TMI Blog2013 (1) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... On 4th October, 2007, the District Court dismissed the petition filed under section 34 of the Arbitration and Conciliation Act, 1996 by the petitioner. On 18th July, 2008 this court dismissed Arbitration Appeal No. 5 of 2008 filed by the petitioner under section 37 of the Act. The Supreme Court thereafter dismissed the Special Leave Petition on 6th February, 2009 filed by the petitioner. Review petition filed by the petitioner before the Supreme Court also came to be dismissed on 10th September, 2009. 3. The petitioner thereafter filed the present review petition in this court. 4. Mr. Chawan, the learned counsel appearing for the respondents to this review petition raises a preliminary objection about maintainability of this review petition on the ground that under section 5 of the Arbitration and Conciliation Act, 1996 notwithstanding any other law for the time being in force, matters which are governed by part I, no judicial authority shall intervene except where so provided in that part. It is submitted that proceedings seeking review of the order is not provided under any of the provisions under part I of the Act and are thus not maintainable. The learned counsel placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m an order of the arbitral tribunal- (a) accepting the plea referred to in subsection (2) or sub-section (3) of section 16; or (b) granting or refusing to grant any interim measure under section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. Perusal of section 37 of the Act shows that section itself does not name or designate appeal court or forum. It says an appeal shall lie from the orders which are mentioned in that section to the Court which hears appeals from the original decrees passed by the Court which has passed the order. This obviously refers to hierarchy of the Courts under Civil Procedure Code and therefore, the Supreme Court by its judgment in ITI Ltd. has held that the revision application against the order passed by the appeal court under Section 37 of the Act is maintainable and it is only for that reason that the Supreme Court has held that bar under Section 5 of the Arbitration Act would not be attracted. In my opinion, Section 5 of the Arbitration Act clearly excludes any power to the Court which is not specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court under Section 34 of the Act, there is no power vested in the Court to review its order. 5. The learned counsel submits that though the appeal was preferred by the petitioner in the said order passed by the Learned Single Judge, the appeal court though disposed of the said appeal, however did not set aside the view taken by the learned Single Judge. The Division Bench observed that it was not necessary for the Division Bench to go into the issue as to whether there was a review remedy available under the Arbitration and Conciliation Act, 1996 or not. 6. The learned counsel appearing on behalf of the petitioner on the other hand submits that in view of the Division Bench in case of M/s. Thanikkudam Bhagwati Mills vs. Mrs. Reena Ravindra Khona had kept the issue of maintainability of review petition open, and thus the order and judgment delivered by the Learned Single Judge cannot be relied upon by the respondents and is not binding. 7. In my view, there is no substance in the submissions of the learned counsel appearing for the petitioner that the order and judgment delivered by the Learned Single Judge taking a view that review petition is not maintainable as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er does not mitigate against giving effect to the Provisions of the Arbitration Act. This judgment of the Supreme Court is delivered under the provisions of the Arbitration Act, 1940. This judgment does not decide whether review petition is maintainable under the provisions of the Arbitration Act, 1940 or not. In my view, in view of the express bar provided under section 5 that notwithstanding contained any other law for the time being in force, matters which are governed by part I, no judicial authority shall intervene except where so provided in that part. As the review is not having been provided in any of the provisions of Part I of the Arbitration and Conciliation Act, 1996, in my view review petition is not maintainable. In my view the judgment of the Supreme Court in case of Shyam Sunder Agarwal Co. vs. Union of India (supra) is thus not applicable to the facts of this case and is of no assistance to the petitioner. 10. The learned counsel appearing for the petitioner then placed reliance on the judgment of the Supreme Court ITI Ltd. vs. Seimens Public Communications Network Ltd . (2002) 5 SCC 510 and more particularly paragraphs 8 to 13 which reads as under:- 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than one case that the jurisdiction of the civil court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the civil courts have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to be an inference the same should be in favour of the jurisdiction of the court rather than the exclusion of such jurisdiction and there being no such exclusion of the Code in specific terms except to the extent stated in Section 37(2), we cannot draw an inference that merely because the Act has not provided the CPC to be applicable, by inference it should be held that the Code is inapplicable. This general principle apart, this issue is now settled by the judgment of a 3-Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A. and Anr . [2002] 2 SCR 411 in C.A. No. 6527/2001--decided on 13.3.2002 where in while dealing with a similar argument arising out of the present Act, this Court held: While examining a particular provision of a statute to find out whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and has held that no second appeal was maintainable against the order passed by the court under section 37(1) or 37(2) of the Act and in view thereof revision application was not barred. The question whether review petition is maintainable or not was not the issue before the Supreme Court in case of ITI Ltd. vs. Seimens Public Communications Network Ltd . (supra). After considering the said judgment and provisions of sections 5, 34 and 37 of the Arbitration and Conciliation Act, 1996, this court took a view that under section 37, only such orders which are specifically referred therein are appealable and no other orders. This judgment of the Supreme Court has also been dealt with by this Court in case of M/s. Thanikkudam Bhagwati Mills (supra) and has held that review petition is not maintainable under the provisions of the Arbitration and Conciliation Act, 1996. 13. On the issue of maintainability of review, a reference of the judgment of the Supreme Court in case of Kalabharati Advertising vs. Hemant Vilalnath Narichania and others (2010) 9 SCC 437 would be relevant. Para (12) of the said judgment reads thus:- 12. It is settled legal proposition that unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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