MUKESH JODHANI vs ANKIT METAL AND POWER LIMITED

This application has been taken out by the plaintiff/appellant seeking recall of the order dated 31st July, 2017, operative portion whereof reads as follows : "In such a fact situation, we are unable to decide the instant appeal on the plea of the appellant that there was no arbitration agreement. We, however, dispose of the appeal and the application for stay by granting liberty to the appellant to approach the First Court seeking review of the impugned judgment and order dated 12th July, 2017, in accordance with law."

Admittedly, the applicant approached the First Court sitting in its review jurisdiction which clarified its order dated 12th July, 2017 in such a manner as indicated in the order dated 6th November, 2017. Thereafter, the applicant preferred an appeal against the order dated 6th November, 2017 before a Division Bench of this Court. By an order dated December 18, 2017 the Division Bench, while proceeding to hold that the appeal was not maintainable, made the following observation : "Accordingly, as a consequence of the clarification to the order of July 12, 2017 by the order impugned dated November 6, 2017, it will be open to the appellant to take appropriate steps in respect of the previous appellate order dated July 31, 2017 in accordance with law."

By the order dated 31st July, 2017 we had disposed of the applicant?s appeal against the order dated 12th July, 2017 passed by the learned Single Judge. We did not interfere with the order of the learned Single Judge dated 12th July, 2017, but granted liberty to the appellant to approach the First Court seeking review of the order dated 12th July, 2017. Thereafter, the learned Single Judge passed the order sitting in review jurisdiction on 6th November, 2017. By the said order, the learned Single Judge clarified and / or modified the earlier order dated 12th July, 2017 to the extent as indicated in the order dated 6th November, 2017. Against the said order dated 6th November, 2017, the applicant preferred an appeal which was rejected by the Division Bench by the order dated 18th December, 2017 upon holding that the appeal was not maintainable. As stated earlier, the Division Bench, however, gave liberty to the appellant (being the applicant herein) to take appropriate steps in respect of our above order dated 31st July, 2017 in accordance with law.

The applicant submits that in view of the above observation made by the Division Bench in the order dated December 18, 2017 it is entitled to file the instant application for recalling of our order dated July 31, 2017.

In our view, in the present case when the appeal against the order dated 6th November, 2017 passed by the First Court was dismissed by the Division Bench, any observation made in the said order cannot be made the basis of any application seeking recall of our order dated 31st July, 2017 whereby the appeal and the application against the earlier order dated 12th January, 2017 passed by the learned Single Judge stood disposed of. As such, we do not find any merit in this application seeking recall of the order dated 31st July, 2017, which has assumed finality.

Accordingly, the application G.A. 72 of 2018 stands dismissed.

There shall, however, be no order as to costs.