# M/S Docket Care Systems Lko v. Union of India & Ors. Opp. Parties

- **Citation:** (2023) 12 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-14
- **Case number:** Civil Misc. Review Application No. 135 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-docket-care-systems-lko-v-union-of-india-ors-opp-parties-49625
- **Pages:** 14

## Headnote

Law
-
The
Code
of
Civil
Procedure, 1908 - Section 114 - Order
XLVII Rule 1 - Application for review of
judgement - The Allahabad High Court
Rules' 1952 - Chapter-V, Rule 12 -
Application for review , MSMED Act, 2023
-
Section
18
,
The
Arbitration
&
Conciliation Act, 1996 - Sections 20, 23,
24 ,25, 34(1), 34(2) - Court's jurisdiction
of review - not same as that of an appeal -
Court can correct a mistake but not
substitute the view taken earlier merely
because there is a possibility of taking two
views in a matter - distinction between an
erroneous decision as against an error
apparent on the face of the record -
erroneous decision can be corrected by
Superior Court - error apparent on the
face of the record can only be corrected by
exercising
review
jurisdiction
-
nonconsideration of a judgment cannot be a
ground for review as that would lead to
substituting the view already taken by this
Court. (Para - 16, 17)

(B) The Constitution of India, 1950 -
Article 226 - Writ Jurisdiction - power and
scope of a High Court to review its order -
power of review may be exercised on the
discovery of new and important matter or
evidence which, after the exercise of due
diligence was not within the knowledge of
the person seeking the review or could not
be produced by him at the time when the
order was made - may be exercised where
some mistake or error apparent on the
face of the record is found - may also be
exercised on any analogous ground - may
not be exercised on the ground that the
decision was erroneous on merits. (Para -
13)

(C) Word of phrases - distinction between
conciliation
and
arbitration
-
in
conciliation proceedings, the conciliator
assists parties to arrive at an amicable
settlement - in arbitration, an arbitral
tribunal adjudicates dispute between the
parties - general laws do not prevail over
special laws - whenever there is an
apparent conflict between two statutes -
provision of a general statute must yield
and give way to that of a special statute.
(Para -18, 20)

Review applicant sought a review of judgment -
ground - citing an error apparent on the face of
54 INDIAN LAW REPORTS ALLAHABAD SERIES
record - court not appreciated Apex Court's
judgment - relegated review applicant to
alternative
remedies
under
Arbitration
&
Conciliation Act - MSME Council passed an
award while Writ was pending - review applicant
not given opportunity to amend writ due to
availability of alternative remedies - Court failed
to examine infirmities committed by MSME
Council.(Para -3)

HELD:- No material error on the face of the
impugned
order,
which
would
result
in
miscarriage of justice. Review petition not
maintainable. Review applicant trying to seek a
re-hearing of writ petition, which is not within
the scope of the review. Proceedings had
reached finality with the MSME Council's order
and the only recourse was to challenge the
order using the Arbitration & Conciliation
Act.(Para - 17, 23, 25, 27)

Review application dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,918 of 46,838. This is a partial read: ask again with offset=39918 for what follows._

12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
53
come with ?unclean hands? are not entitled
to be heard on the merits of their case.

14. In view the aforesaid discussions
and the settled law on the point, I am of the
considered view that such unfair accused
can never be permitted to be circumventive,
alike the present one and resultantly the
said
order
dated
28.3.2023
granting
anticipatory bail to the opposite party no. 2
is not sustainable in the eyes of law and
same is liable to be set aside, as it has been
garnered by misleading the Court and
committing fraud with it.

15.

Hence,
the
present
bail
cancellation application is allowed and the
impugned order dated 28.3.2023 is set
aside.
----------
(2023) 12 ILRA 53
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Civil Misc. Review Application No. 135 of
2023

M/S Docket Care Systems Lko.
 ...Petitioner
Versus
Union of India & Ors. ...Opp. Parties

Counsel for the Petitioner:
Madhusudan Srivastava, Sudeep Kumar

Counsel for the Opp. Parties:
Rajesh Tewari, Ritwick Rai, Vaibhav Tiwari

(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Section 114 - Order
XLVII Rule 1 - Application for review of
judgement - The Allahabad High Court
Rules' 1952 - Chapter-V, Rule 12 -
Application for review , MSMED Act, 2023
-
Section
18
,
The
Arbitration
&
Conciliation Act, 1996 - Sections 20, 23,
24 ,25, 34(1), 34(2) - Court's jurisdiction
of review - not same as that of an appeal -
Court can correct a mistake but not
substitute the view taken earlier merely
because there is a possibility of taking two
views in a matter - distinction between an
erroneous decision as against an error
apparent on the face of the record -
erroneous decision can be corrected by
Superior Court - error apparent on the
face of the record can only be corrected by
exercising
review
jurisdiction
-
nonconsideration of a judgment cannot be a
ground for review as that would lead to
substituting the view already taken by this
Court. (Para - 16, 17)

