# Siemens Ltd v. Madhyanchal Vidyut Vitran Nigam Ltd. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 1125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-18
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siemens-ltd-v-madhyanchal-vidyut-vitran-nigam-ltd-anr-opp-parties-46758
- **Pages:** 11

## Headnote

Sri Kapil Dev Singh Rathore, Sri Girish
Chand Sinha, Sri Mukesh Kumar Singh, Sri
Mayank Sinha, Sri Mayank Singh, Sri
Abhishek Srivastava

Civil
Law-Application
filed
seeking
appointment of an independent arbitrator
-a written agreement exist containing an
arbitration clause-consent recorded in the
order of which review filed- Respondent
did not give up its preliminary objectionconsent recorded is not true reflection of
record of proceeding that existed before
the court- mistake crept in while passing
the impugned order owing to three other
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
similar application-since consent do not
exist.

Review Application maintainable. (E-7)

List of Cases cited: -

## Text

1 All. Siemens Ltd. Vs. Madhyanchal Vidyut Vitran Nigam Ltd. & Anr.
1125
781, the Apex Court has propounded
"Inherent jurisdiction under Section 482
has to be exercised sparingly, carefully and
with caution and only when such exercise
is justified by the tests specifically laid
down
in
the
section
itself."
While
interpreting this jurisdiction of High Court
Apex Court in Popular Muthiah v. State,
Represented by Inspector of Police, (2006)
7 SCC 296 has propounded "High Court
can exercise jurisdiction suo motu in the
interest of justice. It can do so while
exercising other jurisdictions such as
appellate or revisional jurisdiction. No
formal application for invoking inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters. It
can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".

16. Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
Dhanlakshmi v. R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494 has
propounded "To prevent abuse of the
process of the Court, High Court in
exercise of its inherent powers under
section 482 could quash the proceedings
but there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in State
of Bihar v. Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1, Apex Court
propounded "In exercising jurisdiction
under Section 482 High Court -10- would
not embark upon an enquiry whether the
allegations in the complaint are likely to be
established by evidence or not".

17. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above. This court is not to make any
comment on factual matrix because the
same remains within the domain of trial
court.

18.
Accordingly,
there
remains
nothing
for
any
indulgence
in
this
proceeding. The prayer for quashing the
impugned order as well as proceeding of
the aforesaid complaint case is refused and
the application u/s 482 Cr.P.C. is hereby
dismissed.
----------
(2021)01ILR A1125
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Arbitration & Concilla. Appl. U/S 11(4) No. 5 of
2019

Siemens Ltd. ...Applicant
Versus
Madhyanchal Vidyut Vitran Nigam Ltd. &
Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ronak Chaturvedi, Sri Anurag Khanna,
Sri Shivank Diddi

Counsel for the Opp. Parties:
Sri Kapil Dev Singh Rathore, Sri Girish
Chand Sinha, Sri Mukesh Kumar Singh, Sri
Mayank Sinha, Sri Mayank Singh, Sri
Abhishek Srivastava

Civil
Law-Application
filed
seeking
appointment of an independent arbitrator
-a written agreement exist containing an
arbitration clause-consent recorded in the
order of which review filed- Respondent
did not give up its preliminary objectionconsent recorded is not true reflection of
record of proceeding that existed before
the court- mistake crept in while passing
the impugned order owing to three other
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
similar application-since consent do not
exist.

Review Application maintainable. (E-7)

List of Cases cited: -

1. Pushpalata Jain Vs M/s. Raj Enterprises; AIR
Online 2020 MP 551

2. Municipal Corporation of Greater Mumbai Vs
Pratibha Industries Ltd.; AIR Online 2018 SC
891

3. State Road Transport Corp. & anr. Vs Indra
Raj Verma & anr.; AIR 2018 All 6

4.
Grindlays
Bank
Ltd.
Vs
The
Central
Government Industrial Tribunal & ors.; (1980)
Supp 1 SCC 420

5. Smt. Chandra Dickshit Vs Smart Builders;
(2008) SCC Online All 85

6. M/s. Shiv Hare Builders through Proprietor,
Agra Vs Executive Engineer, Provincial Division,
Public Works Department; (2010) SCC Online All
2309

