High Court Cannot Review The Order Passed Under Section 11 Of The A&C Act: Delhi High Court

The bench of Justice Neena Bansal Krishna held that power of review is not an inherent power but the creation of a statute, therefore, it cannot be exercised absence of a provision. The Court held that unlike the Supreme Court which by virtue of Article 137 enjoys the inherent power of review, there is no such power conferred on a High Court.

The Court held that once an application for the appointment of the arbitrator has been heard and rejected, the same cannot be re-opened by an indirect method i.e., review petition.

Facts

The review petition under Order XLVI Rule 1 r/w Section 114 of CPC was filed against the order/judgment dated 12.10.2022 by which the High Court had dismissed the application filed by the review petitioner under Section 11 of the A&C Act for want of territorial jurisdiction. Aggrieved by the order/judgment, the petitioner filed the review petition against the impugned order.

Grounds of challenge

The petitioner challenged the order on the following grounds:

• The Court has failed to appreciate that the designation of 'location' of arbitration is equivalent to the 'Seat' of arbitration, therefore, the seat of arbitration was New Delhi and the Court had the jurisdiction to entertain the petition.
• The Court also erred in not appreciating the submissions of the review petitioner as a consequence thereof, the Court overlooked a decision of the Co-ordinate bench that had dealt with a similar arbitration clause and concluded that it had the jurisdiction
• Exclusive jurisdiction clause cannot override an arbitration clause.
• Thus, the High Court has committed an error which is apparent on the face of the record itself.

The respondent objected to the maintainability of the petition on the following grounds:

• There is no provision for review under the A&C Act, therefore, the petition deserved to be dismissed.
  
  

Analysis by the Court

The Court held that the High Court cannot review an order passed under Section 11 of the A&C Act as the Act does not contain any provision for review.

The Court held that the power of review is not an inherent power but the creation of a statute, therefore, it cannot be exercised absence of a provision. The Court held that, unlike the Supreme Court which by virtue of Article 137 enjoys the inherent power of review, there is no such power conferred on a High Court.

The Court held that once an application for the appointment of the arbitrator has been heard and rejected, the same cannot be re-opened by an indirect method i.e., review petition.

The Court held that the contentions raised by the petitioner are in the realm of an appeal as the findings of the Court have been challenged on merits which cannot be brought within the scope of 'error apparent on the face of the record'.

The Court also held that the 'location' would not become the 'seat' of arbitration where some contrary indicia is present in the arbitration clause. The Court held the agreement confers the exclusive jurisdiction on the Courts at Gurgaon which amounts to a contrary indication.

Accordingly, the Court dismissed the review petition.

Case Title: Kush Raj Bhatia v. M/S DLF Power & Services Ltd. ARB. P 869/2022

Citation: 2022 LiveLaw (Del) 1150

Counsel for the Review Petitioner: Mr. Akhil Salhar, Mr. Sunanda Tulsyan and Mr. Arnav Pal Singh, Advocates.

Counsel for the Respondent: Ms. Meghna Mishra and Mr. Taurn Sharma, Advocates.

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