(B) The Constitution of India, 1950 -
Article 226 - Writ Jurisdiction - power and
scope of a High Court to review its order -
power of review may be exercised on the
discovery of new and important matter or
evidence which, after the exercise of due
diligence was not within the knowledge of
the person seeking the review or could not
be produced by him at the time when the
order was made - may be exercised where
some mistake or error apparent on the
face of the record is found - may also be
exercised on any analogous ground - may
not be exercised on the ground that the
decision was erroneous on merits. (Para -
13)

(C) Word of phrases - distinction between
conciliation
and
arbitration
-
in
conciliation proceedings, the conciliator
assists parties to arrive at an amicable
settlement - in arbitration, an arbitral
tribunal adjudicates dispute between the
parties - general laws do not prevail over
special laws - whenever there is an
apparent conflict between two statutes -
provision of a general statute must yield
and give way to that of a special statute.
(Para -18, 20)

Review applicant sought a review of judgment -
ground - citing an error apparent on the face of
54 INDIAN LAW REPORTS ALLAHABAD SERIES
record - court not appreciated Apex Court's
judgment - relegated review applicant to
alternative
remedies
under
Arbitration
&
Conciliation Act - MSME Council passed an
award while Writ was pending - review applicant
not given opportunity to amend writ due to
availability of alternative remedies - Court failed
to examine infirmities committed by MSME
Council.(Para -3)

HELD:- No material error on the face of the
impugned
order,
which
would
result
in
miscarriage of justice. Review petition not
maintainable. Review applicant trying to seek a
re-hearing of writ petition, which is not within
the scope of the review. Proceedings had
reached finality with the MSME Council's order
and the only recourse was to challenge the
order using the Arbitration & Conciliation
Act.(Para - 17, 23, 25, 27)

Review application dismissed. (E-7)

List of Cases cited:-

1. J.U.V.N.L. Vs St. of Raj. & ors. , (2021) 4
SCC 476

2. Parison Devi Vs Sumita Devi , 1998 (1) CTC
25

3. Lily Thomas Vs U.O.I. , AIR 2000 SC 1650

4. Sanjay Kumar Agarwal Vs St. Tax Officer
& anr. , Review Petition (Civil) No. 1620 of
2023

5. Sarguja Transport Service Vs St. Transport
Appellate Tribunal, Gwalior & ors. , (1987) 1
SCC 5

6. M/s I.G. Ltd. & anr. Vs M.S.E.F.C., MedchalMalkagiri & ors., Civil Appeal No. 7491 of 2023

7. Col. Avatar Singh Sekhon Vs U.O.I. & ors. ,
1980 Supp SCC 562 11

8. Sow Chandra Kante & anr. Vs Sheikh Habib,
(1975) 1 SCC 674

9. Parsion Devi & ors. Vs Sumitri Devi & ors. ,
(1997) 8 SCC 715

10. Thungabhadra Industries Ltd. Vs Govt. of
A.P., 1964 SCR (5) 174

11.
Meera
Bhanja
Vs
Nirmala
Kumari
Choudhury, ( 1995) 1 SCC 170

12. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma, ( 1979)4 SCC 389

13. K.S.E.B. Vs H.E.T.H. Ltd. & ors., ( 2005) 6
SCC 651

14. Kamlesh Verma Vs Mayawati & ors. , (2013)
8 SCC 320

15. Chajju Ram Vs Neki, AIR 1922 PC 112

16. Moran Mar Basselios Catholicos Vs Most
Rev. Mar Poulose Athanasius & ors., AIR 1954
SC 526

17. U.O.I. Vs S.M.I.O. Ltd. & ors. , (2013)8 SCC
337

18. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma, (1979) 4 SCC 389

19. Murali Sundaram Vs Jothibai Kannan, (2023)
SCC OnLine SC 185

20. Perry Kansagra Vs Smriti Madan Kansagra,
(2019) 20 SCC 753

21. Shanti Conductors (P) Ltd. Vs Assam SEB,
(2020) 2 SCC 677

22. Sanjay Kumar Agarwal Vs St. Tax Office &
anr. , R.P. (Civil) No. 1620 of 2023

23. G.S.C.S.C. Ltd. Vs M.F.P. Ltd. , 2022 SCC
OnLine SC 1492

24. Shri M.F.A. Pvt. Ltd. Vs Passary Minerals
Ltd. , 2018 SCC OnLine Ori 175

25. Silpi Industries Vs Kerala St. Transport Corp.
, AIR 2021 SC 548

26. A.P. Power Coordination Committee Vs
L.K.P. Ltd. , (2016) 3 SCC 468

(Delivered by Hon'ble Om Prakash Shukla, J.)
12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
55

(1)

Heard
Mr.
Madhusudan
Srivastava, Mr. Sudeep Kumar, learned
Counsel representing the review applicant
and Mr. Rajesh Tewari, Mr. Vaibhav
Tewari, Mr. Ritwick Rai, learned Counsel
representing the respondents.

