ARUN DEV UPADHYAYA versus INTEGRATED SALES SERVICE LTD. & ANR.
[2023] 10 S.C.R. 724, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Ratio
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[2023] 10 S.C.R.
ARUN DEV UPADHYAYA
v.
 INTEGRATED SALES SERVICE LTD. & ANR.
(R.P. (C) Nos. 1273-1274/202)
In
(C. A. Nos. 8345-8346 of 2018)
JULY 05, 2023
[B. R. GAVAI AND VIKRAM NATH, JJ.]
Code of Civil Procedure, 1908 – Or. XLVII, r.1 – Review –
Scope of – Civil Appeals filed by the Review Petitioner were dismissed
vide judgment dtd. 10.08.2021 inter alia holding that foreign award
could be enforced against non-signatories to the arbitration
agreement and that the only ground on which its enforcement could
be resisted or refused are contained in s.48, Arbitration and
Conciliation Act – It also held that the canvas of s.46 is wider than
that of s.35 and would apply to all the persons who are not even
parties to the Arbitration Agreement – It further held that tortious
dispute can also be referred to arbitration – Review sought – Held:
A power to review cannot be exercised as an appellate power and
has to be strictly confined to the scope and ambit of Or. XLVII, r.1,
CPC – An error on the face of record must be such an error which,
mere looking at the record should strike and it should not require
any long-drawn process of reasoning on the points where there
may conceivably be two opinions – In the present case, 18 grounds
were raised in the review petitions – All the grounds taken in the
review were discussed in detail in the judgment dtd. 10.08.2021
and findings were returned not accepting the claim of the Review
Petitioner – Each
and every argument having been considered in
the judgment, the arguments advanced if accepted would result in
expressing a different opinion on the points raised and decided,
which does not fall within the settled contours of Or. XLVII, r.1 CPC
relating to error apparent on the face of record – No ground to
allow the review petitions  – Constitution of India – Article 137,
145 – Supreme Court Rules, 2013 – Or. XLVII – Arbitration and
Conciliation Act, 1996 – ss.35, 44-49.
[2023] 10 S.C.R. 724 : 2023 INSC 610
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Dismissing the review petitions, the Court
1.1 A power to review cannot be exercised as an appellate
power and has to be strictly confined to the scope and ambit of
Order XLVII Rule 1 CPC. An error on the face of record must be
such an error which, mere looking at the record should strike
and it should not require any long-drawn process of reasoning on
the points where there may conceivably be two opinions. [Para
15][738-F]
1.2 As many as 18 grounds have been raised in the review
petitions. A close perusal of the judgment dated 10.08.2021
reflects that all the grounds taken in the review have been
discussed in detail and findings returned not accepting the claim
of the Review Petitioner. What is sought to be argued is basically
that the view taken is erroneous and therefore, impugned
judgment deserves to be reviewed. Paragraph 29 of the judgment
deals with the analysis and interpretation of Section 44 of the
Act. This Court noticed that there would be six ingredients to
qualify an arbitral award to be a foreign award. [Paras 17 and
19][739-A-B, G]
1.3 In Paragraph Nos. 30 to 33, this Court discussed the
ingredients. Further, in paragraphs 34 to 37, the Court dealt with
the scope of Section 47 of the Act and the argument of the counsel
for the Review Petitioner that evidence should be adduced and it
should be a full trial to prove that the non-signatory would also
be bound by a foreign award, was rejected. In Paragraph Nos.38
to 57, this Court dealt with
in detail the argument that review on
merits of the award would be permissible under Section 48(1) of
the Act and held against the Review Petitioner as none of the
grounds therein were available to the Review Petitioner. In
paragraph Nos. 66 to 70 of the report, this Court dealt with the
argument that damages awarded in tort would be outside the scope
of the arbitration agreement and rejected the said argument.
