SHIVRAJ GUPTA Vs. DESHRAJ GUPTA

JUDGEMENT

(1.) THIS petition has been filed by the respondent seeking a review of the order dated 07. 12. 2007 which was passed in arbitration petition No. 101/2005, which in turn had been filed invoking the provisions of Section 11 (6) of the arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'said act') for the appointment of an arbitrator. On 07. 12. 2007 when this matter was heard and disposed of, counsel for the parties had agreed that a sole arbitrator be appointed. Consequently, the sole arbitrator was appointed by virtue of the said order dated 07. 12. 2007. The respondent has moved this review petition seeking a review of that order and for the appointment of another person in place of the one appointed by the order dated 07. 12. 2007.

(2.) A preliminary objection has been taken by the learned counsel for the petitioner/ non-applicant that a review petition is not maintainable. It was submitted by Mr Chandhiok, the learned senior counsel appearing on behalf of the petitioner/ non-applicant, that the appointment of an arbitrator under Section 11 (6) of the said Act is done in terms of the said Act. The Chief Justice or his designate functions within the four corners of the said Act. An appointment, once made under Section 11 (6) of the said Act, attains finality as would be clear from the provisions of Section 11 (7) of the said Act itself. He submits that no specific provision has been made in the Act for review of an order passed under Section 11 (6) of the said Act whereby an arbitrator or arbitral tribunal is appointed. Since the powers of appointment of an arbitrator under Section 11 (6) are exercised under the said Act, it is only that act which could have given the powers of review. Since no power of review has been given in the said Act, the provisions of Code of Civil Procedure, 1908 (hereinafter referred to as the 'cpc') cannot be introduced into such proceedings. The learned counsel then referred to provisions of Section 114 CPC to point out that, in any event, none of the three instances under which a review is permissible, are satisfied. He submitted that, therefore, the provisions of Order 47 CPC cannot at all be invoked. He also contended that when the Chief Justice or his designate exercises his powers under Section 11 (6) of the said Act, he does not function as a court and, therefore, provisions of the CPC cannot be invoked to seek a review of an order passed thereunder.

(3.) MR Jayant Bhushan, the learned senior counsel appearing on behalf of the applicant/ review petitioner, submitted that this Court has the power to review inasmuch as the order dated 07. 12. 2007 was a judicial order and not an administrative one. He submitted that it was a judicial order passed by a judge of the High Court, which, in any event, has inherent power to review its orders. Mr Jayant Bhushan placed reliance on a decision of a Division Bench of the Calcutta High Court in the case of Maheshwari Brothers Ltd. v. National highways Authority of India: 2007 (1) ARB. L. R 64 (Cal) wherein the said Division bench was of the view that in Section 9 proceedings under the Act, the Court functioned as a 'court' as defined in Section 2 (e) of the said Act and, therefore, since there was no specific exclusion of the review power of a civil court, the said Court would have the power to review its own orders passed under section 9 of the said Act.