ARUN DEV UPADHYAYAversusINTEGRATED SALES SERVICE LTD. & ANR.

724               [2023] COURT
               SUPREME   10 S.C.R.REPORTS
                                   724 : 2023 INSC 610
                                                   [2023] 10 S.C.R.


A                         ARUN DEV UPADHYAYA
                                        v.
                INTEGRATED SALES SERVICE LTD. & ANR.
                         (R.P. (C) Nos. 1273-1274/202)
B                                      In
                         (C. A. Nos. 8345-8346 of 2018)
                                 JULY 05, 2023
                 [B. R. GAVAI AND VIKRAM NATH, JJ.]
C
             Code of Civil Procedure, 1908 – Or. XLVII, r.1 – Review –
      Scope of – Civil Appeals filed by the Review Petitioner were dismissed
      vide judgment dtd. 10.08.2021 inter alia holding that foreign award
      could be enforced against non-signatories to the arbitration
      agreement and that the only ground on which its enforcement could
D     be resisted or refused are contained in s.48, Arbitration and
      Conciliation Act – It also held that the canvas of s.46 is wider than
      that of s.35 and would apply to all the persons who are not even
      parties to the Arbitration Agreement – It further held that tortious
      dispute can also be referred to arbitration – Review sought – Held:
      A power to review cannot be exercised as an appellate power and
E     has to be strictly confined to the scope and ambit of Or. XLVII, r.1,
      CPC – An error on the face of record must be such an error which,
      mere looking at the record should strike and it should not require
      any long-drawn process of reasoning on the points where there
      may conceivably be two opinions – In the present case, 18 grounds
F     were raised in the review petitions – All the grounds taken in the
      review were discussed in detail in the judgment dtd. 10.08.2021
      and findings were returned not accepting the claim of the Review
      Petitioner – Each and every argument having been considered in
      the judgment, the arguments advanced if accepted would result in
      expressing a different opinion on the points raised and decided,
G     which does not fall within the settled contours of Or. XLVII, r.1 CPC
      relating to error apparent on the face of record – No ground to
      allow the review petitions – Constitution of India – Article 137,
      145 – Supreme Court Rules, 2013 – Or. XLVII – Arbitration and
      Conciliation Act, 1996 – ss.35, 44-49.
H
                                       724
 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                      725
                  LTD. & ANR.