[Paras 20-22][740-D-F]
1.4 In paragraph 71 of the report of the judgment, this Court
compared the scope of Section 35 and 46 of the Act and further
observed that once the award was not challenged in the State
where it was made it could not be said that the arbitral award had
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
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infracted the substantive law of the agreement. Paragraphs 72
and 73 of the report dealt with the issue of violation of any public
policy and this Court found that there was no such violation. [Paras
23, 24][740-G-H]
1.5 In paragraphs 74 to 76, this Court justified the
quantification of the damages and the basis for determining the
same even if it was based on best judgment assessment. Each
and every argument having been considered by this Court in its
judgment dated 10.08.2021, the arguments advanced if accepted
would result in expressing a different opinion on the points raised
and decided, which do not fall within the settled contours of Order
XLVII Rule 1 CPC relating to error apparent on the face of record.
The other grounds of invoking the review power are neither
existing nor have been raised in the present petitions. No good
ground to allow the review petitions. [Paras 25-27][741-A-C]
Satyanarayan Laxminarayan Hegde and Others v.
Millikarjun Bhavanappa Tirumale AIR 1960 SC 137 :
[1960] SCR 890; Parison Devi v. Sumitri Devi (1997)
8 SCC 715 : [1997] 4 Suppl. SCR 470; S. Murali
Sundaram v. Jothibai Kannan and Others Civil Appeal
No. 1167- 1170 of 2023 dated 24th February, 2023;
Perry Kansagra v. Smriti Madan Kansagra (2019) 20
SCC 753; Shanti Conductors (P) Ltd. v. Assam SEB
(2020) 2 SCC 677 : [2019] 16 SCR 252 – relied on.
Shivdeo Singh v. State of Punjab AIR 1963 SC 1909;
Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma
AIR 1979 SC 1047; Meera Bhanja (Smt.) v. Nirmala
Kumari Choudhary (Smt.) (1995) 1 SCC 170 : [1994]
5 Suppl. SCR 503; Uma Nath Pandey v. State of U.P.
(2009) 12 SCC 40 : [2009] 4 SCR 374 – referred to.
Case Law Reference
[1960] SCR 890
relied on
Para 9
[1997] 4 Suppl. SCR 470
relied on
Para 11
AIR 1963 SC 1909
referred to
Para 12
AIR 1979 SC 1047
referred to
Para 12
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[1994] 5 Suppl. SCR 503
referred to
Para 12
[2009] 4 SCR 374
referred to
Para 12
(2019) 20 SCC 753
relied on
Para 13
[2019] 16 SCR 252
relied on
Para 14
INHERENT JURISDICTION: R.P. (C) Nos.1273-1274 of 2021
in Civil Appeal Nos.8345-8346 of 2018.
From the Judgment and Order dated 10.08.2021 in C.A. Nos.8345-
8346 of 2018 of the Supreme Court of India.
Harish N. Salve, Sr. Adv., Anurudha Dutt, Ms. B. Vijayalakshmi
Menon, Ms. Fereshte D. Sethna, Ms. Suman Yadav, Ms. Trisha Ray
Chaudhri, Kautstubh Srivastava, Advs. for the Petitioner.
Shekhar Naphade, Sr. Adv., Gagan Sanghi, Devendra V. Chauhan,
M. Bharath, Ms. Farah Hashmi, Ms. Aishwarya Dash, Rameshwar
Prasad Goyal, Advs. for the Respondents.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
1.  These are Review Petitions preferred by Arun Dev Upadhyaya
(Review Petitioner) praying for review of the judgment dated 10.08.2021
passed in Civil Appeal Nos. 8345-8346 of 2018 titled Gemini Bay
Transcription Pvt. Ltd. vs. Integrated Sales Service Ltd. & Anr.1 whereby
the said Civil Appeals filed by the Review Petitioner were dismissed.
2. We have heard Shri Harish N. Salve, Sr. Advocate for the
Review Petitioner and Shri Shekhar Naphade, learned Senior Counsel
for the Respondent No. 1 and also perused the material on record.
