Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Review Application No. 107 of 2008 IN Arbitration Application No. 14 of 2007 Uttaranchal Volleyball Association, A Society Registered under the Society Registration Act and having its Registered Office at Brihaspati Sports Academy, Narainpur, Tehsil Kichha, Udham Singh Nagar, through its Secretary, Sri D.K.Singh. …… Applicant. Versus Volleyball Federation of India, Head Office, Room No. 72, Jawahar Lal Nehru Stadium, Chennai, 60003 through its General Secretary Shri K.Murugan and six others. … OP-Respondents. Uttaranchal Volleyball Association, Brihaspati Sports Academy, Narainpur, Tehsil Kichha, Udham Singh Nagar through its Secretary, Sri D.K.Singh. (Review Applicant). Sri L.P.Naithani, Senior Advocate, with Sri B.D.Upadhyay, learned counsel for the review applicant. Sri Ghanshyam Joshi, learned counsel for the O.P.-respondent no.3. Sri Arvind Vashist, learned counsel for the O.P.-respondent no. 4. Date May 20, 2008. Hon’ble B.S.Verma, J. This review application has been moved to review the judgment and order dated 15-01-2008 passed in Arbitration Application No. 14 of 2007, Uttaranchal Volleyball Association Vs. Volleyball Federation of India and others. The review applicant moved an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the Act) before this Court, which was registered as Arbitration Application No. 14 of 2007 with the prayer to appoint arbitrator/arbitrators in terms of Section 11 of the Act to decide the dispute between the parties. Prayer was also made to restrain the respondents from proceeding further on the basis of letter/order dated 21-7-2007 during the pendency of arbitration application. 2 This Court after hearing the parties observed that the application under Section 11(6) of the Act was not maintainable and accordingly the application was dismissed vide order dated 12-10- 2007. The main contention raised by the learned counsel for the review applicant is that the applicant had come before this Court with a prayer for appointing arbitrator/arbitrators in terms of Section 11 of the Act mainly on the ground that the respondent no.1 had appointed third arbitrator in violation of Section 11(3) of the Act. The review applicant also filed a supplementary affidavit dated 28-3-2008. In this affidavit it was stated that the applicant never participated in the arbitration proceeding and in reply to the notice he intimated Chairman of the Arbitration Committee vide his letter dated 6-10-2007 (Annexure No.2 to the affidavit in the arbitration application) that he had filed an arbitration case before the High Court, hence the hearing of the arbitration matter be adjourned. I have heard learned counsel for the parties at length and perused the record. At the outset, it may be mentioned that procedure for appointment of arbitrators has been laid down in Section 11 of the Act. Relevant extract of Section 11 of the Act is reproduced as under:- “11. Appointment of arbitrators.-(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. 3 (3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub-section (3) applies and- (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (5) Failing any agreement referred to in sub-section(2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (6) Where, under an appointment procedure agreed upon by the parties- (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.” It was held by the High Court exercising revisional jurisdiction in Civil Revision No. 76 of 2004, Volleyball Federation of India and another Vs. Uttaranchal Volleyball Association and 4 others vide order dated 5-8-2005 that “Real dispute in the present case is between defendant No. 3 and the plaintiff as the later has allegedly passed no confidence motion against the former. That being so, dispute between the defendant no. 3 and plaintiff- respondent is covered under Clause (a) of Article XVIII, as such, should have been referred to the Volleyball Federation of India (defendant No.1) for settlement of the dispute.” In clause (a) of the Article No. XVIII of the Constitution and Bye-laws of the Volleyball Federation of India the following provision exists:- “(a) Disputes/conflicts in member Association In the event of a dispute/conflict in a member Association or its constituents unit, a complete statement of case shall be submitted to the Federation. The case will be immediately put up by the Secretary General to the Executive Committee. If necessary an emergent meeting of the Executive Committee will be called. The Executive Committee will appoint an Arbitrator or a Committee of Arbitrators for the dispute/conflict who will give the decision within 30 days of the submission of the case. All the disputes among the Member Association or its constituent unit shall be decided by reference to Arbitration alone as mentioned herein under the Arbitration Act, 1940. All Member Association and its constituents are required to insert this clause in their Constitution by which they freely renounce their right to take the dispute/conflict before the Court of law without exploring all avenues and undertake to accept the decision of the Arbitrator.” In the case at hand, there is agreed procedure between the parties for appointing an arbitrator or a Committee of Arbitrators. 