IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY REVIEW PETITION (LODGING) NO. 51 OF 2008 REVIEW PETITION (LODGING) NO. 51 OF 2008 REVIEW PETITION (LODGING) NO. 51 OF 2008 IN IN IN NOTICE OF MOTION NO. 2618 OF 2008 NOTICE OF MOTION NO. 2618 OF 2008 NOTICE OF MOTION NO. 2618 OF 2008 IN IN IN ARBITRATION PETITION NO. 333 OF 2008 ARBITRATION PETITION NO. 333 OF 2008 ARBITRATION PETITION NO. 333 OF 2008 Citicorp Finance (India) Ltd. ...Petitioner (Orig.Petitioner) vs. Noorjahan Salim Bash ...Respondent (Orig.Intervenor) Ms.Shakuntala Joshi i/b. M/s.S.I. Joshi & Co. for the Petitioner. Mr.S.C. Naidu alongwith Mr.S.R. Ingale i/b. M/s.C.R. Naidu & Co. for the Respondent. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 15, 2008 DATED : OCTOBER 15, 2008 DATED : OCTOBER 15, 2008 P.C. :- P.C. :- P.C. :- 1. The petitioner has taken out this review petition seeking review of the order passed by this Court dated 7th August, 2008 in Notice of Motion No.2618 of 2008. 2. Brief facts are that the review petitioner is the petitioner in Arbitration Petition No.333 of 2008. In the said petition, pursuant to the orders passed by this Court, a machine which was allegedly hypothecated in favour of the arbitration petitioner was directed to - 2 - be seized by this Court and accordingly, the Court Receiver took formal possession of the said machine. Thereafter, by a further order, this Court directed that the physical custody of the said machine should be handed over by the Court Receiver to the arbitration petitioner. After the said order was passed and the Court Receiver handed over physical possession to the arbitration petitioner, a Notice of Motion No.2618 of 2008 was taken out by the intervenor in which certain reliefs were claimed. The said reliefs are as under :- 1) That the Petitioner be restrained from selling, disposing, alimentary or creating any third party right in the machine bearing HP Scitex XL 1500 (4 Colour) Inkjet Printing Machine bearing Serial No.3C5741Y155 till further orders; 2) pending the hearing and final disposal of the Arbitration Petition this Hon’ble Court may be pleased to pass Interim Order giving the custody of HP Scitex XL 1500 (4 Colour) Inkjet - 3 - Printing Machine bearing Serial No.3C5741Y155 to the Intervenor; 3) That in the alternate the Petitioner deposit a sum of Rs.75,00,000/- (Rupees Seventy Five Lakhs Only) with this Hon’ble Court; 4) Ad-interim reliefs in terms of prayer clauses (b) & (c) above; 5) Such other and further reliefs as deemed fit and proper on the facts and circumstances of the case; f) Costs of this Notice of Motion be provided for. 3. It was submitted by the Counsel for the Intervenor that the respondent in the arbitration petition had also entered into a hypothecation agreement with the intervenor and that loan amount was advanced by the intervenor to the said respondent. He submitted - 4 - that the machine which was seized by the Court Receiver pursuant to the orders passed by this Court did not belong to the arbitration petitioner or in other words, the machine which was hypothecated with the arbitration petitioner was not the same machine which was seized by the Court Receiver. He submitted that from the serial number which was given by the arbitration petitioner and the serial number of the machine which was seized by the Court Receiver had clearly indicated that the said machine was different and it actually belongs to the intervenor. He relied on an agreement of November 2007 and he pointed out that the serial number which was given in the said agreement did match with the serial number of the machine which was seized by the Court Receiver. He, therefore, submitted that he may be permitted to intervene in the said matter so that the reliefs claimed in the Motion could be considered. 4. The learned Counsel appearing on behalf of the arbitration petitioner vehemently opposed the intervention of the intervenor in her arbitration petition. - 5 - 5. After both the learned Counsel were heard, I permitted the intervenor to address the court and allowed him to intervene in the arbitration petition and the Notice of Motion taken out by the intervenor was adjourned to 26th August, 2008. Thereafter, the present review petition has been filed by the arbitration petitioner. She submitted that certain aspects were not considered by this Court while passing the aforesaid order. She firstly pointed out that the agreement which was executed by the arbitration petitioner was prior in point of time and it was executed on 30th October, 2007. On the other hand, she submitted that the hypothecated agreement on which reliance was placed by the intervenor was a fabricated document, firstly, no date was given and only the month of the year was mentioned in the said agreement. She secondly, submitted that the number which was given on page 25 of the compilation was not available with the arbitration petitioner since it became available only after the installation of the machine. Thirdly, she submitted that as petition was filed under Section 9, a counter claim of another party - 6 - was not maintainable and only the parties to the arbitration agreement could be made as parties under Section 9. She also submitted that the intervenor at the most may file a separate petition under Section 9 and the notice of motion in the present form was not maintainable. She further submitted that no prayer for intervention was made by the intervenor in Notice of Motion and therefore, the question of permitting the intervenor to address the court or to intervene in the arbitration petition did not arise. She then relied on the judgment of the Delhi High Court in the case of National Highways Authority of India (NHAI) vs. China National Highways Authority of India (NHAI) vs. China National Highways Authority of India (NHAI) vs. China Cool Construction Group Corpn, reported in 2006(1) Cool Construction Group Corpn, reported in 2006(1) Cool Construction Group Corpn, reported in 2006(1) R.A.J. 261(Del). R.A.J. 261(Del). R.A.J. 261(Del). She invited my attention to the observations made by the Delhi High Court on questions No.3 and 4 which were formulated by the court and submitted that in view of the ratio laid down in the said case, the intervenor had no locus standi in the arbitration proceedings. She also submitted that all these submissions were made when the earlier order was passed, however, this Court did not refer to these submissions. - 7 - 6. It is not possible to review the order passed by this court. The Notice of Motion has been adjourned and it is to be heard alongwith the arbitration petition and is kept for hearing on 16th October, 2008. It is always open for the arbitration petitioner to reagitate all these submissions which she has made today when both the notice of motion and the petition are to be heard together. Taking into consideration the controversy between the parties and in view of the fact that the intervenor claims to be the person who had hypothecated the machine and that the machine which belongs to the intervenor has been wrongly seized by the Court Receiver and for reasons stated in the order, I have permitted him to address the court and to intervene in the arbitration petition. All the questions raised by the petitioner can be raised at the hearing of the petition and therefore, it is not necessary to review the order passed by me on 7th August, 2008. 7. It is clarified that all contentions of both the parties are kept open. - 8 - 8. Review Petition is dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)