     Dismissing the review petitions, the Court                      A
      1.1 A power to review cannot be exercised as an appellate
power and has to be strictly confined to the scope and ambit of
Order XLVII Rule 1 CPC. An error on the face of record must be
such an error which, mere looking at the record should strike
and it should not require any long-drawn process of reasoning on     B
the points where there may conceivably be two opinions. [Para
15][738-F]
      1.2 As many as 18 grounds have been raised in the review
petitions. A close perusal of the judgment dated 10.08.2021
reflects that all the grounds taken in the review have been          C
discussed in detail and findings returned not accepting the claim
of the Review Petitioner. What is sought to be argued is basically
that the view taken is erroneous and therefore, impugned
judgment deserves to be reviewed. Paragraph 29 of the judgment
deals with the analysis and interpretation of Section 44 of the
Act. This Court noticed that there would be six ingredients to       D
qualify an arbitral award to be a foreign award. [Paras 17 and
19][739-A-B, G]
       1.3 In Paragraph Nos. 30 to 33, this Court discussed the
ingredients. Further, in paragraphs 34 to 37, the Court dealt with
the scope of Section 47 of the Act and the argument of the counsel   E
for the Review Petitioner that evidence should be adduced and it
should be a full trial to prove that the non-signatory would also
be bound by a foreign award, was rejected. In Paragraph Nos.38
to 57, this Court dealt with in detail the argument that review on
merits of the award would be permissible under Section 48(1) of      F
the Act and held against the Review Petitioner as none of the
grounds therein were available to the Review Petitioner. In
paragraph Nos. 66 to 70 of the report, this Court dealt with the
argument that damages awarded in tort would be outside the scope
of the arbitration agreement and rejected the said argument.
[Paras 20-22][740-D-F]                                               G
     1.4 In paragraph 71 of the report of the judgment, this Court
compared the scope of Section 35 and 46 of the Act and further
observed that once the award was not challenged in the State
where it was made it could not be said that the arbitral award had
                                                                     H
726            SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A     infracted the substantive law of the agreement. Paragraphs 72
      and 73 of the report dealt with the issue of violation of any public
      policy and this Court found that there was no such violation. [Paras
      23, 24][740-G-H]
             1.5 In paragraphs 74 to 76, this Court justified the
B     quantification of the damages and the basis for determining the
      same even if it was based on best judgment assessment. Each
      and every argument having been considered by this Court in its
      judgment dated 10.08.2021, the arguments advanced if accepted
      would result in expressing a different opinion on the points raised
      and decided, which do not fall within the settled contours of Order
C     XLVII Rule 1 CPC relating to error apparent on the face of record.
      The other grounds of invoking the review power are neither
      existing nor have been raised in the present petitions. No good
      ground to allow the review petitions. [Paras 25-27][741-A-C]
            Satyanarayan Laxminarayan Hegde and Others v.
D           Millikarjun Bhavanappa Tirumale AIR 1960 SC 137 :
            [1960] SCR 890; Parison Devi v. Sumitri Devi (1997)
            8 SCC 715 : [1997] 4 Suppl. SCR 470; S. Murali
            Sundaram v. Jothibai Kannan and Others Civil Appeal
            No. 1167- 1170 of 2023 dated 24th February, 2023;
E           Perry Kansagra v. Smriti Madan Kansagra (2019) 20
            SCC 753; Shanti Conductors (P) Ltd. v. Assam SEB
            (2020) 2 SCC 677 : [2019] 16 SCR 252 – relied on.
            Shivdeo Singh v. State of Punjab AIR 1963 SC 1909;
            Aribam Tuleshwar Sharma v. Aribam Pishak Sharma
F           AIR 1979 SC 1047; Meera Bhanja (Smt.) v. Nirmala
            Kumari Choudhary (Smt.) (1995) 1 SCC 170 : [1994]
            5 Suppl. SCR 503; Uma Nath Pandey v. State of U.P.
            (2009) 12 SCC 40 : [2009] 4 SCR 374 – referred to.
                            Case Law Reference
G     [1960] SCR 890                relied on             Para 9
      [1997] 4 Suppl. SCR 470       relied on             Para 11
      AIR 1963 SC 1909              referred to           Para 12
      AIR 1979 SC 1047              referred to           Para 12
H
    ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                             727
                     LTD. & ANR.

