M/S ATHAANG DICHPALLY TOLLWAY PRIVATE LIMITED vs THE NATIONAL HIGHWAYS AUTHORITY OF INDIA & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 30th October, 2023
+ I.A. 16356/2023 in O.M.P.(I) (COMM.) 30/2023 & I.A. 16357/2023
M/S ATHAANG DICHPALLY TOLL WAY PRIVATE LIMITED ….. Petitioner
Through: Mr. Gopal Jain Sr. Adv, Mr. Saurabh Bindal, Ms. Akshita Salampuria and Ms. Akanksha Batra, Advocates

versus

THE NATIONAL HIGHWAYS AUTHORITY OF INDIA & ANR.
….. Respondents
Through: Mr. Ajay Gaind and Mr. Abhay Gaind, Advocates for NHAI
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
I.A. 16356/2023 (Modification of order dated 1st May, 2023)
1. The instant application under Section 151 of the Code of Civil Procedure, 1908, has been filed on behalf of respondent no. 1/applicant seeking the following reliefs:
“a. That the order passed under Section 9 of the A&C Act dated 01.05.2023 be recalled/modified as the orders passed by this Hon’ble Court are based on a dishonest representation of facts by Petitioner with an intent to mislead this Hon’ble Court to permit challenge of an award which has attained finality on basis of settlement as recorded on 03.12.2020 with Petitioner participating therein on terms set out therein;
b. That permission be granted for release of amount of Rs.68, 96,81,003-00 (Rupees Sixty-eight crores ninety-six lacs eighty-one thousand and three only) as communicate vide letter dated 24-01- 2023 from month after the last computation i.e., on and w.e.f. 09-04-2021 at the rates as envisaged under the provisions of Commercial Court Act, 2015,
c. Pass an order to Terminate the arbitral proceedings and direct the Arbitral Tribunal to terminate the proceedings as petitioners are barred from re-agitating the same issue in any other proceedings, once a settlement has been arrived at under section 73,
d. Pass such other order/orders as this Hon’ble Court deems fit and proper under the circumstances.”