3. Relevant facts of the present litigation giving rise to the present
review petitions are briefly summarized hereunder:
3.1. D.M.C. Management Consultants Limited2 was incorporated
as a public limited company under the Companies Act, 1956 in
July 1995. A Representation Agreement was executed on
18.09.2000 to be effective from 03.10.2000 between DMC and
Integrated Sales Service Ltd. (Respondent No.1). The said
agreement was signed by Rattan Pathak (Managing Director) on
1 In short, “GBTL”
2 In short ‘DMC’
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behalf of DMC and Terry L. Peteete, Director on behalf of
Respondent No.1.
3.2.  Under the said agreement, Respondent No. 1 was to find
customers for DMC on commission basis. Under the terms of the
agreement, Respondent No. 1 as the representative was to assist
DMC in selling its goods and services to prospective customers
and to receive commission in consideration thereof. Further, as
per Clause 8(d), any dispute between the two companies was
agreed to be subjected to the laws of the State of Missouri, USA
and the same were to be referred to a sole Arbitrator appointed
by agreement between the parties. Upon failure to agree to
Arbitrator, the appointment was to be made according to the rules
of the American Arbitration Association.
3.3. There were two amendments with respect to the
Representation Agreement dated 18.09.2000. The first
amendment executed in 2005 related to the changes in the rate of
commission. This amendment was signed by the review petitioner
Arun Dev Upadhyaya in his capacity as Director of DMC and
Terry L. Peteete (Director) on behalf of the Respondent No.1.
3.4. The second amendment to the Representation Agreement
came to be executed on 01.01.2008. It rendered the First
Amendment of 2005 as null and void. This amendment also made
some changes to the rate of commission and further it made the
laws of Delaware applicable to the Representation Agreement.
This Amendment was signed by Rattan Pathak
(Managing
Director) on behalf of DMC and Terry L. Peteete (Director) on
behalf of Respondent No.1.
3.5. The Review Petitioner who was holding the office of Director
in DMC tendered his resignation on 31.03.2009. On 22.06.2009,
Respondent No. 1 issued a demand for Arbitration to the Review
Petitioner under the Commercial Arbitration Rules of the AAA.
The statement of claim was also against DMC and GBTL seeking
damages to the tune of US $ 4.8 million.
3.6. GBTL filed its objections on 21.07.2009 to the effect that the
Arbitral Tribunal has no jurisdiction to include it as a party in the
arbitration as it was not a party to the agreement. On the same
day, the Review Petitioner also filed a ‘without prejudice response’
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to the Statement of Claim stating, inter alia that he was not
signatory in the agreement between DMC and Respondent No.
1; secondly, that he never consented to or agreed to be bound by
any arbitration agreement; and thirdly, any demand for arbitration
against him in his individual capacity was not acceptable and was
denied.
3.7. The signatory to the Representation Agreement i.e. DMC
filed its reply on 21.07.2009 to the Statement of Claim made by
Respondent No.1.
3.8. In October, 2009, GBTL filed Special Civil Suit No. 1035 of
2009 before the Civil Judge, Senior Division, Nagpur, against
Respondent No. 1 seeking declaration and perpetual injunction
and also for recovery of damages of Rs. 10,00,000/-. This suit is
still pending. An application under Order 39 Rules 1&2 CPC was
also filed in the said suit praying to restrain Respondent No. 1 to
proceed with the arbitration on the ground that it could not be
compelled to participate in the arbitration as it was not a signatory
to the agreement.
3.9. The Tribunal on 23.12.2009 passed an interlocutory order
holding that the Tribunal had jurisdiction to decide whether the
non-signatory to the Representation Agreement were appropriately
named in the arbitration or not; the issue of piercing of the
corporate veil and joinder of non-signatory parties could be decided
after evidence is received and is not a preliminary issue; the claims
of the Review Petitioner and GBTL would not be jeopardized and
would not
constitute a waiver of their rights of claims as non-
signatory parties; that they must contest the arguments and factual
claims made by Respondent No.1; their non-participation in the
arbitration would potentially expose them to an adverse award or
an award by default. According to the Review Petitioner, the above
order was passed in his absence and GBTL.