7. Antikeros Shipping Corporation Vs Adani
Enterprises Limited; 2020 (3) MhLJ 855

8. State of Maharashtra Vs Ramdas Shrinivas
Nayak & Anr.; (1982) 2 SCC 463

9. State of West Bengal Vs Associated
Contractors; (2015) 1 SCC 32

10.Ador Samiya (P) Ltd. Vs Peekay Holdings
Ltd.; (1999) 8 SCC 572

11.Konkan Railway Corp. Vs Mehul Construction
Co. Ltd.; (2000) 7 SCC 201

12. Konkan Railway Corp. Vs Rani Construction
(P) Ltd.; (2002) 2 SCC 388,

13.SBP & Co. Vs Patel Engineering Ltd.; (2005)
8 SCC 618

14.Jain Studios Ltd., Through its President Vs
Shin Satellite Public Co. Ltd.; (2006) 5 SCC 501

15. Municipal Corporation of Greater Mumbai &
anr. Vs Pratibha Industries Limited & ors.;
(2019) 3 SCC 203

(Delivered by Hon'ble Saumitra Dayal Singh, J.)

Re: Civil Misc. Delay Condonation
Application No. 1 of 2019 & Re: Civil
Misc. Review Application No. 2 of 2019.

1. Heard Sri Girish Chand Sinha and
Sri Mukesh Kumar Singh, learned counsel
for the applicant in review application and
Sri
Anurag
Khanna,
learned
Senior
Advocate
assisted
by
Sri
Ronak
Chaturvedi,
learned
counsel
for
the
respondent-claimant.

2. The present review application has
been filed by the Madhyanchal Vidyut
Vitran Nigam Ltd. (herein referred to as the
'opposite party') being opposite party no.1
in Arbitration and Conciliation Application
U/S 11(4) No. 5 of 2019. For ready
reference, the relevant part of the order
dated 08.05.2019, is quoted herein:

"Heard Sri Anurag Khanna, learned
Senior Counsel assisted by Sri Ronak
Chaturvedi and Sri Shivank Diddi, counsel
for the applicant and Sri Abhishek
Srivastava,
learned
Chief
Standing
Counsel/Special Counsel and Sri Mayank
Singh, learned counsel for the respondents.

This application is field under Section
11(4) of the Arbitration and Conciliation
Act, 1996 by which the applicant has
prayed for appointment of sole Arbitrator
to resolve the dispute.

The applicant is a company, indulged
in manufacturing rendering services in the
sector of electricity related to component,
supply and distribution.

The applicant company has entered
into an agreement with the respondents
1 All. Siemens Ltd. Vs. Madhyanchal Vidyut Vitran Nigam Ltd. & Anr.
1127
Madhyanchal Vidyut Vitran Nigam Limited
for supply of certain goods and related
services viz. Implementation.

The said agreement executed in between
the applicant and respondent no.1 on 25th
day of August, 2014.

The said agreement dated 25th August,
2014 provides the special conditions of
contract as well as general conditions of
contract.
The
said
agreement
further
provides as follows:-

"IN WITNESS whereof the parties
hereto have caused this Agreement to be
executed in accordance with the laws
applicable in exclusive jurisdiction of the
High Court Of Judicature in the state of
Uttar
Pradesh,
India and all
courts
subordinate to its exclusive Jurisdiction on
the 25th August 2014 indicated above."

Clause GCC 7.2 of the said agreement
provides as follows:-

"The formal mechanism for the
resolution of disputes shall be:

If the parties fail to resolve such a
dispute
or
difference
by
mutual
consultation within twenty-eight (28)
days form the commencement of such
dispute and difference, either party may
require that the dispute be referred for
resolution to the formal mechanisms,
described
below
(The
date
of
commencement of the dispute shall be
taken from the date when this clause
reference is quoted by either party in a
formal communication clearly mentioning
existence of dispute or as mutually
agreed):

a. The mechanism for resolution of
disputes
for
bidders
shall
be
in
accordance with the Indian Arbitration
and Conciliation Act of 1996. The
Arbitral Tribunal shall consist of 3
(three) Arbitrators. Each Party shall
agree and nominate a third Presiding
Arbitrator.

b. The Arbitrators shall necessarily
be retired High Court Judges and the
umpire shall be a retired Chief Justice.

c. The place for arbitration shall be
State of Uttar Pradesh."

Learned counsel for the respondentNigam
has
raised
the
preliminary
objection about the maintainability of the
instant application.

Learned counsel for the respondents
has submitted that the conditions so as
stipulated in Clause GCC 7.2 provides to
resolve the dispute or the difference by
mutual consultation within 28 days from
the commencement of such dispute and
difference.