(2) The review applicant has filed the
present application under Chapter-V, Rule
12 of the Allahabad High Court Rules read
along with Order XLVII Rule 1 of the Civil
Procedure Code, seeking review of the
judgment/order dated 10th of October,
2023 passed by this Court in Writ-C No.
8012/2023 (M/s Docket Care Systems V/s
Union of India Others), wherein this Court
had passed the following order :

"1. Heard learned Counsel for
the petitioner, Shri Rajesh Tewari, learned
Counsel for respondents no.2 & 3 and Shri
Vaibhav Tewari, learned Counsel for
respondent no.4.

2. Shri Rajesh Tiwari, leanred
Counsel for respondents no.2 and 3, on the
basis of instructions, has stated that an
award has already been rendered by the
Facilitation Council on 07.10.2023, a
photocopy whereof placed before us is
taken on record. A certified copy of the
award applied for, if any, by the petitioner
may be supplied to him not later than a
period of ten days from the date of
application.

3. Shri Vaibhav Tiwari, learned
Counsel appearing for respondent no.4 has
also filed a short counter affidavit placing
on
record
the
details
of
arbitral
proceedings
transpired
before
the
Facilitation Council and conducted under
Section 18(3) of Micro, Small and Medium
Enterprises Development Act, 2006 (in
short, 'MSME Act').

4. Learned Counsel for the
opposite parties have submitted that as
against the award rendered by the Arbitral
Tribunal on 07.10.2023, the petitioner has
a remedy under Section 34 of the
Arbitration and Conciliation Act, 1996.

5. At this stage, learned Counsel
for the petitioner prays that he may be
permitted to withdraw the instant petition
with liberty to avail the alternative remedy,
available to him, under law.

6. In view of the above, the
instant petition is dismissed as withdrawn
with the liberty as prayed.

7. It is made clear that the all the
legal issues shall remain open to the
petitioner before the competent forum. The
exemption application, if any, moved under
Section 19 of MSME Act shall also be
considered by the forum concerned on its
own merit."

(3)

This
Court
may
not
be
unnecessarily detained with enumerating
the detailed facts of the present case,
suffice to say that this Court finds that the
review of the aforesaid judgment/order
dated 10th of October, 2023 has been
sought by the review applicant on the
ground that there is an error apparent on the
face of record as this Court without
appreciating the judgement passed by the
Apex Court in Jharkhand Urja Vikas
Nigam Limited V/s State of Rajasthan &
Ors. (2021) 4 SCC 476 has relegated the
review applicant to alternative remedy as
available
under
the
provisions
of
Arbitration & Conciliation Act, 1996.
Further ground has been urged relating to
the manner in which the MSME Council
has passed the award dated 7th of October,
2023 during the pendency of the Writ-C-
No.
8012
of
2023
and
the
liberty/opportunity
not
having
been
provided to the review applicant to amend
the said writ on the ground of availability
of alternative remedy.
56 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) The learned Counsel for the
review applicant has also submitted that
this Court in the judgment/order dated
10.10.2023 under review has failed to
examine the infirmities committed by the
MSME Council, which had the effect of
making the entire proceedings under
Section 18 of the MSMED Act, 2023 as
well as the award dated 07.10.2023 a
nullity in the eyes of law. Further, grounds
of not following the provisions of Sections
20, 23, 24 and 25 of the Arbitration &
Conciliation Act, 1996 in rendering the
award dated 07.10.2023 has also been
urged by the learned Counsel for the review
applicant. Other additional ground of the
respondent No.4 being not a "supplier" in
terms of the provisions contained under
Section 2 (n) of the MSME Act and the
claim being not maintainable before the
MSME Council has also been pressed by
the learned Counsel for the review
applicant, who has also relied on various
annexures filed along with the review
application during the course of his
argument.

(5) On the other hand, only
respondent No.4 (M/s Hariwill Electronics
India Pvt. Ltd.) has chosen to file its
counter-affidavit, inter-alia raising the issue
of maintainability of the present review
application on the ground of its limited
scope. The judgment passed by the Apex
Court in Parison Devi Vs Sumita Devi :
1998 (1) CTC 25 and Lily Thomas Vs
union of India : AIR 2000 SC 1650, has
been cited to support his contention. The
learned Counsel has also referred to the
recent judgment passed by the Apex Court
in a bunch of petitions, leading being
Review Petition (Civil) No. 1620 of 2023
(Sanjay Kumar Agarwal Vs State Tax
Officer & Anr.) decided on October 31,
2023 and has strenuously referred to
paragraph 16 of the said judgment.
Additionally, the learned Counsel has
referred to the case of Sarguja Transport
Service Vs State Transport Appellate
Tribunal, Gwalior & Ors : (1987) 1 SCC
5, to urge that as the order passed in writ
petition, for which review is being sought,
came to be "dismissed as withdrawn" at the
behest of the review applicant, the present
review
application
would
not
be
maintainable.

