IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 RP.No. 1173 of 2010 AGAINST THE JUDGEMENT/ORDER IN ARBA.16/2003 Dated 04/03/2010 .................... REVIEW PETITIONERS : PETITIONER/APPELLANTS/PETITIONERS IN IAS 1. LATHEESH, SON OF LAKSHMANAN, NISHA BHAVAN, TALAP, KANNUR. 2. P.K. PREMA, W/O. LAKSHMANAN, NISHA BHAVAN, TALAP, KANNUR. 3. K.P.NISHI, D/O. LAKSHMANAN,NISHA BHAVAN, TALAP, KANNUR. 4. K.P.SHEERA, D/O. LAKSHMANAN,NISHA BHAVAN, TALAP, KANNUR. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.K.V.SREE VINAYAKAN RESPONDENT(S): RESPONDENTS IN IA 1. KALLATHIL SREEDHARAN, SON OF KELAN, KALLALATHIL TALAP,KANNUR TALUK,KANNUR-670004. 2. KALLATHIL SEKHARAN (DIED), SON OF KELAN, KALLALATHIL TALAP,KANNUR TALUK,KANNUR-670004. 3. KALLALATHIL NARAYANAN, SON OF KELAN, KALLALATHIL TALAP,KANNUR TALUK,KANNUR-670004. ADDL. R4. DHAYROTH AMJUAKSHI, WIFE OF LATE KALLATHIL SEKHARAN, AGED 78 YEARS, KALLALTHIL HOUSE,P.O.PALLIKUNNU, TALAP,KANNUR TALUK, KANNUR-670004. ADDL.R5. SARALA KALLALATHIL, D/O. LATE KALLALATHIL SEKHARAN, AGED 54 YEARS, KALLALATHIL HOUSE,P.O.PALLIKUNNU, TALAP,KANNUR TALUK, KANNUR-670004. ADDL.R6. SHYAMALA KALLALATHIL, D/O. LATE KALLALATHIL SEKHARAN, AGED 51 YEARS, KALLALATHIL HOUSE,P.O.PALLIKUNNU, TALAP,KANNUR TALUK, KANNUR-670004. ADDL.R7. SHEENA.K. OF LATE KALLALATHIL SEKHARN, SUJATHA PENCIL COMPANY, NALLUR, FEROKE, CALICUT-673631. ADDL.R8. REESHA.K., D/O. LATE KALLALATHIL SEKHARAN, AGED 41 YEARS, VESTAL, NEAR PUZHADHI HOUSIG COLONY, KAKKAD, KANNUR-670002. ADDL.R9. LALITHA.K., SON OF LATE KALLALATHIL SEKHARAN, KALLALATHIL HOUSE, NEAR TALAP TEMPLE, P.O.PALLIMUKKU. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.1173 OF 2010 in Arb.A.No.16 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of February 2011 ORDER Basheer, J. Petitioners, who are the appellants in Arbitration Appeal No.16 of 2003 seek review of the judgment, primarily on the ground that this court has failed to notice the amendment brought about to Rule 3 of Order 23 of the Code of Civil Procedure while disposing of the appeal. According to the petitioners, the amended rule mandated that an agreement or compromise shall have any validity or acceptability only if it had been reduced to writing and signed by the parties. It is contended that the court having failed to take note of the above crucial aspect of the matter, particularly the mandate contained in Rule 3, the judgment requires to be reviewed. It is further contended that the above error is apparent on the face of the record warranting invocation of the power of review. 2. It may at once be noticed that the above contention does not appear to be factually correct. In fact in para 28, this court has extracted Rule (3) as amended. Thereafter, it was held that going by the scheme of the Arbitration Act 1940, it was evident that the Arbitrator was vested with abundant powers to resolve the dispute among the parties. In this context, this court had also referred to Section 41 of Act 1940 apart from the Kerala Arbitration Rules framed by the Kerala High Court in exercise of the power vested in it by virtue of Section 44 of the Act. The provisions contained in Section 41 and Rule 14 related to the procedure and powers of court and not that of the Arbitrator. R.P.No.1173 OF 2010 in Arb.A.No.16 OF 2003 :: 2 :: 3. Sri.Ramakumar, learned Senior counsel who appears for the petitioners, submits that the judgment requires to be reviewed for yet another reason. He invites our attention to a decision of their Lordships of the Supreme Court in Haresh Dayaram Thakur V. State of Maharashtra and others [(2000)6 SCC 179]. Learned Senior counsel submits that the apex court has unequivocally held in the above decision that 'if the statute prescribes a procedure for doing a thing, in a particular manner, it has to be done only in that manner.' He submits that since admittedly the so called terms of settlement had not been reduced to writing and signed by the parties, it could not have been accepted by the Arbitrator. 