[1994] 5 Suppl. SCR 503           referred to             Para 12              A
[2009] 4 SCR 374                  referred to             Para 12
(2019) 20 SCC 753                 relied on               Para 13
[2019] 16 SCR 252                 relied on               Para 14
       INHERENT JURISDICTION: R.P. (C) Nos.1273-1274 of 2021                   B
in Civil Appeal Nos.8345-8346 of 2018.
      From the Judgment and Order dated 10.08.2021 in C.A. Nos.8345-
8346 of 2018 of the Supreme Court of India.
     Harish N. Salve, Sr. Adv., Anurudha Dutt, Ms. B. Vijayalakshmi
                                                                               C
Menon, Ms. Fereshte D. Sethna, Ms. Suman Yadav, Ms. Trisha Ray
Chaudhri, Kautstubh Srivastava, Advs. for the Petitioner.
      Shekhar Naphade, Sr. Adv., Gagan Sanghi, Devendra V. Chauhan,
M. Bharath, Ms. Farah Hashmi, Ms. Aishwarya Dash, Rameshwar
Prasad Goyal, Advs. for the Respondents.
                                                                               D
         The Judgment of the Court was delivered by
         VIKRAM NATH, J.
       1. These are Review Petitions preferred by Arun Dev Upadhyaya
(Review Petitioner) praying for review of the judgment dated 10.08.2021
passed in Civil Appeal Nos. 8345-8346 of 2018 titled Gemini Bay                E
Transcription Pvt. Ltd. vs. Integrated Sales Service Ltd. & Anr.1 whereby
the said Civil Appeals filed by the Review Petitioner were dismissed.
       2. We have heard Shri Harish N. Salve, Sr. Advocate for the
Review Petitioner and Shri Shekhar Naphade, learned Senior Counsel
for the Respondent No. 1 and also perused the material on record.              F
      3. Relevant facts of the present litigation giving rise to the present
review petitions are briefly summarized hereunder:
         3.1. D.M.C. Management Consultants Limited2 was incorporated
         as a public limited company under the Companies Act, 1956 in
                                                                               G
         July 1995. A Representation Agreement was executed on
         18.09.2000 to be effective from 03.10.2000 between DMC and
         Integrated Sales Service Ltd. (Respondent No.1). The said
         agreement was signed by Rattan Pathak (Managing Director) on
1
    In short, “GBTL”
2
    In short ‘DMC’                                                             H
728      SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A     behalf of DMC and Terry L. Peteete, Director on behalf of
      Respondent No.1.
      3.2. Under the said agreement, Respondent No. 1 was to find
      customers for DMC on commission basis. Under the terms of the
      agreement, Respondent No. 1 as the representative was to assist
B     DMC in selling its goods and services to prospective customers
      and to receive commission in consideration thereof. Further, as
      per Clause 8(d), any dispute between the two companies was
      agreed to be subjected to the laws of the State of Missouri, USA
      and the same were to be referred to a sole Arbitrator appointed
      by agreement between the parties. Upon failure to agree to
C     Arbitrator, the appointment was to be made according to the rules
      of the American Arbitration Association.
      3.3. There were two amendments with respect to the
      Representation Agreement dated 18.09.2000. The first
      amendment executed in 2005 related to the changes in the rate of
D     commission. This amendment was signed by the review petitioner
      Arun Dev Upadhyaya in his capacity as Director of DMC and
      Terry L. Peteete (Director) on behalf of the Respondent No.1.
      3.4. The second amendment to the Representation Agreement
      came to be executed on 01.01.2008. It rendered the First
E     Amendment of 2005 as null and void. This amendment also made
      some changes to the rate of commission and further it made the
      laws of Delaware applicable to the Representation Agreement.
      This Amendment was signed by Rattan Pathak (Managing
      Director) on behalf of DMC and Terry L. Peteete (Director) on
F     behalf of Respondent No.1.
      3.5. The Review Petitioner who was holding the office of Director
      in DMC tendered his resignation on 31.03.2009. On 22.06.2009,
      Respondent No. 1 issued a demand for Arbitration to the Review
      Petitioner under the Commercial Arbitration Rules of the AAA.
G     The statement of claim was also against DMC and GBTL seeking
      damages to the tune of US $ 4.8 million.
      3.6. GBTL filed its objections on 21.07.2009 to the effect that the
      Arbitral Tribunal has no jurisdiction to include it as a party in the
      arbitration as it was not a party to the agreement. On the same
      day, the Review Petitioner also filed a ‘without prejudice response’
H
ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                             729
         LTD. & ANR. [VIKRAM NATH, J.]