Learned counsel for the respondent
therefore submits that the applicant has
not approached the Nigam as such has
approached the U.P. Power Corporation
Ltd. Lucknow who has nothing to do with
the dispute or difference arose between
the parties.

Per contra, learned counsel for the
applicant has placed reliance on a
document/letter dated 23rd August, 2018
by which the applicant has addressed the
Executive
Engineer,
Madhayanchal
Vidyut Vitran Nigam Limited, office of
the Managing Director, 4A, Gokhale
Marg,
Lucknow.
'Subject'
so
as
mentioned in the said letter clearly
indicates that the letter has been issued
by the applicant for settlement of claims.

Admittedly the instant application
has been filed by the applicant after
expiry of the period so as indicated (28
days) in January, 2019.

Having heard the learned counsel for
the parties, though no observation is
required to be made on the merits of the
issue, it cannot be disputed, at present,
there exists a dispute between the parties,
and that such dispute arises under the
written agreement entered into between
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
them, and also there exists an arbitration
clause for resolution of such dispute.
Further, the parties have not been able to
appoint an arbitrator, of their own.

In view of above and as agreed in
between the counsels representing the
respective parties, this Court has no option
but to appoint ............

List on 30th May, 2019."

3. At the outset, Sri Khanna, learned
Senior
Advocate
appearing
for
M/s
Siemens Limited (herein referred to as the
'claimant'),
has
raised
a
preliminary
objection as to the maintainability of the
review application. It is his submission that
the application is not maintainable in law.
The Arbitration Act being a complete code,
there is no inherent or other power of
review. No such application may be
entertained in absence of a specific
provision. Second, it has been submitted
that in any case, the order dated 08.05.2019
being a consented order, no application for
review would lie against the same. Third,
he has also objected to the delay in filing
the present review application. In view of
the preliminary objections raised, it is
considered desirable that the same may be
first dealt with before proceeding to hear
the substantive grounds of review.

4. On the other hand, according to Sri
Sinha, learned counsel appearing for the
opposite party, this Court being a Court of
record has ample power to review its
orders, to correct its record. Inasmuch as
the opposite party had never given his
consent and the order dated 08.05.2019
came
to
be
passed
by
the
Court,
overlooking the preliminary objection,
which fact was first recorded in that order,
this Court is obliged to correct its record
and entertain the review application. In that
regard, reliance has been placed by Sri
Sinha on a recent decision of the Madhya
Pradesh High Court in Pushpalata Jain
Vs. M/s. Raj Enterprises; AIR Online
2020 MP 551. He has also relied on a
decision
of
the
Supreme
Court
in
Municipal
Corporation
of
Greater
Mumbai Vs. Pratibha Industries Ltd.;
AIROnline 2018 SC 891 and on a decision
of this Court in U.P. State Road
Transport Corp. & Anr. Vs. Indra Raj
Verma & Anr.; AIR 2018 All 6. As a
second limb of his submission, Sri Sinha
would further submit that the review being
sought is a procedural review and therefore,
relying on a decision of the Supreme Court
in Grindlays Bank Ltd. Vs. The Central
Government Industrial Tribunal & Ors.;
1980 Supp 1 SCC 420, the review
application is asserted to be wholly
maintainable. Third, he has supported his
submission
on
the
strength
of
the
provisions of the Commercial Courts Act,
2015, to submit that by virtue of Section 16
of that Act, the provisions of Code of Civil
Procedure, 1908, are applicable to the
present proceedings as well and, therefore,
the present review application would lie.