2. The factual matrix has been reproduced herein below: –
a. The applicant/respondent no.1 herein, was entrusted with the development, maintenance and management of National Highway No.7 (hereinafter “NH-7”) including section from km 308.000 to km 367.000. The applicant resolved to augment the existing road from km 308.000 to km 367.000 on the Nagpur-Hyderabad Section of NH-7 (hereinafter “Project”).
b. During the course of the project, certain disputes had arisen between the parties as a result of which a Settlement Agreement dated 3rd December 2020, was executed in accordance with Section 73 of Arbitration and Conciliation Act 1996, (hereinafter “Act”).
c. Subsequently, a petition under Section 9 of the Act, was filed on behalf of the petitioner, whereby, the petitioner sought inter alia interim injunction, thereby, restraining respondent no.1 from encashing alleged damages to the tune of Rs.68,96,81,003/-, imposed upon the petitioner by the respondent . In the said petition, the petitioner had further sought to restrain the respondent no.1 from dealing with escrow account no. 921020050848762 qua the encashment or imposition of the said damages.
d. The aforesaid petition was decided by this Court vide the impugned order dated 1st May 2023, whereby, after taking into consideration the arguments advanced on behalf of both the parties, this Court held that the nature of dispute i.e., with respect to the damages sought by the respondent no. 1 is arbitrable. It was also held that the Concession Agreement dated 5th August 2009, establishes a contractual relationship among the parties and the dispute among the parties arises from the same.
e. This Court also held that the impugned letter/order dated 24th January 2023, was to be kept in abeyance until the first hearing before the concerned Arbitrator appointed by this Court in the said impugned order. The petitioner was further directed to file an application under Section 17 of the Act, before the Arbitral Tribunal and raise all the issues and grounds raised before this Court in the above said petition filed under Section 9 of the Act.
f. It has been stated by the application/respondent no. 1 that the petition under Section 9 of the Act, was filed without disclosing the fact that the concessionaire, i.e., the petitioner/non-applicant had acknowledged to abide by Clause 9 of the Settlement Agreement. Clause 9 of the Settlement Agreement states that the parties to the Settlement Agreement agreed that no waiver, amendment or modification of any of the terms of the said agreement shall be effective.
g. Aggrieved by the said non-disclosure by the petitioner, the applicant/respondent no. 1 has preferred the instant application seeking recall/modification of the impugned order dated 1st May 2023, passed by this Court in the present petition.
3. Learned counsel appearing on behalf of the applicant/respondent no.1 submitted that the petition under Section 9 of the Act, was filed on 4th February 2023, without disclosing the fact that the Concessionaire/non-applicant had acknowledged to abide by Clause 9 of the Settlement Agreement without any waiver, amendment or modification, thereby, agreeing to pay damages to the tune of Rs. 63,93,00,000/-, for the period of 7th April 2018, till 30th June 2020, in terms of Clause J of the Settlement Agreement, along with the damages from 1st July 2020 upto 9th March 2021, to the tune of Rs.5,03,81,003/-.
4. It is contended that the applicant had issued the letter dated 24th January 2023, to recover alleged damages of Rs. 68,96,81.003/-, from the petitioner’s escrow account on the grounds that the non-applicant was in breach of maintenance requirements and is in default of certain payments which were to be made to respondent no.1 in a stipulated time period.
5. It is further submitted that the petitioner deliberately concealed the fact pertaining to their unequivocal consent to enter into the Settlement Agreement more particularly, agreeing to Clause 9 therein.
6. It is submitted that this Court, while adjudicating the petition filed under Section 9 of the Act, did not take cognisance of the fact that the said petition under Section 9 had been moved despite an Award agreed in terms of Section 74 of the Act. Hence, the impugned order dated 1st May 2023, had been passed without examining the settlement agreement.
7. It is submitted that on 3rd December 2020, the present settlement was arrived at with the consent and concurrence of the petitioner/non- applicant and all the other stakeholders in terms of the provision of Section 73 (4) of the Act.
8. It is further submitted that other stakeholders were witnesses to the said settlement, and the said above Award by way of the Settlement Agreement has the status and effect of an arbitral award on agreed terms under Section 74 of the Act, as an award rendered under Section 30 of the Act, thereof.
9. It is contended that the Concessionaire had unconditionally agreed to oblige by Clause 9 of the Settlement Agreement without seeking its wavier, amendment or any modification.
10. It is further contended that the petitioner had agreed to pay damages quantified at Rs. 63.93 crores for the period 7th April 2018, to 30th June 2020, in terms of Clause ‘J’, as per which the petitioner had acknowledged to the damages caused to the respondent no. 1 due to the delay in major maintenance/renewal work, which is the respondent no.1’s unconditional obligation under the Concession Agreement.
11. It is submitted that in the event the impugned order is not modified to the extent of only considering damages computable under Clause K, the applicant would suffer great injustice due to the discrepancies in the dates of payment.
12. It is also submitted that the petitioner only chose to refer to provisions of Clause K, as per which the damages were to be computed after completion of work not beyond 30th June 2020, but before 15th March 2021.
13. It is submitted that it will cause great injustice to the applicant, in the event the order dated 1st May 2023, passed by this Court is not recalled/modified to the extent of only considering the damages computable under Clause K as consented between the parties to the contract and which would stand arrived at only after 1st July 2020 for removal of all defects agreed upon by the petitioner to be rectified on or before 15th March 2021, which was actually done by i.e., 9th March 2021 based on the report of I.E. (Independent Engineer) as understood in terms of the contract provisions.
14. It is submitted that by virtue of their misconceived petition under Section 9 of the Act, the petitioner/non applicant has brought out its malicious intent to delay the process of recovery of amounts due to the applicant respondent no.1/applicant which was informed to the Concessionaire petitioner vide letter dated 7th May 2020, by the Independent Engineer.
15. It is submitted that the petition under Section 9 of the Act, is unlawful since the settlement had been arrived at by and between the parties in the presence of Justice I. P. Vasishth, and other members who participated as a part of the Conciliation Committee in terms of provisions of Section 73 of the Act, and had authenticated the settlement in terms of Section 73 (4) of the Act, and the same was made available to each of the parties, a fact, which stood withheld by the petitioner/non applicant.
