Case Note & Summary
The petitioner, Microvision Technologies Pvt. Ltd., a supplier under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), had contracts with the respondent, Union of India (through Central Railways), for electrification of an integrated security system. Disputes arose and were referred to conciliation under Section 18(2) of the MSMED Act. Upon failure of conciliation, the petitioner applied to the Facilitation Council under Section 18(3) for reference to arbitration. Pending that, the petitioner filed a Section 9 petition under the Arbitration and Conciliation Act, 1996 before the District Court at Nashik for interim relief, and also a Section 11(6) application before the Bombay High Court for appointment of an arbitrator. The petitioner then filed Commercial Notice of Motion (L.) No. 2043 of 2019 seeking transfer of the Section 11(6) petition to the District Court at Nashik. That notice of motion was dismissed by order dated 15th May 2020. The petitioner filed Commercial Appeal (L.) No. 9465 of 2020 against that order, but later withdrew it with liberty to file a review petition, which was allowed by a Division Bench on 22nd November 2022. The present review petition under Order 47 Rule 1 read with Sections 114 and 151 CPC sought review of the 15th May 2020 order and restoration of the notice of motion. The petitioner argued that the court failed to consider the mandatory nature of Section 18(3) of the MSMED Act, which requires the Facilitation Council to refer disputes to arbitration, and that the order suffered from an error apparent on the record. The respondent opposed, contending that the review petition was not maintainable as the petitioner had already availed the remedy of appeal. The court held that no error apparent on the face of the record was shown, and the review petition was not maintainable because the petitioner had filed and withdrawn an appeal, which is a bar to review. The court also noted that the issue of mandatory reference under Section 18 MSMED Act was not raised in the original application and could not be raised for the first time in review. The review petition was dismissed.
Headnote
A) Civil Procedure - Review - Order 47 Rule 1 CPC - Error Apparent on Record - The petitioner sought review of an order dismissing its application for transfer of an arbitration petition, arguing that the court failed to consider the mandatory nature of Section 18 MSMED Act. The court held that no error apparent on the face of the record was shown, and the review petition was not maintainable as the petitioner had availed and withdrawn an alternative remedy by way of appeal. (Paras 1-10)
B) Arbitration - MSMED Act - Section 18 - Mandatory Reference - The petitioner contended that under Section 18(3) of the MSMED Act, the Facilitation Council was bound to refer the dispute to arbitration, and the court's order dismissing the transfer application was erroneous. The court noted that the issue of mandatory reference was not raised in the original application and could not be raised in review. (Paras 4-8)
C) Civil Procedure - Review - Alternative Remedy - The petitioner had filed Commercial Appeal (L.) No. 9465 of 2020 against the same order, which was withdrawn with liberty to file review. The court held that having availed the remedy of appeal, the petitioner could not seek review, as review is not a substitute for an appeal. (Paras 2, 9-10)
Issue of Consideration
Whether the order dated 15th May 2020 suffers from an error apparent on the face of the record warranting review under Order 47 Rule 1 CPC, and whether the review petition is maintainable after the petitioner had filed and withdrawn an appeal against the same order.
Final Decision
The review petition is dismissed. No order as to costs.
Law Points
- Review jurisdiction
- Order 47 Rule 1 CPC
- Error apparent on the face of the record
- Alternative remedy
- Maintainability of review after withdrawal of appeal
- Section 18 MSMED Act
- Section 9 Arbitration Act
- Section 11(6) Arbitration Act
Case Details
2023 LawText (BOM) (08) 106
Review Petition (L) No.36475 of 2022 in Notice of Motion No.3 of 2021 in Comm Arbitration Petition (L) No.855 of 2018
Mr. Alankar Kirpekar with Sagar Kasar, Mr. Shekhar Bhagat, Mr. Ayush Tiwari and Ms. Chaitali Bhogle i/b. Sagar Kasar for the Petitioner. Mr. T.J. Pandian with T.C. Subramanian for the Respondent.
Microvision Technologies Pvt. Ltd.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Review petition seeking review of an order dismissing a notice of motion for transfer of an arbitration petition.
Remedy Sought
Review of order dated 15th May 2020, restoration of Commercial Notice of Motion (L.) No. 2043 of 2019, and transfer of Commercial Arbitration Petition (L.) No. 855 of 2018 to District Court at Nashik.
Filing Reason
The petitioner contended that the order dated 15th May 2020 suffered from an error apparent on the face of the record as it failed to consider the mandatory nature of Section 18(3) of the MSMED Act.
Previous Decisions
Order dated 15th May 2020 dismissing Commercial Notice of Motion (L.) No. 2043 of 2019. Commercial Appeal (L.) No. 9465 of 2020 was filed and later withdrawn with liberty to file review, allowed by Division Bench on 22nd November 2022.
Issues
Whether the order dated 15th May 2020 suffers from an error apparent on the face of the record warranting review under Order 47 Rule 1 CPC.
Whether the review petition is maintainable after the petitioner had filed and withdrawn an appeal against the same order.
Submissions/Arguments
Petitioner argued that the court failed to consider the mandatory nature of Section 18(3) of the MSMED Act, which requires the Facilitation Council to refer disputes to arbitration, and that the order dismissing the transfer application was erroneous.
Respondent argued that the review petition was not maintainable as the petitioner had already availed the remedy of appeal and withdrawn it, and no error apparent on the record was shown.
Ratio Decidendi
A review petition under Order 47 Rule 1 CPC is not maintainable when the petitioner has availed and withdrawn an alternative remedy by way of appeal. An error apparent on the face of the record must be shown, and a mere disagreement with the order or a new argument not raised earlier does not constitute a ground for review.
Judgment Excerpts
By this Review Petition, the Petitioner is seeking review of order dated 15th May 2020 passed in Commercial Notice of Motion (L.) No. 2043 of 2019 in Commercial Arbitration Petition (L.) No. 855 of 2018 and for restoration of Commercial Notice of Motion (L.) No. 2043 of 2019 on the file of this Court.
The Petitioner has filed this application under the provisions of Order 47 Rule 1 read with sections 114 and 151 of Code of Civil Procedure, 1908.
The Petitioner had upon being advised filed Commercial Appeal (L.) No. 9465 of 2020 assailing the Order dated 15th May 2020 passed by this Court. Thereafter, upon realizing that said Commercial Appeal was not maintainable, the Petitioner has preferred the present Review Petition for review of the said order dated 15th May 2020.
Procedural History
The petitioner filed Commercial Arbitration Petition (L.) No. 855 of 2018 under Section 11(6) of the Arbitration Act. The petitioner then filed Commercial Notice of Motion (L.) No. 2043 of 2019 seeking transfer of that petition to the District Court at Nashik. That notice of motion was dismissed by order dated 15th May 2020. The petitioner filed Commercial Appeal (L.) No. 9465 of 2020 against that order, which was later withdrawn with liberty to file a review petition. The Division Bench allowed the withdrawal on 22nd November 2022. The present review petition was filed on an unspecified date and was heard and dismissed on 24th August 2023.
Acts & Sections
- Code of Civil Procedure, 1908: Order 47 Rule 1, Section 114, Section 151
- Micro, Small and Medium Enterprises Development Act, 2006: Section 18(2), Section 18(3)
- Arbitration and Conciliation Act, 1996: Section 9, Section 11(6)
