contained therein. Such
situations are where relevant material has been omitted to be produced before or
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Rev.P.No.2 of 2018 in OP.No.25 of 2017
taken into consideration by the Court or any other event that the Court believes
would require review of the order.
16. Government Order dated 26.08.2011 and letters from the respondent
dated 09.12.2011, 02.02.2012, 05.05.2012, 29.06.2012, 19.07.2012,
26.02.2013 and 01.04.2013 constitute material that have now been produced
before the Court for the first time. No objection has been raised by the
respondents to the production of the correspondences at this juncture.
17. In dealing with the matter at the first instance, the Court has omitted
to take note of the position that there are two letters dated 21.11.2011 from
IRT, one to the petitioner and another to the respondent. Both the letters relate
to the same subject matter, that is, procurement of chassis by TNSTU
(respondent) and both make reference to the Tender document - IRT contract
No.15/CP/IRT/2011 dated 21.11.2011. Specific reference is made to the terms
and conditions under that Tender document.
18. The counter filed by the respondent in this review petition clarifies the
role played by IRT in the transaction between the parties. At paragraph 12, the
respondent states that the Institute of Road Transport (IRT) had been
established as a Society under the Societies Registration Act 1860, in 1976
under the administrative control of the Government of Tamil Nadu.
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19. The prime objective of the IRT is to conduct Research Studies on the
various issues relating to Road Transport Sector with a view to improve the
performance of transportation by updating and adopting the latest developments
that are taking place around the world. The respondent states that the IRT has
been notifying various standards / base conditions and industrial needs and
requirements, to have uniform better efficiency in all the State Transport
Undertakings in Tamil Nadu.
20. The eligibility conditions and the eligible suppliers are notified by the
IRT for the procurements of automobile spares and parts by the STUs. The
sequence of events that have transpired are clear that IRT has acted as a nodal
agency for the transaction. However, the attempt appears to be to state that the
respodnent is not bound by the stipulations put forth by IRT with respect to any
other aspects of the transaction, apart from the technical features.
21. The respondents further defend their stand stating, at paragraph 13 as
follows:
13. It is submitted that IRT had issued Notice Inviting Tender
vide Tender No.15/Chassis/CP/IRT/2011, calling for supply of
Single Deck Passenger Bus Chassis (BS III & BS IV) to the
State Transport Undertakings (STUs). The specifications and
laying of bench marks standards had been made by IRT. The
said Tender Notification enumerated the process of supply by
the successful suppliers. The instructions to the tenderers in
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Rev.P.No.2 of 2018 in OP.No.25 of 2017
Part – II carried the clause for referring disputes to
arbitration. The Notice Inviting Tender was only an offer made
by IRT and was not an agreed contract. In other words, the
said Notice Inviting Tender was an offer document, that was
required to be accepted by the selected contractor, if the terms
were conducive to the tenderer. Thereafter, the selected
contractor had to enter into an express agreement accepting
the terms after mutual negotiations. TATA Motors and the
Petitioner, viz., Ashok Leyland, had been selected for the
supply of buses for a period from 2011 to 2012. In the instant
case on hand, no agreement had ever been entered into. It is a
settled law that offer document cannot be termed to be binding
on the parties hereto, more particularly, when the said offer
document had never been signed by the Respondent.
22. The above stand has to be tested in light of the fact that the entire
Tender document which contains the arbitration clause, (which the respondent
brushes away as a Notice Inviting Tender), is what has been incorporated in the
letter of IRT dated 21.11.2011 referred to in Purchase Order dated 28.11.2011
duly executed by the Managing Director of the respondent.
23. The Annexure to the Purchase Order, also signed by the MD of the
TNSTU confirms that ‘All other terms and conditions are applicable as per
CPO/IRT/2011 dated 21.11.2011. Contract agreement shall be executed as
per annexure ‘D’ referred in IRT letter dated 21.11.2011 and incorporating
the terms and conditions vide annexure ‘C’ therein’.
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24. It is true that the signature of the authorised representative of the
respondent is not found in the contract agreement dated 28.11.2011. However,
the entire Tender document stands incorporated in the letter of IRT dated
21.11.2011 and Purchase Order dated 28.11.2011. Then again, there is a
confirmation in the Annexure to the PO duly signed by the Managing Director
that a contract ‘shall’ be executed incorporating the terms and conditions that
include the arbitration clause at CC-23 of the General Conditions of Contract.