4. In Haresh Dayaram (Supra), the dispute between two brothers was referred by the Bombay High Court to the conciliator. It is discernible from the judgment that the conciliator had held several meetings and in the course of one of them he suggested that if any one of the two brothers were to pay the particular amount, to be fixed by the conciliator, respondent No.3 would become entitled to the flat and would be put in possession. The parties agreed to this proposal. At the next and final meeting, counsel for the parties made their submissions regarding the amount to be paid. The conciliator then finalised his report, stipulating therein that respondent No.3 would be put in possession of the flat upon his paying Rs.4,00,000/- to the appellant. The conciliator did not, however, disclose the terms and contents of his report to the parties nor did he obtain their signature in his report. He sent the report to the High Court in a sealed cover. At the time of consideration of the report, appellant took strong R.P.No.1173 OF 2010 in Arb.A.No.16 OF 2003 :: 3 :: exception to the manner in which the matter had been allegedly settled or compromised by the conciliator. The objection was overruled by the High Court. It was thus the matter reached the Supreme Court. Their Lordships, after considering the relevant sections contained in the Arbitration and Conciliation Act, 1996 particularly, the provisions contained in Part III of the Act took the view that the conciliator was not justified in trying to impose his own decision on the parties. 5. It may be noticed that Part 3 of Act 1996 deals with conciliation. The fact that arbitration and conciliation are two different concepts need not be reiterated. Section 62 deals with commencement of conciliation proceedings. Sub Section 1 of Section 62 stipulates that the parties initiating the conciliation shall send to the other party a written invitation to conciliate under this Part, briefly identifying the subject of the dispute. Sub Section 2 lays down that conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate. 6. We have referred to this crucial aspect of the process of conciliation as could be differentiated from arbitration only to highlight the fact that what was considered by their Lordships in Haresh Dayaram (Supra) was only an issue arising from a conciliation proceeding. It can be seen from the above judgment that their Lordships have referred to the various provisions contained in part III of the Act and it was in the above circumstances that it was held that if the statute prescribes a particular procedure for doing a thing, that has to be done according to that procedure. A perusal of the various provisions contained in Part R.P.No.1173 OF 2010 in Arb.A.No.16 OF 2003 :: 4 :: III will unambiguously show that the entire procedure for appointment of conciliator and the process of conciliation that is as to how the process of conciliation has to be carried out, etc. have been delineated. Section 73, in particular, has postulates that if the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. Their lordships have referred to this statutory provision while deciding the case in Haresh Dayaram (Supra). In that view of the matter, we have no hesitation to hold that the contention raised by the petitioners is wholly misconceived and untenable. 7. Sri.Sreedharan, learned counsel for the respondents, has invited our attention to a decision of the Supreme Court reported in Inderchand Jain v. Motilal [2009 (3) KLT SN 65 SC]. In this decision, it has been reiterated by the apex court that the Review Court does not sit in appeal over its own order. Yet another decision cited by the learned counsel is in Delta Foundations & Constructions v. Kerala State Construction Corporation Ltd. [2003 (1) KLT 626]. A division Bench of this court while referring to the decision of the apex court in Parison Devi and others v. Sumitri Devi and others [1997 (8) SCC 715] held that an error apparent on the face of the record as contemplated under order XLVII Rule (1) of the Code must be an error which must strike on mere looking at the record and would not require long drawn process of reasoning on points on which there may conceivably be two opinions.” The court further laid down that an error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of R.P.No.1173 OF 2010 in Arb.A.No.16 OF 2003 :: 5 :: the record justifying exercise of its powers under Order XLVII Rule 1 of the Code of Civil Procedure. 8. Before we conclude, it has to be mentioned that the Arbitration proceedings in the case on hand had arisen under the Arbitration Act, 1940. The decision in Haresh Dayaram (Supra), arose under the 1996 Act. In M/S Sundaram Finance Ltd. v. M/S NEPC India Ltd. [AIR 1999 SC 565], it has been held that the provisions in 1996 Act have to be interpreted and construed independently and any reference to 1940 Act may actually lead to 'misconstruction'. The Apex court alerted that the provisions of 1996 Act have to be interpreted uninfluenced by the principles underlying the 1940 Act. Having regard to the entire aspects of the matter, we do not find any reason to entertain this petition for review. Therefore, the review petition is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes