IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Prasenjit Biswas R.V.W. 349 of 2024 with CAN 2 of 2024 In C.O. No. 2815 of 2022 M/s. Akshara Niwas Consortium & Ors.

-Versus-

Mrs. Reeta Trehan For the Petitioners : Mr. Zeeshan Haque, Mr. Aditya Kanodia, Ms. Shreya Trivedi.

For the Opposite Party : Mr. Avirup Mondal, Ms. Ahana Ghosh Mondal.

Hearing concluded on : 02.05.2025 Judgment On : 01.08.2025 Prasenjit Biswas, J:-

1. This is an application seeking for review of an order dated 23.08.2024 passed by this Bench.

2. The civil revisional application being C.O. 2815 of 2022 was disposed of by this Court on 23.08.2024. In that civil revisional application liberty was given upon the parties to refer the matter before the arbitrator as made under Article 14 of the agreement dated 12th day of December, 2013 within three weeks from the date of passing of the order. The order passed by this Bench dated 23.08.2024 is assailed in this review petition filed on behalf of the petitioner.

3. Mr. Zeeshan Haque, learned Advocate for the petitioner said that there is apparent error on the face of the record wherein the order under review was passed ignoring the issue in revisional application. It is said by the learned Advocate that an error of mistake is apparent on the face of the order under challenge may be appeared from the following facts:

i) By the order under challenge the Court was pleased to grant liberty to the parties to refer the matter to arbitration in terms of clause 14 of the agreement dated December 12, 2013 which had not been pleaded or urged before the learned Trial Court.

ii) The order was passed by this Court without appreciating the pleadings filed and the arguments advanced by the parties before the learned Trial Court.

iii) The plea of arbitration clause between the parties was never urged before the learned Trial Court and thus, the said plea ought not to have been considered by this Court while passing the order under challenge.

iv) As per Section 8 of the Arbitration and Conciliation Act, 1996, an application to refer disputes to arbitration should be made at the earliest, i.e. before submission of the first statement on the substance of the dispute.

4. It is said by the learned Advocate that after filing of the Money Suit being no. 12/2016, the applicants/defendants have entered appearance in that case and filed written statement in the same but no plea of arbitration was taken on behalf of them. Once the defendants in the suit filed their written statement there would be no scope for either of the parties to take recourse to arbitration. Neither of the parties made an application before the learned Trial Court at any point of time for referring the disputes between the parties under the provisions of Section 8 of the Arbitration and Conciliation Act, 1996. Accordingly, the parties had clearly abandoned and/or waived their right to seek referring of the disputes through arbitration. So, the impugned order an error has been crept up on the face of the record. The matter was referred before the arbitrator, when both the parties to the arbitration agreement waived/abandoned their right to refer the matter before the arbitrator.

5. Mr. Haque further said that the respondent earlier filed a complaint case before the State Consumer Disputes Redressal Form, being CC/279/2014 which was disposed of with giving liberty to file a fresh suit on the self-same cause of action but it was not brought to the notice of this court at the time of passing of the impugned judgment dated August 23, 2014. Although, the respondent obtained liberty to file a consumer complaint before the appropriate forum but they had chosen to file Money Suit No. 12 of 2016 before the Trial Court and that fact was also not brought to the notice of the Court. It is said that the learned Trial Court had declined to grant leave to this respondent to file a fresh suit on the self-same cause of action, despite that thi