   to the Statement of Claim stating, inter alia that he was not           A
   signatory in the agreement between DMC and Respondent No.
   1; secondly, that he never consented to or agreed to be bound by
   any arbitration agreement; and thirdly, any demand for arbitration
   against him in his individual capacity was not acceptable and was
   denied.
                                                                           B
   3.7. The signatory to the Representation Agreement i.e. DMC
   filed its reply on 21.07.2009 to the Statement of Claim made by
   Respondent No.1.
   3.8. In October, 2009, GBTL filed Special Civil Suit No. 1035 of
   2009 before the Civil Judge, Senior Division, Nagpur, against           C
   Respondent No. 1 seeking declaration and perpetual injunction
   and also for recovery of damages of Rs. 10,00,000/-. This suit is
   still pending. An application under Order 39 Rules 1&2 CPC was
   also filed in the said suit praying to restrain Respondent No. 1 to
   proceed with the arbitration on the ground that it could not be
   compelled to participate in the arbitration as it was not a signatory   D
   to the agreement.
   3.9. The Tribunal on 23.12.2009 passed an interlocutory order
   holding that the Tribunal had jurisdiction to decide whether the
   non-signatory to the Representation Agreement were appropriately
   named in the arbitration or not; the issue of piercing of the           E
   corporate veil and joinder of non-signatory parties could be decided
   after evidence is received and is not a preliminary issue; the claims
   of the Review Petitioner and GBTL would not be jeopardized and
   would not constitute a waiver of their rights of claims as non-
   signatory parties; that they must contest the arguments and factual     F
   claims made by Respondent No.1; their non-participation in the
   arbitration would potentially expose them to an adverse award or
   an award by default. According to the Review Petitioner, the above
   order was passed in his absence and GBTL.
   3.10. The application under Order 39 Rules 1 & 2 CPC filed in           G
   the Special Civil Suit No. 1035 of 2009 was rejected by Civil
   Judge, Nagpur vide order dated 25.01.2010.
   3.11. The Arbitrator gave an award on 28.03.2010 in favour of
   Respondent No.1 with the finding that DMC was in breach of
   their Representation Agreement and further holding that since
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730                 SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A               DMC, Review Petitioner and GBTL colluded together, they were
                jointly and severally liable to pay the amount along with interest.
                The award was for an amount of US $ 6,948,100.
                3.12. The Respondent No. 1 before approaching the High Court
                moved an application under Section 47 of the Arbitration and
B               Conciliation Act, 19963 seeking execution of the Arbitral Award
                before the Principal District Judge at Nagpur. However, the said
                Application was found to be not maintainable as it was the High
                Court which would have jurisdiction. The application before the
                Nagpur Bench of the Bombay High Court, seeking enforcement
                of the Award was registered as M.C.A. No. 1319 of 2015. Review
C               Petitioner on 27.01.2016 filed objections under Section 47 of the
                Act to which Respondent No. 1 filed its reply on 06.02.2016. A
                second set of objections were filed by the Review Petitioner on
                03.03.2016 under Sections 44 to 49 of the Act challenging the
                recognition of the award as a foreign award as it did not satisfy
D               the requirements both under the Act and also under the provisions
                of the New York Convention. DMC and GBTL filed separate
                objections under Section 49 of the Act to which replies were filed
                by Respondent No.1.
                3.13. The learned Single Judge vide judgment dated 18.04.2016
E               held that the award was a foreign award and enforceable against
                DMC only. It accepted the objections raised by Review Petitioner
                and GBTL that the award was not enforceable against them. The
                Letters Patent Appeal preferred by Respondent No.1 was
                registered as Arbitration Appeal No.3 of 2016. In the meantime,
                objections were raised regarding maintainability of the appeal and
F               also Review Petitions were filed before the Single Judge.
                3.14. The Division Bench rejected the objection regarding the
                maintainability against which the matter was carried to this Court
                by the Review Petitioner but the same was dismissed on
                30.09.2016. The Division Bench finally vide judgment dated
G               04.01.2017 allowed the Arbitration Appeal No. 3 of 2016 and held
                the award to be enforceable against Review Petitioner and GBTL
                also as the award was a foreign award as against Review
                Petitioner and GBTL. Review Petitions were filed before the
                Division Bench which were dismissed on 24.02.2017.
H     3
          In short ‘the Act’
 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                               731
          LTD. & ANR. [VIKRAM NATH, J.]

      3.15. The orders dated 04.01.2017 and 24.02.2017 were challenged        A
      before this Court by the Review Petitioner by way of SLP (Civil)
      Nos. 8899-8900 of 2017 (Civil Appeal Nos.8345-8346 of 2018).
      GBTL as also DMC filed separate SLPs before this Court. In the
      SLP filed by DMC, this Court granted leave subject to condition
      that it deposits US $ 2.5 million. This Court vide judgment dated
                                                                              B
      10.08.2021 dismissed all the appeals. The present Review Petitions
      have been preferred only by Arun Dev Upadhyaya (Review
      Petitioner) to review the judgement dated 10.08.2021.
        4. In the impugned judgement, it has been held that it would not be
permissible to review the award on merits even on the ground of existence
and validity of the arbitration and the only ground on which the              C
enforcement of foreign awards could be resisted or refused are contained
in Section 48 of the Act. It also held that the canvas of Section 46 of the
Act is wider than that of Section 35 of the Act and as such would apply
to all the persons who are not even parties to the Arbitration Agreement.
It also held that the tortious dispute can also be referred to arbitration    D
because it is in connection with the agreement.
      5. Mr. Salve submitted that essential points in the submissions
made on behalf of the Review Petitioner before this Court have not
been considered nor any finding returned by this Court as such the
impugned order suffers from an error apparent on the face of record.          E
      6. The submissions of Mr. Salve briefly summarized are as under:
      A)     The impugned judgment overlooked the fundamental point
             made on behalf of the Review Petitioner that Section 44
             read with Section 46 of Act makes only a foreign award
             enforceable and in order to ascertain whether the award is       F
             foreign award the Court is not constrained by Section 48 of
             the Act.
      B)     Undisputedly, the Review Petitioner was not a party to the
             Representation Agreement however, the Arbitrator applying
             Delaware law and its principles made the review petitioner       G
             a party to the arbitration proceedings initiated by Respondent
             No.1 against DMC. The said award was sought to be
             enforced in India and in the said enforcement proceedings,
             objections were raised by Review Petitioner which have
             not been dealt with in the impugned order.
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732        SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A     C)     The contention specifically raised at the time of argument
             before this Court were not considered and in fact
             misconstrued or misunderstood resulting into an error
             apparent on the face of record. Reference has been made
             to the written submissions submitted on behalf of the Review
             Petitioner at the time of arguments before this Court which
B
             specifically included the following points:
             (i) Though under the Delaware law, a non-party to the
                 agreement could have been included in the arbitration
                 proceedings but when the same is being enforced in
                 India, then, the award will have to be tested as to
C                whether it could be enforced against the non-party to
                 the agreement as per the Indian law. The submission is
                 that there was no foreign award as against the Review
                 Petitioner which could be enforced in India. The
                 language of Section 35 and Section 46 of the Act are
D                not pari materia. Under Section 35, an arbitral award
                 shall be final and binding on parties and persons claiming
                 under them respectively meaning that, to a non-party
                 claiming under the party to the agreement, the arbitral
                 award would be binding, whereas under Section 46 of
                 the Act a foreign award would be binding for all
E                purposes on the persons as between whom it was made
                 and not against non-party even though claiming under
                 the party to the agreement. Sections 35 and 46 of the
                 Act are reproduced below:
                “35. Finality of arbitral awards.- Subject to this Part
F               an arbitral award shall be final and binding on the parties
                and persons claiming under them respectively.
                46. When foreign award binding.- Any foreign award
                which would be enforceable under this Chapter shall be
                treated as binding for all purposes on the persons as
G               between whom it was made, and may accordingly be
                relied on by any of those persons by way of defence,
                set off or otherwise in any legal proceedings in India
                and any references in this Chapter to enforcing a foreign
                award shall be construed as including references to
H               relying on an award.”
 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                              733
          LTD. & ANR. [VIKRAM NATH, J.]