5. As to consent, it has been
submitted by Sri Sinha that at no point of
time any consent had been given by the
opposite party to the appointment of an
independent arbitrator. Referring to his
objections filed to the Arbitration and
Conciliation Application U/S 11(4) No. 5
of 2019 and the contents of paragraph no.2
thereof, he submits that the opposite party
had first taken objection to the appointment
of an independent Arbitrator by the Court
both on account of lack of territorial
jurisdiction (at Allahabad), as also on
account that application being pre-mature
as no effort had been made by the applicant
in terms of Clause GCC 7.2 which
mandatorily required the parties to first
1 All. Siemens Ltd. Vs. Madhyanchal Vidyut Vitran Nigam Ltd. & Anr.
1129
resolve their dispute/s by mutual consent.
Not
only
that
objection
had
been
specifically raised in the written objection,
but it had also been raised at the time of
hearing as is recorded in the order dated
08.05.2019 in paragraph no.8 thereof.
Thereafter,
without
referring
to
that
preliminary
objection
raised
by
the
opposite party and without recording the
submissions advanced by the opposite
party, a simple observation has been made
"in view of above and as agreed in between
the counsels representing the respective
parties, this Court has no option but to
appoint ...............". The said observation is
stated to have been made under a mistake
arising from the fact that Arbitration and
Conciliation Application U/S 11(4) No. 5
of 2019 came to be heard along with
Arbitration and Conciliation Applications
U/S 11(4) Nos. 6 of 2019, 7 of 2019 and 8
of 2019. In those cases, an objection as had
been raised by the present opposite party,
may not have been raised and pressed. In
those circumstances, there was consent
between those parties for appointment of an
independent arbitrator. Owing to that fact, a
patent mistake or error has crept in the
order of this Court dated 08.05.2019 which
may be rectified. Last, it has been
submitted, there is no delay in filing the
review application.

6. The above submissions have been
vehemently opposed by Sri Khanna. In
support of his preliminary objection, Sri
Khanna had first relied on two earlier
decisions of this Court in Smt. Chandra
Dickshit Vs. Smart Builders; 2008 SCC
Online All 85 and M/s. Shiv Hare
Builders through Proprietor, Agra Vs.
Executive Engineer, Provincial Division,
Public Works Department; 2010 SCC
Online All 2309, to submit that the issue is
no longer res integra inasmuch as in both
those decisions it has been clearly opined
that the order passed appointing an
Arbitrator is not amenable to review. In
that regard, he has also relied on a recent
Division Bench decision of the Bombay
High
Court
in
Antikeros
Shipping
Corporation
Vs.
Adani
Enterprises
Limited; 2020 (3) MhLJ 855, wherein the
Division Bench of the Bombay High Court
distinguished the decision of the Supreme
Court in Pratibha Industries (supra) relied
upon by the learned counsel for the
opposite
party
and
opined
that
an
appointment made under Section 11 of the
Arbitration & Conciliation Act, 1996
(hereinafter referred to as the 'Act') is not
amenable to review jurisdiction.

7. On the issue of procedural review,
it has been submitted by Sri Khanna,
though remedy of procedural review may
remain to be exercised in an appropriate
case, however, the opposite party has failed
to establish any ground of procedural
review in the admitted facts of the present
case. Not only the opposite party was
served notice in ARCO No. 5 of 2019 but it
had filed its objections and was duly
represented at the time of the order dated
08.05.2019 being passed. Thus, no ground
of
procedural
review
arises
as
the
principles of natural justice and other rules
of procedure were duly complied.

8. Second, relying on the decision of
the
Supreme
Court
in
State
of
Maharashtra Vs. Ramdas Shrinivas
Nayak & Anr.; (1982) 2 SCC 463, it has
been submitted that the consent as recorded
in the order dated 08.05.2019 is final and
binding. The opposite party not only gave
its consent through counsel as was then
recorded in the order, but no objection was
raised on the next date when the order of
appointment
of
the
Arbitrator
was
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
confirmed. No ground was taken, to that
effect in the Special Appeal filed by the
respondent. He has also referred to the
grounds of appeal (as annexed to his
counter affidavit). Then, even in the SLP
filed by the respondent, no ground of
challenge was raised to assert the lack of
consent. Also, that leave to appeal was
confined to challenge the order dated
23.8.2019 passed by the Division Bench.
No challenge was raised to the order dated
8.5.2019. Thus, according to Sri Khanna,
the issue of consent was dead. It was never
raised, except in the present review
application filed with a long delay for
which there is no explanation.

9. Having heard learned counsel for
the parties and having perused the record,
the admitted facts of the case are that the
Arbitration and Conciliation Application
under section 11(4) No. 5 of 2019 was filed
by the claimant in January 2019, seeking
appointment of an independent arbitrator
for
resolution
of
its
disputes
with
Madhyanchal Vidyut Vitran Nigam Ltd.
and U.P. Power Corporation Limited.
Admittedly,
there
exists
a
written
agreement between the parties containing
an arbitration clause. Upon notice, the
Madhyanchal Vidyut Vitran Nigam Ltd.
put in appearance and filed its objections to
the aforesaid application. Paragraph no.2 of
the said objection reads as under:

"II. The respondent no.2 was nowhere
party to the agreement and, therefore, he
should not be arrayed as party to the
petition. As such, once again, the petition
filed by the petitioner deserves to be
dismissed for mis-joinder of parties.

