IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION (REVIEW) NO. 12 OF 2009 IN WRIT PETITION NO. 607 OF 2008 FOMENTO RESORTS AND HOTELS LTD.,REP. BY SHRI I.B. MUCHANDI COMPANY SECRETARY ... Applicant Versus M/S GOA GOLF CLUB PVT.LTD., ... Respondent Mr. M. S. Usgaonkar, Senior Advocate with Ms. R. Pereira, Advocate for the Applicant. Mr. P. S. Rao, Advocate for the Respondent. Coram:- B. P. DHARMADHIKARI, J. Date:- 19th June, 2009 P.C. Heard learned Senior Advocate with Advocate Sudhesh Usgaonkar for revenue applicant/original petitioner and Advocate P. S. Rao for respondent. 2. By inviting attention to the Order of this Court dated 04.03.2009 and the grounds raised in the Review Application, learned Senior Advocate has contended that when controversy was being decided finally, a "prima facie" consideration by this Court as is apparent from paragraph 6 of the impugned Order,is refusal to exercise jurisdiction. It is further contended by learned Senior Advocate that in the wake of 15.04.2004 Agreement, suit was filed and subsequently that agreement has been found to be legal and valid. The agreement contains arbitration clause. It is also urged that in the suit, relief was sought that agreement entered into between the parties in 1999 was only legal and valid agreement while all agreements including agreement dated 15.04.2001, were procured by coercion. The money sought to be recovered considered the entitlement of present respondent (plaintiff in earlier 2004 suit) as also entitlement of present Review Applicant and a particular sum was claimed. While considering and deciding the issue in that suit, the learned Trial Court has also taken into account the 2001 agreement and arrangement made therein and present respondent is found not entitled to anything. It is contended that, in these circumstances, by his conduct, the respondent has abandoned the arbitration clause and, in such circumstances, on the basis of agreement dated 15.04.2001, found to be valid, in 2006, the present applicant instituted a suit. The respondent (defendant in this 2006 suit), could not have therefore, fallen back on arbitration clause. It is pointed out that this Court has in impugned Judgment wrongly noted that the claim for recovery of amount of Rs.19,61,667/- was not given up and there was no occasion for recording such finding. It is further pointed out in paragraph 6 at line 8, that this Court also recorded contention that amount sought to be recovered in 2004 suit by present respondent was under 1999 agreement and not under 2001 agreement but, then, later on in next line concluded that amount sought to be recovered was in 2001 agreement. This being inconsistent finding, it is contended that error is apparent. The facts apparent on record are not appreciated and hence a case for review is made out. 3. Advocate Rao, on the other hand, argues that obligations under 1999 agreement were entirely different and considering those obligations and after adjusting the amounts due to each other, respondents filed 2004 suit for recovery on the basis of 1999 agreement only. He states that 1999 agreement does not contain any arbitration clause and even if it contained, the same was not pressed into service by the present applicant who was defendant in that suit. The entitlement or otherwise of present respondent to any relief under 2001 agreement did not form subject matter of 2004 suit and has not been gone into. He further contends that in any case if it has been gone into, the effect thereof can be pressed into service before Arbitrator. He further points out that adjudication in 2004 suit has been challenged in First Appeal before the High Court and said appeal is pending. Lastly, he argues that use of word "prima facie" by this Court is because of pendency of said appeal and also some inconsistent observations or findings by themselves are not sufficient to warrant exercise of jurisdiction to review. 4. I have perused the impugned Order in the background of arguments advanced. Consideration in paragraph 6 shows that this Court has applied its mind finally to the controversy and hence inadvertent use of that word cannot be construed to mean that there is any failure or refusal to exercise jurisdiction. The controversy whether there was any arbitration clause in 1999 agreement or not is not very relevant in present litigation because the present applicant did not press such arbitration clause in 2004 suit and prosecuted that suit on merits. The facts show that present respondent in 2004 suit sought relief by invoking 1999 agreement and by disregarding 2001 agreement. It is, therefore, obvious that his entitlement to any relief or his obligations under 2001 agreement were not relevant in 2004 suit. Even if his obligations under 2001 agreement are gone into in such 2004 suit and there is any final adjudication about it, the said aspect can be looked into by Arbitrator in accordance with law while working out the rights of parties. Thus, the subsequent finding of this Court that the claim was not given up or the amount sought to be recovered was under 2001 agreement are not determinative in any way or enough to warrant any review. 5. In the circumstances, I find that no case for exercise of review jurisdiction is being made of. Application is, therefore, dismissed with no Order as to costs. B. P. DHARMADHIKARI, J. arp/*