JUDGMENT H.L. Ghokhale, C.J.
1. This is a miscellaneous application made by the applicant-Engineering Company, seeking to review/recall the order dated 22.9.2006, passed by the then Hon'ble Chief Justice of this Court (A.N. Ray, C.J.) on an application tiled by the respondents-Indian Farmers Fertilizer Co-operative Limited (in short 'IFFCO'). The application was moved in applicant's Arbitration Application No. 41 of 2002. which sought to appoint an arbitrator under Section 11 of the Arbitration and Conciliation Act. 1996 (hereinafter referred to as the Act), to decide their money claim against the respondents. The said order dated 22.9.2006 allowed the review application filed by the respondents-IFFCO, which sought review/recall of the order dated 19 5.200, which recalled the order order dated 24.2.2006. By the earliest mentioned order dated 24.1.2006, the main Arbitration Application bearing No. 41 of 2002 filed by the applicant herein was rejected by the learned Chief Justice. The order dated 19.5.2006 had reviewed this order of 24.2.2006 and appointed a retired Judge of this Court, Hon'ble Shri Justice Giridhar Malviya, as an Arbitrator. The order dated 22.9.2006 recalled this order dated 19.5.2006. Consequently, the main Arbitration Application No. 41 of 2002 to appoint an arbitrator stood rejected. By the present application, this order of 22.9.2006 is sought to be recalled. All the three orders are passed by the then Chief Justice Hon'ble A.N. Ray, C.J. All the three orders are subsequent to the judgment of the Apex Court in SBP & Co. v. Patel Engineering Ltd. decided on 26.10.2005, reported in (2005) 8 SCC 618.
2. The main ground of the present application dated 12.12.2006, seeking review of the order dated 22.9.2006, is that under the prior order dated 19.5.2006, an Arbitrator had already been appointed and had started functioning and, therefore, the order dated 22.9.2006 reviewing the order dated 19.5.2006 appointing an Arbitrator was not called for. As against this, the submission of the respondents is that although an Arbitrator was appointed under the order dated 19.5.2006, he had not started functioning and that the order dated 19.5.2006 appointing an Arbitrator was passed on the first date of hearing without affording an opportunity to the respondents. The applicant's application for recall dated 24.3.2006 (seeking recall of order dated 24.2.2006) was based on two letters of the respondents dated 1.7.1998 and 30.11.2001 and particularly the latter one, to save limitation since the letters were supposed to have stated that the respondents were processing the bills of applicants. The Arbitration Application No. 41 of 2002 filed by the applicants is basically to seek an arbitration into their monetary claim against the respondents, which the respondents are contending to be hopelessly time barred. The respondents contend that they were not given any opportunity to controvert the contents of these two letters. According to them, the second letter dated 30.11.2001 supposed to be from the respondents was a forged document and they had not written any such letter. It was the case of the respondents that the order dated 19.5.2006 was not called for inasmuch as that was on an application, which sought review of the order dated 24.2.2006, which after hearing the parties had held the claim to be time barred. Thus, whereas according to the respondents, the order dated 19.5.2006 was not called for, according to the applicant initial order dated 24.2.2006 and the third order dated 22.9.2006 were not called for.
3. Now before we look to the various orders passed by the then Hon'ble Chief Justice, we may first look to the main Arbitration Application No. 41 of 2002, to understand as to what was the claim therein. If we look to the prayer clause of this Arbitration Application along with contents of paragraph 3 thereof, five claims were sought to be referred for arbitration. They were as follows:
1. Claim for Rs. 2,23,834.00, which was stated to be due from 1.7.1988.
2. Claim for Rs. 1,24,716.00 due from 25.12.1985.
3. Claim for Rs. 28,81,381.00 due under the work order dated 21.1.1984.
4. Claim for Rs. 6,20,158.00 due under the contract of 3.1.1991.
5. Claim for Rs. 1,35,407.00 under the work order dated 16.4.1993 due from 30.5.1996.
4. There is also a reference to a 6th claim in paragraph 3 (vi) of the application, but it is stated that it is separately agitated. Thus, it is clear that at the highest, the last claim out of these five was due from 30.5.1996. The applicant has annexed to the Arbitration Application a letter of the respondents-IFFCO dated 1.7.1998 written to the applicant. It refers to five work orders and then states that "it is brought to your notice that final bills in respect of the above jobs have not been submitted from your end. You are requested to submit the final bills in respect of each job within one week's time. Your cooperation in this regard shall be solicited." Thus, from this letter, the applicant was expected to submit the final bills by 8.7.1998. In paragraphs 4 and 5 of the main application, it is submitted that the applicant replied to this letter on the same day, i.e., 10.7.1998 that the desired bills have already been submitted since long. The respondents pointed out that there are many interpolations in this letter and that as on the date of this letter first five claims were clearly time barred. As far as the letter dated 30.11.2001 is concerned, the respondents submit that the author of the letter one Rashid Iqbal was not in their employment at that time and there was no occasion to write any such letter since in an earlier letter dated 8.9.2001 written just two months before the disputed letter dated 30.11.2001, the respondents had clearly informed the applicant that the disputed bills were too old and no bills were pending for disposal at their end.
5. The aforesaid main application of the applicant was opposed by the respondents on merits stating that all final bills were released in time and in any case, the dispute raised was highly belated and suffers from delay and latches and was barred by limitation. This was specifically stated in paragraph 20 of the counter affidavit.
6. This main Arbitration Application No. 41 of 2002 reached before the then Hon'ble Chief Justice on 24.2.2006, and the Hon'ble Chief Justice passed the following order:
A claim of Rs. 146 lacs appears to be made only for the purpose of creating some sort of litigation. The matter is delayed by nearly 20 years.
The appointment of Arbitrator is refused.
7. The applicant herein filed an application seeking a review of this order. The application was filed on 24.3.2006. Amongst others, it was stated in this application in paragraph 10 that many of the facts were not brought before the Hon'ble Chief Justice and the appointment of the Arbitrator was refused, vide an order dated 24.2.2006 by Hon'ble the Chief Justice without hearing the applicant.
8. This application reached before the then Hon'ble Chief Justice on 19.5.2006 and was decided on the same day. The respondents could not file their counter affidavit to this application. Hon'ble the then Chief Justice has passed the following order on 19.5.2006:
The earlier order dated 24.2.2006 is recalled.
It appears that the claimant is serious about the proceeding in arbitration. As such Hon'ble Giridhar Malviya of 26, Hamilton Road, Allahabad, a former Judge of this Hon'ble Court is hereby nominated to act as Arbitrator to enter upon reference and to pass his Lordship's award.
9. The respondents thereafter filed their review application on 3.7.2006. They submitted that they did not get time to controvert some of the documents, which were relied upon by the applicant and the said documents were not made available to them. That apart, they pointed out that the claim was clearly time barred and there was no question of appointing any Arbitrator. The then Hon'ble Chief Justice has thereafter allowed this application by order dated 22.9.2006. This time, the then Hon'ble Chief Justice has passed a little detailed order. Amongst others, he has stated that a large part of the claim of the claimant, if not the whole, is already barred by limitation, both before 1998 and again after 1998, even if that letter dated 1.7.1998 relied upon by the applicant is treated to be an authentic letter, the genuineness of which was seriously disputed by the respondents. The Hon'ble Chief Justice also noted that Rashid Iqbal author of the disputed letter dated 30.11.2001 could not be said to be an employee of the respondents. The then Hon'ble Chief Justice referred to a judgment of the Apex Court in SBP & Company v. Patel Engineering Ltd. and particularly paragraph 8 of that judgment, reported in 2005 (7) Supreme Today 610. The Hon'ble Chief Justice noted that even at the threshold when the appointment of the arbitrator is to be made, some sort of satisfaction about the desirability and the appropriateness of the case to go to arbitration has to be made by the applicant. No Court and no Arbitrator can ex facie disregard the point of limitation. Hence by order dated 22.9.2006, he recalled his order dated 19.5.2006, as a result of which the main Arbitration Application stood dismissed.