25. The respondent cannot now be permitted to go back on its clear and
stated intention that an ADR clause will govern the parties. The mere fact that
Contract Agreement dated 28.11.2011 does not contain a signature of the
respondent will thus have no consequence in light of the categoric features of
acquiescence noted above.
26. Even the correspondences between the parties produced now make
reference to the Purchase Order and the letter of IRT dated 21.11.2011
incorporating the Tender document including the arbitration clause.
Importantly, letter dated 05.05.2012 reads thus:
STATE EXPRESS TRANSPORT CORPORATION TAMILNADU
LTD.
CHENNAI – 5.
Lr.No.6001/H3/S.E.T.C./11-12 Dt.05.05.2012
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Rev.P.No.2 of 2018 in OP.No.25 of 2017
To
M/s.Ashok Leyland Ltd.,
Khivraj Complex-II, 6th Floor,
480, Anna Salai, Nandanam,
Chennai – 600 035.
KIND ATTN: MR.ELANGOVAN
Sir,
Sub: S.E.T.C. – Purchase – New Chassis – Order placed –
Bank guarantee and Agreement furnished – Incorporating the
deviations – Reg.
Ref: (1) Lr.No.015/CP/IRT/11-12 dt.21.11.2011
(2) Our P.O. no.319/H3/SETC/11 dt.28.11.2011
(3) Your letter no.ROS/ME/STU/11-12/69 dated
14.03.2012.
Kind attention is invited to the references cited above
wherein we have placed a purchase order for the supply of 473
Nos. of New AL 244 “ (12 Metre) Wheel base Chassis fitted with
BSIII Engine with a condition to furnish a security deposit of 5%
of the purchase order value as per CPO/IRT rate contract
circular.
We have received a Bank guarantee and agreement vide
reference 3rd cited with the following discrepancies and we
request you to incorporate the deviations shown below and to
furnish a revised Agreement without further delay;
1) The agreement value does not include VAT amount.
2) Items 5,6 & 9 to 36 in the IRT format have not been in-
cluded in the agreement.
3) Para 9 to 11.10 in the agreement of AL not specified in
the IRT format.
Earlier action in this regard is requested.
Thanking you,
Yours faithfully,
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Rev.P.No.2 of 2018 in OP.No.25 of 2017
For STATE EXPRESS
TRANSPORT
CORPORATION
TAMILNADU LIMITED
Sd/-
For MANAGING DIRECTOR
27. The above letter refers to the Bank guarantee and agreement
received from the petitioner and the respondent asks the petitioner to
incorporate certain deviations to the clause to the Agreement. The deviations
relate only to the three subjects specified therein being, VAT as well certain
inclusions to be made as per IRT format. There is no deviation that is proposed
in regard to the Arbitration clause which the respondent has thus accepted.
28. In Pyrites, Phosphates and Chemicals Ltd. (supra), the attention of
the Court was drawn to the bill of lading, the opening part of which stipulated
that ‘all terms and conditions of the relevant charter party are deemed to
have been incorporated therein’. Admittedly, Clause 47 of the charter party
contained an arbitration Clause and hence the Court concluded that there was a
binding arbitration agreement between the parties.
29. The parties to that litigation had been party to the charter party and
hence the arbitration Clause that was contained in the charter party stood
incorporated in the bill of lading and amounted to a binding arbitration
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agreement. What flows from the above discussion is the respondent has
categorically acquiesced to an arbitration clause governing the parties and the
error apparent in order dated 23.08.2017 is liable to be corrected.
30. At this juncture, a defence is raised by the respondents in regard to
the maintainability of this petition relying upon the decisions in (i) Jain Studios
Limited vs. Shin Satellite Public Co. Ltd 5., (ii) M/s.Electronics and Controls
Power Systems Private Limited v. Wep Peripherals Limited 6 and (iii) Kush Raj
Bhatia v. Dlf Power and Services Limited 7.
