Judgment Which Failed To Consider Binding Precedent Which Was Not Shown To Court Is Not Reviewable: Calcutta HC
The Calcutta High Court observed that a judgment which fails to consider a binding precedent which was available at the time of pronouncement of the judgment but was not shown to the Court is not reviewable on the ground of being per incuriam.
However, it may be the subject matter of an appeal but not a review under Order XLVII Rule 1 (1) of the Code of Civil Procedure, the court said.
The Applicant in the present case sought a review of a judgment and order arising out of an arbitration petition filed by the Respondent. The Applicant is the award-holder.
The Applicant submitted that the court directed the Respondent (Award-Debtor) to secure only the principal amount and not the interest component of the award overlooking the decision of the Supreme Court in Hyder Consulting (UK) Limited vs. Governor, State of Orissa where the arbitral award interest has been described as the “sum”.
The Bench of Justice Moushumi Bhattacharya observed “This Court is accordingly of the view that there is no error apparent on the face of the judgment and order dated 5.3.2021. The contention of the review applicant of the Court overlooking the dictum in Hyder Consulting and pegging the security only to the extent of the principal amount awarded to the review applicant / award-holder may be the subject-matter of an appeal but not a review under Order XLVII Rule 1(1) of the CPC.”
Advocate Shuvasish Sengupta appeared for the Applicant whereas Advocate Sakya Sen appeared for the Respondents.
Counsel for the Applicant submitted that since Hyder Consulting was not placed before the Court at the time of pronouncement of the order, the review becomes automatically maintainable on the Court having overlooked a settled principle of law.
The question that arose before the Court was whether the failure to follow Hyder Consulting rendered the judgment under review erroneous or contrary to the statute.
The Court said “The foremost ground taken for application of a review of a judgment is an error apparent on the face of the record. By definition this would mean an error which is obvious to the eye and one that is evident from the judgment even at a cursory first-glance. It would certainly not mean an error which is required to be discovered and brought to the surface after unraveling the layers of the judgment.”
The Court further perused the “but for” test and said that the reasoning is riddled with chaotic consequences and contrary to the regimen of Review under OXLVII Rule 1 of CPC.
The Court held “A judgment containing an erroneous point of law is not reviewable; it is an appealable judgment. A judgment pronounced on a question of law which is subsequently reversed or modified by a superior Court is also not a reviewable judgment. A judgment which fails to consider a decision which was available at the time of pronouncing the judgment, but was not shown to the Court, by the same logic, is not reviewable on the ground of being per incuriam. Such a judgment would be open to challenge before a superior Court. It is significant that the Explanation to Order XLVII Rule 1 preserves the finality of a decision even where the question of law is subsequently unsettled by a superior Court.”
Accordingly, the Court dismissed the Review Application.
Cause Title: Everest Infra Energy Limited v. Transmission (India) Engineers & Anr.
Appearances:
Appellant: Advocates Shuvasish Sengupta and Soumyajit Mishra.
Respondents: Advocates Sakya Sen, Sukrit Mukherjee and Anirban Pramanick.
