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SUPREME COURT OF INDIA
B.R. Gavai, Vikram Nath, JJ.
Arun Dev Upadhyaya – Appellant
Versus
Integrated Sales Service Ltd. & Anr. – Respondents
R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345-8346 of 2018
Decided On : 05-07-2023
(A) Constitution of India – Article 137 read with Rule 1 of Order XLVII of Supreme Court Rules, 2013 – Review of judgments or orders by Supreme Court – Supreme Court would have power to review any judgment or order made by it subject to provisions of any law made by Parliament or any Rules made under Article 145 – Supreme Court Rules 2013 have been framed under Article 145 by this Court and duly approved by President – No law has been made by Parliament in that respect and, as such, power of review vested in this Court would be governed by Rules. (Para 8.2)
(B) Civil Procedure Code, 1908 – Order XLVII Rule 1 read with Section 114 – Review – Power to review can be exercised only upon existence of any of three conditions expressed therein. – A mistake or an error apparent on face of record is one of conditions – Power to review cannot be exercised as an appellate power and has to be strictly confined to scope and ambit of Order XLVII Rule 1 of CPC – An error on face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (Paras 9, 11 and 15)
Facts of the case:
In impugned judgment, it has been held that it would not be permissible to review award on merits even on the ground of existence and validity of arbitration and the only ground on which enforcement of foreign awards could be resisted or refused are contained in Section 48 of Arbitration and Conciliation Act, 1996. It also held that canvas of Section 46 of the Act is wider than that of Section 35 of the Act and as such would apply to all the persons who are not even parties to the Arbitration Agreement. It also held that tortious dispute can also be referred to arbitration because it is in connection with the agreement.
Findings of Court:
Each and every argument having been considered by this Court in its judgment dated 10.08.2021, arguments advanced if accepted would result in expressing a different opinion on the points raised and decided, which we are afraid do not fall within settled contours of Order XLVII Rule 1 CPC relating to error apparent on face of record. Other grounds of invoking the review power are neither existing nor have been raised in the present petitions.
Result : Review Petitions dismissed.
JUDGMENT
Vikram Nath, J.
1. These are Review Petitions preferred by Arun Dev Upadhyaya (Review Petitioner) praying for review of the judgment dated 10.08.2021 passed in Civil Appeal Nos. 8345-8346 of 2018 titled Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd. & Anr., In short, “GBTL”, whereby the said Civil Appeals filed by the Review Petitioner were dismissed.
2. We have heard Shri Harish N. Salve, Sr. Advocate for the Review Petitioner and Shri Shekhar Naphade, learned Senior Counsel for the Respondent No. 1 and also perused the material on record.
3. Relevant facts of the present litigation giving rise to the present review petitions are briefly summarized hereunder:
3.1. D.M.C. Management Consultants Limited, In short ‘DMC’, was incorporated as a public limited company under the Companies Act, 1956 in July 1995. A Representation Agreement was executed on 18.09.2000 to be effective from 03.10.2000 between DMC and Integrated Sales Service Ltd. (Respondent No.1). The said agreement was signed by Rattan Pathak (Managing Director) on behalf of DMC and Terry L. Peteete, Director on behalf of Respondent No.1.
3.2. Under the said agreement, Respondent No. 1 was to find customers for DMC on commission basis. Under the terms of the agreement, Respondent No. 1 as the representative was to assist DMC in selling its goods and services to prospective customers and to receive commission in consideration thereof. Further, as per Clause 8(d), any dispute between the two companies was agreed to be subjected to the laws of the State of Missouri, USA and the same were to be referred to a sole Arbitrator appointed by agreement between the parties. Upon failure to agree to Arbitrator, the appointment was to be made according to the rules of the American Arbitration Association.
3.3. There were two amendments with respect to the Representation Agreement dated 18.09.2000. The first amendment executed in 2005 related to the changes in the rate of commission. This amendment was signed by the review petitioner Arun Dev Upadhyaya in his capacity as Director of DMC and Terry L. Peteete (Director) on behalf of the Respondent No.1.
3.4. The second amendment to the Representation Agreement came to be executed on 01.01.2008. It rendered the First Amendment of 2005 as null and void. This amendment also made some changes to the rate of commission and further it made the laws of Delaware applicable to the Representation Agreement. This Amendment was signed by Rattan Pathak (Managing Director) on behalf of DMC and Terry L. Peteete (Director) on behalf of Respondent No.1.
3.5. The Review Petitioner who was holding the office of Director in DMC tendered his resignation on 31.03.2009. On 22.06.2009, Respondent No. 1 issued a demand for Arbitration to the Review Petitioner under the Commercial Arbitration Rules of the AAA. The statement of claim was also against DMC and GBTL seeking damages to the tune of US $ 4.8 million.
3.6. GBTL filed its objections on 21.07.2009 to the effect that the Arbitral Tribunal has no jurisdiction to include it as a party in the arbitration as it was not a party to the agreement. On the same day, the Review Petitioner also filed a ‘without prejudice response’ to the Statement of Claim stating, inter alia that he was not signatory in the agreement between DMC and Respondent No. 1; secondly, that he never consented to or agreed to be bound by any arbitration agreement; and thirdly, any demand for arbitration against him in his individual capacity was not acceptable and was denied.
3.7. The signatory to the Representation Agreement i.e. DMC filed its reply on 21.07.2009 to the Statement of Claim made by Respondent No.1.
3.8. In October, 2009, GBTL filed Special Civil Suit No. 1035 of 2009 before the Civil Judge, Senior Division, Nagpur, against Respondent No. 1 seeking declaration and perpetual injunction and also for recovery of damages of Rs. 10,00,000/-. This suit is still pending. An application under Order 39 Rules 1&2 CPC
(1) Review of judgments or orders by Supreme Court – Supreme Court would have power to review any judgment or order made by it subject to provisions of any law made by Parliament or any Rules made un....
The court emphasized the limited scope of review power, the need for an error apparent on the face of the record, and the applicability of the provisions of the Arbitration & Conciliation Act to the ....
The review jurisdiction is limited and cannot be exercised on the ground that the decision was erroneous on merits. The petitioner must show error apparent on the face of the record to seek a review.
Point of law: The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeki....
Review jurisdiction is not an appeal; it addresses only material errors apparent on record, not new arguments or hearsay.
Enforcement of a foreign arbitral award is granted under Section 48 of the Arbitration Act, emphasizing limited grounds for refusal based on public policy, requiring strong evidence of violation.
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