16. Therefore, respondent no. 1/applicant prays that in the interest of justice, the order dated 1st May 2023, be recalled/modified. .
17. Per Contra, Mr. Gopal Jain, learned senior counsel appearing on behalf of the petitioner/non applicant vehemently opposed the present application submitting to the effect that the same is liable to be dismissed being bereft of any merits.
18. It is submitted that during the operation and maintenance period, disputes arose between the respondent no. 1/applicant and M/s Essel Dichpally Tollway Private Limited, which led to the execution of a Settlement Agreement on 3rd December 2020.
19. It is submitted that even after the non-applicant had rightfully complied with its undertaking on all aspects, the respondent no. 1/applicant had wrongfully and unilaterally imposed damages upon the non-applicant and the same has been done in complete breach of the terms of the Settlement Agreement.
20. It is submitted that the petitioner/non applicant, vide letter dated 30th March 2021, had informed the respondent no. 1 that the major maintenance work will be completed within the stipulated time period and the petitioner did complete the work by 9th March 2021, which was well within the stipulated time period as per the Settlement Agreement. The non applicant, therefore, had sought the respondent No. 1/applicant to re-consider its decision to impose the damages following the Independent Engineer’s recommendations, which were technically contrary to the terms of the Concession Agreement.
21. It is further submitted that despite the petitioner completed the work in accordance with the contractual provisions, the respondent had sent the communication dated 28th September 2022, imposing damages upon the petitioner.
22. It is submitted that on 12th December 2022, the Project Implementation Unit of the applicant company, vide its letter addressed to the Regional Officer, Hyderabad of applicant, directed the said Regional Officer to recover the alleged damages from the escrow account of the petitioner.
23. It is further submitted that on 23rd January 2023, the non-applicant sent a letter to the respondent-applicant stating his incorrect approach in computing damages and further requested the applicant to review and reconsider the damages imposed. It was also pointed out by the non-applicant that it has invoked disputes resolution clause and the applicant shall maintain status quo and shall not recover damages from the Escrow Account.
24. It is contended that during the course of arguments, the applicant failed to raise before this Court, the ground that the disputes between the parties is not arbitrable in view of the Award in terms of the Settlement Agreement. Rather, the non- applicant had consented to the appointment of the Arbitrator and the same has been recorded in the impugned order.
25. It is further contended that on 21st May 2023, the learned Arbitral Tribunal convened its first hearing in the subject matter, wherein, the applicant was represented by their authorised representative and there was no objection raised pertaining to the institution of the arbitration proceedings on the said date. The applicant also failed to raise any objection before the learned Tribunal even on the next date of hearing i.e., 9th July 2023.
26. It is submitted that the instant application is merely an afterthought and a frivolous attempt to prolong the arbitration proceedings.
27. In view of the foregoing submissions, it is prayed that the instant application is devoid of merit and is liable to be dismissed.
28. Heard learned counsel for the parties and perused the material on record including the pleadings, and the documents.
29. It is the case of the applicant, that the order dated 1st May 2023, has been passed without complete disclosure of the facts. It has been contended that the non-applicant/petitioner deliberately chose not to disclose that the petition under Section 9 of the Act, was filed without bringing light to the fact that the concessionaire, i.e., the petitioner, had acknowledged to abide by Clause 9 of the Settlement Agreement. It is further contended that this Court did not take cognisance of the fact that the petition under Section 9 of the Act, had been moved by the petitioner despite an Award on agreed terms on the substance of the dispute in terms of Section 74 of the Act, and the impugned order had been passed without examining the Settlement Agreement.
30. In rival contentions, it has been contended on behalf of the non-applicant/petitioner that the applicant is deliberately trying to derail the arbitration proceedings. Moreover, this Court took full cognisance of the Settlement Agreement dated 3rd December 2020, which forms the basis of the findings of this Court as mentioned in the order dated 1st May 2023.
31. It has been further contended on behalf of the petitioner that the applicant did not raise any objections to the constitution of the Arbitral Tribunal before this Court. Moreover, no such objections were raised before the learned Tribunal during the arbitral proceedings by the applicant.
32. In light of the aforesaid submissions and facts, and in order to adjudicate this instant petition, it is pertinent for this Court to analyse the scope and ambit of Section 9 of the Act. The said provision has been reproduced herein:
“[(1)] A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
2[(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.
(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.]” 
33. A bare perusal of the aforesaid provision makes it evident that the said provision confers certain powers on the Courts, whereby, the Courts may safeguard the subject-matter of the arbitration agreement. The said safeguarding power may be exercised before, during or after the making of the arbitral award. However, the said award must be enforced in accordance with the Section 36 of the Act.  The Courts are to be satisfied with the settled principles while granting relief under the aforesaid provision. While granting any reliefs under the abovesaid provision, a Court has to decide whether the applicant has a good prima facie case, and whether the balance of convenience is in favour of the applicant seeking such interim reliefs.
34. The Hon’ble Supreme Court has discussed the scope and ambit of Section 9 of the Act, in a catena of judgments and has settled the principles governing the applicability of the said provision. In case titled Arcelormittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 SCC 712, the Hon’ble Supreme Court enumerated the legal propositions behind the above mentioned provision and held that when the Tribunal is constituted then the parties may approach the Arbitral Tribunal under Section 17 of the Act before approaching this Court under Section 9 of the Act. The relevant paragraphs of the abovementioned case have been reproduced herein:
“59. Section 9(1) of the Arbitration Act, as amended, enables a party to an arbitration agreement to apply to a court for interim measures of protection before or during the arbitral proceedings, or at any time after an award is made and published, but before the award is enforced in accordance with Section 36 of the Arbitration Act.