III. The agreement, between the
parties, was executed at Lucknow and as
such, work and duty in this reference to the
agreement was to be done in Lucknow,
therefore, the petitioner has wrongly filed
the petition at Allahabad, knowing very
well this fact that the Bench of this Hon'ble
Court
at
Lucknow
has
exclusive
jurisdiction into the matter. As such, the
petition filed by the petitioner deserves to
be dismissed for want of appropriate
jurisdiction.

IV. The petition, filed by the petitioner
for appointment of Arbitrator, is premature as per Clause-GCC 7.2, which is
referred in the petition itself, says that any
request for arbitration could only be
entertained only after the parties fail to
resolve such disputes or differences by
mutual consultation within 28 days from
the commencement of such disputes and
differences.

V. The GCC also provies that in case
of arbitration, the Arbitral Tribunal shall
consist of 3 Arbitrators and each party
shall nominate one Arbitrator and these
two nominated Arbitrators shall mutually
agree and nominate a third Presiding
Arbitrator. However, the petitioner himself
has violated the terms of the contract and
insisted for sole arbitrator. Therefore,
directly approaching this Hon'ble Court for
appointment of Arbitrator is wrong and
illegal."

10. Around the same time, other
applications came to be filed by the
claimant with respect to similar disputes
with other distribution companies namely -
Dakshinanchal
Vidyut
Vitran
Nigam
Limited,
Pachimanchal
Vidyut
Vitran
Nigam Limited and Purvanchal Vidyut
Vitran Nigam Limited. Upon exchange of
pleadings, all four applications being
ARCO Nos. 5 of 2019, 6 of 2019, 7 of
2019 and 8 of 2019 came to be listed and
heard together. The same independent
arbitrator was proposed on all applications,
by
four
separate
orders,
all
dated
1 All. Siemens Ltd. Vs. Madhyanchal Vidyut Vitran Nigam Ltd. & Anr.
1131
08.05.2019. Thereafter, for consent of the
proposed Arbitrator, the matters were again
listed on 30.05.2019 whereupon the Court
allowed all the applications. At this stage,
against the aforesaid order, the opposite
party alone filed Special Appeal No. 696 of
2019. A copy of that has been annexed by
the claimant - to its counter affidavit to the
review
application.
That
appeal
was
dismissed by order dated 01.07.2019, as not
maintainable. Against that order, the
opposite party preferred Special Leave
Petition before the Supreme Court being
No. 17628 of 2019, which came to be
dismissed, vide order dated 23.08.2019 on
following terms:

"We find no ground to interfere with
the impugned order passed by the High
Court in view of the consent recorded. At
this state, the learned counsel has prayed
for withdrawal of the petition with liberty
to approach the concerned court. Liberty is
granted.

However, liberty is not granted to
assail the impugned order afresh in this
Court.

The
Special
Leave
Petition,
is
accordingly, dismissed as withdrawn."

11. Thereafter, the present review
application came to be filed on 01.10.2019
on which affidavits have been exchanged
and the matter has thus ripened for hearing.

12. Having heard learned counsel for
the parties and having perused the record,
in the first place, it may be seen, at the time
of the Special Leave Petition (filed by the
respondent),
being
dismissed
on
23.08.2019, the Supreme Court had granted
liberty to the respondent to approach this
Court. Though that observation may not
give rise to maintainability of the review
application if it is found otherwise not
maintainable, at the same time, in the
context of the explanation of the delay, it
may be recorded that there were no other
proceedings pending or permissible on that
date. The review application was filed on
1.10.2019 i.e., within 40 days of the
dismissal of the SLP by the Supreme Court
wherein leave to approach this Court had
been granted.

13. First, it is observed, the review
application was filed within reasonable
time after the dismissal of the SLP by the
Supreme Court. Second, it may not be
forgotten liberty had been granted to the
respondent, by one Constitutional Court to
approach another. In view that fact alone,
the litigant who has approached the other
Constitutional Court with that certified
liberty, may not be left bemused and
aggrieved, at the refusal or reluctance
offered by the other Constitutional Court to
allow him audience, on account of a small
delay, if any. Cause shown is sufficient.
Delay condoned. Accordingly, the delay
condonation application is allowed.

