The court has the power to recall and set aside its own order if obtained by fraud, but such applications should not be an abuse of process of law and should not intend to delay or derail the proceedings.

ORDER

Chandra Dhari Singh, J. (Oral)

I.A. 3513/2023 (For recalling and setting aside of order dated 28th July, 2020)

1. The instant application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of respondent no. 1 seeking the following reliefs:

"A. Recall and set aside the order dated 28.07.2020 passed by this Hon'ble Court, and dismiss the Section 9 petition; and

B. Pass an Order directing that all the consequential proceedings (including but not limited to the entire Arbitration proceedings) be declared non-est, null and void and having no binding value; and

C. Impose exemplary costs on the Petitioners for playing a fraud on this Hon'ble Court or take any other action against the Petitioners as this Hon'ble Court may deem fit and proper; and

D. Pass any other order or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. Learned counsel appearing on behalf of applicant/respondent no. 1 submitted that the order dated 28th July, 2020 passed by this Court, whereby this Court was pleased to appoint Mr. N.P. Kaushik, Retd ADJ as sole arbitrator for adjudication of the disputes and differences between the parties, be recalled and set aside.

3. It is submitted that it is a settled position of law that a Court of law possesses an inherent power to recall and set aside its own order or judgment if it is found that the said order or judgment has been obtained by playing a fraud on the Court.

4. It is submitted that `Fun Choice', renamed as `M/s JBK Industries', ceased to exist as on 5th June, 2020, thus the petitioners act of representing themselves to be `Fun Choice', a Partnership Firm of Mr. Prabhat Aggarwala and Mr. Anil Agarwalla, is nothing but a fraud on this Court. It is reiterated that even the affidavit filed in support of the petition describes the petitioner no.1 as `Fun Choice' and Mr. Prabhat Aggarwala as a partner in `Fun Choice'.

5. It is submitted that the instant petition was heard by this Court on 28th July, 2020, on which date the learned counsel for the respondents orally submitted that he had no objection if a sole arbitrator is appointed by this Court as suggested by the learned counsel for the petitioners.

6. It is further submitted that the parties in the present case had already vide Clause 18.6 of the MAPA dated 19th December, 2018 agreed upon a procedure for the appointment of a three-member Arbitral Tribunal. Thus, it was not open to the learned counsel for the respondent no.1 to give oral consent for arbitration before a sole arbitrator.

7. In view of the aforesaid, it is stated that the said order dated 28th July, 2020 appointing a sole arbitrator merits to be recalled and set aside by this Court.

8. Per contra, learned counsel for the non-applicant vehemently opposed the instant application and stated the instant application is nothing but an abuse of process of law and merits to be dismissed with costs.

9. Learned counsel for the non-applicant submitted that the instant application has been filed after a period of three years after the order was passed. Therefore, the application in the instant case is barred by limitation.

10. It is also stated that the proceedings before the learned sole arbitrator are still ongoing and the applicant, in an attempt to delay the arbitral proceedings, has mischievously filed this application.

11. It is thus submitted that the instant petition being devoid of merits deserves to be dismissed.

12. Heard learned counsels for the parties and perused the record.

13. The relevant portion of the order being under review and sought to be recalled by the applicant is reproduced hereunder:

"4. After some arguments, learned counsel for the petitioner, on instructions, submits that the petitioners would be satisfied if the respondent preserves the plant and machinery purchased from the petitioner as per the terms of the Master Asset Purchase Agreement dated 19.12.2018, till the petitioner's