             (ii) In the impugned judgment this aspect of the matter has     A
                  not been considered although it was a vital issue and
                  goes to the root of the matter as to whether a foreign
                  award could be treated as binding and enforceable
                  against the non-party to the agreement.
      (D)    Lastly, according to the Review Petitioner, damages were        B
             calculated not in any quantified manner but only on basis of
             Mr. Peteete’s intimate understanding of the business, not
             supported by any documentary material.
       7. On the other hand, Sri Naphade, learned Senior Counsel
appearing for respondent No.1 sought to justify the impugned judgment        C
referring to various findings therein. He also submitted that this being a
review petition, there was limited scope for this Court to examine the
arguments of the petitioner as they would tantamount to a fresh hearing
of the appeal. Further, according to him, all the points now sought to be
argued have already been considered by this Court, no case for review
is made out and the review petitions deserve to be dismissed.                D

       8. Before proceeding to deal with the arguments on merits of the
review petitions, it would be appropriate to briefly comment on the scope
of review.
      8.1. The review petitions have been filed under Article 137 of the     E
      Constitution of India read with Rule 1 of Order XLVII of the
      Supreme Court Rules, 2013. Article 137 of the Constitution of
      India provides for review of judgments or orders by the Supreme
      Court. The same is reproduced hereunder:
          “137. Review of judgments or orders by the Supreme                 F
          Court.— Subject to the provisions of any law made by
          Parliament or any rules made under article 145, the
          Supreme Court shall have power to review any judgment
          pronounced or order made by it.”
      8.2. According to the said provision, the Supreme Court would
                                                                             G
      have power to review any judgment or order made by it subject to
      the provisions of any law made by the Parliament or any Rules
      made under Article 145. The Supreme Court Rules 2013 have
      been framed under Article 145 by this Court and duly approved
      by the President. It may be stated that no law has been made by
                                                                             H
734      SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A     the Parliament in that respect and, as such, the power of review
      vested in this Court would be governed by the Rules.
      8.3. Order XLVII of Part-IV of the Supreme Court Rules, 2013
      provides for the powers of review and the procedure for hearing
      such review. The said provision is reproduced hereunder:
B                            “PART-IV
                          ORDER XLVII
                              REVIEW
      1. The Court may review its judgment or order, but no
C     application for review will be entertained in a civil proceeding
      except on the ground mentioned in Order XLVII, rule I of the
      Code, and in a criminal proceeding except on the ground of
      an error apparent on the face of the record.
      The application for review shall be accompanied by a
D     certificate of the Advocate on Record certifying that it is the
      first application for review and is based on the grounds
      admissible under the Rules.
      2. An application for review shall be by a petition, and shall
      be filed within thirty days from the date of the judgment or
E     order sought to be reviewed. It shall set out clearly the grounds
      for review.
      3. Unless otherwise ordered by the Court an application for
      review shall be disposed of by circulation without any oral
      arguments, but the petitioner may supplement his petition by
F     additional written arguments. The Court may either dismiss
      the petition or direct notice to the opposite party. An
      application for review shall as far as practicable be circulated
      to the same Judge or Bench of Judges that delivered the
      judgment or order sought to be reviewed.
G     4. Where on an application for review the Court reverses or
      modifies its former decision in the case on the ground of
      mistake of law or fact, the Court, may, if it thinks fit in the
      interests of justice to do so, direct the refund to the petitioner
      of the court-fee paid on the application in whole or in part,
      as it may think fit.
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 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                          735
          LTD. & ANR. [VIKRAM NATH, J.]