31. The respondent argues that no review application is maintainable as
against an order passed by the Chief Justice or the designated Judge exercising
power under Section 11 (6) of the Act. Per contra, the petitioner submits that
there is no bar in this regard post amendment of the Act in 2016, w.e.f.
15.10.2015.
32. This view finds support from the decisions in Sanjay Gupta V.
Kerala State Industrial Development Corporation Limited 8, Manish
Engineering Enterprises V. Managing Director, IFFCO, New Delhi & Ors.9 ,
5 CDJ 2006 SC 526
6 CDJ 2019 Karnataka HC 871
7 CDJ 2022 DHC 829
8 2009 SCC Online Ker 6361
9 SCC Online All 84
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COBRA-CIPL JV V. Chief Project Manager 10, Shivraj Gupta & Ors. V.
Deshraj Gupta & Ors.11, N.S.Atwal V. Jindal Steel & Power Ltd. 12,
Steel Authority of India Limited V. Indian Council of Arbitration & Ors.13
and Inder Mohan Singh V. Tripat Singh 14.
33. In all these cases, it is seen that the orders passed under Section 11(6)
of the Act are dated prior to 15.10.2015, whereas the present petition as against
which review has been sought, was filed in 2017 post amendment of Section
11(6) by Act 3 of 2016. Section 11(6), pre and post amendment in 2016, with
retrospective effect from 23.10.2015, read as follows:
Pre- 23.10.2015 Post- 23.10.2015
‘.... ‘....
(6) Where, under an (6) Where, under an
appointment procedure appointment procedure
agreed upon by the parties,- agreed upon by the
(a) a party fails to act as parties,-
required under that (a) a party fails to act as
procedure; or required under that
(b) the parties, or the two procedure; or
appointed arbitrators, fail (b) the parties, or the
to reach an agreement two appointed arbitrators,
expected of them under that fail to reach an agreement
procedure; or expected of them under
(c) a person, including an that procedure; or
10 2021 SCC Online MP 609
11 Manu/DE/0441/2008
12 (2011) 178 DLT 454
13 Manu/DE/3484/2015
14 (2012) 190 DLT 310
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institution, fails to perform (c) a person, including
any function entrusted to an institution, fails to
him or it under that perform any function
procedure, entrusted to him or it
a party may request the under that procedure,
Supreme Court or, as the A party may request [the
case may be, the High Court Supreme Court or, as the
or any person or institution case may be, the High
designated by such Court Court or any person or
“the Chief Justice or any institution designated by
person or institution such Court to take the
designated by him” to take necessary measure, unless
the necessary measure, the agreement on the
unless the agreement on the appointment procedure
appointment procedure provides other means for
provides other means for securing the
securing the appointment.’ appointment.’
34. Prior to amendment, the phrase ‘the Supreme Court or, as the case
may be, the High Court or any person or institution designated by such
Court’ read as ‘the Chief Justice or any person or institution designated by
him’. I am also thus called upon to decide whether there is a bar of
maintainability and specifically, what the impact of the 2015 amendment is, in
this regard.
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35. In the case of SBP & Co. v. Patel Engineering Ltd. and Another 15,
the Hon'ble Supreme Court held that an order passed under Section 11(6) is a
judicial order. The relevant paragraph reads thus:-
‘.......
18. It is true that the power under Section 11(6) of the Act
is not conferred on the Supreme Court or on the High Court, but
it is conferred on the Chief justice of India or the Chief Justice of
the High Court. One possible reason for specifying the authority
as the Chief Justice, could be that if it were merely the
conferment of the power on the High Court, or the Supreme
Court, the matter would be governed by the normal procedure of
that Court, including the right of appeal and the Parliament
obviously wanted to avoid that situation, since one of the objects
was to restrict the interference by Courts in the arbitral process.
Therefore, the power was conferred on the highest judicial
authority in the country and in the State in their capacities as
Chief Justices. They have been conferred the power or the right
to pass an order contemplated by section 11 of the Act. We have
already seen that it is not possible to envisage that the power is
conferred on the Chief Justice as persona designata. Therefore,
the fact that the power is conferred on the Chief Justice, and not
on the court presided over by him is not sufficient to hold that
the power thus conferred is merely an administrative power and
is not a judicial power.’