(6) Further, grounds relating to due
participation of the review applicant as well
as
exchange
of
pleadings
in
both
Conciliation
Proceedings
as
well
as
Arbitration Proceedings before the MSME
Council has been urged by the learned
Counsel for respondent No.4 on merits.
The learned Counsel has taken this Court to
the list of dates and events from initiation
of proceeding before the MSME Council to
the culmination of the award dated
07.10.2023, to submit the participation of
the review applicant at each and every step.
The learned Counsel in his endeavour to
support that alternative remedy is available
to the review applicant and has quoted
Section 19 of the MSME Act, as well as a
recent judgment dated 06.11.2023 passed
by the Apex court in Civil Appeal No. 7491
of 2023 (M/s India Glycols Limited and
Anr. v/s Micro and Small Enterprises
Facilitation Council, Medchal-Malkagiri
and Ors.) to buttress his argument that a
writ petition may not be entertained against
an award passed by the MSME Council.

(7)

The
learned
Counsel
for
respondent No.4 has also pointed towards
the fact that a review application cannot
travel beyond the prayers sought in the
Original Petition (say Writ Petition).
According to him, the original petition had
been filed for two reliefs, which as on date
12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
57
is infructous as (i) the first prayer for
passing a speaking order on application
dated 05.06.2023 has already been passed
vide an order dated 24.07.2023 and (ii) the
second prayer relating to not passing of any
award is also infructous as the award has
already been passed on 07.10.2023. The
learned Counsel has refuted the other
grounds urged by the review appliant and
has also contended that the respondent
No.4 was a supplier within the meaning of
Section 2(n) of the MSMED Act, 2006 and
have filed various annexures to support his
contention.

(8) This Court has carefully perused
the impugned judgment/order and have
gone through the records and given its
thoughtful consideration to the arguments
advanced by learned Counsel for the
parties. The only point that arises for
consideration in this review petition is
'whether the review applicant had made
out
a
case
for
reviewing
the
judgment/order dated 10th of October,
2023 or not'.

(9) The law on the limited scope of
review power of any court is no longer
res integra. There is available a rich
treasure relating to the law developed by
the Hon'ble Supreme Court on the said
aspect
and
this
Court
finds
itself
persuaded to quote some of these
judgments, which are relevant to the
context. In Col. Avatar Singh Sekhon v.
Union of India and Others : 1980 Supp
SCC 562 11, the Apex Court observed
that a review of an earlier order cannot be
done unless the Court is satisfied that the
material error which is manifest on the
face of the order, would result in
miscarriage of justice or undermine its
soundness. The observations made are as
under :-

"12. A review is not a routine
procedure. Here we resolved to hear Shri
Kapil at length to remove any feeling that
the party has been hurt without being
heard. But we cannot review our earlier
order unless satisfied that material error,
manifest on the face of the order,
undermines its soundness or results in
miscarriage of justice. In Sow Chandra
Kante and Another v. Sheikh Habib
(1975) 1 SCC 674 this Court observed :

'A review of a judgment is a
serious step and reluctant resort to it is
proper only where a glaring omission or
patent mistake or like grave error has crept
in earlier by judicial fallibility. ... The
present stage is not a virgin ground but
review of an earlier order which has the
normal feature of finality.'

(10) In Parsion Devi and Others v.
Sumitri Devi and Others : (1997) 8 SCC
715, stating that an error that is not selfevident and the one that has to be detected
by the process of reasoning, cannot be
described as an error apparent on the face
of the record for the Court to exercise the
power of review. The Apex Court in the
said judgment has held as under :-

"7. It is well settled that review
proceedings have to be strictly confined to
the ambit and scope of Order 47 Rule 1
CPC. In Thungabhadra Industries Ltd. v.
Govt. of A.P, 1964 SCR (5) 174 this Court
opined:

11. What, however, we are now
concerned with is whether the statement in
the order of September 1959 that the case
did not involve any substantial question of
law is an 'error apparent on the face of the
record'. The fact that on the earlier
occasion the Court held on an identical
state of facts that a substantial question of
law arose would not per se be conclusive,
58 INDIAN LAW REPORTS ALLAHABAD SERIES
for the earlier order itself might be
erroneous. Similarly, even if the statement
was wrong, it would not follow that it was
an 'error apparent on the face of the
record', for there is a distinction which is
real, though it might not always be capable
of exposition, between a mere erroneous
decision and a decision which could be
characterized
as
vitiated
by
'error
apparent'. A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies
only for patent error.'