3.10. The application under Order 39 Rules 1 & 2 CPC filed in
the Special Civil Suit No. 1035 of 2009 was rejected by Civil
Judge, Nagpur vide order dated 25.01.2010.
3.11. The Arbitrator gave an award on 28.03.2010 in favour of
Respondent No.1 with the finding that DMC was in breach of
their Representation Agreement and further holding that since
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
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DMC, Review Petitioner and GBTL colluded together, they were
jointly and severally liable to pay the amount along with interest.
The award was for an amount of US $ 6,948,100.
3.12. The Respondent No. 1 before approaching the High Court
moved an application under Section 47 of the Arbitration and
Conciliation Act, 19963 seeking execution of the Arbitral Award
before the Principal District Judge at Nagpur. However, the said
Application was found to be not maintainable as it was the High
Court which would have jurisdiction. The application before the
Nagpur Bench of the Bombay High Court, seeking enforcement
of the Award was registered as M.C.A. No. 1319 of 2015. Review
Petitioner on 27.01.2016 filed objections under Section 47 of the
Act to which Respondent No. 1 filed its reply on 06.02.2016. A
second set of objections were filed by the Review Petitioner on
03.03.2016 under Sections 44 to 49 of the Act challenging the
recognition of the award as a foreign award as it did not satisfy
the requirements both under the Act and also under the provisions
of the New York Convention. DMC and GBTL filed separate
objections under Section 49 of the Act to which replies were filed
by Respondent No.1.
3.13. The learned Single Judge vide judgment dated 18.04.2016
held that the award was a foreign award and enforceable against
DMC only. It accepted the objections raised by Review Petitioner
and GBTL that the award was not
enforceable against them. The
Letters Patent Appeal preferred by Respondent No.1 was
registered as Arbitration Appeal No.3 of 2016. In the meantime,
objections were raised regarding maintainability of the appeal and
also Review Petitions were filed before the Single Judge.
3.14. The Division Bench rejected the objection regarding the
maintainability against which the matter was carried to this Court
by the Review Petitioner but the same was dismissed on
30.09.2016. The Division Bench finally vide judgment dated
04.01.2017 allowed the Arbitration Appeal No. 3 of 2016 and held
the award to be enforceable against Review Petitioner and GBTL
also as the award was a foreign award as against Review
Petitioner and GBTL. Review Petitions were filed before the
Division Bench which were dismissed on 24.02.2017.
3 In short ‘the Act’
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3.15. The orders dated 04.01.2017 and 24.02.2017 were challenged
before this Court by the Review Petitioner by way of SLP (Civil)
Nos. 8899-8900 of 2017 (Civil Appeal Nos.8345-8346 of 2018).
GBTL as also DMC filed separate SLPs before this Court. In the
SLP filed by DMC, this Court granted leave subject to condition
that it deposits US $ 2.5 million. This Court vide judgment dated
10.08.2021 dismissed all the appeals. The present Review Petitions
have been preferred only by Arun Dev Upadhyaya (Review
Petitioner) to review the judgement dated 10.08.2021.
4. In the impugned judgement, it has been held that it would not be
permissible to review the award on merits even on the ground of existence
and validity of the arbitration and the only ground on which the
enforcement of foreign awards could be resisted or refused are contained
in Section 48 of the Act. It also held that the canvas of Section 46 of the
Act is wider than that of Section 35 of the Act and as such would apply
to all the persons who are not even parties to the Arbitration Agreement.
It also held that the tortious dispute can also be referred to arbitration
because it is in connection with the agreement.
5. Mr. Salve submitted that essential points in the submissions
made on behalf of the Review Petitioner before this Court have not
been considered nor any finding returned by this Court as such the
impugned order suffers from an error apparent on the face of record.
6. The submissions of Mr.
Salve briefly summarized are as under:
A)
The impugned judgment overlooked the fundamental point
made on behalf of the Review Petitioner that Section 44
read with Section 46 of Act makes only a foreign award
enforceable and in order to ascertain whether the award is
foreign award the Court is not constrained by Section 48 of
the Act.