60. A civil court of competent jurisdiction thus has the jurisdiction to admit, entertain and decide an application under Section 9(1) of the Arbitration Act, any time before the final arbitral award is enforced in accordance with Section 36 of the Arbitration Act.

61. However, sub-section (3) of Section 9 of the Arbitration Act, on which much emphasis has been placed both by Mr Khambata and Mr Kapil Sibal provides that once an Arbitral Tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render, the remedy provided under Section 17 efficacious.

62. Sub-section (3) of Section 9 has two limbs. The first limb prohibits an application under sub-section (1) from being entertained once an Arbitral Tribunal has been constituted. The second limb carves out an exception to that prohibition, if the Court finds that circumstances exist, which may not render the remedy provided under Section 17 efficacious.

63. To discourage the filing of applications for interim measures in courts under Section 9(1) of the Arbitration Act, Section 17 has also been amended to clothe the Arbitral Tribunal with the same powers to grant interim measures, as the Court under Section 9(1). The 2015 Amendment also introduces a deeming fiction, whereby an order passed by the Arbitral Tribunal under Section 17 is deemed to be an order of court for all purposes and is enforceable as an order of court.
XXX
73. In Energo Engg. Projects Ltd. v. TRF Ltd. [Energo Engg. Projects Ltd. v. TRF Ltd., 2016 SCC OnLine Del 6560] authored by one of us (Indira Banerjee, J.), a Division Bench of the Delhi High Court held : (SCC OnLine Del paras 27-30 & 34-35)

“27. A harmonious reading of Section 9(1) with Section 9(3) of the 1996 Act, as amended by the 2015 Amendment Act, makes it amply clear that, even after the amendment of the 1996 Act by incorporation of Section 9(3), the Court is not denuded of power to grant interim relief, once an Arbitral Tribunal is constituted.

28. When there is an application for interim relief under Section 9, the Court is required to examine if the applicant has an efficacious remedy under Section 17 of getting immediate interim relief from the Arbitral Tribunal. Once the Court finds that circumstances exist, which may not render the remedy provided under Section 17 of the 1996 Act efficacious, the Court has the discretion to entertain an application for interim relief. Even if an Arbitral Tribunal is non functional for a brief period of time, an application for urgent interim relief has to be entertained by the Court under Section 9 of the 1996 Act.

29. It is a well-settled proposition that if the facts and circumstances of a case warrant exercise of discretion to act in a particular manner, discretion should be so exercised. An application for interim relief under Section 9 of the 1996 Act, must be entertained and examined on merits, once the Court finds that circumstances exist, which may not render the remedy provided under Section 17 of the said Act efficacious.

30. In our view, the learned Single Bench patently erred [TRF Ltd. v. Energo Engg. Projects Ltd., 2016 SCC OnLine Del 5212] in holding ‘there is no impediment or situation where the remedy under Section 17 of the Act is not efficacious’. The learned Single Bench failed to appreciate that the pendency of a special leave petition in which the constitution of the Arbitral Tribunal was under challenge, was in itself, a circumstance which rendered the remedy of the parties under Section 17 uncertain and not efficacious.
***
34. An application for interim relief should ordinarily be decided by the Arbitral Tribunal, once an Arbitral Tribunal is constituted. However, if circumstances exist which may not render the remedy under Section 17 of the 1996 act efficacious, the Court has to consider the prayer for interim relief on merits, and pass such order, as the Court may deem appropriate.

35. The learned Single Bench has not at all considered whether any interim protection was at all necessary in this case. The bank guarantee was apparently unconditional. In effect, the appellants have been restrained from invoking an unconditional guarantee. The application cannot be heard out until the special leave petition is disposed of.”

