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CASE NO.: Review Petition (civil)  D5970 of 2006

PETITIONER: M/S JAIN STUDIOS LIMITED THROUGH ITS PRESIDENT

RESPONDENT: SHIN SATELLITE PUBLIC CO. LTD.

DATE OF JUDGMENT: 11/07/2006

BENCH: C.K. THAKKER

JUDGMENT: JUDGMENT

REVIEW PETITION (C) NO. D5970 OF 2006 IN ARBITRATION PETITION NO.1 OF 2005

C.K. THAKKER, J.

The 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. Notice was issued by me on May 4, 2006 by making  it returnable on May 11, 2006. On returnable date, the  parties were heard. It is 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. On 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

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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 three  arbitrators. The 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. On 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. So far 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.  Once 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: 137. Review of judgments or orders by  the Supreme Court.\027 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.

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An 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. I accordingly hold the review petition to be  maintainable and proceed to consider it on merits. Regarding 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. So far 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.  When a 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. For 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.