      5. Where an application for review of any judgment and order       A
      has been made and disposed of, no further application for
      review shall be entertained in the same matter.”
       A perusal of the above provision makes it amply clear that in a
civil proceeding review could not be entertained except on the grounds
mentioned in Order XLVII Rule 1 of C.P.C.                                B
      8.4. Section 114 of CPC vests power of review in Courts and
      Order XLVII Rule 1 CPC provides for the scope and procedure
      for filing a review petition. The same is reproduced hereunder:
      “Order XLVII Rule 1 CPC:
                                                                         C
      “1. Application for review of judgment- Any person
      considering himself aggrieved-
      (a) by a decree or order from which an appeal is allowed, but
      from which no appeal has been preferred.
      (b) by a decree or order from which no appeal is allowed, or       D
      (c) by a decision on a reference from a Court of Small Causes,
      and who, from the discovery of new and important’ matter or
      evidence which, after the exercise of due diligence was not
      within his knowledge or could not be produced by him at the
      time when the decree was passed or order made, or on account       E
      of some mistake or error apparent on the face of the record
      or for any other sufficient reason, desires to obtain a review
      of the decree passed or order made against him, may apply
      for a review of judgment to the Court which passed the decree
      or made the order. (emphasis supplied)                             F
      (2) A party who is not appealing from a decree or order may
      apply for a review of judgment notwithstanding the pendency
      of an appeal by some other party except where the ground of
      such appeal is common to the applicant and the appellant, or
      when, being respondent, he can present to the Appellate Court      G
      the case on which he applied for the review.
      Explanation. The fact that the decision on a question of law
      on which the judgment of the Court is based has been reversed
      or modified by the subsequent decision of a superior Court
      in any other case, shall not be a ground for the review of         H
      such judgment.”
736               SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A            9. A plain reading of the above provisions in uncertain terms states
      that the power to review can be exercised only upon existence of any of
      the three conditions expressed therein. ‘A mistake or an error apparent
      on the face of the record’ is one of the conditions. It is only on this
      ground that review has been preferred. The above phrase has been
      consistently interpreted by authoritative pronouncement of this Court
B
      for decades. A three Judge Bench of this Court comprising of Hon’ble
      Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the
      case of Satyanarayan Laxminarayan Hegde and others Vs.
      Millikarjun Bhavanappa Tirumale4, discussed the scope of the phrase
      ‘error apparent on the face of record’. The challenge before this Court
C     in the said case was the judgment of the High Court on the ground
      whether it suffers from an error apparent on the face of the record. The
      High Court had issued a writ of certiorari and had quashed order of the
      Tribunal and restored that of the Mamlatdar. In paragraph 8 of the report,
      the issue which was to be considered is reflected. The same is reproduced
      hereunder:
D
               “8. The main question that arises for our consideration in
               this appeal by special leave granted by this Court is whether
               there is any error apparent on the face of the record so as to
               enable the superior court to call for the records and quash
               the order by a writ of certiorari or whether the error, if any,
E              was “a mere error not so apparent on the face of the record”,
               which can only be corrected by an appeal if an appeal lies at
               all.”
             10. After discussing the relevant material on record, the conclusion
      is stated in paragraph 17 of the report. The view was that where an
F     error which has to be established by a long-drawn process of reasoning
      on points where there may conceivably be two opinions, can hardly be
      said to be an error apparent on the face of the record. The view that
      long-drawn process of arguments to canvass a point attacking the order
      in a review jurisdiction, cannot be said to be an error apparent on the
G     face of record. Relevant extract from paragraph 17 of the report is
      reproduced hereunder:
               “17....................Is the conclusion wrong and if so, is such
               error apparent on the face of the record ? If it is clear that

