Code of Civil Procedure, 1908 – Or. XLVII, r.1 – Review – Scope of – Civil Appeals filed by the Review Petitioner were dismissed vide judgment dtd. 10.08.2021 inter alia holding that foreign award could be enforced against non-signatories to the arbitration agreement and that the only ground on which its enforcement could be resisted or refused are contained in s.48, Arbitration and Conciliation Act – It also held that the canvas of s.46 is wider than that of s.35 and would apply to all the persons who are not even parties to the Arbitration Agreement – It further held that tortious dispute can also be referred to arbitration – Review sought – Held: A power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Or. XLVII, r.1, CPC – An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions – In the present case, 18 grounds were raised in the review petitions – All the grounds taken in the review were discussed in detail in the judgment dtd. 10.08.2021 and findings were returned not accepting the claim of the Review Petitioner – Each and every argument having been considered in the judgment, the arguments advanced if accepted would result in expressing a different opinion on the points raised and decided, which does not fall within the settled contours of Or. XLVII, r.1 CPC relating to error apparent on the face of record – No ground to allow the review petitions – Constitution of India – Article 137,
145 – Supreme Court Rules, 2013 – Or. XLVII – Arbitration and Conciliation Act, 1996 – ss.35, 44-49.
Dismissing the review petitions, the Court
1.1 A power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. [Para 15][738-F]
1.2 As many as 18 grounds have been raised in the review petitions. A close perusal of the judgment dated 10.08.2021 reflects that all the grounds taken in the review have been discussed in detail and findings returned not accepting the claim of the Review Petitioner. What is sought to be argued is basically that the view taken is erroneous and therefore, impugned judgment deserves to be reviewed. Paragraph 29 of the judgment deals with the analysis and interpretation of Section 44 of the Act. This Court noticed that there would be six ingredients to qualify an arbitral award to be a foreign award. [Paras 17 and 19][739-A-B, G]
1.3 In Paragraph Nos. 30 to 33, this Court discussed the ingredients. Further, in paragraphs 34 to 37, the Court dealt with the scope of Section 47 of the Act and the argument of the counsel for the Review Petitioner that evidence should be adduced and it should be a full trial to prove that the non-signatory would also be bound by a foreign award, was rejected. In Paragraph Nos.38 to 57, this Court dealt with in detail the argument that review on merits of the award would be permissible under Section 48(1) of the Act and held against the Review Petitioner as none of the grounds therein were available to the Review Petitioner. In paragraph Nos. 66 to 70 of the report, this Court dealt with the argument that damages awarded in tort would be outside the scope of the arbitration agreement and rejected the said argument. [Paras 20-22][740-D-F]
1.4 In paragraph 71 of the report of the judgment, this Court compared the scope of Section 35 and 46 of the Act and further observed that once the award was not challenged in the State where it was made it could not be said that the arbitral award had infracted the substantive law of the agreement. Paragraphs 72 and 73 of the report dealt with the issue of violation of any public policy and this Court found that there was no such violation. [Paras 23, 24][740-G-H]
1.5 In paragraphs 74 to 76, this Court justified the quantification of the damages and the basis for determining the same even if it was based on best judgment assessment. Each and every argument having been considered by this Court in its judgment dated 10.08.2021, the arguments advanced if accepted would result in expressing a different opinion on the points raised and decided, which do not fall within the settled contours of Order XLVII Rule 1 CPC relating to error apparent on the face of record. The other grounds of invoking the review power are neither existing nor have been raised in the present petitions. No good ground to allow the review petitions. [Paras 25-27][741-A-C] Satyanarayan Laxminarayan Hegde and Others v. Millikarjun Bhavanappa Tirumale AIR 1960 SC 137 : [1960] SCR 890; Parison Devi v. Sumitri Devi (1997)
8 SCC 715 : [1997] 4 Suppl. SCR 470; S. Murali Sundaram v. Jothibai Kannan and Others Civil Appeal No. 1167- 1170 of 2023 dated 24th February, 2023; Perry Kansagra v. Smriti Madan Kansagra (2019) 20 SCC 753; Shanti Conductors (P) Ltd. v. Assam SEB (2020) 2 SCC 677 : [2019] 16 SCR 252 – relied on. Shivdeo Singh v. State of Punjab AIR 1963 SC 1909; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma AIR 1979 SC 1047; Meera Bhanja (Smt.) v. Nirmala Kumari Choudhary (Smt.) (1995) 1 SCC 170 : [1994]
5 Suppl. SCR 503; Uma Nath Pandey v. State of U.P. (2009) 12 SCC 40 : [2009] 4 SCR 374 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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