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Judgment
[1] This review petition has been registered on the basis of the communication dated 22/4/2019 sent by the learned Arbitrator, a retired Hon.Judge of
this Court whereby he had made a request for exercise of the suo-motu power of review by this court and review the order dated 27/8/2018 passed in
AC No.2/2013 to avoid injustice to the applicant.
[2] The applicant had filed AC No.2/2013 with a prayer for appointment of Arbitrator for deciding the dispute between the parties with the plea that
the applicant and respondent No.2 to 6 were partnership in the Firm which was constituted by the deed dated 01/4/1992 and the applicant has 1/6
share in the property of the said partnership, but without the consent of the applicant the respondent No.1 to 6 had sold the property of the Firm to
respondent No.7 to 10 by the registered sale deed dated 14/3/2006. The applicant had filed CS No.41-A/2009 before the Court of District Judge,
Indore for declaration of title, possession and for cancellation of sale deed. In that suit, application u/O.7 Rule 11 of the CPC was filed by the
respondents (defendants) with the plea that the applicant had a remedy of arbitration and the trial court by allowing the application by order dated
01/4/1992 had directed to get the dispute resolved through the Arbitrator in terms of the arbitration clause contained in para 17 of the partnership deed
dated 01/4/1992. The writ petition against this order was dismissed with certain observations and the SLP was also dismissed. Thereafter the
Arbitration Case was filed which was allowed by this court by order dated 27/8/2018 making certain observations about confining the arbitration
proceedings to the parties to the arbitration agreement and appointing Hon.Justice S.P. Khare, Retired Judge of this Court as Arbitrator at whose
instance this review petition has been registered.
 [3] Learned Arbitrator has requested for taking up the matter in suo motu exercise of power of review on the ground that this court has excluded
respondent No.7 to 9 i.e. the assignees of the property from the ambit of the arbitration whereas the division bench of this court in the earlier round of
litigation had decided this issue holding that the assignees are covered by the arbitration clause and they had stepped into the shoes of the respondent
No.1 to 6, hence the dispute of the applicant with the respondents can be decided by the arbitration.
[4] Shri H.Y. Mehta, learned counsel for respondents has raised first preliminary objection that review is not maintainable against the order passed
u/S.11(6) of the Arbitration and Conciliation Act. Such an objection cannot be accepted in view of the judgment of the Supreme Court in the matter of
Jain Studios Ltd. Through Its President Vs. Shin Satellite Public Co. Ltd (2006) 5 SCC 5 0w1herein it has been held that the order u/S.11(6) of the
Act is reviewable as it falls within the meaning of Order.
[5] Shri Mehta, learned counsel for respondent No.7 to 10 has placed reliance upon the judgment of the Allahabad High Court in the matter of
Smt.Chandra Dickshit Vs. M/s.Smart Builders AIR 2008 Allahabad 95 but he cannot be granted the benefit of these judgments in view of the clear
pronouncements of the Supreme Court in the light of 215 of the Constitution.
[6] The Supreme Court in the matter of Municipal Corporation of Greater Mumbai and another Vs. Pratibha Industries Ltd and others (2019) 3 SCC
203 has also reiterated that the High court is a court of record and power to review such an Order u/S.11 can be exercised invoking the inherent
power. Considering Article 215 of the Constitution, it has been held by the Supreme Court in the above judgment that:-
“10- Insofar as the High Courts jurisdiction to recall its own order is concerned, the High Courts are courts of record, set up under Article 215 of the Constitution
of India. Article 215 of the Constitution of India reads as under:-
“215- High Courts to be courts of record.-- Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish
for contempt of itself.â€
It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior
courts of record. This has been recognised in several of our judgments.â€
[7] Having regard to the aforesaid, the preliminary objection that Order u/S.11 of the Act cannot be reviewed is found to be devoid of any merit which
is accordingly rejected.
 [8] He has also raised another preliminary objection that the applicant by participating in the proceedings before the Arbitrator has waived her right
to seek review.
[9] This review is not registered at the instance of the applicant, but it is taken up in exercise of the suo-motu power on the basis of the communication
received from the learned Arbitrator. The record reflects that the applicant who is an aged lady had appeared in person in the arbitration case before
this court and the applicant is not aware of the technicalities of law, therefore, if something important could not be pointed out by her affecting her
right adversely, then interest of justice requires that the matter may be considered by this court in review, specially if such a lapse results into any
error apparent on the face of record. It has been pointed out that the husband of the applicant had suffered brain stroke and he is not in a position to
speak or understand and the applicant was not in a position to engage any advocate, therefore, she herself had appeared in the matter. Considering the
said situation, this court in the present review petition had appointed Shri Rohit Mangal, Advocate as Amicus Curiae to assist this court.
[10] In view of this, the preliminary objection that the applicant had waived her right cannot be accepted and is hereby turned down.
[11] No merit is also found in the objection of the respondent No.7 to 10 that the Arbitrator had no power to seek review. The communication of the
Arbitrator reveals that the Arbitrator had not sought review, but he had made a request to this court to exercise the inherent power of review in view
of the glaring error which he had noticed when the matter was brought before him.
[12] In view of the aforesaid, this review petition is now considered exercising the inherent power of this court under Article 215 of the Constitution
and in the light of the judgment of the Supreme Court in the matter of Jain Studios Ltd. Through Its President (supra) and Municipal Corporation of
Greater Mumbai and another (supra).
