IMPORTANT POINT
The discretion of the court in imposing conditions for stay of the arbitral award under Section 36(3) of the Arbitration and Conciliation Act, 1996, is not bound by a specific formula, and the failure to consider a legal precedent does not necessarily constitute an error justifying a review.

JUDGMENT :

Moushumi Bhattacharya, J.

1. The applicant seeks review of a judgment and order dated 5.3.2021 arising out an arbitration petition filed by the award-debtor (respondent in the present application). The review applicant is the award-holder.

2. The alternative prayer of the review applicant is for a direction on the award-debtor to deposit an amount of Rs. 1,84,18,301.66/- for stay of the operation of the arbitral award dated 31.1.2020.

3. The judgment and order dated 5.3.2021 was passed in an application by the judgment debtor for stay of the award dated 31.1.2020. The application was made under section 36(3) of The Arbitration and Conciliation Act, 1996. The application was disposed of by directing the award-debtor (respondent herein) to put in an amount of Rs. 1,30,51,678/- in an interest-bearing fixed deposit within a fortnight from the date of the judgment upon intimation to the Registrar, Original Side of this Court. The award-holder was restrained from taking any steps for execution of the award on the compliance of the directions by the award-debtor.

4. Learned counsel appearing for the review applicant/award-holder submits that the Court directed the award-debtor to secure only the principal amount and not the interest component of the award dated 31.1.2020 overlooking the decision of the Supreme Court in Hyder Consulting (UK) Limited vs. Governor, State of Orissa; (2015) 2 SCC 189 where the arbitral award + interest has been described as the “sum”. Counsel submits that since Hyder Consulting was not placed before the Court at the time of pronouncement of the order, the review becomes automatically maintainable on the Court having overlooked a settled principle of law. Counsel relies on Nihar Ranjan Biswas vs. State of West Bengal; MANU/WB/0738/2016 in this context.

5. Learned counsel appearing for the respondent award-debtor submits that the review application is not maintainable since there is an absence of any error apparent on the face of the judgment. Counsel submits that the application is essentially an appeal in disguise and relies on Perry Kansagra vs. Smriti Madan Kansagra; (2019) 20 SCC 753 in support of his submission. Counsel relies on Explanation to Order XLVII Rule 1 of The Code of Civil Procedure, 1908 to urge that Hyder Consulting cannot be a ground for review of the judgment dated 5.3.2021.

6. The first question which is required to be answered is on the maintainability of the present application for review of the judgment and order dated 5.3.2021. Order XLVII Rule 1 of The Code of Civil Procedure authorises any person aggrieved by a decree or order from which an appeal is allowed but no appeal has been preferred or where no appeal is allowed or a decision on a reference from a Court of Small Causes (Order XLVII Rule (1)(a)-(c)) to apply for review of the judgment to the Court which passed the decree/order on :

• The discovery of new and important matter; or

• Evidence which was not within the applicant’s knowledge or could not be produced by him at the time when the decree was made despite exercise of due diligence; or

• On account of some mistake or error apparent on the face of the record; or

• For any other sufficient reason

7. Order XLVII Rule 1(2) deals with application for review notwithstanding the pendency of an appeal by another party and is not relevant to this application.

8. The Explanation inserted to the provision with effect from 1.2.1977 is as follows :

“The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.”

9. The Explanation to Order XLVII Rule 1 is not relevant to this matter and does not assist the respondent award-debtor since Hyder Consulting was pronounced on 25.2.2014 that is before the judgment under review was decided on 5.3.2021. Therefore, the position of law which was before the Court as o