5 The contention of the learned counsel for the review applicant is that the opposite party-respondent no.1 had not adhered to the procedure as provided in sub-section (3) of Section 11 of the Act, therefore, due to this failure the applicant had rightly came up before this Court under Section 11(6) of the Act. The argument was advanced on behalf of the applicant in arbitration application that the third arbitrator should have been appointed by consensus of the two arbitrators, but this aspect was not considered by the Court in its order sought to be reviewed and no discussion was made with regard to the provisions of Section 11(3) of the Act. It was submitted that in law consent cannot confer jurisdiction. In support of his contention, learned counsel for the review applicant has placed reliance upon the case of Raghunath Rai Bareja and another Vs. Punjab National Bank and others [(2007) 2 Supreme Court Cases, 230], wherein it was held inter alia in paragraph no.22 that “it is well settled in law that consent cannot confer jurisdiction.” The ratio of the Apex Court judgment cannot be disputed, but in the case at hand, the arbitrator was to be appointed in terms of the Court’s Order dated 5-8-2005 passed in Civil Revision No. 76 of 2004 under Section 115 of the Code of Civil Procedure. Learned counsel for the opposite party-respondent no.3 has contested the review application and filed counter affidavit wherein it was stated that there is no provision of review under the Act, therefore, the review application is not maintainable. In reply to the submission made by Senior Advocate, Sri L.P.Naithani on behalf of the review applicant, learned counsel for the Opposite Party No. 4 It was submitted once the relief had been rejected, the same relief cannot be sought by an indirect method by filing a review petition. The learned counsel has placed reliance upon the Apex Court judgment in the case of Jain 6 Studios Ltd. through its President Vs. Shin Satellite Public Co. Ltd. [(2006) 5 Supreme Court Cases, 501]. I have perused the case of Jain Studios Ltd. (supra). The Apex Court has observed that once a prayer for relief which had been sought at the time of arguing the main matter has been refused, no review petition would lie which would convert rehearing of the original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of an old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. Learned counsel for the opposite party no. 4 has also placed reliance upon the case of M/s Manish Engineering Enterprises V. Managing Director, IFFCO, N. Delhi and others [AIR 2008 Allahabad 56]. In the case of M/s Manish Engineering Enterprises (supra) in paragraph no. 24, the Allahabad High Court has held as under:- “24(i) The applicant sought to rely upon Section 151 of the Civil Procedure Code to submit that the Chief Justice, while acting under this Act had the inherent power to make such orders, as may be necessary for the ends of justice, or to prevent the abuse of the process of the Court. They relied upon the judgment of the Apex Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal, reported at AIR 1962 SC 527, where in the context of the power to grant injunction, the majority judgment held that Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice and held that it is not possible to 7 hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. They also relied upon another judgment in the case of Shivdeo Singh v. State of Punjab, reported at AIR 1963 SC 1909, which is in the context of Article 226 of the Constitution of India. The Apex Court had held in that matter that there is nothing in Article 226 to preclude a High Court from exercising the power of review, which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. (ii) Now as far as the present matter is concerned, this Court is not exercising writ jurisdiction when an application for review under this Act is made. Secondly, the Chief Justice while functioning under Section 11 of this Act is functioning as the specified authority and not as a Civil Court in the strict sense of the term. The proposition in both the judgments cannot, therefore, be extended to support the maintainability of the present application. Thus, under the scheme of the Act only in the event there is a procedural irregularity, which vitiates the proceedings, the order could be reviewed, but a substantive review would not be available.” It is pertinent to mention that one of the grounds for review is that in paragraph 5 of the affidavit it has been stated by the applicant “that in accordance with the Act and Judgement of the Apex Court in Iron Steel Co. Ltd Vs. Tiwari Rosdinar 2007 (5) SCC has to appoint one arbitrator on their behalf and thereafter the two arbitrator was to the third (Referee) umpire.” The Apex Court in the case of Iron & Steel Co. Ltd. Vs. Tiwari Road Lines [(2007) 5 Supreme Court Cases, 703] while dealing with the provisions of Section 11(3), (4) and (5) of the Act has observed as under:- “7. Sub-section (2) of Section 11 of the Act provides that subject sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator. The opening part of sub- 8 sections (3) and (5) of Section 11 of the Act use the expression “failing any agreement referred to in sub-section (2)”. Therefore, sub-sections (3) and (5) will come into play only when there is no agreement between the parties as is referred to in sub-section (2) of Section 11 of the Act viz. that the parties have not agreed on a procedure for appointing the arbitrator or arbitrators. If the parties have agreed on a procedure for appointing arbitrator or arbitrators. Similarly, under sub-section (6) of Section 11 request to Chief Justice or to an institution designated by him to take the necessary measures, can be made if the conditions enumerated in clause (a) or (b) or (c) of this sub-section are satisfied. Therefore, recourse to sub-section (6) can be had only where the parties have agreed on a procedure for appointment of an arbitrator but (a) a party fails to act as required under that procedure: or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure. Therefore, a combined reading of the various sub-sections of Section 11 of the Act would show that the request to the Chief Justice for appointment of an arbitrator can be made under sub- sections (4) and (5) of Section 11 where parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub- section (2) of Section 11. A request to the Chief Justice for appointment of an arbitrator can also be made under sub-section (6) where parties have agreed on a procedure for appointment of an arbitrator as contemplated in sub-section (2) but certain consequential measures which are required to be taken as enumerated in clause (a) or (b) of (c) of sub-section (6) are not taken or performed.” In