B)
Undisputedly, the Review Petitioner was not a party to the
Representation Agreement however, the Arbitrator applying
Delaware law and its principles made the review petitioner
a party to the arbitration proceedings initiated by Respondent
No.1 against DMC. The said award was sought to be
enforced in India and in the said enforcement proceedings,
objections were raised by Review Petitioner which have
not been dealt with in the impugned order.
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD. & ANR. [VIKRAM NATH, J.]
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C)
The contention specifically raised at the time of argument
before this Court were not considered and in fact
misconstrued or misunderstood resulting into an error
apparent on the face of record. Reference has been made
to the written submissions submitted on behalf of the Review
Petitioner at the time of arguments before this Court which
specifically included the following points:
(i) Though under the Delaware law, a non-party to the
agreement could have been included in the arbitration
proceedings but when the same is being enforced in
India, then, the award will have to be tested as to
whether it could be enforced against the non-party to
the agreement as per the Indian law. The submission is
that there was no foreign award as against the Review
Petitioner which could be enforced in India. The
language of Section 35 and Section 46 of the Act are
not pari materia. Under Section 35, an arbitral award
shall be final and binding on parties and persons claiming
under them respectively meaning that, to a non-party
claiming under the party to the agreement, the arbitral
award would be binding, whereas under Section 46 of
the Act a foreign award would be binding for all
purposes on the persons as between whom it was made
and not against non-party even though claiming under
the party to the agreement. Sections 35 and 46 of the
Act are reproduced below:
“35. Finality of arbitral awards.- Subject to this Part
an arbitral
award shall be final and binding on the parties
and persons claiming under them respectively.
46. When foreign award binding.- Any foreign award
which would be enforceable under this Chapter shall be
treated as binding for all purposes on the persons as
between whom it was made, and may accordingly be
relied on by any of those persons by way of defence,
set off or otherwise in any legal proceedings in India
and any references in this Chapter to enforcing a foreign
award shall be construed as including references to
relying on an award.”
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(ii) In the impugned judgment this aspect of the matter has
not been considered although it was a vital issue and
goes to the root of the matter as to whether a foreign
award could be treated as binding and enforceable
against the non-party to the agreement.
(D)
Lastly, according to the Review Petitioner, damages were
calculated not in any quantified manner but only on basis of
Mr. Peteete’s intimate understanding of the business, not
supported by any documentary material.
7. On the other hand, Sri Naphade, learned Senior Counsel
appearing for respondent No.1 sought to justify the impugned judgment
referring to various findings therein. He also submitted that this being a
review petition, there was limited scope for this Court to examine the
arguments of the petitioner as they would tantamount to a fresh hearing
of the appeal. Further, according to him, all the points now sought to be
argued have already been considered by this Court, no case for review
is made out and the review petitions deserve to be dismissed.
8. Before proceeding to deal with the arguments on merits of the
review petitions, it would be appropriate to briefly comment on the scope
of review.
8.1. The review petitions have been filed under Article 137 of the
Constitution of India read with Rule 1 of Order XLVII of the
Supreme Court Rules, 2013. Article 137 of the Constitution of
India provides for review of judgments or orders by the Supreme
Court. The same is reproduced hereunder:
“137. Review of judgments or orders by the Supreme
Court.— Subject to the provisions of any law made by
Parliament or any rules made under article 145, the
Supreme Court shall have power to review any judgment
pronounced or order made by it.”
8.2. According to the said provision, the Supreme Court would
have power to review any judgment or order made by it subject to
the provisions of any law made by the Parliament or any Rules
made under Article 145. The Supreme Court Rules 2013 have
been framed under Article 145 by this Court and duly approved
by the President. It may be stated that no law has been made by
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the Parliament in that respect and, as such, the power of review
vested in this Court would be governed by the Rules.
8.3. Order XLVII of Part-IV of the Supreme Court Rules, 2013
provides for the powers of review and the procedure for hearing
such review. The said provision is reproduced hereunder:
“PART-IV
ORDER XLVII
REVIEW
1. The Court may review its judgment or order, but no
application for review will be entertained in a civil proceeding
except on the ground mentioned in Order XLVII, rule I of the
Code, and in a criminal proceeding except on the ground of
an error apparent on the face of the record.
