Jain Studios Limited Vs. Shin Satellite Public Co. Ltd.  Insc 395 (11 July 2006)
PETITION (C) NO. D5970 OF 2006 IN ARBITRATION PETITION NO.1 OF 2005 C.K.
present review petition is filed against an order dated January 31, 2006 passed
in Arbitration Petition No.1 of 2005, in Shin Satellite Public Co. Ltd v. M/s
Jain Studios Ltd., (2006) 2 SCC 628. The prayer is to review the said order and
restore the Arbitration Petition to the file for reconsideration. A further
prayer is made to permit the applicant to nominate Hon'ble Mr. Justice Satpal,
Retd. Judge, High Court of Punjab and Haryana as one of the arbitrators.
was issued by me on May
4, 2006 by making it
returnable on May 11,
2006. On returnable
date, the parties were heard.
not necessary to narrate the facts in detail in the present review petition
since they had been stated in the main order. It was submitted by the learned
counsel for the applicant that there were two obvious errors in the order
wherein it was observed as if the applicant (respondent in the Arbitration
Petition) submitted that arbitration may be held in London or in Singapore
where arbitration proceedings were going on between the parties and the
applicant had no objection if the matter was referred to arbitration in London
or in Singapore.
merits, it was submitted by the learned counsel for the applicant that the
dispute between the parties under the agreement was to be finally resolved by
arbitration under the rules of UNCITRAL. Article 5 relates to composition of
arbitral tribunal and provides that if the parties had not previously agreed to
the number of arbitrators and if within fifteen days after the receipt by the
respondent of the notice of arbitration, the parties had not agreed that there
should be only one arbitrator, three arbitrators should be appointed. According
to the applicant, Shin Satellite, through its advocate, served a notice and
called upon the applicant herein to appoint an arbitrator but no appointment
was made by the applicant. On that eventuality, submitted the counsel, three
arbitrators ought to have been appointed. It is not disputes that the applicant
contested the matter urging that there was no legal and valid arbitration
agreement between the parties. It is also not disputed that in the light of the
objection by the applicant herein, an application was made by Shin Satellite to
the Hon'ble the Chief Justice of India for appointment of arbitrator under
sub-section (6) of Section 11 of the Aarbitration and Conciliation Act, 1996
('Act' for short) and as a nominee of the Hon'ble the Chief Justice of India,
by an order dated January 31, 2006, I allowed the application and appointed
Hon'ble Mr. Justice M.L. Pendse, Retd. Judge as the sole arbitrator. The
counsel, however, submitted that as per UNCITRAL Model, three arbitrators ought
to have been appointed. To that extent, therefore, the order deserves to be
reviewed and an appropriate order requires to be passed for appointment of
learned counsel for the respondent contested the review petition. He raised a
preliminary objection that review petition is not maintainable and it is liable
to be dismissed on that ground alone. He submitted that there is no inherent
power of review in a Court or in any other authority. Such power must be
conferred expressly by a statutory provision. It is also submitted that the
judgment of a larger Bench of this Court in SBP & Company v. Patel
Engineering Ltd., (2005) 8 SCC 618 makes it clear that the power exercised by
the Chief Justice of a High Court or his nominee or by the Chief Justice of
India or his nominee under sub-section (6) of Section 11 of the Act is
'judicial'. Relying on sub-section (7) of Section 11 of the Act, the counsel
submitted that the decision of the Chief Justice or his nominee is 'final' and
no review lies against such order.
merits, it was submitted that the applicant seeks to re-agitate the same point
which was advanced at the time of hearing. A prayer was made when the main
matter was argued that the applicant may be granted time to make the
appointment of an arbitrator but the prayer was rejected. By invoking review
jurisdiction, virtually the same prayer has been made, which was expressly
negatived earlier. The learned counsel submitted that the review is yet another
dilatory tactic adopted by the applicant who is not interested in speedy
resolution of dispute between the parties. He, therefore, submitted that the
review application may be dismissed with costs.
as the maintainability of review petition is concerned, in my opinion, the
preliminary objection raised by the learned counsel for the respondent is not
well-founded. In Patel Engineering Ltd., this Court by majority of 6:1 held the
function performed by the Chief Justice of a High Court or his nominee or by
the Chief Justice of India or his nominee to be a 'judicial' one.
the function performed by the Chief Justice of India or his nominee is held to
be judicial, it cannot be contended that an application for review of an order
passed by the Chief Justice of India or his nominee is not maintainable. In my
opinion, the learned counsel for the applicant is right in relying upon Article
137 of the Constitution which reads thus:
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.
order passed by the Chief Justice of India or his nominee under Section 11(6)
of the Act is indeed an 'order' within the meaning of Article 137 of the
Constitution and is subject to review under the aforesaid provision.
accordingly hold the review petition to be maintainable and proceed to consider
it on merits.
correction of errors shown by the applicant, the learned counsel for the
opponent does not dispute the position and accordingly the submission is
accepted by observing that it was not the case of the applicant herein
(respondent in the main matter), that arbitration be held in London or in
Singapore. The mistake is ordered to be corrected accordingly.
as the grievance of the applicant on merits is concerned, the learned counsel
for the opponent is right in submitting that virtually the applicant seeks the
same relief which had been sought at the time of arguing the main matter and
had been negatived. Once such a prayer had been refused, no review petition
would lie which would convert rehearing of the original matter. It is settled
law that 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 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.
prayer to appoint an arbitrator by the applicant herein had been made at the
time when the Arbitration Petition was heard and was rejected, the same relief
cannot be sought by an indirect method by filing a review petition. Such
petition, in my opinion, is in the nature of 'second innings' which is
impermissible and unwarranted and cannot be granted.
the aforesaid reasons, the limited prayer to the extent of clarification of the
order as to the stand taken by the applicant and the statement made on its
behalf is granted. The larger prayer for reconsideration of the order passed in
the Arbitration Petition and allowing the applicant to nominate Hon'ble Mr.
Justice Satpal, Retd. Judge of the High Court of Punjab & Haryana as one of
the arbitrators, however, is rejected. In the facts and circumstances of the
case, however, there shall be no order as to costs.