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2019 Supreme(Cal) 836
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DIPANKAR DATTA, ARIJIT BANERJEE, JJ.
Suresh Kumar Jain and Others – Appellants
Versus
Madanlal Jain and Others – Respondents
General Application No. 2244 of 2018, 862 of 2016, R.V.W.O. No. 24 of 2018, Appeal From Order No. 202 of 2017, Execution Cases No. 873 of 2015
Decided On : 08-11-2019
Advocate Appeared:
Anirban Ray, Nirmalya Dasgupta, Nilanjan Pal Choudhuri, S.N. Mitra, Ratnanko Banerjee, D.N. Sharma, Lopita Banerjee, Sunanda Mukhopadhyay, Rajeev Kumar Jain, Apuva Daga, Laila Khatun.
The power of review cannot be exercised to correct an erroneous decision, which is the exclusive domain of an Appellate Court.
Headnote:
Review Petition - Arbitration - Order 47 Rule 1 of the CPC, S. Bhaskaran vs. Sebastian (Dead) by LRs., Board of Control for Cricket in India vs. Netaji Cricket Club, Jai Narain Ram Lundia vs. Kedar Nath Khetan and Others - The court discussed the limitations of exercising the power of review under Order 47 Rule 1 CPC and the scope of review at the instance of any of the parties to a consent order. The court emphasized that a review petition cannot be resorted to for correcting an erroneous decision, which would be the exclusive domain of an Appellate Court.
Fact of the Case:
The case involved an arbitration proceeding between two parties, resulting in the passing of a consent award. Subsequently, there were execution cases and appeals related to the custody of documents pertaining to the properties under arbitration.
Finding of the Court:
The court found that the review petition was not maintainable as the order under review was a consent order and the parties could not vary or modify an arbitral award, even by consent. The court emphasized that the power of review cannot be exercised to correct an erroneous decision, which is the exclusive domain of an Appellate Court.
Issues: The main issue was whether the review petition was maintainable and whether the court could modify an arbitral award based on a consent order.
Ratio Decidendi: The court emphasized that a review petition cannot be resorted to for correcting an erroneous decision, which would be the exclusive domain of an Appellate Court. The court also discussed the limitations of exercising the power of review under Order 47 Rule 1 CPC and the scope of review at the instance of any of the parties to a consent order.
Final Decision: The review petition was dismissed as not maintainable, and there was no order as to costs.
JUDGMENT :
ARIJIT BANERJEE, J.
1. This is an application for review of an order dated 30 July, 2018 whereby a coordinate Bench of this Court, of which one of us was a member (Arijit Banerjee, J.) disposed of APO 202 of 2017 along with the connected application. The material facts of the case culminating in the present review application are as follows.
2. In an arbitration proceeding between the parties hereto a consent award dated 3 January, 2013 was passed in terms of the settlement arrived at between the parties as recorded in a document dated 1 January, 2013. The said award was put in execution by both the groups (Suresh Kumar Jain Group and Hulash Chand Jain Group) resulting in institution of two execution cases before the learned Single Judge being EC No. 144 of 2016, Hulash Chand Jain and Others vs. Suresh Kumar Jain and Others and EC No. 873 of 2015, Suresh Kumar Jain and Others vs. Madanlal Jain and Others. The said execution cases were heard from time to time by the learned Single Judge. On 4 March, 2016 on the prayer made on behalf of the petitioners in EC No. 144 of 2016 the learned Judge directed by way of an interim order, inter alia, that the custodian appointed under the Arbitral Award shall not part with the documents that he was holding till March 11, 2016 or until further orders. The execution applications were posted for hearing on 11 March, 2016. On that date an order was passed by the learned Single Judge extending the interim order dated 4 March, 2016.
3. Being aggrieved by the said orders dated 4 March 2016 and 11 March, 2016 the petitioners in EC No. 873 of 2015, Suresh Kumar Jain and Others, preferred an appeal being APOT No. 81 of 2016 and filed a stay application therein being GA No. 862 of 2016. The said appeal and the application were heard by the Division Bench from time to time and various orders were passed thereon.
4. On 30 July, 2018 a Division Bench of this Court disposed of the appeal and the stay application by passing the following order:-
We have heard the learned counsel for the parties. The custodian namely Kamlesh Sogani is directed to prepare an inventory of the documents which are lying in his custody in presence of representatives of the parties within one month from date. After completion of such inventory, the custodian shall hand over the documents to the Registrar, Original Side of this Court. The Registrar, Original Side shall hold the documents in his safe custody and shall act in terms of the orders that may be passed by the learned single Judge. Parties shall cooperate with the custodian in preparing inventory of the documents as aforesaid.
Parties shall arrange for containers for keeping the documents. Upon handing over the documents to the Registrar, Original Side, the custodian shall stand discharged.
The interim order that was passed by the learned single Judge is modified to the extent as indicated above.
If the parties have any further prayer, they should make such prayer before the learned single Judge in the execution proceedings. It is submitted by the learned counsel representing the custodian that the custodian was granted liberty to file affidavit which has not yet been filed. We put on record that the allegations made against the custodian by the parties in their pleadings are deemed not to be admitted.
No useful purpose would be served by keeping the appeal pending. Thus, the appeal and connected application is disposed of accordingly.
This is the order under review in the present application.
5. Appearing for the review petitioners Mr. Anirban Roy, learned Advocate urged that there is an error apparent on the face of the order under review inasmuch as the same amounts to modification of the arbitral award in question. The Arbitral Tribunal had appointed the custodian to hold documents pertaining to the properties being the subject matter of arbitration and to facilitate implementation of the award. The award has not yet been implemented. Hence, the portion of the order u