[13] On the perusal of the record, it is noticed that while passing the order dated 27/8/2018 in AC No.2/2013 this court had held that:-
“So far as the respondent No.7 to 10 are concerned, they were not the party to the arbitration agreement and in terms of Sec.11 of the Act, the arbitrator is to be
appointed for deciding the dispute between the parties to the agreement and only the applicant and respondent No.2 to 6 are parties to the agreement, therefore, their
dispute is to be decided by the arbitrator.â€
[14] At that stage the view taken by the division bench in the order dated 17th August, 2010 of this Court passed in WP No.2739/2010 between the
same parties in respect of the same dispute was not brought to the notice of this court, though while narrating the fact the said order was mentioned.
The division bench taking note of the arbitration clause between the parties had held that assignees i.e. respondent No.7 to 10 had stepped into shoes
of assigners and that the Arbitrator will be competent to decide the dispute between the applicant and all the respondents which include the respondent
No.7 to 10. The division bench in this regard has held that:-
“9. Now the question that falls for our consideration is, whether the arbitration clause as contained in the partnership deed could be considered as a binding
arbitration agreement on respondents no. 7 to 10 though they were not signatories to the agreement ? It would be appropriate to reproduce the relevant arbitration
clause as contained in the partnership deed, which reads as under:-
“17. That the dispute or differences, which may arise amongst partners of their legal heirs, representatives, executors, administrators and/or assigns, in respect of
business of the firm and/or in respect of construction, meaning and/or effect of this deed of partnership or any part hereof relating to accounts and affairs of the
partners under this deed or the dissolution or winding-up of the business or any other matter relating to the partnership firm, shall be referred to arbitrators and the
decision of majority of the arbitrators shall be final and binding on all the parties hereto and their legal heirs, representatives, executors, administrators and assigns.â€
From perusal of the aforesaid arbitration clause, we are of the considered opinion that wide amplitude. The arbitration agreement brings within its fold dispute of
any nature whatever. It is couched in broadest terms. It not only binds the parties to it, but also their legal heirs, representatives, executors, administrators, assigns,
etc. The word “assign†is a verb having a definite connotation in the legal world. According to Blacks Law Dictionary, 6th Edition, “assigns†means to
transfer, to make over or set over to another. “Assigns†is always understood that the rights in property belonging to somebody (assignor) by virtue of
assignment stands transferred and the assignee is clothed with the rights of his assignor. There is no fixed mode for assignment. The law recognizes various modes
of assignments. Assignment can take place through sale, mortgage, gift etc. The plain effect of assignment is that the assignee steps into the shoes of person who
assigns. Thus, even if respondents no. 7 to 10 are not the signatories to the arbitration clause, still by virtue of assignment (sale-deed) executed in their favour by
respondents no. 2 to 6, they have stepped into the shoes of those respondents and they are squarely covered by the arbitration clause. They have, therefore, rightly
raised an objection that the arbitrator was competent to decide the dispute which has arisen between the petitioner on one side and the respondents on the other
side. Thus, the contention of Shri Mehta that the subject matter of the suit was beyond the purview of the arbitration clause cannot be accepted.â€
[15] This Court while passing the order dated 27/8/2018 in AC No.2/2013 has taken the opposite view because the above observations of the division
bench was not brought to the notice of this court. The said apparent error may have occurred as the applicant was appearing in person and was not
aware of the technicalities of law.
[16] The five judges bench of this court in the matter of Manoj Kumar Vs. Board of Revenue & Ors. AIR 2008 MP 2 2has held that the inter-se
decision between the parties is binding even if a different view is taken in the other judgment.
[17] The record further reflects that in the civil suit earlier filed by the applicant, assignees were impleaded as respondent No.7 to 9; but suit was not
entertained on the ground that remedy of arbitration was available. In the arbitration proceedings which are now take up if it is held that the assignees
cannot be a party in arbitration, then the applicant will be rendered remediless as against assignees which can never be the intention of law.
[18] Counsel for respondents has placed reliance upon the single bench judgment of this court in the matter of Ram Kumar Dixit Vs. Dhirendra
Shukla and others 2015(2) MPWN 138 on the limited scope of interference in review.
[19] Since the aforesaid facts reveal that a clear error apparent on the face of record has occurred, therefore, the said judgment is of no help.
[20] Having regard to the aforesaid, the Review Petition is allowed and the third para in page 6 of the order dated 27/8/2018 passed in AC No.2/2013
starting from “So far as the respondent No.7 to 10 are concerned,.................their dispute is to be decided by the arbitrator†is deleted and in its
place following para is substituted:-
“So far as respondent No.7 to 10 are concerned, as per the order of the division bench dated 17th August, 2010 passed in WP No.2739/2010 in the case of Smt.
Pushpalata Vs. M/s.Raj Enterprises & Ors. inter-se between the parties, it is held that the respondent No.7 to 10 being the assignee are covered by the Arbitration
Clause and the Arbitrator is competent to decide the dispute which arises between the applicant on one side and the respondent No.2 to 10 on the other side.â€
[21] The order dated 27/8/2018 passed in AC No.2/2013 is accordingly reviewed and the Review Petition is accordingly allowed.
[22] At the end this court appreciates the valuable assistance which has been rendered by learned Amicus Curiae Shri Rohit Mangal, Advocate.