Arbitration In IndiaReview of Appointment of Arbitrator permissible under the Plenary Jurisdiction of High Courts

The Calcutta High Court, in Radha Bhattad v. Rashmi Cement Ltd., [IA NO: GA 1 of 2023 In RVWO 34 of 2023, decided on 01.09.2023], held that the review of an order under Section 11 of the A&C Act is maintainable under the plenary powers of Article 215 of the Indian Constitution

FACTS
The present application was filed for the review of a judgment dated 26.06.2023, which was pertaining to appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (“the A&C Act”). The Arbitration Petition vide AP No. 327 of 2023, was allowed and a Sole Arbitrator was appointed.

The present application was filed by the Respondent of original Arbitration Petition (hereinafter referred to as the “Applicant”) on the ground of error apparent on the face of the record and introduction of a crucial material evidence, which was unknown to the Applicant during the original Arbitration Petition.

ISSUES BEFORE THE CALCUTTA HIGH COURT

1. Whether the present review application is maintainable as per the provisions of A&C Act?
2. Whether the High Courts are empowered to review a judgment in absence of any provision for review under the A&C Act?
3. Whether the conditions of Order 57 Rule 1 of the Civil Procedure Code, 1908 (“CPC”) have been satisfied?

CONTENTIONS OF THE PARTIES

The Applicant contended that the grounds of review are essentially on the point that the judgment suffers from an error apparent on the face of record and also certain material evidence have been discovered by the Applicant, which were unknown at the time of the judgment.

It was further argued that the High Courts have the power to correct its records which includes the power of review of its judgments under Article 215 of the Constitution of India, 1949 (hereinafter referred to as the “Indian Constitution”).

The Applicant relied on  M.M. Thomas v. State of Kerala, [(2000) 1 SCC 666] and contended that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the records under Article 215 of the Indian Constitution.

The Applicant further relied on Accord Advertising Pvt. Ltd. v. Airports Director, The Airports Authority of India [MANU/WB/1919/2019] and argued that though the A&C Act is a complete code, the review of an order cannot be restricted under the A&C Act and can be reviewed if it follows Order XLVII Rule 1 of Civil Procedure Code, 1908 (hereinafter referred to as “CPC”).

The Respondent disputed the maintainability of the application as the provisions of the A&C Act does not provide for review of orders passed under Section 11 of the A&C Act. Moreover, the conditions of Order XLVII Rule 1 of the CPC were also not fulfilled.

It was also argued that the A&C Act, being a complete code in itself does not provide for review. Furthermore, the High Courts in its plenary jurisdiction only has the power to recall its order but not review its order.

DECISION AND FINDINGS

The Calcutta High Court relied on M.M. Thomas (Supra), observed that the objection regarding the distinction of review and recall in the plenary jurisdiction is not sustainable. It observed that the apparent errors are within the competence of High Court to correct or review the order.

It was further observed that Article 215 of the Indian Constitution declares High Courts as “courts of record” and therefore, are vested with inherent powers to maintain correct records within its jurisdiction in accordance with law. Hence, the power to correct an apparent error on record falls within the plenary powers of the Court.

The High Court held that Article 215 of the Indian Constitution can be invoked for exercising review of an order and it cannot be fettered by the law of limitation or A&C Act or CPC.

The High Court allowed the Application and rendered it to be maintainable under Article 215 of the Indian Constitution. Further it was held that the compliance of Order XLVII Rule 1 of CPC is based on merits, which would be considered at the time of hearing.

AMLEGALS REMARKS

The Calcutta High Court held that even though the A&C Act is a complete Code in itself and does not provide for the review of the orders under Section 11 of the A&C Act, it cannot override the plenary powers conferred to the High Court.

Further, plenary powers of the High Courts are unfettered and cannot be affected due to any statutory limitation. Hence, the High Courts have the power to correct the apparent errors on the face of the order and hence, can review an order passed under Section 11 of the A&C Act.

-Team AMLEGALS, assisted by Mr. Atulit Raj (Intern)

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