Madras High Court
M/S.Quick Sort Traders vs M/S.Kay Jay Forgings Pvt. Ltd on 17 October, 2024
Author: M.Sundar
Bench: M.Sundar
Review Application No.289 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
Review Application No.289 of 2024
against
O.S.A (CAD) No.88 of 2024
&
C.M.P.No.22455 of 2024
in
Review Application No.289 of 2024
M/s.Quick Sort Traders
Rep. by its Prop. D.Venkatesh Kumar
SP 94, SIDCO Industrial Estate
Ambattur, Chennai - 600 058 ... Review Petitioner
Vs.
M/s.Kay Jay Forgings Pvt. Ltd.,
Rep. by its DGM Purchase & Admin.,
Mr.Binu John
Registered Office
A-8, Mayapuri Industrial Area, Phase - I
New Dehi - 110 064
Corporate Office
E-2, Phase V Focal Point
Page Nos.1/15
https://www.mhc.tn.gov.in/judis
Review Application No.289 of 2024
Ludhiana, Punjab - 141 001 ... Respondent
Review Application filed under Order XLVII Rules 1 and 2 read with
Section 114 of CPC to review the order dated 02.08.2024 passed in OSA
(CAD) No.88 of 2024 & C.M.P.No.16379 of 2024 in O.S.A (CAD) No.88
of 2024 and set aside the order passed in O.A.No.424 of 2024 on
11.07.2024.
For Review Applicant : Mr.P.Thiagarajan
For Respondent : Mr.G.J.Baskar Narayan
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
When the 'Original Side Appeal' ['OSA' for the sake of brevity]
mentioned in caption supra was listed before this 'Commercial Appellate
Division' ['CAD' for the sake of brevity] on 02.08.2024, the same was
disposed of vide an order which reads as follows:
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
&
https://www.mhc.tn.gov.in/judis
Review Application No.289 of 2024
in
M/s.Quick Sort Traders
Rep. By its Prop. D.Venkatesh Kumar
SP 94, SIDCO Industrial Estate
Ambattur, Chennai – 600 058 ... Appellant
Vs.
M/s.Kay Jay Forgings Pvt Ltd.,
Rep. By its DGM Purchase & Admn.
Mr.Binu John
Registered Office
A-8, Mayapuri Industrial Area,Phase – I
New Delhi – 110 064
Corporate Office
E-2, Phase V Focal Point
Ludhiana, Punjab - 14101 .. Respondent
Original Side Appeal filed under Order XXXVI Rule 1 of
Original Side Rules read with Section 13 of Commercial Courts Act,
2015 to set side the order passed in O.A.No.424 of 2024 on
11.07.2024.
For Appellant : Mr.P.Thiagarajan
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.)
Captioned main 'Original Side Appeal' ['OSA' for the sake of
brevity], which is an intra-court appeal has been presented in this
'Commercial Appellate Division' ['CAD' for the sake of brevity] on
25.07.2024 under Section 37 of 'The Arbitration and Conciliation
Act, 1996 (Act No.26 of 1996)' [hereinafter 'A and C Act' for the sake
of convenience and clarity] read with Section 13(1A) of 'The
Commercial Courts Act, 2015 [Act 4 of 2016]' {hereinafter 'CCA' for
the sake of brevity} and Order XXXVI Rule 1 of Original Side Rules
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Review Application No.289 of 2024
of Madras High Court. In sum and substance, captioned main OSA
is a statutory appeal under Section 37 of A and C Act and the
sequitur is, captioned OSA is not under Clause 15 of Letters Patent.
2. Be that as it may, captioned OSA has been filed assailing a
common order dated 11.07.2024 made in Section 11 'Arbitration
Original Petition' ['Arb.O.P' for the sake of brevity and convenience]
as well as in a Section 9 application (O.A.No.424 of 2024). Though
captioned OSA is qua Section 9 application as impugned order is a
common order and as issues are dovetailed/inextricably intertwined
it is really not possible to jettison the Section 9 part of the order. To
put it differently, it is not possible to test the Section 9 order without
testing the Section 11 order.
3. As regards, Section 9 application, an intra-court appeal
will be available to the appellant under Section 37(1)(b) of A and C
Act but that is not the case as regards Section 11 Arb.OP. In other
words, the remedy against Section 11 Arb.OP for the appellant is
only to approach Hon'ble Supreme Court by resorting to Article 136
of Constitution of India.