8. Again, in Meera Bhanja v.
Nirmala Kumari Choudhury ( 1995) 1
SCC 170 while quoting with approval a
passage from Aribam Tuleshwar Sharma
v. Aribam Pishak Sharma ( 1979)4 SCC
389 this Court once again held that review
proceedings are not by way of an appeal
and have to be strictly confined to the
scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 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 under Order 47 Rule 1
CPC. In exercise of this jurisdiction under
Order 47 rule 1 CPC it is not permissible
for an erroneous decision to be 'reheard
and corrected'. A review petition, it must
be remembered has a limited purpose and
cannot be allowed to be 'an appeal in
disguise'".

(11) Further, in exercise of review
jurisdiction, this Court cannot re-appreciate
the evidence to arrive at a different
conclusion even if two views are possible
in a matter. In Kerala State Electricity
Board v. Hitech Electro thermics &
Hydropower Ltd. and Others : ( 2005) 6
SCC 651, the Apex Court observed as
follows :-

"10. .... In a review petition it is
not open to this Court to reappreciate the
evidence and reach a different conclusion,
even if that is possible. Learned counsel for
the Board at best sought to impress us that
the correspondence exchanged between the
parties did not support the conclusion
reached by this Court. We are afraid such a
submission cannot be permitted to be
advanced in a review petition. The
appreciation of evidence on record is fully
within the domain of the appellate court. If
on appreciation of the evidence produced,
the court records a finding of fact and
reaches a conclusion, that conclusion
cannot be assailed in a review petition
unless it is shown that there is an error
apparent on the face of the record or for
some reason akin thereto. It has not been
contended before us that there is any error
apparent on the face of the record. To
permit the review petitioner to argue on a
question of appreciation of evidence would
amount to converting a review petition into
an appeal in disguise."

(12) The Apex Court through its
various
judgments
has
prescribed
a
parameter of "do's" and "don't" for
exercising the power of review by a Court
of law. In Kamlesh Verma v. Mayawati
and Others : (2013) 8 SCC 320, the Apex
Court observed that review proceedings
have to be strictly confined to the scope
and ambit of Order XLVII Rule 1, CPC. As
long as the point sought to be raised in the
review application has already been dealt
with and answered, parties are not entitled
to challenge the impugned judgment only
because an alternative view is possible. The
principles for exercising review jurisdiction
12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
59
were
succinctly
summarized
in
the
aforesaid case as below:

"20. Thus, in view of the above,
the following grounds of review are
maintainable as stipulated by the statute:

20.1. When the review will be
maintainable:

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" has been interpreted in Chajju
Ram vs. Neki, AIR 1922 PC 112, and
approved by this Court in Moran Mar
Basselios Catholicos vs. Most Rev. Mar
Poulose Athanasius & Ors. AIR 1954 SC
526 to mean "a reason sufficient on
grounds at least analogous to those
specified in the rule". The same principles
have been reiterated in Union of India v.
Sandur Manganese & Iron Ores Ltd. &
Ors. (2013)8 SCC 337.

20.2. When the review will not be
maintainable: -

(i) A repetition of old and
overruled argument is not enough to
reopen concluded adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot
be equated with the original hearing of the
case.

(iv) Review is not maintainable
unless the material error, manifest on the
face of the order, undermines its soundness
or results in miscarriage of justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is re-heard and corrected but lies
only for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground for
review.

(vii) The error apparent on the
face of the record should not be an error
which has to be fished out and searched.

(vii) The appreciation of evidence
on record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing
the
main
matter
had
been
negatived."

(13) As to the power and scope of a
High Court to review its order under its
Writ Jurisdiction under Article 226 of the
Constitution is concerned, the Apex Court,
in Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma, (1979) 4 SCC 389
speaking through Chinnappa Reddy, J. has
made the following pertinent observations
:-

''It is true there is nothing
in Article
226 of
the
Constitution
to
preclude the High Court from exercising
the power of review which inheres in every
court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave
and palpable errors committed by it. But,
there are definitive limits to the exercise of
the power of review. The power of review
may be exercised on the discovery of new
and important matter or evidence which,
after the exercise of due diligence was not
within the knowledge of the person seeking
the review or could not be produced by him
at the time when the order was made; it
may be exercised where some mistake or
error apparent on the face of the record is
found, it may also be exercised on any
analogous ground. But, it may not be
exercised on the ground that the decision
60 INDIAN LAW REPORTS ALLAHABAD SERIES
was erroneous on merits. That would be the
province of a court of appeal. A power of
review is not to be confused with appellate
power which may enable an appellate court
to correct all manner of errors committed
by the subordinate court.'"