10. This order dated 22.9.2006 is now sought to be recalled by the present miscellaneous application dated 12.12.2006 filed by the applicant, who contend that the then Hon'ble Chief Justice had already appointed an arbitrator by his order dated 19.5.2006, whereas the respondents contend that the said arbitrator had not started functioning. It is this application now made, seeking to recall the order dated 22.9.2006, which I am required to decide.
11. Since this is the third application for review, it is appropriate to examine as to in which circumstances, an application for review/recall of an order is generally maintainable and when application for review/recall of an order granting or rejecting the prayer for appointment of an arbitrator passed by the Chief Justice is maintainable under the scheme of the Arbitration and Conciliation Act, 1996, and whether any such case is made out in the facts of the present case.
12. As far as the orders passed by the Civil Courts are concerned, the provision for their review is contained in Order 47 Rule 1 of the Civil Procedure Code. The grounds for review available under Rule 1(1)(c) are three, namely;
1. The discovery of new and important matter or evidence, which after exercise of due diligence was not within the knowledge or it could not be produced by the applicant, when a decree or an order was passed.
2. Mistake or error apparent on the face of the record, and
3. Any other sufficient reasons.
13. We must however note that in the instant case, we are concerned with the powers of review available to the Chief Justice, who is the empowered authority under the provisions of Arbitration and Conciliation Act, 1996.
14. In this connection, we must also note that with respect to the powers of review, it has been laid down by the Apex Court way back in para 4 of Patel Narshi Thakarshi v. Pradyumansinghji Arjunsinghji reported at , to the following effect:
It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.
15. In that matter, the Court was concerned with the provision of Section 63 of the Saurashtra Land Reforms Act, 1951 and the question was as to whether the State Government had any power to review its own order under Section 63 of that Act. Later, in that very paragraph, the Court observed that no provision in the Act was brought to its notice from which it could be gathered that the Government had power to review its own order.
16. One judgment, which we must refer to in this behalf and which holds the field, is in the case of Grindlays Bank v. Central Government Industrial Tribunal . That was a case where the Tribunal made an ex parte award. The Respondents had applied for setting aside the ex parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called for hearing. The Tribunal set aside the exparte order on being satisfied that there was sufficient cause within the meaning of Order 9 Rule 13 of the Civil Procedure Code and accordingly set aside the exparte award. That award was upheld by the High Court and thereafter by the Supreme Court. It is the observations of the Apex Court in para 13 which are relevant for our purpose. The Court specifically referred to the judgment in Patel Narshi Thakershi's case (supra) in this para. It noted the proposition that the power of review is not an inherent power, but it must be conferred either specifically or by necessary implication. The Court held that the Tribunal does not become functus officio once the exparte award is passed. An application, so long as it is filed within thirty days of the publication of the award, would be maintainable. Then it observed in this paragraph making a distinction between a procedural review and a review on merits. The pertinent observations are as follows:
13. ....Furthermore, different considerations arise on review. The expression "review" is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal.
17. This distinction between a procedural review and review on merits has been maintained by the Apex Court in the subsequent judgments. Thus, in Sangham Tape Co. v. Hans Raj , the judgment in Grindlays Bank has been referred to with approval and has been explained. That was also a matter where an application was made for setting aside the exparte award made by the Industrial Court. The Apex Court held that so long as such an application is made before the expiry of thirty days, which is the period provided for commencement of the award under Section 17A of the Industrial Disputes Act, it would be maintainable. We find the same proposition reiterated later on in Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. . In para 19 of this judgment, the Apex Court has pointed out some of the circumstances, which could be said to be those which will justify a power of review in the event of procedural errors. Undoubtedly, a review where a substantive right is not created, specifically or by implication, would not be available. Para 19 of this judgment reads as follows:
19. Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasijudicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic) ascertains whether it has committed a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently, the order passed therein. Cases where a decision rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case, the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, so that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again.