The application for review shall be accompanied by a
certificate of the Advocate on Record certifying that it is the
first application for review and is based on the grounds
admissible under the Rules.
2. An application for review shall be by a petition, and shall
be filed within thirty days from the date of the judgment or
order sought to be reviewed. It shall set out clearly the grounds
for review.
3. Unless otherwise ordered by the Court an application for
review shall be disposed of by circulation without any oral
arguments, but the petitioner may supplement his petition by
additional written arguments. The Court may either dismiss
the petition or direct notice to the opposite party. An
application for review shall as far as practicable be circulated
to the same Judge or Bench of Judges that delivered the
judgment or order sought to be reviewed.
4. Where on an application for review the Court reverses or
modifies its former decision in the case on the ground of
mistake of law or fact, the Court, may, if it thinks fit in the
interests of justice to do so, direct the refund to the petitioner
of the court-fee paid on the application in whole or in part,
as it may think fit.
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5. Where an application for review of any judgment and order
has been made and disposed of, no further application for
review shall be entertained in the same matter.”
A perusal of the above provision makes it amply clear that in a
civil proceeding review could not be entertained except on the grounds
mentioned in Order XLVII Rule 1 of C.P.C.
8.4. Section 114 of CPC vests power of review in Courts and
Order XLVII Rule 1 CPC provides for the scope and procedure
for filing a review petition. The same is reproduced hereunder:
“Order XLVII Rule 1 CPC:
“1. Application for review of judgment- Any person
considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but
from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important’ matter or
evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on account
of some mistake or error apparent on the face of the record
or for any other sufficient reason, desires to obtain a review
of the decree passed or order made against him, may apply
for a review of judgment to the Court which passed the decree
or made the order. (emphasis supplied)
(2) A party who is not appealing from a decree or order may
apply for a review of judgment
notwithstanding the pendency
of an appeal by some other party except where the ground of
such appeal is common to the applicant and the appellant, or
when, being respondent, he can present to the Appellate Court
the case on which he applied for the review.
Explanation. The fact that the decision on a question of law
on which the judgment of the Court is based has been reversed
or modified by the subsequent decision of a superior Court
in any other case, shall not be a ground for the review of
such judgment.”
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD. & ANR. [VIKRAM NATH, J.]
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9. A plain reading of the above provisions in uncertain terms states
that the power to review can be exercised only upon existence of any of
the three conditions expressed therein. ‘A mistake or an error apparent
on the face of the record’ is one of the conditions. It is only on this
ground that review has been preferred. The above phrase has been
consistently interpreted by authoritative pronouncement of this Court
for decades. A three Judge Bench of this Court comprising of Hon’ble
Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the
case of Satyanarayan Laxminarayan Hegde and others Vs.
Millikarjun Bhavanappa Tirumale4, discussed the scope of the phrase
‘error apparent on the face of record’. The challenge before this Court
in the said case was the judgment of the High Court on the ground
whether it suffers from an error apparent on the face of the record. The
High Court had issued a writ of certiorari and had quashed order of the
Tribunal and restored that of the Mamlatdar. In paragraph 8 of the report,
the issue which was to be considered is reflected. The same is reproduced
hereunder:
“8. The main question that arises for our consideration in
this appeal by special leave granted by this Court is whether
there is any error apparent on the face of the record so as to
enable the superior court to call for the records and quash
the order by a writ of certiorari or whether the error, if any,
was
“a mere error not so apparent on the face of the record”,
which can only be corrected by an appeal if an appeal lies at
all.”