(14) Moreover, the Apex Court
reiterated that exercise of power of review
under Order XLVII Rule 1 of the Civil
Procedure Code (CPC) is limited and under
the guise of review, the review-petitioner
could not be permitted to re-agitate and
reargue questions which had already been
addressed and decided by the Court earlier.
The Apex court in S. Murali Sundaram v.
Jothibai Kannan (2023) SCC OnLine SC
185 held that "Even if the judgment sought
to be reviewed is erroneous the same
cannot be a ground to review the same in
exercise of powers under Order 47 Rule 1
CPC. An erroneous order may be subjected
to appeal before the higher forum but
cannot be a subject matter of review under
Order 47 Rule 1 CPC." Apparently, in the
said matter, the issue before the Apex
Court was as to whether in the facts and
circumstances of the case the High Court
was justified in allowing the review
application filed under Order XLVII Rule 1
CPC and setting aside the order passed in
main writ petition. The Apex Court noted
that while the impugned order in review
was passed, the High Court had considered
the submission which was already dealt
with by the High Court while deciding the
main writ petition and as such the Apex
Court held that any review of the said order
was wholly impermissible. Further, the
Apex Court referred to its earlier decision
in the case of Perry Kansagra vs. Smriti
Madan Kansagra, (2019) 20 SCC 753 and
in Shanti Conductors (P) Ltd. Vs. Assam
SEB, (2020) 2 SCC 677 and observed that
"the High Court has exceeded in its
jurisdiction
and
has
exercised
the
jurisdiction not vested in it while exercising
the review jurisdiction under Order XLVII
Rule 1 read with Section 114 CPC."

(15) Further, recently, when the Apex
Court was poised with an issue as to
whether a subsequent decision/judgment of
a Co-ordinate Bench can be regarded as a
ground
for
review
of
the
earlier
order/judgment, the Apex Court after
enumerating various decisions relating to
the circumstances, when a review can be
entertained by a Court dismissed the said
review petition vide its order dated
31.10.2023 in a bunch of review petitions,
leading petition being R.P. (Civil) No.
1620 of 2023 ( Sanjay Kumar Agarwal
V/s State Tax Office & Anr.) and laid
certain guiding principles to be followed
while dealing with a review petition in the
following words :-

"16. The gist of the afore-stated
decisions is that:

(i) A judgment is open to review
inter alia if there is a mistake or an error
apparent on the face of the record.

(ii) A judgment pronounced by
the Court is final, and departure from that
principle
is
justified
only
when
circumstances
of
a
substantial
and
compelling character make it necessary to
do so.

(iii) An error which is not selfevident and has to be detected by a process
of reasoning, can hardly be said to be an
error apparent on the face of record
justifying the court to exercise its power of
review.

(iv) In exercise of the jurisdiction
under Order 47 Rule 1 CPC, it is not
permissible for an erroneous decision to be
"reheard and corrected."
12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
61

(v) A Review Petition has a
limited purpose and cannot be allowed to
be "an appeal in disguise."

(vi) Under the guise of review,
the petitioner cannot be permitted to
reagitate and reargue the questions which
have already been addressed and decided.

(vii) 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.

(viii) Even the change in law or
subsequent decision/ judgment of a coordinate or larger Bench by itself cannot be
regarded as a ground for review."

(16) Thus, it is clear like daylight
from the above exposition of law, that the
Apex Court has consistently held that the
Court's jurisdiction of review, is not the
same as that of an appeal. A judgment can
be open to review if there is a mistake or an
error apparent on the face of the record, but
an error that has to be detected by a process
of reasoning, cannot be described as an
error apparent on the face of the record for
the Court to exercise its powers of review
under Order XLVII Rule 1 CPC. Most
importantly, in the guise of exercising
powers of review, the Court can correct a
mistake but not substitute the view taken
earlier merely because there is a possibility
of taking two views in a matter. There is a
clear distinction between an erroneous
decision as against an error apparent on the
face of the record. An erroneous decision
can be corrected by the Superior Court,
however, an error apparent on the face of
the record can only be corrected by
exercising review jurisdiction.

(17) The learned Counsel for the
review applicant placing heavy reliance on
the observation made by the Apex Court in
Jharkhand Urja Vikas Nigam Limited's
case (Supra), submitted that this Court in
the impugned judgment has failed to
consider the said judgment in its true
perspective, which according to the review
applicant, is an error apparent on the record
of the present case. First and foremost, nonconsideration of a judgment cannot be a
ground for review as that would lead to
substituting the view already taken by this
Court, in as much as liberty had already
been granted by this Court vide the
impugned order for availing alternate
remedy under Section 34 of the Arbitration
& Conciliation Act, 1996 and even it had
been directed that all the legal issues would
remain open to the review-applicant before
the competent forum. Thus, this Court is
satisfied that there exists no material error
on the face of the impugned order, which
would result in miscarriage of justice.

