1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Review Petition (Ld) No. 52 of 2009 M/s M.N.Reddy Enterprises ..Petitioner vs. M/s Elite Brands Pvt.Ltd. ..Respondent Mr.Avinash B.Avhad for petitioner Ms.N.S.Nappinai for respondent. CORAM: S.J.KATHAWALLA J. 10th August, 2009 P.C. 1 This review petition is filed by the petitioner (M/s M.N.Reddy Enterprises) seeking re-examination of the order dated 26th June, 2009 passed by this Court by consent of the parties in Arbitration Petition No.400 of 2008 filed by ELITE Brands Pvt.Ltd. respondent herein (hereinafter referred to as ELITE ) against M.N.Reddy Enterprises (hereinafter referred to as Reddy Enterprises ) under section 9 of the Arbitration and Conciliation Act, 1996. 2 2 When the said petition under sec.9 of the Arbitration and Conciliation Act, 1996 was initially taken up for hearing it was submitted on behalf of ELITE that under a franchise agreement dated 21st May, 2005 between ELITE and Reddy Enterprises, ELITE had handed over watches and travel gears of Italian make Jiordino which Reddy Enterprises are not returning to ELITE despite termination of the franchise Agreement and according to information received by ELITE, Reddy Enterprises are selling the said travel gears and watches on the streets of Hyderabad. It was also submitted on behalf of ELITE that they have also filed a petition under section 11 of the Arbitration and Conciliation Act, 1996 which is pending and Reddy Enterprises are not agreeable to even have the disputes arbitrated. The learned Advocate appearing for Reddy Enterprises submitted that the 3 watches and travel gears are not returned by Reddy Enterprises because ELITE have to pay a certain amount to Reddy Enterprises. This Court, therefore, suggested to the learned Advocates for the parties that Reddy Enterprises may hand over the watches and travel gears to ELITE upon ELITE depositing in this Court an amount agreeable between Reddy Enterprises and ELITE and have all their disputes under the franchise agreement decided by a sole Arbitrator appointed by the parties. The learned Advocate for the respondent informed the Court that his client is at Hyderabad and that he will have to take instructions from his client. 2 On 25th June, 2009 at the request of the Advocates for the parties the matter was adjourned to 26th June, 2009. On 26th June, 2009 when the Arbitration Petition reached hearing the learned Advocates for ELITE and Reddy Enterprises informed this Court about 4 the settlement talks held between them on the earlier day. They further informed the Court that though the parties have agreed to the interim orders i.e. deposit of an amount of Rs.1,40,000/- by ELITE with the Prothonotary and Senior Master, High Court Bombay against which Reddy Enterprises will be handing over the watches and travel gears to the petitioner as set out in Exhibit D to the additional affidavit of the ELITE dated 1st December, 2008, the parties were unable to agree upon the name of an Advocate to be appointed as sole arbitrator to decide the disputes between the parties. In fact, Mr.M.C.S.Reddy, partner of Reddy Enterprises was also allowed to address the Court when he informed the Court that he had names of two Advocates who could be appointed as Arbitrators to whom all the disputes pertaining to the franchise agreement dated 21st May, 2005 between the ELITE and Reddy 5 Enterprises, could be referred to. The matter was, therefore, kept back for some time. After about an hour the matter was mentioned before the Court and this Court was informed that as far as the name of the Arbitrator is concerned, the Court may appoint any Advocate as an Arbitrator and the parties shall accept him as an Arbitrator in the matter. Thereafter the order dated 26th June, 2009 was passed in open Court in the presence of the Advocates for ELITE and Reddy Enterprises, Mr.Ramesh Chandra Nath C.E.O. Of ELITE and Mr.M.C.S.Reddy, partner of Reddy Enterprises. 3 On 3rd August, 2009 Reddy Enterprises filed this review petition through its partner Mr.M.C.S. Reddy, seeking review of the consent order dated 26th June, 2009 passed by this Court. In paragraphs 4 and 5 of the review petition, Mr.M.C.S.Reddy has alleged that though on the day when the order 6 came to be passed i.e. on 26th June, 2009 he had discussed the matter with his Advocate at Mumbai, he was unable to understand the legal terms and was himself confused and hence did not realise that he had consented for the said order which would result into foregoing his objection taken in the arbitration petition no.181 of 2007 filed under section 11 by ELITE. He has contended that it was only when he went back to Hyderabad and discussed with his Advocate and after he received a copy of the order dated 26th June, 2009 he realised that he had forgone his challenge to number of issues in respect of both the arbitration petitions (i.e. under sections 9 and 11) as a result of his consent. 4 I have considered the submissions made in the Review Petition which are also reiterated by the learned Advocate appearing 7 in support of the review petition. In my view, not only has the petitioner (Reddy Enterprises) not made out any case for review of the said order dated 26th June, 2009 but in view of the above stated facts which led to the passing of the order dated 26th June, 2009, the case now attempted to be made out by the review petitioner in paragraphs 4 and 5 of their petition is completely dishonest. Mr.M.C.S. Reddy is a literate person who speaks as well as understands English. Mr.M.C.S. Reddy along with his Advocate was admittedly present before this Court on 26th June, 2009 and he also suggested the names of certain Advocates who could be appointed as Arbitrators. On 26th June, 2009 after the matter was kept back for more than an hour the Advocates for the parties along with their respective clients returned back to the Court and requested the Court to pass the said order dated 26th June, 2009 by consent 8 of the parties which again was dictated in open Court. The learned Advocates also agreed that this Court may name any Advocate of this Court to act as the sole Arbitrator for deciding all the disputes between the parties arising out of franchise agreement dated 21st May, 2005. The allegations now made in paragraphs 4 and 5 of the review petition as set out above are baseless, untenable and dishonest and the review petition deserves to be dismissed. The review petition is accordingly dismissed with costs. 5 The learned Advocate appearing for the review petitioner Reddy Enterprises seeks a stay of the order dated 26th June, 2009, the review of which order is sought by filing the present petition. Since the review petition itself is dismissed on the ground that the case made out by the review petitioner is false and dishonest the 9 question of granting any stay as sought does not arise. Hence the application for stay is rejected. S.J.KATHAWALLA J.)