10. After discussing the relevant material on record, the conclusion
is stated in paragraph 17 of the report. The view was that where an
error which has to be established by a long-drawn process of reasoning
on points where there may conceivably be two opinions, can hardly be
said to be an error apparent on the face of the record. The view that
long-drawn process of arguments to canvass a point attacking the order
in a review jurisdiction, cannot be said to be an error apparent on the
face of record. Relevant extract from paragraph 17 of the report is
reproduced hereunder:
“17....................Is the conclusion wrong and if so, is such
error apparent on the face of the record ? If it is clear that
4 AIR 1960 SC 137
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the error if any is not apparent on the face of the record, it is
not necessary for us to decide whether the conclusion of the
Bombay High Court on the question of notice is correct or
not. An error which has to be established by a long drawn
process of reasoning on points where there may conceivably
be two opinions can hardly be said to be an error apparent
on the face of the record. As the above discussion of the rival
contentions show the alleged error in the present case is far
from self evident and if it can be established, it has to be
established by lengthy and complicated arguments. We do not
think such an error can be cured by a writ of certiorari
according to the rule governing the powers of the superior
court to issue such a writ. In our opinion the High Court was
wrong in thinking that the alleged error in the judgment of
the Bombay Revenue Tribunal, viz., that an order for
possession should not be made unless a previous notice had
been given was an error apparent on the face of the record
so as to be capable of being corrected by a writ of certiorari.”
11. Another case which may be briefly dealt with is the case of
Parison Devi Vs. Sumitri Devi5, where, this Court ruled that under
Order XLVII Rule 1 CPC, a judgment may be open to review inter alia
if there is a mistake or an error apparent on the face of the record. 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 the
record justifying the Court to exercise its power of review. It also observed
that a review petition cannot be allowed to be treated as an appeal in
disguise.
12. A series of decisions may also be referred to wherein, it has
been held that power to review may not be exercised on the ground that
decision was erroneous on merits as the same would be the domain of
the Court of appeal. Power of review should not be confused with
appellate powers as the appellate power can correct all manners of
errors committed by the subordinate courts. The following judgments
may be referred:
(1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909
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ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
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(2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma;
AIR 1979 SC 1047
(3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary
(Smt.); (1995) 1 SCC 170.
(4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC
40
13. Recently, this Court in a judgment dated 24th February, 2023
passed in Civil Appeal No.1167-1170 of 2023 between S. Murali
Sundaram Vs. Jothibai Kannan and Others, observed that even
though a judgment sought to be reviewed is erroneous, the same cannot
be a ground to review in exercise of powers under Order XLVII Rule 1
CPC. Futher, in the case of Perry Kansagra Vs. Smriti Madan
Kansagra6, this Court observed that while exercising the review
jurisdiction in an application under Order XLVII Rule 1 read with Section
114 CPC, the Review Court does not sit in appeal over its own order.
14. In another case between Shanti Conductors (P) Ltd. Vs.
Assam SEB,7 this Court observed that scope of review under Order
XLVII Rule 1 read with Section 114 CPC is limited and under the guise
of review, the petitioner cannot be permitted to reagitate and reargue
questions which have already been addressed and decided. It was further
observed 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 record.
15. From the above, it is evident that a power to review cannot be
exercised as an appellate power and has to be strictly confined to the
scope and ambit of Order XLVII Rule 1 CPC. An error on the face of
record must be such an error which, mere looking at the record should
strike and it should not require any long-drawn process of reasoning on
the points where there may conceivably be two opinions.
16. In the above backdrop of the scope of review to which these
petitions are confined, we proceed to consider whether a case for review
is made out or not.
17. As many as 18 grounds have been raised in the review petitions,
we have considered not only the oral submissions advanced by Mr. Salve,
6 (2019) 20 SCC 753
7 (2020) 2 SCC 677
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learned Sr. Counsel, but have also perused all the grounds raised in the
review petition. A close perusal of the judgment dated 10.08.2021 reflects
that all the grounds taken in the review have been discussed in detail and
findings returned not accepting the claim of the Review Petitioner. What
is sought to be argued is basically that the view taken is erroneous and
therefore, impugned judgment deserves to be reviewed.