14. Insofar as reliance has been
placed by Sri Khanna on the orders in the
cases of Smt. Chandra Dickshit Vs.
Smart Builders (supra) and M/s. Shiv
Hare Builders (supra), it may be noted,
both orders had been passed by the then
Chief Justice(s) of this Court, on 25.1.2008
and 26.11.2010, on applications filed
seeking review of earlier orders passed
under Section 11(6) of the Act, as it stood
then. Undisputedly, at that time, the
provisions of the Section 11(6) of the Act
were materially different from those that
existed when order dated 8.5.2019 came to
be passed. Prior to the amendment made
vide Act no. 3 of 2016 (with retrospective
effect from 23.10.2015), Section 11(6) of
the Act read as below:
1132 INDIAN LAW REPORTS ALLAHABAD SERIES

"(6) Where, under an appointment
procedure agreed upon by the parties,-

(a) a party fails to act as required
under that procedure; or

(b) the parties, or the two appointed
arbitrators, fail to reach an agreement
expected of them under that procedure; or

(c) a person, including an institution,
fails to perform any function entrusted to
him or it under that procedure, a party may
request the Chief Justice or any person or
institution designated by him to take the
necessary measure, unless the agreement
on the appointment procedure provides
other means for securing the appointment".

15. The amended section 11(6)(c) of
the Act reads:

"(c) a person, including an institution,
fails to perform any function entrusted to
him or it under that procedure,

a party may request the Supreme
Court or, as the case may be, the High
Court
or
any
person
or
institution
designated by such Court to take the
necessary measure, unless the agreement
on the appointment procedure provides
other means for securing the appointment.

16. A three-judge bench of the
Supreme Court in State of West Bengal Vs
Associated Contractors; (2015) 1 SCC 32
has clearly opined (in the context of the
unamended section 11(6) of the Act) that
an application filed before a Chief Justice
(either of a High Court or the Supreme
Court) or his designate, was not an
application filed before the Court of which
that judge may be the Chief Justice or his
designate. It was observed:

"17. .................It is obvious that
Section 11(12)(b) was necessitated in order
that it be clear that the Chief Justice of "the
High Court" will only be such Chief Justice
within whose local limits the Principal
Civil Court referred to in Section 2(1)(e) is
situate and the Chief Justice of that High
Court which is referred to in the inclusive
part of the definition contained in Section
2(1)(e). This sub-section also does not in
any manner make the Chief Justice or his
designate "court" for the purpose of
Section 42. Again, the decision of the
Chief Justice or his designate, not being
the decision of the Supreme Court or the
High Court, as the case may be, has no
precedential value being a decision of a
judicial authority which is not a Court of
Record." (emphasis supplied)

17. On the other hand, under the
amended law, with which alone we are
concerned, the power to appoint an
arbitrator came to be vested in the High
Court - as a Court, in place of its Chief
Justice.
Therefore,
the
order
dated
08.05.2019 is indisputably an order passed
by the High Court. Accordingly, the ratio,
if any, involved in the two (single judge)
decisions of this Court relied upon by Sri
Khanna would stand distinguished, upon
change of law. Similarly, in Antikeros
Shipping Corporation (supra), the order
of appointment of an independent arbitrator
had been made on 21.04.2011 i.e., prior to
23.10.2015 - the date of enforcement of the
amendment to section 11(6)(c) of the Act.
Therefore, it was also an order passed by
the person or institution designated by the
Chief Justice of that Court and not by the
Bombay High Court, itself.

18. In the present case, the order
appointing an independent arbitrator had
been
passed
post
amendment,
on
08.05.2019. Clearly, it is an order passed
by the High Court, in exercise of the power
vested on it under section 11(6)(c) of the
1 All. Siemens Ltd. Vs. Madhyanchal Vidyut Vitran Nigam Ltd. & Anr.
1133
Act.
Therefore,
the
reasoning
being
attempted by Shri Khanna, is not applicable
to the facts of the present case. That line of
reasoning would remain applicable to cases
falling under the unamended law only.

