Calcutta High Court: While addressing the maintainability of a review application related to an order of appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (the Act), a single-judge bench comprising of Moushumi Bhattacharya, J., held that the application for review was maintainable under Article 215 of the Constitution of India, and the review application satisfied the threshold for review.
“This Court is therefore of the view that the present application succeeds in clearing the threshold test and entering the arena of review. The Court will consider whether the application succeeds on the merits and the tests of Order XLVII Rule 1 once the matter is taken up for hearing.”
The instant matter involves an application for the review of a judgment delivered by the Court on 26-06-2023. The judgment was issued in response to an application which sought the appointment of an arbitrator under Section 11 of the Act. The application was granted, and a former judge of the Court was appointed as the Sole Arbitrator.
Whether the review of the judgment is permissible under the Arbitration and Conciliation Act, 1996.
Whether the conditions of Order 57 Rule 1 of the Civil Procedure Code, 1908 (CPC) have been satisfied?
The Court rejected the distinction between the power to recall an order and the power to review on merits. The Court observed that the High Court’s plenary powers as a Court of record extend to reviewing judgments when there are apparent errors.
The Court observed that while the Arbitration and Conciliation Act, 1996, is a complete code, the power of review is not restricted by its provisions, and the Court can review orders if they meet the requirements of Order 57 Rule 1 of the CPC.
The Court observed that the Supreme Court, in M.M Thomas v. State of Kerala, (2000) 1 SCC 666, affirmed the High Court’s inherent powers to correct records and held that these powers encompass the ability to review decisions with apparent errors on the face of the record.
The Court held the High Courts, as Courts of record under Article 215 of the Constitution of India, have inherent powers to correct records, including the power to review their own judgments and orders. This power includes the correction of errors apparent on the face of the records.
“Article 215 can be invoked for exercising the power to review the judgment passed by this Court on 26th June, 2023. The High Court, in exercise of its plenary powers, cannot be fettered by the limitations of the 1996 Act in respect of review or be hemmed-in by the strictures of Order XLVII Rule 1 of the Code of Civil Procedure at the stage of allowing the application to enter through the gates. The first, that is invocation of the powers under Article 215 of the Constitution is a question of maintainability which is answered in the affirmative; the second that is Order XLVII Rule 1 of the Code of Civil Procedure is a question on merits which will determine the review-ability of the order within the contours of Order XLVII Rule 1 of the Code of Civil Procedure.”
The Court held that the application for review was maintainable under Article 215 of the Constitution, and it satisfied the threshold for review. The Court would proceed to hear the application on its merits and consider whether it met the criteria of Order 57 Rule 1 of the CPC. The present Review petition was held to be maintainable, and the parties were allowed to schedule a hearing at an early date.
[Radha Bhattad v. Rashmi Cement Ltd., 2023 SCC OnLine Cal 2570, order dated 01-09-2023]
*Judgment by Justice Moushumi Bhattacharya
Advocates who appeared in this case :
Mr. Suddhasatva Banerjee, Mr. Dyutimoy Paul, Mr. Soumyadip Panda, Counsel for the Petitioner
Mr. Soumabho Ghose, Mr. Rishav Dutt, Mr. Siddhartha Sharma, Ms. Shalini Basu, Counsel for the Respondent/State