The Court has the power to exercise procedural review under plenary jurisdiction to correct observations based on incorrect facts not part of the pleadings of either party, but the entire judgment cannot be recalled based on those observations if other reasons recorded in the judgment are independent and not vitiated by the procedural error.

JUDGMENT :

R.D. Dhanuka, J.

Kalpataru Power Transmission Limited, the review petitioner (original respondent) to the arbitration petition seeks recall of the judgment and order dated 8th November, 2019 delivered by this Court in Commercial Arbitration Petition No. 376 of 2017. The respondent in this review petition was the original petitioner and had impugned the arbitral award dated 6th January, 2017 passed by the Arbitral Tribunal. By a judgment dated 8th November, 2019, this Court had allowed the said Commercial Arbitration Petition and has set aside the impugned majority arbitral award dated 6th January, 2017 passed by the Arbitral Tribunal. Some of the relevant facts for the purpose of deciding this Review Petition and the clarifications sought in the praecipe dated 20th November, 2019 filed by the respondent herein are as under :-

2. It is not in dispute that the review petitioner had nominated Shri Ashwin Ankhad, advocate as its nominee arbitrator in view of the dispute having been arisen between the parties by invoking arbitration agreement. The respondent herein had appointed a former Chief Justice of Karnataka as presiding arbitrator. It is not in dispute that the learned arbitrator nominated by the petitioner herein did not file any statement of disclosure as contemplated under Section 12(1) of the Arbitration and Conciliation Act, 1996 (for short 'Arbitration Act').

3. The respondent herein filed Commercial Arbitration Petition No. 376 of 2017 impugning the majority award dated 6th January, 2017 on various grounds. It was one of the contention of the respondent herein that learned arbitrator nominated by the petitioner herein was disqualified to act as arbitrator in view of Section 12(5) of the Arbitration Act read with Fifth and Seventh Schedule. No disclosure as contemplated under Section 12(1) read with 12(5) was made by the learned arbitrator nominated by the petitioner herein. The respondent came to know about various interest of the learned arbitrator nominated by the respondent herein after declaration of the impugned award by the Arbitral Tribunal. Mr. Sakhare, learned senior counsel for the respondent at the outset raised a preliminary objection about maintainability of the Review Petition on the ground that Arbitration Act being a self contained code and there being no provision prescribing a remedy for seeking review under the Arbitration Act, in view of limited judicial intervention under Section 5 of the Arbitration Act, review petition filed by the petitioner herein seeking recall of the judgment dated 8th November, 2019 is not maintainable.

4. Learned senior counsel relied upon the judgment of Supreme Court in case of Kapra Mazdoor Ekta Union v/s. Birla Cotton Spinning and Weaving Mills Ltd. and Another, (2005) 13 SCC 777 and in particular paragraphs 12, 13 and 17 to 19 and would submit that the Arbitration Act does not contain any provision granting power of review, expressly or by necessary implication. This review petition filed by the petitioner thus shall be dismissed on that ground alone. Learned senior counsel placed reliance on the judgment of this Court in case of Madhav Structural Engineering Ltd. v/s. Maharashtra State Road Development Corporation Ltd., (2013) 2 MhLJ 372 and in particular paragraphs 10 and 15 in support of the submission that Arbitration Act being a self contained code and there being no provision providing for a review, the review petition filed by the petitioner herein deserves to be dismissed.

5. Learned senior counsel placed reliance on an unreported judgment of this Court delivered on 9th October, 2006 in Review Petition No. 24 of 2006 in Arbitration Petition No. 351 of 2005 in case of M/s. Thanikkudam Bhagwati Mills Ltd. v/s. Mrs. Reena Ravindra Khona and Others in support of the aforesaid submission.

6. Learned senior counsel for the respondent also invited my attention the some of the paragraphs of the affidavit in reply filed by his client and also the praecipe dated 20t