35. In the instant matter, it is prima facie observed that the applicant has not raised its grievance before the learned Tribunal and instead has directly approached this Court by way of the instant application.
36. This Court is of the view that in the instant matter, the Arbitral Tribunal has the power vested in it for the purpose of granting any interim relief to the applicant. There is no circumstance made out that the applicant should have approached this Court by way of seeking modification of the impugned order.
37. Now this Court will address the issue pertaining to whether the impugned order merits any modification as prayed by the applicant.
38. At this juncture, this Court deems it fit to reproduce the impugned order in which modification has been sought i.e., this Courts’s order dated 1st May 2023. The relevant extracts of the impugned order have been reproduced herein below:
“7. During the course of operation of the project, certain disputes arose between the respondent no. 1 and M/s Essel Dichpally Tollway Private Limited, Concessionaire No. 2, whereupon a Settlement Agreement was executed between them on December 2020. The learned senior counsel while referring to certain clauses of the said Agreement submitted that as per the Agreement, all disputes between the parties stand settled. However, despite the settleiiietit of disputes, the respondent issued the impugned letter dated 24th January, 2023, whereby the respondent no. 1 sought to recover alleged damages of Rs. 68,96,81,003/- from the petitioner’s ESCROW Account, on the grounds that the Concessionaire, petitioner herein, was in breach of Maintenance Requirements and in default of payment to be made to the respondent no. 1 within the stipulated time.

8. The learned senior counsel appearing on behalf of the petitioner vehemently submitted that there is no basis for imposing the damages claimed against the petitioner to the tune of Rs.68,96,81,003/-. It is submitted that the petitioner is neither aware of any communication between the independent engineer of the Project and the respondent no. 1, nor the basis, reason or mode of calculation of the damages is in the knowledge of the petitioner.

9. Learned senior counsel has also submitted that if the impugned letter/order dated 24th January, 2023 remains in operation, the petitioner would suffer irreparable loss, since the petitioner has already performed in accordance with the Concession Agreement. It is, however, submitted that this Court may appoint an arbitrator for adjudication of the disputes between the parties and the interim reliefs being prayed herein may be allowed to be raised before the arbitrator.

10. Per Contra, the learned counsel for the respondent vehemently opposed the instant petition. It is submitted that there is no relief which accrues to the petitioner and may be granted by this Court, therefore, the instant petition may be dismissed. However, it is submitted that the disputes between the parties are arbitrable in nature and they have no objection in case, the same is referred by this court to an independent and impartial sole arbitrator.”

39. Upon bare perusal of the order, it is evident that the respondent had raised no objections to the dispute between parties referred to arbitration and hence, consented to the appointment of a sole arbitrator by this Court.
40. Furthermore, referring to the analysis portion of the said order, wherein the Court observed that it is an undisputed fact that the disputes between the parties are arbitrable. The same has been reproduced as follows:
“12. The petitioner has approached this Court by way of the instant petition seeking urgent relief against the respondents. Upon perusal of the record as well as the arguments advanced on behalf of the parties, this Court finds that there are disputes between the parties, which may be adjudicated and settled by an arbitrator. In the instant case, there is an Agreement in existence which has given rise to the contractual relationship as well as the disputes between them. There is no challenge to the fact that the disputes between the parties are arbitrable in nature”.

41. Upon perusal of the aforesaid portion of the order, the contentions of the applicant with regards to the settlement deed not being taken into consideration holds no water as this Court has referred to the same while adjudicating upon the petition filed under Section 9 of the Act.
42. Before delving further into the case on merits, this Court will enunciate its view of the limited scope of the miscellaneous applications/ modification application/ filed by the parties.
43. There is a wrongful practice among the litigants nowadays that when an order/judgment is not favour a party, the concerned partyby way of miscellaneous applications, clarification of the order or modification of the order seeks a review of the order on merits. The said mechanism has been used as an alternative to appeal and to bypass the procedure established by law.
44. The power of this Court, however, is very limited and only in certain exceptional cases with due caution, the Court may modify orders with respect to errors which are clerical or may rectify some accidental omission. This Court cannot review the order on merits, as the same would be contrary to the settled law.
45. The Hon’ble Supreme Court reiterated the scope of modification of orders in the order dated 4th October 2021, Miscellaneous Application no. 1572/ 2021 in Civil Appeal no. 5041/2021 titled Supertech Limited v. Emerald Court Owner Resident Welfare Associations and Others, and the relevant paragraphs of the same are as follows:
“8. In successive decisions, this Court has held that the filing of applications styled as “miscellaneous applications” or “applications for clarification/modification” in the guise of a review cannot be countenanced. In Gurdip Singh Uban (supra), Justice M Jagannadha Rao, speaking for a two-Judge Bench of this Court observed:

“17. We next come to applications described as applications for “clarification”, “modification” or “recall” of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued. Order XL Rule 3 states as follows:

“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 additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party….” In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of “no hearing”, we find that sometimes applications are filed for “clarification”, “modification” or “recall” etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for “clarification” or “modification”, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398] deprecating a similar practice.)