18. In view of what is stated above, it is clear that there is a distinction between the procedural review and the review on merits. As far as the review on merits is concerned, it has got to be either specifically provided or will have to be read into the provision by necessary implication. As far as the procedural review is concerned, the applicant must establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein such as that the party concerned was not heard for no fault of the party. 19 As far as the Arbitration and Conciliation Act, 1996 is concerned, the scheme of the Act and the scope of the power of the Chief Justice under Section 11 of the Act came to be considered by a Bench of seven Judges of the Apex Court in SBP & Co. v. Patel Engineering Ltd. (supra). The majority judgment held that the power exercised by the Chief Justice under Section 11(6) of the Act is a judicial power and not an administrative power. The Court noted that Sub-section (7) of Section 11 gives finality to the decision rendered by the Chief Justice or the person or the Institution designated by him when moved under Sub-section (4), or Sub-section (5), or Sub-section (6) of Section 11 (See para 6 of the judgment). The Court held that the Chief Justice is not a persona designata. The Court explained as to why the high functionary like the Chief Justice has been mentioned as the appointing authority under this Act. The Act was intended to comprehensively cover international and commercial arbitration and conciliations as also domestic arbitrations and conciliations. It envisages the making of arbitral procedure, which is fair, efficient and capable of meeting the needs of the arbitration concerned. Dragging a party to an arbitration when there existed no arbitration agreement or when there existed no arbitrable dispute, can certainly affect the right of that party, and, even on monetary terms, impose on him a serious liability for meeting the expenses of the arbitration, even if it be the preliminary expenses and his objection is upheld by the arbitral tribunal. Therefore, it is not possible to accept the position that no adjudication is involved in the constitution of an Arbitral Tribunal. The decision to appoint an Arbitrator has been given a finality. The decision of Hon'ble Chief Justice of the High Court to appoint an Arbitrator can be challenged only in an appeal to the Supreme Court. The Court laid down that as to what the Chief Justice is supposed to decide when an application is made under Section 11 of the Act. In para 39 of the judgment, the Court observed as follows:
39. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long-barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection.
20. The Court in terms held that the order of the Chief Justice appointing an arbitrator could not be challenged by invoking the writ jurisdiction of the High Court since it was not an administrative decision. The Court gave its conclusions in para 47 as follows:
47. We, therefore, sum up our conclusions as follows:
(i). The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.
(ii). The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court.
(iii). In case of designation of a Judge of a High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the Statute.
(iv). The Chief Justice or the designated Judge will have the right to decide the preliminary aspect as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge.
(v). Designation of a District Judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.
(vi) Once the matter reaches the Arbitral Tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the Arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.
(vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution to the Supreme Court.
(viii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.
(ix). In a case where an Arbitral Tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.
(x). Since all were guided by the decision of this Court in Konkan Railway Corporation Ltd. v. Rani Construction (P) Ltd. and Ors. under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or Arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act.
(xi). Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that Court designated by the Chief Justice.
(xii). The decision in Konkan Rly. Corporation Ltd. v. Rani Construction (P) Ltd. is overruled.
21. As laid down by the aforesaid judgment, the decision to appoint an arbitrator, arrived at by the Chief Justice, is a judicial decision. It has finality as specifically provided in Section 11(7) of the Act and it is appeallable only to the Apex Court under Article 136 of the Constitution of India. In the scheme of the Act, there is no specific provision for review.
22. (i) The question of maintainability of an application for review of the order passed by the Chief Justice of India under Section 11 of the Act came up before the Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. reported at . In paras 7 and 8 of the judgment, it was held as follows:
7. 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 Engg. Ltd., this Court by a 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 judgment or orders by the Supreme Court:- 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.
8. 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.