4. Faced with the above situation, Mr.P.Thiagarajan, learned
counsel on record for the appellant sought leave of this Court to
withdraw the captioned OSA and captioned CMP thereat but made a
plea to preserve all the rights and contentions of the appellant to
assail the aforementioned common order dated 11.07.2024 made by
a Hon'ble single Judge of this Court in the Hon'ble Supreme Court,
saying so learned counsel has made endorsements in the case file
and scanned reproduction of the same are as follows:
O.S.A C.M.P
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Review Application No.289 of 2024
5. Learned counsel reiterated the aforementioned
endorsement and the aforementioned request. Request acceded to.
6. Ergo, the sequitur is, captioned main OSA and captioned
CMP thereat are disposed of as closed/withdrawn preserving all the
rights and contentions of the appellant including all the grounds
raised in the memorandum of grounds of appeal before us for
canvassing the same before Hon'ble Supreme Court. Though
obvious, we make it clear that we have not expressed any view or
opinion on the merits of the matter. These proceedings and
preservation of rights are made in deference to judicial discipline in
the hierarchy of Courts. There shall be no order as to costs.'
2. Thereafter, the matter was carried to Hon'ble Supreme Court by
way of 'Special Leave Petitions' { 'SLPs' in plural and 'SLP' in singular for
the sake of brevity}. Hon'ble Supreme Court disposed of the SLPs by way
of an order dated 24.09.2024, which reads as follows:
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Review Application No.289 of 2024
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Review Application No.289 of 2024
3. The aforesaid orders made by this CAD and Hon'ble Supreme
Court are tell-tale and therefore, we are not delving into/dilating on the
same.
4. Be that as it may, we deem it appropriate to write that it is clear
from Paragraph 3 of the order of Hon'ble Supreme Court that liberty has
been granted to the petitioner to pursue the proceedings in review and it is
pursuant to such liberty granted by Hon'ble Supreme Court that captioned
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Review Application No.289 of 2024
'review application' {'said RA' for the sake of brevity} has been filed.
5. In the captioned RA, in the earlier listings on 04.10.2024 and
15.10.2024, the following proceedings/orders were made:
'Proceedings made on 04.10.2024
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
[Order of the Court was made by M.SUNDAR. J.,]
Mr.P.Thiagarajan, learned counsel on record for review
petitioner is before us.
2. Issue notice regarding admission to respondent returnable
by 15.10.2024. Private notice permitted.
3. Learned counsel for review petitioner is permitted to serve
on the counsel (Mr.G.J.Baskar Narayanan) who represented
respondent before Hon'ble single Judge. To be noted, we are
informed that the same counsel is representing respondent before the
Arbitral Tribunal also.
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Review Application No.289 of 2024
List on 15.10.2024.'
'Proceedings made on 15.10.2024:
and
in
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
[Order of the Court was made by M.SUNDAR. J.,]
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 04.10.2024 which reads
as follows:
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
[Order of the Court was made by M.SUNDAR. J.,]
Mr.P.Thiagarajan, learned counsel on record for review
petitioner is before us.
2. Issue notice regarding admission to respondent returnable
by 15.10.2024. Private notice permitted.
3. Learned counsel for review petitioner is permitted to serve
https://www.mhc.tn.gov.in/judis
Review Application No.289 of 2024
on the counsel (Mr.G.J.Baskar Narayanan) who represented
respondent before Hon'ble single Judge. To be noted, we are
informed that the same counsel is representing respondent before the
Arbitral Tribunal also.
List on 15.10.2024.'
2. Today, Mr.P.Thiagarajan, learned counsel on record for
review petitioner is before us.
3. A counsel has logged in, in the name of Mr.G.J.Baskar
Narayanan but the counsel is having difficulty at the far end with
audio. Learned counsel confirms that from his end Court is both
visible and audible by showing a thumbs up sign when requested to
do so.
4. Therefore, with the intention of giving an opportunity to
respondent and learned counsel for respondent, list this matter again
tomorrow.
List tomorrow. List on 16.10.2024.'
6. As 16.10.2024 was declared as a holiday owing to prediction of
inclement weather, the matter is before us today.
