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Judgment
F.I. Rebello, C.J.—This is an application for recall of the order dated 22.1.2010. By that order, the application was dismissed and the learned Chief Justice exercising his powers u/s 11 of the Arbitration & Conciliation Act, 1996 proceeded on the basis that during the pendency of the application, the Respondents have appointed an Arbitrator.
By the present application, what the Petitioner contends is that the arbitration proceedings have been started after filing of the application. It is also pointed out that if the parties to the dispute failed to appoint an Arbitrator within 30 days, on receipt of such request, the Chief Justice can make the appointment of an independent and impartial Arbitrator.
The law as now settled is that merely because Section 11 of the Arbitration & Conciliation Act, 1996 is invoked, that does not per se mean that an arbitrator in terms of the arbitral agreement cannot be appointed. It is in the discretion of the Chief Justice or his delegate, who is hearing the matter to decide whether to appoint an arbitrator in terms of the agreement or to appoint an independent arbitrator. In the instant case, the learned Chief Justice noted the fact that an Arbitrator had been appointed and accordingly dismissed the application. Therefore, the application as filed would not be maintainable.
The proceedings are not ex parte. This application at the highest would be in the nature of a review application considering the reasons disclosed in the application by the Petitioner herein.
It is now settled law as declared in SBP & Co. v. Patel Engineering Ltd. and Anr. (2005) 8 SCC 618 , that the Chief Justice or his delegate though not a Court but are exercising judicial powers. The law further settled is that insofar as review is concerned, the power of review of substantive relief must be specifically conferred. There is a distinction between procedural review and substantive review which has been enunciated by the Supreme Court in the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, I may gainfully refer to the relevant portion of paragraph No. 13 of the said judgment, which reads as under:
...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.
Considering the above, as under the Arbitration and Conciliation Act, 1996, there is no power of review by the Chief Justice or his delegate, considering the question, therefore, exercise of powers of substantive review would not arise.
For the reasons stated above, the application is not maintainable. It is accordingly dismissed.