paragraph no. 10, the Apex Court has observed as under:- “10. In the matter of settlement of dispute by arbitration, the agreement executed by the parties has to be given 9 great importance and an agreed procedure for appointing the arbitrators has been placed on high pedestal and has to be given preference to any other mode for securing appointment of an arbitrator. It is for this reason that in clause (a) of sub-section (8) of Section 11 of the Act it is specifically provided that the Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties.” By a perusal of the Apex Court judgment it is amply clear that the provisions of sub-section (3) and (5) of Section 11 of the Act would be attracted only if there is no agreed procedure between the parties. This judgment is of no help to review applicant rather it supports the contentions raised by the respondent no.4, particularly because the agreed procedure for appointing the arbitrators has been placed on high pedestal than any other mode. Although this Court in the order dated 15-01-2008 had already dealt with the provisions of Section 11(6) of the Act in detail and also discussed the said judgment and all material points were also dealt with. Even then assuming that this Court had not dealt with the provision of Section 11(3) of the Act on which learned counsel for the review applicant has given much stress, I am inclined to entertain the review application to find out whether there had been any agreed procedure between the parties regarding appointment of arbitrator/arbitrators to settle the dispute, which was not followed. Stress has been given by the learned counsel for the review applicant that the procedure as laid down in the Constitution and Bye-laws of the Volleyball Federation of India (VFI) and Section 11(3) of the Act were not followed and on account of failure on the part of respondent no.1-VFI, the application under Section 11(6) of the Act was liable to be allowed by this Court. From a bare perusal of clause (a) of Article No. XVIII, reproduced hereinbefore would show that there is an agreed procedure between the parties, wherein it is provided that the Executive Committee will appoint an Arbitrator or a Committee of 10 Arbitrators for the dispute/conflict who will give the decision within 30 days of the submission of the case. The Volleyball Federation of India by its letter dated 21-7-2007 had nominated a three member committee to take up the matter and to initiate the arbitration proceedings and Mr. Dilip Bhattarcharya, Ex-President, VFI was appointed as Chairman of the Arbitration Committee. The grievance of the applicant was that the appointment of Mr. Dilip Bhattarcharya as Chariman of the arbitral committee is against the provisions of the Act. The argument of the learned counsel for the applicant that by appointing Mr. Dilip Bhattacharya, as Chairman of the Arbitration Committee, the respondent no.1 had violated provisions of Section 11(3) and 11(6) of Act, and this Court should have appointed the Arbitrator is not acceptable for the simple reason that the respondent no.1 was fully empowered under the agreed procedure between the parties to appoint a committee of arbitrators. In any view of the matter, it cannot be said that the respondent no.1 had deviated from the agreed procedure by appointing any particular person as the Chairman of the arbitration committee or the respondent no.1 had failed to act as required under the agreed procedure. The Apex Court in the case of You One Maharia-JV through You One Engineering & Construction Co. Ltd. & Anr. V. National Highways Authority of India [JT 2007 (10) SC 267] has held that since the arbitration clause explicitly provided for the appointment of the presiding arbitrator by the Council of Indian Road Congress in the event of the inability of the arbitrators appointed by the parties to have consensus on the presiding arbitrator, court cannot appoint the arbitrator. In the case at hand, the Volleyball Federation of India was well within its competence to appoint an arbitrator or a Committee of Arbitrators or any particular person as the Chairman 11 of the Committee. On this score, this Court could not have entertained the application of the review applicant to appoint arbitrator under Section 11(6) of the Act, particularly because in the letter dated 21st July 2007 it was mentioned that review applicant D.K. Singh had chosen Mr. Rajeev Mehta President Uttarakhand Olympic Association to represent his views and Mr. Avadesh Chaudhary had selected Mr. N.D.Sharma as his representative. From a careful reading of Article No. XVIII (a), it does not come out that the parties had agreed to appoint the Arbitrator/Arbitrators as provided under sub-section (3) of Section 11 of the Act. In view of the discussion above, the contention of learned Senior Advocate Sri L.P.Naithani, appearing for the review applicant, cannot be accepted for the simple reason that the agreed procedure as laid down under clause (a) of Article No. XVIII of the Constitution/Byelaws of the VFI was followed by the respondent no.1 and committee of arbitrators was appointed as provided under Section 11(2) of the Act. The provisions of sub-section (3) and sub-section (5) of the Act would attract in case there is no agreed procedure for appointment of arbitrator/arbitrators, as has been laid down by the Apex Court in the case of Iron & Steel Co. Ltd. (supra) as well as in the case of You One Maharia-JV (supra). The review application has no merit and the same is liable to be dismissed. In the order dated 15-01-2008, due to inadvertence in the particulars of parties, respondent no.7 has been transcribed as “The Oil & Natural Gas Corporation Ltd. Jeevan Bharti Tower-II, 124 Cannaught Circus, New Delhi-110001, through its CMD.” The mistake is clerical and bona fide. The respondent no.7 be struck out from the array of parties and the order dated 15-01-2008 be corrected accordingly. The review application is accordingly dismissed subject to above correction in the order. ( B.S.Verma, J. ) RCP 12 13