7. Today, Mr.P.Thiagarajan, learned counsel for review applicant and
Mr.G.J.Baskar Narayan (Enrollment No.2514/1999), learned counsel with
address for service at No.315/152, II Floor, Thambu Chetty Steet, Chennai -
600 001 ( Mob: 98413 70370) for sole respondent are before us.
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Review Application No.289 of 2024
8. The main RA was taken up with the consent of both sides.
9. Both learned counsel consented to have the application under
Section 9 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of
1996)' [hereinafter 'A and C Act' for the sake of brevity], more particularly
prayer in O.A.No.424 of 2024 heard out as a Section 17 application before
the Arbitral Tribunal. To be noted, the Arbitral Tribunal is constituted by a
'sole Arbitrator, who is a former Hon'ble Judge of this Court, namely
Hon'ble Mr. Justice T.Ravindran (Retd.,), residing at New No.27, Old
No.12, 3rd Avenue, Indira Nagar, Adyar, Chennai - 600 020, E-mail:
[email protected], Mob: 9941350926 and 9444399700'
{hereinafter 'said AT' for the sake of convenience and 'AT' denotes 'Arbitral
Tribunal'}.
10. This CAD is informed by both sides that pleadings are complete
in the main arbitration and the arbitration is now underway before said AT.
Both sides consented for having Section 9 prayer to be heard out as Section
17 application before the said AT.
11. We ascertained the convenience of Hon'ble sole Arbitrator
through the learned Director of 'Madras High Court Arbitration Centre
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Review Application No.289 of 2024
under the aegis of this Court' (MHCAC). We are informed by the Director
of MHCAC that it was ascertained that Hon'ble Arbitrator (said AT) is ready
to sit on 19.10.2024 at 03.00 pm.
12. Captioned RA is a review application and a review application
can be entertained in cases of (a) discovery of a new and important matter
which was not within the knowledge of one of the parties or could not be
produced, (b) mistake or error apparent on the face of the record, and (c)
for any other sufficient reason.
13. We are entertaining and passing orders in the captioned RA on the
ground of 'any other sufficient reason' and pursuant to paragraph 3 of order
of Hon'ble Supreme Court dated 24.09.2024 which gives review applicant
the liberty to pursue proceedings in review. In other words, this order is
being made owing to consent and order of Hon'ble Supreme Court and
therefore, it will not serve as a precedent as regards review applications.
14. Therefore, the following order is passed:
(a) Said AT i.e., Hon'ble Mr.Justice T.Ravindran, learned
sole Arbitrator shall sit at MHCAC on 19.10.2024 (Saturday) at
03.00pm;
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Review Application No.289 of 2024
(b) Said AT shall take up the pleadings in O.A.No.424 of
2024 as a Section 17 application and deal with the same on its
own merits and in accordance with law. When we write that
said AT shall hear the matter as a Section 17 application on its
own merits and in accordance with law, we make it clear that it
is de hors the judicial order i.e., order dated 11.07.2024 made in
O.A.No.424 of 2024 by the Hon'ble single Judge and to
facilitate this, the order of the Hon'ble single Judge will stand
effaced / set aside on or from 19.10.2024;
(c) We make it clear that we have not expressed any view
or opinion on the order of Hon'ble single Judge while effacing /
setting aside the same as it is for the limited purpose of
facilitating said AT to hear the application as a Section 17
application;
(d) We have respectfully adhered to the order of Hon'ble
Supreme Court granting leave to the review petitioner to pursue
the proceedings in review, which means that the review petition
can encompass such an order;
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Review Application No.289 of 2024
Captioned review application and Civil Miscellaneous Petition
thereat are disposed of in the aforesaid manner with the aforesaid consent
directives / observations. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
17.10.2024
gpa
P.S. I: Upload forthwith
P.S.II : All concerned including the Registry of Madras High Court to act
forthwith on the uploaded soft copy of this proceedings as uploaded in the
official website of this Court. To be noted, the soft copies uploaded in the
official website of this Court are water marked, besides being QR Coded.
https://www.mhc.tn.gov.in/judis
Review Application No.289 of 2024
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa
Review Application No.289 of 2024
17.10.2024
https://www.mhc.tn.gov.in/judis