(18) There is another aspect of the
matter, Jharkhand Urja Vikas Nigam
Limited's case (supra) is distinguishable
on fact. In the said case, MSME Council
issued notices and summons to Jharkhand
Urja Vikas Nigam and its failure to respond
to the notices and summons, the MSME
Council decided the reference against
Jharkhand Urja, and directed them to make
payments, as claimed, within a period of 30
days. The decision of the MSME Council
was challenged before the Rajasthan High
Court by Jharkhand Urja, which challenge
came to be dismissed. Aggrieved by this
dismissal a further appeal was filed before
the Supreme Court. In deciding the
controversy, the Supreme Court struck
down the decisions of the MSME Council
and held that the MSMED Act provides for
conciliation and it is only when the same is
not successful, the MSME Council is
empowered
to
refer
the
dispute
to
62 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitration on its own or through any other
institution. In the said case, the Apex Court
clarified that the MSME Council cannot
club the two processes of conciliation and
arbitration and pass Order for payment,
during conciliation itself. The Apex Court
further
explained,
that
there
is
a
fundamental
difference
between
conciliation
and
arbitration
as
in
conciliation proceedings, the conciliator
assists parties to arrive at an amicable
settlement, whereas, in arbitration, an
arbitral
tribunal
adjudicates
dispute
between the parties. There being a stark
difference
between
conciliation
and
adjudication. Further, the Apex Court,
while interpreting Section 18 of the MSME
Act, held that the MSME Council was
obliged to conduct conciliation for which
the provisions of Sections 65 to 81 of the
Arbitration and Conciliation Act, 1996
("Arbitration Act") would apply and in
the event conciliation fails and stands
terminated, the dispute between the parties
will be referred to arbitration. In the said
particular facts of the case, the Apex Court
also rejected the objection, that the remedy
available to Jharkhand Urja was to apply
for setting aside of the decision of the
MSME Council, as if, it were an arbitral
award, by holding that the decision of the
MSME Council was without recourse to
arbitration
and
in
disregard
of
the
provisions
of
the
Arbitration
and
Conciliation Act 1996. Thus, it was held
that the decision of the MSME Council was
not an arbitral award on account of which,
Jharkhand Urja was not required to institute
proceedings for setting aside of the
decision.

(19) Juxtaposed with the present facts
of the case, it is available from records that
the matter was fixed for conciliation
proceedings by the MSME Council on
05.08.2022
and
the
pleadings
were
exchanged between the parties prior to the
said date. Since, the matter could not be
amicably
settled,
the
conciliation
proceedings came to be terminated after
hearing both the parties on 05.08.2022 in
terms of Section 76 of the Arbitration &
Conciliation Act, 1996 and parties were
informed
of
initiation
of
Arbitral
Proceedings. It is also available from
record that the arbitration proceeding was
convened on 28.12.2022 and even the
review applicant filed an application under
Section 13 (2) of the Arbitration &
Conciliation
Act
challenging
the
competency of the MSME council for
Arbitration. Subsequently, an award dated
24.07.2023 came to be passed by the
MSME Council. In Jharkhand Urja's case
the Apex Court held that since MSME
Council took a decision in conciliation
proceedings only and apparently did not
advert to the arbitration proceedings, the
decision of the council was not an arbitral
award and as such in the facts of the said
case, the Apex Court held that Jharkhand
Urja Vikas Nigam Limited was not
required to file an objection to the award
under Section 34 of the Arbitration &
Conciliation Act, 1996. However, in the
present case, without commenting on the
merits of the procedure adopted by the
MSME Council for passing of the award
dated 07.10.2023 as mentioned under
Sections 20, 23, 24 and 25 of the
Arbitration & Conciliation Act, 1996, lest it
effects the merits of contention of either of
parties, this Court finds that the award had
been passed by the MSME Council after
adverting to the arbitration proceedings. In
any case, the import and scope of the
Jharkhand Urja's case can be detected by
the process of reasoning and thus cannot be
described as an error apparent on the face
of the record of the present case, so as to
12 All. M/S Docket Care Systems Lko. Vs. Union of India & Ors.
63
empower this Court to exercise its power of
review under Order XLVII Rule 1 of the
CPC.

(20) Be that as it may, this Court finds
that the statutory mechanism of arbitration
as contained in the MSME Act, despite the
applicability of the 1996 Act to the same as
per Section 18 of the said Act, may often
give rise to certain issues where the
provisions of the MSME Act may come
into conflict with those of the 1996 Act as
far
as
the
conciliation/arbitration
mechanism is concerned, due to the
peculiarities of the MSME Act. The Apex
Court in the case of Gujarat State Civil
Supplies
Corporation
Limited
v.
Mahakali Foods Private Limited : 2022
SCC OnLine SC 1492, while deciding upon
a batch of appeals relating to arbitration of
MSMEs, held that Chapter V (Delayed
Payments to Micro and Small Industries) of
the MSME Act would override the
provisions of the 1996 Act. The Apex
Court further observed that general laws do
not prevail over special laws and that
whenever there is an apparent conflict
between two statutes, the provision of a
general statute must yield and give way to
that of a special statute. Further, Section 24
of the MSMED Act specifically provides
that the provisions of Sections 15 to 23 of
the
said
Act
would
have
effect,
notwithstanding
anything
inconsistent
therewith contained in any other law for the
time being in force.