18. We may briefly refer to the relevant argument and the findings
returned by this Court in the impugned judgment dated 10.08.2021. In
paragraph 26 of the impugned judgment, this Court summarized the four
points argued by Mr. Salve. The said paragraph is reproduced hereunder:
“26. Shri Harish Salve, learned Senior Advocate appearing
on behalf of Arun Dev Upadhyaya, argued that the
commission of a tort would be outside contractual disputes
that arise under the Arbitration Agreement and that since the
cause of action really arose in tort, the Award was vitiated on
this ground. He also argued relying heavily upon Dallah Real
Estate and Tourism Co v Ministry of Religious Affairs of the
Government of Pakistan [2010] 3 WLR 1472 [“Dallah”] that
a full review based on oral and/or documentary evidence
ought to have been undertaken which was not done on the
facts of this case, the Division Bench merely echoing the
Arbitrator’s findings. He then made a distinction between
Section 46 and Section 35 of the Arbitration Act, and argued
that under Section
46, a foreign award is to be treated as
binding only on persons as between whom it was made and
not on persons who 25 may claim under the parties. He also
argued that insofar as his client was concerned, there was no
evidence to show his involvement in any manner and that the
findings against his client are unreasoned and perfunctory,
and on this ground also the Award stands vitiated.”
(emphasis supplied)
19. Paragraph 298 of the judgment deals with the analysis and
interpretation of Section 44 of the Act. This Court noticed that there
would be six ingredients to qualify an arbitral award to be a foreign
award. Paragraph 29 is reproduced hereunder:
8 The paragraph nos. are from the original impugned judgment annexed in the paper
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“29. A reading of Section 44 of the Arbitration and
Conciliation Act, 1996 would show that there are six
ingredients to an award being a foreign award under the said
Section. First, it must be an arbitral award on differences
between persons arising out of legal relationships. Second,
these differences may be in contract or outside of contract,
for example, in tort. Third, the legal relationship so spoken
of ought to be considered “commercial” under the law in India.
Fourth, the award must be made on or after the 11th day of
October, 1960. Fifth, the award must be a New York
Convention award – in short it must be in pursuance of an
agreement in writing to which the New York Convention
applies and be in one of such territories. And Sixth, it must be
made in one of such territories which the Central Government
by notification declares to be territories to which the New
York Convention applies.”
20. In Paragraph Nos.30 to 33, this Court discussed the ingredients.
Further, in paragraphs 34 to 37, the Court dealt with the scope of Section
47 of the Act and the argument of the counsel for the Review Petitioner
that evidence should be adduced and it should be a full trial to prove that
the non-signatory would also be bound by a foreign award, was rejected.
21. In Paragraph Nos.38 to 57, this Court dealt with in detail the
argument that review on merits of the award would be permissible under
Section 48(1) of the Act and
held against the Review Petitioner as none
of the grounds therein were available to the Review Petitioner.
22. In paragraph Nos.66 to 70 of the report, this Court dealt with
the argument that damages awarded in tort would be outside the scope
of the arbitration agreement and rejected the said argument.
23. In paragraph 71 of the report of the judgment, this Court
compared the scope of Section 35 and 46 of the Act and further observed
that once the award was not challenged in the State where it was made
it could not be said that the arbitral award had infracted the substantive
law of the agreement.
24. Paragraphs 72 and 73 of the report dealt with the issue of
violation of any public policy and this Court found that there was no such
violation.
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25. In paragraphs 74 to 76, this Court justified the quantification
of the damages and the basis for determining the same even if it was
based on best judgment assessment.
26. Each and every argument having been considered by this Court
in its judgment dated 10.08.2021, the arguments advanced if accepted
would result in expressing a different opinion on the points raised and
decided, which we are afraid do not fall within the settled contours of
Order XLVII Rule 1 CPC relating to error apparent on the face of
record. The other grounds of invoking the review power are neither
existing nor have been raised in the present petitions.
27. Accordingly, we do not find any good ground to allow the
review petitions. They are, accordingly, dismissed.
Divya Pandey
Review Petitions dismissed.
(Assisted by : Roopanshi Virang, LCRA)
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE
LTD. & ANR. [VIKRAM NATH, J.]