      4
H         AIR 1960 SC 137
    ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                              737
             LTD. & ANR. [VIKRAM NATH, J.]

         the error if any is not apparent on the face of the record, it is      A
         not necessary for us to decide whether the conclusion of the
         Bombay High Court on the question of notice is correct or
         not. An error which has to be established by a long drawn
         process of reasoning on points where there may conceivably
         be two opinions can hardly be said to be an error apparent
                                                                                B
         on the face of the record. As the above discussion of the rival
         contentions show the alleged error in the present case is far
         from self evident and if it can be established, it has to be
         established by lengthy and complicated arguments. We do not
         think such an error can be cured by a writ of certiorari
         according to the rule governing the powers of the superior             C
         court to issue such a writ. In our opinion the High Court was
         wrong in thinking that the alleged error in the judgment of
         the Bombay Revenue Tribunal, viz., that an order for
         possession should not be made unless a previous notice had
         been given was an error apparent on the face of the record
                                                                                D
         so as to be capable of being corrected by a writ of certiorari.”
       11. Another case which may be briefly dealt with is the case of
Parison Devi Vs. Sumitri Devi5, where, this Court ruled that under
Order XLVII Rule 1 CPC, a judgment may be open to review inter alia
if there is a mistake or an error apparent on the face of the record. An
error which is not self-evident and has to be detected by a process of          E
reasoning, can hardly be said to be an error apparent on the face of the
record justifying the Court to exercise its power of review. It also observed
that a review petition cannot be allowed to be treated as an appeal in
disguise.
       12. A series of decisions may also be referred to wherein, it has        F
been held that power to review may not be exercised on the ground that
decision was erroneous on merits as the same would be the domain of
the Court of appeal. Power of review should not be confused with
appellate powers as the appellate power can correct all manners of
errors committed by the subordinate courts. The following judgments             G
may be referred:
            (1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909


5
    (1997) 8 SCC 715                                                            H
738               SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A                 (2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma;
                  AIR 1979 SC 1047
                  (3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary
                  (Smt.); (1995) 1 SCC 170.
                  (4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC
B                 40
             13. Recently, this Court in a judgment dated 24th February, 2023
      passed in Civil Appeal No.1167-1170 of 2023 between S. Murali
      Sundaram Vs. Jothibai Kannan and Others, observed that even
      though a judgment sought to be reviewed is erroneous, the same cannot
C     be a ground to review in exercise of powers under Order XLVII Rule 1
      CPC. Futher, in the case of Perry Kansagra Vs. Smriti Madan
      Kansagra 6, this Court observed that while exercising the review
      jurisdiction in an application under Order XLVII Rule 1 read with Section
      114 CPC, the Review Court does not sit in appeal over its own order.
D            14. In another case between Shanti Conductors (P) Ltd. Vs.
      Assam SEB,7 this Court observed that scope of review under Order
      XLVII Rule 1 read with Section 114 CPC is limited and under the guise
      of review, the petitioner cannot be permitted to reagitate and reargue
      questions which have already been addressed and decided. It was further
E     observed that an error which is not self-evident and has to be detected
      by a process of reasoning, can hardly be said to be an error apparent on
      the face of record.
             15. From the above, it is evident that a power to review cannot be
      exercised as an appellate power and has to be strictly confined to the
F     scope and ambit of Order XLVII Rule 1 CPC. An error on the face of
      record must be such an error which, mere looking at the record should
      strike and it should not require any long-drawn process of reasoning on
      the points where there may conceivably be two opinions.
             16. In the above backdrop of the scope of review to which these
      petitions are confined, we proceed to consider whether a case for review
G
      is made out or not.
            17. As many as 18 grounds have been raised in the review petitions,
      we have considered not only the oral submissions advanced by Mr. Salve,
      6
          (2019) 20 SCC 753
H     7
          (2020) 2 SCC 677
    ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                                 739
             LTD. & ANR. [VIKRAM NATH, J.]

