The general law relating to arbitration is contained in the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) which is based on the UNCITRAL model law on international commercial arbitration as adopted in 1985 by the United Nations Commission on International Trade Law (UNCITRAL) and applies to both international as well as domestic arbitration.
The Act was enacted to provide for speedy disposal of cases relating to arbitration with least court intervention. The 1996 Act made a radical departure from the 1940 Arbitration in order to provide for an arbitral procedure which is fair, efficient and capable of meeting the needs of arbitration.
Section 5 of the 1996 Act imposes an embargo on judicial intervention of any type in the arbitral process except where so provided under Part I of this Act. The said section postulates that notwithstanding anything contained in any other law for the time being in force in matters covered by Part I, no judicial authority shall intervene except so provided wherever under this Act. The aforesaid provision is specific and has a definite purpose. The language employed in the said section provides the exclusive path for judicial intervention and does not countenance any other method. By limiting scope for judicial interference in arbitration matters, courts have acknowledged autonomy of parties, realities of modern commercial transactions and need for business to be insulated from judicial unpredictability.
In Fuerst Day Lawson Ltd., AIR 2011 8 SCC 333, the two judge Bench placing reliance on a series of authorities has drawn a distinction between the 1940 Act and 1996 Act and has opined that once the 1996 Act is regarded as a self-contained and exhaustive Code, it should be held that it carries with it a negative import that only such acts mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done. The two judge Bench has reproduced a lucid expression of Tulzapurkar, J. to make home the point “A negative import that only such acts as are mentioned in the Acts Are permissible to be done and acts or things not mentioned therein are not permissible to be done.”
In the abovesaid context it is submitted that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The same can only be exercised when there is specific provision for review in the Act itself or when the same can be read into the relevant statutory provision by necessary implication. The Hon’ble Supreme Court has held in numerous pronouncements that no power of Review is exercisable by an Authority unless the statute specifically provides so.
Power of Review cannot be confused with an Appellate Power which enables a superior court to correct all errors committed by a subordinate court. In Ankiteros Shipping Corp. v. Adani Enterprises Ltd. AIRONLINE 2020 BOM 136, it has been explained that unlike the Supreme Court which is vested power of review under Article 137 of the Constitution of India, High Courts are not vested with any such similar power of review.
As is manifest, a person aggrieved by the Award can file objections under S. 34 of the 1996 Act and if aggrieved by the Order thereon can prefer an appeal. The court can set aside the Award or deal with the Award as provided by the 1996 Act. If a corrective measure is thought of, it has to be done in accordance with the provision as contained in S. 37 of the 1996 Act for S. 37(1) stipulates for an appeal in case of any grievance which would include setting aside of an Arbitral Award under S. 34 of the Act. The 1996 Act, as it manifests, provides restrictions for challenging the Award. It also lays the postulates to assail the Award and thus emphasis is on expeditious disposal. It does not permit a second appeal to be entertained as per the language employed in S. 37(3) and also under S. 5 of the 1996 Act. Any Order given on merit cannot be reviewed in the absence of specific conferment of power of review to the court.
In Cobra-CIPL JV v. Chief Project Manager, Railway Electrification, Arb. Cas. No. 96/2019, Madhya Pradesh High Court has further held that power of review has been granted to the Apex Court under Article 137 of the Constitution of India, and same power is not conferred on the High Court by Constitution of India. If petitioner is aggrieved by the order of the High Court, applicant can prefer an appeal to the Supreme Court.
Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening conclusions. The petitioner’s review is in the nature of ‘second innings’ which is impermissible and unwarranted and cannot be allowed. In Jain Studios Ltd. V. Shin Satellite Co. (2006) 5 SCC 501, Apex Court has held that power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court.
As has been held by the Hon’ble Apex Court in S. Madhusudan Reddy v. V. Narayan Reddy, Civil Appeal no. 5503-04 SC and Jain Studio v. Shin Satellite 2006 5 SCC 501, the term ‘mistake or error apparent’ signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. An error that has to be detected by reasoning, cannot be described as an error apparent on the face of the record for the Court. It should not be an error which has to be fished out and searched. An error that is not self-evident and one that has to be detected by the process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review. Under Order 47 Rule 1 CPC, a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record.
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