NARAYAN TRADING CO Vs. ABCOM TRADING PVT LTD

JUDGEMENT

(1.) This is a review petition filed under Section 151 of CPC, where in the prayer is that the review petition be allowed and order passed in WP No. 8186/2011 on 28/09/2012 be modified and the petitioner be granted liberty to raise the objections afresh under Section 48 of Arbitration and Conciliation Act, 1996 (hereinafter referred as A and C Act).

(2.) Learned counsel for the petitioner submits that in the execution petition filed by the respondent, the objections were filed by the petitioner which were in two folds, firstly that the award is not duly stamped and secondly since the petitioner is not party to the agreement, therefore, the award is not binding on the petitioner. Learned counsel submits that the objections were dismissed by the learned Executing Court, against which writ petition was filed by the petitioner before this Court which was numbered as WP No. 8186/2011 and was dismissed on 28/09/2012. It is submitted that prior to the disposal of WP No. 8186/2011, petitioner filed fresh objections before learned Court below under Section 48 of A and C Act,but mistakenly the permission was not sought to raise objections from this Court, therefore, learned Executing Court dismissed the same. It is submitted that the mistake is bonafide on the part of counsel for the petitioner. Learned counsel placed reliance on a decision in the matter of Board of Control for Cricket, India and another Vs. Netaji Cricket Club and others, reported in 2005 AIR(SC) 592 wherein the Hon'ble Apex Court has held that review application is maintainable even on account of misconception of law or fact by Court or an Advocate. It was further held that mistake by Court in nature of undertaking given can also be a ground for review. Further reliance is placed on a decision in the matter of Jet Ply Wood Pvt. Ltd. v. Madhukar Nowlakha, 2006 AIR(SC) 1260 wherein application for withdrawal of suit filed without leave to file fresh suit and the permission was granted to withdraw the suit, it was held that there is no specific provision in C.P.C. providing for recalling of the order permitting withdrawal of suit, provision of section 151 can be resorted to in the interest of justice. Reliance is also placed on a decision in the matter of Rajendra Prasad Gupta v. Prakash Chandra Mishra, 2011 2 SCC 705, wherein the Hon'ble Apex Court. had a occasion to to consider the provision under Order XXIII Rule 1 and Section 151 of CPC and held that every procedure is permitted to Court for doing justice unless expressly prohibited. It is submitted that in the interest of justice order dated 28/09/2012 passed in WP No.8186/2011 be modified and petitioner be permitted to raise objection filed under Section 48 of A and C Act.

(3.) Learned counsel for the respondent opposes the prayer and submits that the application is without any substance. It is submitted that the application was filed under Section 48 of A and C Act, whi1e earlier application filed by the petitioner was under Order XXI Rule 58 CPC which was treated by the Executing Court as application under Section 48 of A and C Act and was dismissed against which writ petition was filed before this Court in which validity of that part of the order whereby application under Order XX I Rule 58 of CPC, was dismissed, was under challenge. It is submitted that before this Court no ground was raised by the petitioner about that part of the order. It is submitted that after dismissal of the WP No.8186/2011 vide order dated 28/09/2012, which was filed by the petitioner under Section 48 of A and C Act. was also dismissed vide order dated 07/01/2013, against which Civil Revision was filed by the petitioner which was numbered as 20/2013, which was also dismissed by this Court vide order dated 14/03/2013. It is submitted that the order passed by this Court and also passed by learned Executing Court whereby objections filed by the petitioner under Section 48 of A and C Act, was dismissed, attend finality. It is submitted that the petition filed by the petitioner is full of mala-fides, therefore, the same be dismissed.