“DELHI HIGH COURT RULES THAT IT CANNOT REVIEW IT’S ORDER PASSED UNDER SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT WHICH DEALS WITH THE PROVISION OF APPOINTMENT OF ARBITRATOR”
In this case the petitioner filed a review petition for the review of the order dated 12/10/2022 passed by the Delhi High Court in a petition under Section 11 of the Arbitration & Conciliation Act, 1996 for appointment of an Arbitrator.
The High Court had dismissed the said petition by observing that it does not have territorial jurisdiction to entertain the petition.
It was contended by the petitioner in review that the High Court while dismissing the petition did not took into account the submissions made by the petitioner and came to the finding that there is no territorial jurisdiction to entertain the petition.
It was asserted by the petitioner that the Clause “the arbitration proceeding shall be held at an appropriate location in New Delhi” actually meant the place of arbitration is New Delhi which is akin to exclusive jurisdiction and that it is inadvertently observed by the High Court in its judgment under review that while the venue of arbitration may be New Delhi, the seat of arbitration shall be Gurgaon and at High Court at Chandigarh.
According to the petitioner this is sequitur to the judgments of the Co-ordinate Bench of the Delhi High Court wherein similar Arbitration clause has been interpreted to hold that this Court has jurisdiction.
On the other hand it was contended by the respondent that the power of review has not been provided for under the Arbitration & Conciliation Act, 1996 and thus, the present application for review is on the face of it, not maintainable.
Further it was asserted by the respondent that the scope of review in general has been defined and it is stated that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication and no power of review can be exercised in the absence of any express provision conferring this power of review.
The respondent contended that unlike the Hon’ble Supreme Court which is vested with power of review under Article 137 of Constitution of India, High Court is not vested with any such similar power of review under the Constitution.
The difference between substantive review and procedural review has to be considered in so much as the power of substantive review must be vested in a Court by a Statute and in the absence of any such power, no substantive review can be undertaken by the Court. However, a procedural review inheres in every Court and Tribunal to review its decision and if a procedural fault is found, to undo the same.
It was explained by the respondent stating that if a party has been proceeded exparte or such like orders are made, the Court in exercise of its inherent powers can review such Orders, but any Order given on merit would entail substantial review which cannot be exercised in the absence of specific conferment of the power of review to the Court.
Therefore, unless the power of review is expressly conferred under the Act itself, general power of review as may be available to the High Court under other jurisdictions: civil, criminal or writ, cannot be extended to review the earlier Order issued by the Nominee of the Chief Justice.
The Hon’ble Delhi High Court after considering the submissions made by the parties and precedence in law held that the Clause clearly provided that the place of Arbitration would be New Delhi but it also specified that the exclusive jurisdiction would be Courts at Gurgaon/ High Court at Chandigarh. The cause of action arose essentially in Gurgaon where the suit property is located. The Courts at Gurgaon has thus, been held to be having the exclusive jurisdiction.
It was held by the High Court that the grounds in the review filed by the petitioner is not maintainable when a detailed Order has been already made on its facts to hold that this Court has no jurisdiction to entertain the petition under Section 11 of the Arbitration and Conciliation Act, 1996.
That once a case has been decided on merits, the applicant on the ground of review cannot be permitted to argue the main matter afresh.
The power of review cannot be confused with appellate powers which enable a superior Court to correct all errors committed by the subordinate court.
A repetition of old and overruled argument is not enough to reopen the concluded adjudication.
The power of review should be exercised with extreme care, caution and circumspection and only in exceptional cases.
Hence the Hon’ble Delhi High Court dismissed the review petition.
***