learned Sr. Counsel, but have also perused all the grounds raised in the           A
review petition. A close perusal of the judgment dated 10.08.2021 reflects
that all the grounds taken in the review have been discussed in detail and
findings returned not accepting the claim of the Review Petitioner. What
is sought to be argued is basically that the view taken is erroneous and
therefore, impugned judgment deserves to be reviewed.
                                                                                   B
       18. We may briefly refer to the relevant argument and the findings
returned by this Court in the impugned judgment dated 10.08.2021. In
paragraph 26 of the impugned judgment, this Court summarized the four
points argued by Mr. Salve. The said paragraph is reproduced hereunder:
       “26. Shri Harish Salve, learned Senior Advocate appearing                   C
       on behalf of Arun Dev Upadhyaya, argued that the
       commission of a tort would be outside contractual disputes
       that arise under the Arbitration Agreement and that since the
       cause of action really arose in tort, the Award was vitiated on
       this ground. He also argued relying heavily upon Dallah Real
       Estate and Tourism Co v Ministry of Religious Affairs of the                D
       Government of Pakistan [2010] 3 WLR 1472 [“Dallah”] that
       a full review based on oral and/or documentary evidence
       ought to have been undertaken which was not done on the
       facts of this case, the Division Bench merely echoing the
       Arbitrator’s findings. He then made a distinction between                   E
       Section 46 and Section 35 of the Arbitration Act, and argued
       that under Section 46, a foreign award is to be treated as
       binding only on persons as between whom it was made and
       not on persons who 25 may claim under the parties. He also
       argued that insofar as his client was concerned, there was no
       evidence to show his involvement in any manner and that the                 F
       findings against his client are unreasoned and perfunctory,
       and on this ground also the Award stands vitiated.”
                                                       (emphasis supplied)
       19. Paragraph 298 of the judgment deals with the analysis and               G
interpretation of Section 44 of the Act. This Court noticed that there
would be six ingredients to qualify an arbitral award to be a foreign
award. Paragraph 29 is reproduced hereunder:

8
 The paragraph nos. are from the original impugned judgment annexed in the paper
book.                                                                              H
740            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A           “29. A reading of Section 44 of the Arbitration and
            Conciliation Act, 1996 would show that there are six
            ingredients to an award being a foreign award under the said
            Section. First, it must be an arbitral award on differences
            between persons arising out of legal relationships. Second,
            these differences may be in contract or outside of contract,
B
            for example, in tort. Third, the legal relationship so spoken
            of ought to be considered “commercial” under the law in India.
            Fourth, the award must be made on or after the 11th day of
            October, 1960. Fifth, the award must be a New York
            Convention award – in short it must be in pursuance of an
C           agreement in writing to which the New York Convention
            applies and be in one of such territories. And Sixth, it must be
            made in one of such territories which the Central Government
            by notification declares to be territories to which the New
            York Convention applies.”
D            20. In Paragraph Nos.30 to 33, this Court discussed the ingredients.
      Further, in paragraphs 34 to 37, the Court dealt with the scope of Section
      47 of the Act and the argument of the counsel for the Review Petitioner
      that evidence should be adduced and it should be a full trial to prove that
      the non-signatory would also be bound by a foreign award, was rejected.
E            21. In Paragraph Nos.38 to 57, this Court dealt with in detail the
      argument that review on merits of the award would be permissible under
      Section 48(1) of the Act and held against the Review Petitioner as none
      of the grounds therein were available to the Review Petitioner.
             22. In paragraph Nos.66 to 70 of the report, this Court dealt with
F     the argument that damages awarded in tort would be outside the scope
      of the arbitration agreement and rejected the said argument.
             23. In paragraph 71 of the report of the judgment, this Court
      compared the scope of Section 35 and 46 of the Act and further observed
      that once the award was not challenged in the State where it was made
G     it could not be said that the arbitral award had infracted the substantive
      law of the agreement.
             24. Paragraphs 72 and 73 of the report dealt with the issue of
      violation of any public policy and this Court found that there was no such
      violation.
H
 ARUN DEV UPADHYAYA v. INTEGRATED SALES SERVICE                                  741
          LTD. & ANR. [VIKRAM NATH, J.]

       25. In paragraphs 74 to 76, this Court justified the quantification       A
of the damages and the basis for determining the same even if it was
based on best judgment assessment.
        26. Each and every argument having been considered by this Court
in its judgment dated 10.08.2021, the arguments advanced if accepted
would result in expressing a different opinion on the points raised and          B
decided, which we are afraid do not fall within the settled contours of
Order XLVII Rule 1 CPC relating to error apparent on the face of
record. The other grounds of invoking the review power are neither
existing nor have been raised in the present petitions.
      27. Accordingly, we do not find any good ground to allow the               C
review petitions. They are, accordingly, dismissed.

Divya Pandey                                       Review Petitions dismissed.
(Assisted by : Roopanshi Virang, LCRA)

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