(ii) It is material to note that the Apex Court relied on the provision of Article 137 of the Constitution to maintain the application for review. There is no corresponding Article in the Constitution for review of a judgment or order of the High Court, which could be, invoked on similar basis for review of an order of the Chief Justice of the High Court under Section 11 of the Act. It is true that the observations made by the Apex Court in Jain Studios (supra) are in the context of the order of the Chief Justice of India and made after referring to Article 137. Yet from the above observations, one can say that since the function performed by the Chief Justice of the High Court also is a judicial function, it cannot be contended that the application for review is not maintainable.
23. At the same time, what is material to note is that in the very judgment, the Apex Court has observed that the power of review cannot be confused with the appellate power. The Court observed as follows in para 11 of the judgment:
11. 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 the appellate powers, 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 adjudication. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
Thus in the very judgment, the Apex Court has not approved a review being confused with appellate power and that it is to be exercised with extreme care, caution and circumspection and that too in exceptional cases. The observations of the Apex Court in Grindlays Bank (supra) and Kapra Mazdoor Ekta Union (supra), though in the context of Industrial Tribunal, will also be relevant for the purposes of review of the order of the Chief Justice of High Court. In Kapra Mazdoor Ekta Union (supra), the Apex Court has observed in para 19, as quoted above, that where a Court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, the judgment or order can be reviewed on merit only, if the court or quasi-judicial authority is vested with the power of review by express provision or by necessary implication. In the absence of any express provision, in the present case also, the review of the order on merit will not be available, but if there is a procedural illegality, which vitiates the proceeding and invalidates the order, for no fault of the party concerned, the order could be reviewed by exercising what is described as the procedural review.
24 (i). The applicant sought to rely upon Section 151 of the Civil Procedure Code to submit that the Chief Justice, while acting under this Act had the inherent power to make such orders, as may be necessary for the ends of justice, or to prevent the abuse of the process of the Court. They relied upon the judgment of the Apex Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal reporte at , where in the context of the power to grant injunction, the majority judgment held that Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice and held that it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. They also relied upon another judgment in the case of Shivdeo Singh v. State of Punjab reported at AIR 1963 SC 1909. which is in the context of Article 226 of the Constitution of India. The Apex Court had held in that matter that there is nothing in Article 226 to preclude a High Court from exercising the power of review, which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice.
(ii) Now as far as the present matter is concerned, this Court is not exercising writ jurisdiction when an application for review under this Act is made. Secondly, the Chief Justice while functioning under Section 11 of this Act is functioning as the specified authority and not as a Civil Court in the strict sense of the term. The propositions in both the judgments cannot, therefore, be extended to support the maintainability of the present application. Thus, under the scheme of the Act only in the event there is a procedural irregularity, which vitiates the proceedings, the order could be reviewed, but a substantive review would not be available.
25. In the facts of the present case, the first order passed by the then Hon'ble Chief Justice on 24.2.2006, refusing the appointment of an Arbitrator is an order on merit. It states that the claim appears to be made for creating some sort of litigation and the matter is delayed by nearly 20 years. Therefore, the appointment of arbitrator is refused. This order was sought to be reviewed by application dated 24.3.2006, wherein it was stated in para 10 that the many of the facts were not brought before the Chief Justice and secondly, the order was passed without hearing the applicant. It is material to note that it was not stated that their counsel were not present, or even if present, why they were not heard. Similarly, if many of the facts were not brought to the notice of the Court, it is not stated as to why they were not so brought before the Court or that they were not known earlier despite due diligence. If this was the situation, there was no reason to recall the very first order when vague statements as above were made in the application for review.
