Important Point – Procedural review is permissible under Article 215 of Constitution of India.

By this review petition, the applicant seeks recall of the order dated 27th June, 2014 passed by the then designate of the Hon'ble Chief Justice thereby appointing a counsel of this court as the sole arbitrator. By an order dated 17th November, 2014, S.J. Kathawala, J., the then learned designate of the Hon'ble Chief Justice by consent of parties substituted the earlier arbitrator appointed by an order dated 27th June, 2014. It is not in dispute that the review petitioner has filed written statement before the learned arbitrator.

2. Ms. Panda, learned counsel for the review petitioner invited my attention to the arbitration application filed by the original applicant and would submit that admittedly, the applicant no.1 was a company incorporated in Cyprus and admittedly was a body incorporated in the country other than India. She submits that since one of the party to the arbitration agreement was a corporate incorporated in the country other than India, the arbitration would be an international commercial arbitration within meaning of section 2(1)(f) of the Arbitration and Conciliation Act, 1996. She submits that under section 11(9) of the Arbitration and Conciliation Act, 1996, in view of the arbitration being an international commercial arbitration, the Chief Justice of India or his designate alone can appoint an arbitrator. She submits that the provisions of section 11(6) of the Arbitration and Conciliation Act, 1996 were thus not applicable and thus the designate of the Hon'ble Chief Justice of this court had no jurisdiction to appoint an arbitrator. She submits that since the order passed by the learned designate of the Chief Justice was without jurisdiction, the subsequent order passed by S.J. Kathawala, J. substituting the arbitrator appointed by the earlier order was also without jurisdiction.

3. It is submitted by the learned counsel that since the order passed by the learned designate of the Hon'ble Chief Justice was without jurisdiction, the present review application being in the nature of the procedural review would be maintainable. In support of this submission, learned counsel placed reliance on the judgment of this court delivered on 4th April, 2013 in Review Petition No.2 of 2013 in case of Hindustan Construction Co. Ltd. vs. State of Maharashtra.

4. Mr. Kamat, learned counsel appearing for the original applicant on the other hand submits that though the original applicant had filed an application under section 11(6) of the Act, no objection about jurisdiction of the learned designate of the Hon'ble Chief Justice was raised. He submits that in any event, since the earlier arbitrator appointed by the learned designate refused to act as an arbitrator, the parties had by consent substituted the said arbitrator by appointing a senior advocate of this court and an order to that effect was passed by the then learned designate of the Hon'ble Chief Justice on 17th November, 2014. He submits that even in the written statement filed before the learned arbitrator, the review petitioner has not issued any issue of jurisdiction. It is submitted that in any event in view of the subsequent order passed by the learned designate of the Hon'ble Chief Justice on 17th November, 2014, the review petitioner not having sought review of the said order, the order passed by the learned designate of the Hon'ble Chief Justice on 27th June, 2014 cannot be reviewed. He submits that the grounds on which the review petition is filed by the review petitioner are not in the nature of the procedural review.

5. My attention is also invited to the statement of claim filed by the original applicant before the learned arbitrator and more particularly paragraph (9) and the prayers in the statement of claim. It is submitted that the applicant no.1 is impleaded as a party applicant before the arbitral tribunal only with a view to obviate the objection if any to the review petition that the applicant no.2 was not legally liable to enforce the pr