18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for “clarification”, “modification” or “recall” if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers.”

9. The same view has been expressed in a subsequent decision in Ram Chandra Singh (supra) wherein another two-Judge Bench of this Court observed as follows:

“15. In Gurdip Singh Uban [(2000) 7 SCC 296] the law has been laid down in the following terms: “17. … This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of ‘no hearing’, we find that sometimes applications are filed for ‘clarification’, ‘modification’ or ‘recall’ etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order 40 Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for ‘clarification’ or ‘modification’, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly.”

16. In Common Cause [(2004) 5 SCC 222] Lahoti, J. (as the learned Chief Justice then was) speaking for a Division Bench observed:

“2. … We are satisfied that the application does not seek any clarifications. It is an application seeking in substance a review of the judgment. By disguising the application as one for ‘clarification’, the attempt is to seek a hearing in the open court avoiding the procedure governing the review petitions which, as per the rules of this Court, are to be dealt with in chambers. Such an attempt on the part of the applicant has to be deprecated.”

17. Recently in Zahira Habibullah Sheikh v. State of Gujarat [(2004) 5 SCC 353 : 2004 SCC (Cri) 1613] referring to Order 40 Rule 3, this Court opined:

“6. As noted by a Constitution Bench of this Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India [(1980) 4 SCC 680], Suthendraraja v. State [(1999) 9 SCC 323 : 2000 SCC (Cri) 463], Ramdeo Chauhan v. State of Assam [(2001) 5 SCC 714 : 2001 SCC (Cri) 915] and Devender Pal Singh v. State, NCT of Delhi [(2003) 2 SCC 501 : 2003 SCC (Cri) 572] notwithstanding the wider set of grounds for review in civil proceedings, it is limited to ‘errors apparent on the face of the record’ in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well.

7. In Delhi Admn. v. Gurdip Singh Uban [(2000) 7 SCC 296] it was held that by describing an application as one for ‘clarification’ or ‘modification’ though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for ‘clarification’, ‘modification’ or ‘recall’ if the application is in substance a clever move for review.”

10. More recently, another two-Judge Bench in Rashid Khan Pathan (Applicant) – In Re: Vijay Kurle (supra) held as follows:

“9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice.”

11. The attempt in the present miscellaneous application is clearly to seek a substantive modification of the judgment of this Court. Such an attempt is not permissible in a miscellaneous application. While Mr Mukul Rohatgi, learned senior counsel has relied upon the provisions of Order LV Rule 6 of the Supreme Court Rules 2013, what is contemplated therein is a saving of the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII in the Supreme Court Rules 2013. The Miscellaneous application is an abuse of the process. 12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”]”

46. The Hon’ble Supreme Court in the above said judgment emphasised on the fact that the Courts should act with due caution and care while adjudicating upon miscellaneous application or application for modification/ clarification of the order/ judgment. Moreover, the Courts shall endeavour to discourage such practice of the litigants and shall nip in the bud such frivolous applications by not entertaining them.
47. Now adverting to the issue at hand, this Court is of the view that upon the perusal of the impugned order, it is discernible that the fact that there was the settlement deed was in the knowledge of this Court. Therefore, the contention of the applicant that the said deed was not in knowledge of this Court is meritless.
48. Furthermore, during the proceedings the applicant had consented that the dispute between the parties is arbitrable in nature and the same can be referred to arbitration. Hence, the applicant had consented to the appointment of the Arbitrator by this Court.
49. In light of the above, this Court is of the view that the present application appears to be a belated thought of the applicant and an attempt to derail the arbitration proceedings.
50. This Court further observes that the issues with regard to the payment of damages as per clauses of the settlement deed are issues that may be decided by the learned Arbitral Tribunal. The applicant has failed to make out case for the intervention of this Court.
51. The instant application is devoid of any merits and thus, the same stands dismissed. Pending applications, if any, also stand disposed of.
52. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
OCTOBER 30, 2023
gs/db/ryp

I.A. 16356/2023 in O.M.P.(I) (COMM.) 30/2023 Page 1 of 24