Order Passed Under Section 11 Of The Arbitration And Conciliation Act Cannot Be Reviewed: Calcutta High Court
The High Court of Calcutta that the A&C Act is a complete code in itself and it does not contain any provision for the review of an order passed under Section 11 of the Act. The Bench of Justice Shekhar B. Saraf held that power of review is a creature of statute and unlike the Supreme Court which has inherent power of review under Article 137 of the Constitution of India, no...
The High Court of Calcutta that the A&C Act is a complete code in itself and it does not contain any provision for the review of an order passed under Section 11 of the Act.
The Bench of Justice Shekhar B. Saraf held that power of review is a creature of statute and unlike the Supreme Court which has inherent power of review under Article 137 of the Constitution of India, no such power is conferred on the High Courts by the Constitution, therefore, it cannot review its order passed under Section 11 of the Act.
Facts and contention of the parties
The petitioner sought the review of the order dated 18.08.2022 in A.P. 731 of 2019 whereby the Court had appointed the arbitrator exercising powers under Section 11 of the Act. Aggrieved by the order, the petitioners sought the review of the order on the ground that it was passed without considering the issue of arbitrability of the matter and without the representation of review applicants.
The review applicant also filed an application under Section 5 of the Limitation Act for the condonation of delay in filing the review application on the ground that Respondent No. 7 who is responsible for the day-to-day affairs of the company had fallen sick, therefore, there was no wilful delay in the filing of the petition.
The other party sought the dismissal of the review petition on the ground that the High Court cannot review its order passed under Section 11 of the A&C Act is there is no review provision in the Act. Moreover, the delay in filing of the petition was not well explained as no prescription from the doctor was given, also, no reason was given for the absence of the other review applicants.
Analysis by the Court
At the outset, the Court reiterated that A&C Act is a complete code in itself and has no provision for the review of any order, therefore, the Court cannot entertain any review application without any enabling provision.
The Court relied on the decision of the High Court of Delhi in Diamond Entertainment Technologies v. Religare Finves Limited, 2023/DHC/000156 and High Court of Andhra Pradesh in Nagiredddy Srinivasa Rao v. Chinnari Suryanarayna, A.P. No. 138 of 2017 to hold that the High Court cannot review its order passed under Section 11 of the A&C Act.
The Court further distinguished the judgment of the Supreme Court in Jain Studios Ltd., vs. Shin Satellite Public Co. Ltd wherein the Hon’ble Apex Court was considering a case where a review application was moved against an order under Section 11 of the Act. While considering this issue, the Hon'ble Supreme Court had held that by virtue of Article 137 of the Constitution of India, a review is provided against any judicial order of the Hon'ble Supreme Court and as such a review would be maintainable. However, no similar power of review is conferred on the High Courts, therefore, the principle of Jain Studios cannot be applied to review of orders by the High Courts.
Even on merit, the Court found that the grounds of review as given under Order XLVII Rule 1 are not made out. Accordingly, the Court rejected the review application.
Case Title: Sarada Construction v. Bhupendra Pramanik, IA.No. GA 1 of 2022, RVWO 32 of 2022 in AP 731 of 2019
Citation: 2023 LiveLaw (Cal) 51
Date: 16.02.2022
Counsel for the Petitioner: Mr Saurabh Guha Thakurata, Adv. Mr. Bikash Kumar Roy, Adv. Mr. P. Bharara, Adv. Ms. Nilanjana Sarkar, Adv.
Counsel for the Respondent: Mr. Ashim Kumar Roy, Adv. Mr. Sutanu Chakrabarti, Adv. Mr. B. Ghosh, Adv.