19. As to the nature of power,
whether judicial or administrative, in the
context of the unamended section 11(6)(c)
it was held to be an administrative power,
Ador Samiya (P) Ltd. Vs Peekay
Holdings Ltd.; (1999) 8 SCC 572 as
affirmed by a three-judge bench decision in
Konkan
Railway
Corp.
Vs
Mehul
Construction Co. Ltd.; (2000) 7 SCC
201. Later, upon another reference, in
Konkan
Railway
Corp.
Vs.
Rani
Construction (P) Ltd.; (2002) 2 SCC 388,
a five-judge Constitution bench of the
Supreme
Court
confirmed
the
view
expressed by the three-judge bench in
Mehul Construction case. Finally, in SBP
& Co. Vs Patel Engineering Ltd.; (2005)
8 SCC 618, a seven-judge Constitution
bench held the power under section
11(6)(c) of the Act to be a judicial power,
to be exercised either by the Chief Justice
of a High Court or a designated Judge of
that Court. Such judicial order was held
appealable under Article 136 of the
Constitution of India. That being the nature
of that power, upon the 2016 amendment, a
judicial power now vests in this Court, in
place of its earlier vesting in the Chief
Justice of this Court or in his designate.

20. In Jain Studios Ltd., Through its
President Vs. Shin Satellite Public Co.
Ltd.; (2006) 5 SCC 501 (a rare order of a
Single Judge of the Supreme Court), it was
reasoned, since the order appointing an
arbitrator (under unamended Section 11(6) of
the Act), passed by the Chief Justice of India
or his nominee is an order within the meaning
of Article 137 of the Constitution of India,
that order would remain amenable to review
power of that Court. However, the distinction
between the "Supreme Court" and its "Chief
Justice" and the consequential effect on the
power of review remained to be noticed.
Thus, it was a judgement pronounced upon
an admission between the parties. It must
therefore remain confined to the facts of that
case. Even otherwise, for obvious reason of
Article 137 being applicable to the Supreme
Court alone, the ratio of that decision cannot
be applied to proceedings before this Court.

21. In Municipal Corporation of
Greater Mumbai & Anr. Vs. Pratibha
Industries Limited & Ors.; (2019) 3 SCC
203, the High Court came to appoint a neutral
arbitrator on 27.06.2017 (i.e., under the
amended Act). It appears, that order was later
recalled. However, upon an intra-Court
appeal, the order of recall was itself set-aside
by a division bench of that Court. Thus, the
matter reached the Supreme Court. It was
held,

"10. Insofar as the High Courts'
jurisdiction to recall its own order is
concerned, the High Courts are courts of
record, set up under Article 215 of the
Constitution of India. Article 215 of the
Constitution of India reads as under:

"215. High Courts to be courts of
record.--Every High Court shall be a court
of record and shall have all the powers of
such a court including the power to punish
for contempt of itself."

It is clear that these constitutional
courts,
being
courts of
record,
the
jurisdiction to recall their own orders is
inherent by virtue of the fact that they are
superior courts of record. This has been
recognised in several of our judgments."

22. That being clear as daylight, the
further submission of Sri Khanna that the
ratio of that case is distinguishable on facts,
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
is plainly unacceptable. Though it is true
that in that case, there was no arbitration
clause, and the arbitrator came to be
appointed by the Bombay High Court on a
mere statement made by an officer of the
Municipal Corporation of Greater Mumbai,
which statement was later clarified to be
without authority yet, that fact distinction is
wholly irrelevant to the question of
existence of the inherent power of review,
vested in the Court, by virtue of Article 215
of the Constitution of India. Existence of a
power and the ground for exercise of that
power would ever remain two different
issues. While no reason to exercise a power
may arise in absence of the power itself, it
cannot be true, vice versa. Existence of
power is a pure question of law, traceable
to the statutory provision, in this case
Article 215 of the Constitution of India.
Whether, it would be exercised, may be
examined while wielding that power.
However, if there was no power of review,
in existence, the occasion to exercise it
would never arise.

23. In view of the categorical
pronouncement of the Supreme Court in
Municipal
Corporation
of
Greater
Mumbai & Anr. Vs. Pratibha Industries
Limited & Ors. (supra) and the admitted
fact that the order dated 8.5.2019 was
passed by the High Court and not its Chief
Justice of this Court or its designate (as
distinct from the Court itself), the review
application
is
found
to
be
wholly
maintainable.

