Mumbai, August 18, 2021: The Bombay High Court has held that a Review Petition — that follows a disposal of that appeal with liberty to the appellants to file for review – again on grounds never taken, argued or even pleaded will only aggravate the matter.
A Bench of Justice G.S Patel observed that the petitioner had sought a reinstatement of the original Arbitration Petition on grounds never argued, never taken, and some never pleaded; and it does so after the original Arbitration Petition was fully argued, and then decided by pronouncement in open court.
The observation came pursuant to an order passed by the Bombay High Court, wherein it was held that Agarwals (respondents to the original Section 9 Arbitration Petition) had no defence at all since they were indubitably borrowers from Tata Finance under finance agreements, and, not having repaid the loan on the terms of the agreement, were in contractual default.
Therefore, challenging the direction for disclosure of asset and grant of injunction, the Agarwals had sought review petition.
Justice Patel found that the entire Review Petition does not explain as to how it falls within the narrow limits of Section 114 or Order 47 of the Code of Civil Procedure, 1908 (CPC).
Disturbed by the implicit submission that anyone can file a Review Petition on any ground whatsoever even if it is not pleaded or argued, Justice Patel said the counsel’s failure to argue written submissions is not a ground of review or even appeal.
“It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight,” observed the High Court.
While reiterating that a re-hearing of the case is sought in the garb of a review, Justice Patel opined that different set of advocates/counsel is engaged and the same contentions and submissions, which were either not raised, given up or negatived earlier, are sought to be re-introduced by taking advantage of the liberty granted by the Supreme Court of India in case of Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors [2013 AIR SCW 2905].
Terming the review petition to be deliberate and entirely unacceptable distortion of an unambiguous and clear order of a Division Bench of the High Court, Justice Patel observed that merely granting liberty to file a review petition does not mean a direction to do so abruptly.
Therefore, the High Court dismissed the petition by opining that filing of the written submissions is more than murky and certainly ambiguous, and cleared that the amendment to CPC Section 35 effected by the Commercial Courts Act, 2015 will operate.