26. The Hon'ble Chief Justice recalled this order by the order passed on 19.5.2006, which merely states that the claimant is serious about proceeding in arbitration. That is how he entertained the application dated 24.3.2006. Surely this could not be the ground to recall the order, which he had passed earlier on 24.2.2006, wherein he had held that the matter was delayed by 20 years. The Hon'ble Chief Justice did not give any reason apart from this one sentence that the claimant was serious. The claim, which was clearly time barred was sought to be referred to arbitration merely by stating that the claimant was serious about the same. That is why when this order was sought to be reviewed, Hon'ble the Chief Justice has recalled this order of 19.5.2006 after referring to the judgment of the Apex Court in SBP & Co. v. Patel Engineering Ltd. (supra) and held that the Court could not disregard the point of limitation. This order of 22.9.2006 by recalling the order of 19.5.2006 takes back one to the original position of the order passed on 24.2.2006. The order dated 24.2.2006 has been restored by the Hon'ble Chief Justice and has thus, dismissed the original application.
27. In the present application seeking recall of the order dated 22.9.2006, two submissions are made. Firstly, it is submitted on behalf of the applicant that the learned Arbitrator, who was appointed had entered into the arbitration prior thereto and this order dated 19.5.2006 had been acted upon. This has been very much disputed by the respondents and secondly, that the Hon'ble Chief Justice has erred in holding that the claim was time barred.
28. In justification of the first submission, the applicants have relied upon a judgment of the Apex Court, that when an order is acted upon, no review lies. That is on the basis of a judgment in State of Nagaland v. Toulvi Kibami and Anr. reported at . That was a case of promotion of a government Engineer to the post of Additional Chief Engineer. This promotion was effected on 26.3.1991. He was a Diploma holder and his promotion was being challenged by the Degree holders. The Hon'ble Single Judge of Gauhati High Court had decided against him, but the Division Bench had allowed his appeal and had directed the Government to examine whether Diploma holders could be promoted under the relevant rules on the basis of their having rendered meritorious service. In 1997 the Government of Nagaland appropriately amended the relevant Rules. Later on, the Division Bench reviewed its order much later on 18.01.1998. It was in this context that the Apex Court set aside the order of review and observed that in view of subsequent events that had taken place consequent upon the earlier judgment of the Division Bench, the review was not maintainable. The judgment of the Letter Patent Bench had been acted upon and stood in existence and review ought not to have been decided on merit.
29. In the present ease, although an Arbitrator was appointed, the matter did not proceed before him and the respondents contend that they immediately applied for review of the order dated 19.5.2006 and submit that the Arbitrator was informed about it who did not proceed with the arbitration at all until his appointment was recalled by the order dated 22.9.2006. That apart, if we peruse the order passed by the learned Chief Justice dated 22.9.2006 allowing the review, this submission has not been canvassed before the learned Chief Justice. The respondents had filed their recall application on 3.7.2006. The applicant herein had tiled a counter affidavit thereto on 18.7.2006. Subsequently, the respondents had filed a supplementary affidavit on 4.8.2006, to which counter affidavit was filed by the present applicant on 23.8.2006. They filed one more supplementary counter affidavit on 19.9.2006. In none of the three counter affidavits dated 18.7.2006. 23.8.2006 and 19.9.2006, the applicant herein took the point that the Arbitrator had started his proceeding and that, therefore, the order dated 19.5.2006 should not be recalled. If this submission was raised before the Hon'ble Chief Justice, he would have dealt with it. This submission is being raised now after the Hon'ble Chief Justice recalled his order dated 19.5.2006. From the record also, it appears that except that an Arbitrator was appointed, no progress appears to have taken place before the Arbitrator This situation is clearly distinguishable from the one in the State of Magaland (Supra).
30. The second submission of the applicant is concerning limitation and is based on the two letters dated 1.7.1998 and 30.11.2001. It amounts to re-agitating same points and seeking substantive review, which is not permissible. Yet even if one decides to look into the submission, what we find is that according to the respondent, the second letter dated 30.11.2001 is a forged one. The last admitted letter of the respondents is dated 8.9.2001, which had informed the applicant that their bills were too old and no bills were pending. The letter dated 1.7.1998 asked the applicant to submit their final bills within a week, i.e. by 8.7.1998 and the applicants contend that they have replied that letter on 10.7.1998 and submitted the bills. Even if there is an earlier letter dated 10.7.1998, (though with interpolations) in all probabilities, there was no need to write any such letter dated 30.11.2001. Thus, if the bills were submitted by 10.7.1998 and the payment was not made by the respondent-IFFCO, the period of limitation will start running from 10.7.1998 and it will require to the applicant to file a Suit or to resort an arbitration by 10.7.2001. The main application for appointment of Arbitrator was filed on 24.5.2002.