36. The Supreme Court, under Article 137 of the Constitution of India is
vested with the power of review of any judgment pronounced or order made by
it. As far the High Court is concerned, the power of review is not inherent, but
has to be specifically conferred.
15 (2005) 8 SCC 618
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37. In the case of Adani Enterprises Limited, Mumbai v. Ankiteros
Shipping Corporation 16, a learned Judge of the Delhi High Court had
considered the power of review qua an order passed under Section 11(6) of the
Act and had taken a decision to review an order passed by him on 21.04.2011,
being of the view that the order passed was non est since it had been passed by
a Court that lacked inherent jurisdiction.
38. The petitioner there had been located outside India and hence the
arbitration proceedings would constitute international commercial arbitration in
respect of which the Chief Justice of the Court or his designate did not have the
requisite jurisdiction for appointment of arbitrator. In such an event, learned
Judge was of the view that correction of that error would fall within the four
contours of procedural review which he was entitled to embark upon, since such
power was inherent and plenary in every Court.
39. The matter was carried in appeal and the Division Bench of the Delhi
High Court in Ankiteros Shipping Corporation vs. Adani Enterprises Limited,
Mumbai17 reversed the order of the single Judge. They noticed that though a
Court of record, Section 11(6) empowered specifically only the Chief Justice or
his designate to exercise the power of appointment of an arbitrator.
16 2019 SC Online Bombay 528
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40. Thus, while a Constitutional Court being a Court of Record would
have the inherent power to review its order, the power under Section 11(6) had
been exercised not by a Court but by the learned Judge as a designate of the
Chief Justice of the Bombay High Court.
41. To be noted that Section 11(7) of the Act states that ‘a decision on
a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to
the Supreme Court or, as the case may be, the High Court or the person or
institution designated by such Court is final and no appeal including Letters
Patent Appeal shall lie against such decision’. This provision does not, in my
view, stand in the way of a Constitutional Court correcting an error apparent on
record.
42. With the vesting of the power in the High Court, with effect from
15.10.2015, such High Court being a Court of Record under Article 215 of the
Constitution of India, the inherent power of correcting an error apparent on
record, is always available and cannot be denied. Article 215 of the Constitution
states that ‘every High Court shall be a Court of record and shall have all the
powers of such a court including the power to punish for contempt of itself.’
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43. The Supreme Court, in Patel Narshi Thakershi and others V. Shri
Pradyumansinghji Arjunsinghiji18 reiterated the Administrative Law principle to
the effect that the power to review must be explicit. That proposition was laid
down in the context of an order passed by the Government and not by a
Constitutional Court.
44. In M.M.Thomas V. State of Kerala19, the Hon’ble Supreme Court was
concerned with the power to review a decision rendered under the Kerala
Private Forests (Vesting and Assignment) Act, 1971 and the issue for
consideration was framed thus: ‘Power of review conferred on the Supreme
Court under Article 135 of the Constitution is not specifically made
applicable to the High Courts. Does it mean that the High Court has no power
to correct its own orders, even if the High Court is satisfied that there is error
apparent on the face of the record?’ (See paragraph 13 of the judgment). In
this context, they say at paragraph 14 as follows:
14. The High Court as a court of record, as envisaged in
Article 215 of the Constitution, must have inherent powers to
correct the records. A court of record envelops all such
powers whose acts and proceedings are to be enrolled in a
perpetual memorial and testimony. A court of record is
undoubtedly a superior court which is itself competent to
determine the scope of its jurisdiction. The High Court, as a
18 1971 (3) SCC 844
19 (2000) 1 SCC 666
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court of record, has a duty to itself to keep all its records
correctly and in accordance with law. Hence, if any apparent
error is noticed by the High Court in respect of any orders
passed by it the High Court has not only power, but a duty to
correct it. The High Court’s power in that regard is plenary.
45. In Naresh Shridhar Mirajkar V. State of Maharashtra 20 a nine-Judge
Bench of this Court has recognised the superior status of the High Court as a
court of plenary jurisdiction being a Court of Record. Reference has been made
to Halsbury’s Laws of England 4 th Edn., Vol. 10 para 713 to point out the
chief distinctions between superior and inferior Courts in connection with
jurisdiction, reiterating that the High Court is a Court of universal jurisdiction.