(21) Taking a cue from the above
exposition, this Court finds that the conflict
between the MSME Act and Arbitration
Act can be found at several places, like the
applicability of Section 80 of the 1996 Act,
which provides a bar on the conciliator to
act in arbitration proceedings or other
judicial proceedings between the parties
involved, other than such conciliation.
However, from a reading of Section 18 of
the MSME Act, it is apparent that the
Council can act an arbitrator as well as
conciliator
under
the
MSME
Act.
Similarly, Section 23(2A) of the 1996 Act
expressly provides for filing of counterclaim and set off in arbitration proceedings
under the 1996 Act. Similarly, Section 43
of the 1996 Act states that the Limitation
Act, 1963 shall be applicable to arbitration
under the 1996 Act as it applies to judicial
proceedings. The Orissa High Court in the
case of Shri Mahavir Ferro Alloys
Private Limited v. Passary Minerals
Limited :2018 SCC OnLine Ori 175,
while
deciding
on
the
issue
of
maintainability of counter-claims in MSME
proceedings noted that the counter-claim by
the counter-party could not be adjudicated
by the Council under the MSME Act since
the Act was only applicable to MSME
entities and unless the counter-party was
also a registered MSME entity, the Council
would lack jurisdiction in this regard.
However, the issue seems to have been
settled by the Apex Court in the case of
Silpi
Industries
vs.
Kerala
State
Transport Corporation [AIR 2021 SC
548], wherein the issue was whether the
provisions of the Limitation Act, 1963 will
also
be
applicable
to
arbitration
proceedings under the MSME Act. The
Apex Court, while relying on the judgment
of Andhra Pradesh Power Coordination
Committee v. Lanco Kondapalli Power
Limited : (2016) 3 SCC 468, held that
arbitration pursuant to Section 18(3) of the
MSME Act would be governed by the
Limitation
Act,
1963,
in
line
with
arbitrations under the 1996 Act and with
the issue of counterclaim, the Bench noted
that a provision of counterclaim is
expressly available under Section 23 (2A)
of the 1996 Act. Section 18 (3) of the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
MSME Act specifically provides that the
provisions of the 1996 Act would be
applicable to the MSME Act as if the
arbitration was pursuant to an arbitration
agreement as defined in Section 7(1) of the
1996 Act. Therefore, the Apex Court held
that counterclaim, as applicable as under
the 1996 Act, would apply to any
arbitrations under the MSME Act as well.

(22) Thus, this Court finds that it has
been consistently held by the Hon'ble
Court that by virtue of Section 18(3) of the
MSME Act, all the provision of Arbitration
& Conciliation Act, 1996 would be
applicable to the arbitration proceedings by
MSME Council, which conversely also
means that any order arising and/or passed
by the MSME Council has to be interdicted
under
the
available
provisions
of
Arbitration & Conciliation Act, 1996 only.
Thus, the view taken by this Court in the
impugned order is a plausible view and
apparently it seems the review petition has
been filed in the guise of an appeal, which
is not permissible as per law.

(23) Although, we have held herein
above that the present review petition was
not maintainable, however, this Court as
has observed earlier is also examining the
aspect as to whether the impugned order is
causing any miscarriage of justice or there
is any other sufficient ground for allowing
the present review petition. This Court
finds that all the grounds urged by the
review applicant, whether relating to
infirmities committed by the MSME
Council or the council not following the
provisions of Sections 20, 23, 24 and 25 of
the Arbitration & Conciliation Act or that
the respondent No.4 is not a supplier within
the meaning of Section 2(n) of the MSME
Act, are readily available to the review
applicant, while availing the alternative
remedy of filing objection to the award
under Section 34 of the Arbitration &
Conciliation Act, 1996. It would be
profitable for this Court, to quote Section
34 (1) and 34 (2) of the Act, 1996, which
inter-alia states as herein under:

"34 Application for setting
aside arbitral award. -

(1) Recourse to a Court against an
arbitral award may be made only by an
application for setting aside such award in
accordance with sub-section (2) and subsection (3).

(2) An arbitral award may be set
aside by the Court only if-

(a)
the
party
making
the
application furnishes proof that-

(i) a party was under some
incapacity, or

(ii) the arbitration agreement is
not valid under the law to which the parties
have subjected it or, failing any indication
thereon, under the law for the time being in
force; or

(iii)
the
party
making
the
application was not given proper notice of
the appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or