24. As to the consent, it is seen, not
only
the
respondent
had
raised
a
preliminary objection by means of the
counter affidavit to arbitration application
no. 5 of 2019 but that it had also raised
preliminary objections at the stage of oral
hearing. It is clearly recorded in the order
dated 8.5.2019. Though, the later part of
that order does record that the parties
agreed for appointment of the sole
arbitrator, however, that order nowhere
records, at any place, that the respondent
gave up its preliminary objections. It is also
difficult to accept that such preliminary
objection once raised, would have been
given up because the order also does not
record, either the exact nature of the
preliminary objections raised or any
consideration thereof. Then, it cannot be
lost sight that the said order came to be
passed along with three other orders passed
on similar applications filed by the
applicant, that were also decided on the
same date.

25. It thus appears that an error has
crept in, while passing the order dated
8.5.2019. Thereby consent of parties came
to be recorded. In view of the facts noted
above, I am prima facie satisfied that the
respondent did not give up its preliminary
objection
and
therefore,
the
consent
recorded, is not a true reflection of the
record of proceedings that existed before
the Court. Without a doubt a mistake has
thus crept in the order dated 8.5.2019,
probably, as suggested by Sri Girish Chand
Sinha, owing to the three other similar
applications having been dealt with on the
same day wherein, upon consent, a sole
arbitrator
was
appointed,
in
similar
circumstances. Since, the consent did not
exist, a review application would be
maintainable.

26. That being the nature of mistake,
it is also not truly relevant that initially the
respondent did not raise the ground of lack
of consent. Once it appears to the Court
that such consent was not existing, the
Court owes a duty to itself, to keep its
record straight. To deprive a litigant of
1 All. Bhartiya Rashtriya Rajmarg Pradhikaran Vs. Rajesh Kaushik & Ors.
1135
rectification of a mistake in the Court's
record, when that mistake otherwise
appears to exist, solely because the litigant
did not come to it in the first instance, may
never be relevant for this Court considering
the obligation cast on it under Article 215
of the Constitution of India. The Court is
not a party to the dispute. On the other
hand, a litigant has complained that its
record is incorrect. Thereafter, it is
necessary for the Court, as a non-partisan
and independent adjudicator to correct its
record especially, since the litigant is not
shown to have accepted as correct the order
dated 08.05.2019.

27. Accordingly, the review application
is found to be wholly maintainable in law, by
virtue of Article 215 of the Constitution of
India and since no consent existed (of the
respondent), to appoint the sole arbitrator.
The observation made in the order dated
08.05.2019, to that effect, is erroneous.

28. In so far as, it has been urged that
the Court has a power of procedural review,
again, there can be no dispute to that.
However, no ground of procedural review
has been made out in the facts of the present
case. As to the third line of reasoning adopted
by Sri Girish Chand Sinha relying on the
provisions of the Commercial Courts Act, the
same is left undetermined as this Court
clearly has the power to review and correct
it's record by virtue of Article 215 of the
Constitution of India.

29. Put up the review application for
consideration on 01.02.2021.
----------
(2021)01ILR A1135
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2021

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 No. 36 of 2020

Bhartiya Rashtriya Rajmarg Pradhikaran
 ...Appellant
Versus
Rajesh Kaushik & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Pranjal Mehrotra, Sri Gaurav Pundir

Counsel for the Respondents:
Sri Shesh Kumar Srivastava, Sri Gaurav
Pundir

Civil Law-Award passed for re determining
amount of compensation-Objection filed
against the award-held not maintainablein no event the arbitrator can remit the
matter to competent authority -it's a
power of Court or Tribunal in Appeal or
Revision specifically granted by a statuteAward being passed beyond the scope of
reference-award was open to challenge in
terms of section 34(2) (a) (iv).

Appeal disposed. (E-7)

List of Cases cited: -

1. Writ C No.8347 of 2018 (Rajiv Memorial
Academy Welfare Society Vs. U.O.I. & ors.

2. Ashok Leland Ltd. Vs St.of T.N.& anr., (2004) 3 SCC 1 i

3. S. P. Manohar Reddy & Bros. Vs Maharashtra
Krishna Valley Development Corpn., (2009) 2
SCC 494

4. Indian Oil Corp. Ltd. & ors. Vs M/S Raja
Transport (P) Ltd., (2009) 8 SCC 520

5. Writ C No. 8347 of 2018 (Rajiv Memorial
Academy Welfare Society Vs. U.O.I. & ors.

(Delivered by Hon'ble Saumitra Dayal Singh, J.)

1. Heard Sri Pranjal Mehrotra, learned
counsel for the appellant through video