46. Reference may also be made to the judgment of the Hon’ble Supreme
Court in Naresh Shridhar Mirajkar (supra) (8 Judges Bench) and
M.V.Elizabeth V. Harwan Investment and Trading (P) Ltd.21 . At paragraph 17
of the SCC report, the Bench says, if the power of correction of record is denied
to the High Court, even when it noticed apparent errors, the consequence is that
the superior status of the High Court will dwindle. Thus, they conclude that the
plenary powers of the High Court would and should include the power of review
relating to errors apparent on the face of the record.
20 AIR 1967 SC 1
21 1993 Supp (2) SCC 433
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47. On the point, is a recent judgment of the Hon’ble Supreme Court in
the case of Municipal Corporation of Greater Mumbai and another V.
Pratibha Industries Limited and others 22. An order had been passed by the
High Court in an application filed under Section 9 of the Act seeking certain
interim relief.
48. In that application, an order was passed on 27.06.2017 noting the
consent of the parties to go for arbitration and appointing an Arbitrator.
Pursuant thereto, an application was filed on 03.07.2017 by one of the parties
for re-call of the above order on the ground that there was no arbitration clause
in the contract between itself and the other party.
49. Convinced with the reason adduced, the High Court had recalled the
order appointing the Arbitrator. An appeal had been filed under Section 37
before the Division Bench on the ground that there was no provision for the
Court to review its own order and hence the application filed on 03.07.2017 was
not maintainable. The order passed by the High Court was defended before the
Hon’ble Supreme Court on the ground that the power to recall was inherent in
the High Court, being a Court of record. On the other hand, the respondent had
22 (2012) 3 SCC 203
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pointed out that the Arbitration Act was a self-contained code with no statutory
power of review.
50. After referring to Article 215 of the Constitution, the Hon’ble
Supreme Court reiterated that Constitutional Courts being Courts of record are
endowed with the power and jurisdiction to recall their own orders in light of
several judgments, such as National Sewing Thread Co. Ltd. V. James
Chadwick and Bros. Ltd. 23, R.M.A.R.A. Adaikappa Chettiar V. R.
Chandrasekara Thevar 24, Secy. of State for India V. Chellikani Rama Rao25,
Shivdev Singh V. State of Punjab26, M.M.Thomas (supra) and Naresh Shridhar
(supra). The order of the Division Bench was set aside.
51. In light of the detailed discussion above, this Review Petition is found
maintainable and allowed.
27.11.2023
Index: Yes/No
Speaking order
Neutral citation:Yes
Vs/sl
To
State Express Transport Corporation,
23 AIR 1953 SC 357
24 1947 SCC Online PC 53
25 1916 SCC Online PC 42
26 AIR 1963 SC 1909
https://www.mhc.tn.gov.in/judis
Rev.P.No.2 of 2018 in OP.No.25 of 2017
Tamil Nadu Limited (SETC),
Rep. by its Managing Director,
Thiruvallur House,
No.2, Pallavan Salai,
Chennai-600 002.
Dr.ANITA SUMANTH, J.
Vs/sl
in
https://www.mhc.tn.gov.in/judis
Rev.P.No.2 of 2018 in OP.No.25 of 2017
27.11.2023
https://www.mhc.tn.gov.in/judis
Rev.P.No.2 of 2018 in OP.No.25 of 2017
Dr.ANITA SUMANTH,J.
This Review Petition has been
allowed on 27.11.2023. Thereafter,
there was a mention made for
appointment of an Arbitrator.
2. The matter is listed today
under the caption 'for being
mentioned' for that purpose.
3. Since both learned counsel
leave it to the Court to appoint an
Arbitrator, only pointing out that the
value of the claims would be less
than Rs.5.00 crores, Mr.J.Justin
David, Retired District Judge, OAK,
B1, Maple Orchard, Ben
Foundation, Padikuppam Road,
Anna Nagar West, Chennai – 600
040 is appointed as Arbitrator.
Learned Arbitrator is at liberty to fix
the terms of his appointment.
20.12.2023
sl
https://www.mhc.tn.gov.in/judis