31. As far as the five claim amounts are concerned, the applicant have relied upon the respondents letter dated 10.7.1998. The Hon'ble Chief Justice in his order dated 22.9.2006 has held that there are numerous interpolations in the letter dated 10.7.1998 and the genuineness thereof is seriously disputed. Thereafter he has observed that even if this letter existed, large part of the claims (i.e. first four claims) if not whole are barred by limitation both before 1998 and also after 1998, even if that letter saved limitation in some respect. Thus, if we look to the first four claims, they are all arising out of the contracts prior to 3rd January, 1991. Only the last one is stated to be under the work order dated 16.4.1993, but due from 30.5.1996. This is a claim of Rs. 1,35,407/-. It is only this claim, which perhaps could be saved by the letter dated 10.7.1998, but not beyond 10.7.2001.
32. As stated above, on the basis of the letter dated 10.7.1998 also, the last claim could be agitated at the highest by 10.7.2001. The applicant are relying upon the respondents' letter dated 30.11.2001, to further extend the period of limitation. It is stated to be sent by one Rashid Iqbal, whom the respondents are disputing to be their employee at the relevant time and contending that the said letter is a forged one. On the face of it, the respondents have no reason to write any such letter on 30.11.2001 when even 5th claim is under the work order dated 16.4.1993. In all probabilities, such a letter could not have been written on behalf of the respondents to extend the period of limitation to their own prejudice, when in a letter written just two months before dated 8.9.2001 they informed the applicant that no bills were pending for disposal at their end. The Hon'ble Chief Justice has, therefore, held that no reasonable authority will even prima facie be satisfied that there is a case for trial, which is of sufficient recent origin
33. As far as the application of period of limitation to arbitration proceeding is concerned, the following dicta of the Supreme Court in paragraph 12 of Panchu Copal Bose v. Hoard of Trustees, Calcutta Port reported at , is very relevant for our purpose, which is as follows:
12. Therefore, the period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.
34. The second plea raised by the applicant on limitation has been considered by the Hon'ble Chief Justice and it is a decision, which has a finality. There cannot be a review merely on the basis of applicant's submission that the letter dated 30.11.2001 from the respondents was a genuine one. It will amount to almost repetition of overruled arguments, as it is an appeal, which is not permissible, as held by the Apex Court in Jain Studios (supra). It is a finding, which cannot be disturbed in a review. As held earlier, at the highest, there can be a procedural review, but not a substantive review under the scheme of the present Act. Even for review on the basis of error on the face of record, as held in Meena Bhanja v. Nirmala Kumari reported at , the error must be such as would be apparent on mere looking of the record without requiring any long drawn process of reasoning. Reappraisal of the entire evidence on record for finding the error would amount to exercise of appellate jurisdiction, which is not permissible.
35. In the circumstances, there cannot be a review of the order dated 22.9.2006 on either of the two grounds, namely, that the Hon'ble Chief Justice had ignored the import of the two letters dated 31.8.2000 and 30.11.2001 and that he had erred in holding that the claim was time barred and secondly, that he could not have passed the order since the Arbitrator was already appointed. As held earlier, as far as the first submission is concerned, it amounts to seeking substantive review, which is not permissible, and even on the basis that there is error apparent, it amounts to sitting in appeal and that apart, there is no error apparent on the face of record. The second submission is also without any merit. Besides, it was not canvassed before the Hon'ble Chief Justice at all and it cannot be permitted to be canvassed now. This is apart from the fact that both these submissions amount to seek a substantive review, which is not permissible. For this reason, the present application for recall cannot be entertained and the same is hereby dismissed.