Review Petition No. 149 of 2025 · Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 IN THE HIGH COURT OF ORISSA AT CUTTACK REVIEW PETITION No.149 of 2025 (In the matter of a petition under Section 114 read with Rules 1 and 2 of Order 47 of the Civil Procedure Code, 1908). M/s Hotel Sea Point Pvt. Ltd., Bhubaneswar …. Petitioner (s) -versus- M/s Blueline Resorts Pvt. Ltd., Bhubaneswar …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner (s) For Opposite Party (s) : : Mr. Surendra Routray, Adv. Mr. Avijit Pal. Adv. CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING:-18.11.2025 DATE OF JUDGMENT:-29.11.2025 Dr. Sanjeeb K Panigrahi, J. 1. In this Review Petition, the Petitioner seeks a direction from this Court to recall that portion of the order dated 11.04.2025 permitting continuation of arbitration after stamping, and to hold that the disputes be adjudicated exclusively in Civil Suit No. 462/2017 before the competent civil court. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: Page 1 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 (i) Two parallel civil suits between the same parties were instituted before the Puri Civil Court concerning disputes under a lease dated 01.05.2012: Civil Suit No. 598/2015 filed by the Opposite Party on 11.09.2015, and Civil Suit No. 462/2017 filed by the Review Petitioner on 21.06.2017. In C.S. 598/2015 the Review Petitioner filed a written statement on 20.09.2017, issues were framed, and the court directed evidence by affidavit, demonstrating active submission to the civil court’s jurisdiction by both sides. (ii) The lease agreement forming the foundation of the dispute is unstamped and unregistered; this defect was noticed judicially. The High Court in W.P.(C) No. 7893/2017 on 08.05.2017 directed impounding, and the Opposite Party itself pleaded in paras 32 and 40 of C.S. 598/2015 that arbitration was not maintainable for want of stamping and registration. Clause 19 allegedly put the stamp burden on the Opposite Party, which remained unpaid for years. (iii) While arbitration machinery had earlier been set in motion, the Review Petitioner by letter dated 28.07.2017 expressly informed the learned Arbitrator that both parties had waived arbitration since they had filed and were pursuing their respective civil suits. In parallel, this High Court, by orders dated 03.11.2017 and 09.04.2021 in ARBP- 39/2013, refused to extend arbitral time and directed parties to act strictly in accordance with law, which the Review Petitioner says reinforced continuation before the civil court. Page 2 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 (iv) The Opposite Party filed a Section 8 application on 20.11.2017 in C.S. 462/2017 seeking reference to arbitration even as its own earlier suit C.S. 598/2015 was pending; the Civil Judge (Sr. Division), Puri rejected that Section 8 application on 17.05.2018. No Section 37 challenge was filed and, according to the Review Petitioner, that rejection attained
Legal Reasoning
finality, affirming the civil court’s jurisdiction over the subject matter. (v) Subsequently, the Opposite Party withdrew its own suit C.S. 598/2015 on 05.12.2019 under Order XXIII Rule 1 CPC after the Review Petitioner had already filed written statement and the court had framed issues. Meanwhile, C.S. 462/2017 continues; on 06.05.2025 the Opposite Party orally sought impounding of the lease deed and the Review Petitioner consented, with an impounding application filed. The Opposite Party also pursued CRP No. 23/2023 and CRP No. 35/2023 arising from orders within C.S. 462/2017, which were dismissed by this High Court on 03.04.2023 and 03.04.2025 respectively. (vi) In W.P.(C) No. 32426/2022, by order dated 11.04.2025, this High Court quashed the Arbitrator’s order dated 01.08.2022 on the ground that it was founded on an unstamped and unregistered lease, but simultaneously allowed continuation of arbitration upon payment of stamp duty and penalty as assessed by the Collector under Section 42 of the Stamp Act. The Review Petitioner confines the present review to assailing only this relegation to arbitration. Page 3 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 (vii) The Review Petitioner alleges persistent suppression and concealment by the Opposite Party across fora: non-disclosure of the 08.05.2017 impounding order; its own anti-arbitration pleadings in C.S. 598/2015; the Review Petitioner’s written statement and continued civil participation; the pendency of C.S. 462/2017; and most critically, the rejection on 17.05.2018 of the Section 8 application. These events, the Review Petitioner says, were either not disclosed or were mischaracterized while seeking extensions or reliefs. (viii) The review is presented as within limitation and narrowly targeted to the “arbitration-after-stamping” direction, asserting that both parties had long since elected the civil forum, that the civil court’s Section 8 rejection stands final, and that C.S. 462/2017 remains pending before the Additional Civil Judge (Sr. Division), Puri. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. (i) Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: By filing and actively prosecuting C.S. No.598/2015 and C.S. No.462/2017, both parties submitted their “first statements on the substance of the dispute” within the meaning of Section 8(1) of the Arbitration and Conciliation Act, 1996, thereby waiving the right to arbitrate under Section 4; participation by way of written statement, issue-framing, and evidentiary directions amounts to clear election of the civil forum and abandonment of the arbitral route. Page 4 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 (ii) The Section 8 application filed by the Opposite Party in C.S. 462/2017 was rejected on 17.05.2018 by the Civil Judge (Sr. Division), Puri; absent any Section 37 challenge, that order has attained finality and conclusively affirms the civil court’s jurisdiction over the subject matter. Any later direction to proceed with arbitration collides with that finality and amounts to conferring jurisdiction on the arbitrator where it stands already negatived. (iii) The arbitrator lacked competence to ignore the judicial rejection under Section 8 and to proceed on an unstamped and unregistered lease; Kompetenz-Kompetenz under Section 16 cannot override a prior, binding adjudication under Sections 8 or 11. Consequently, the prior arbitral proceedings and orders are asserted to be coram non judice, rendering them non est and liable to be treated as nullities. (iv) The lease deed’s stamping and registration defects were not mere curable irregularities within arbitration because the foundational document was inadmissible until impounded and duty paid; further, the Opposite Party’s own pleadings repudiated arbitrability on this very ground. Permitting arbitration now, after years of non-payment despite opportunities, rewards dilatory conduct and undermines the civil court’s seisin. (v) The Opposite Party’s institution of C.S. 598/2015, subsequent pursuit of Section 8 in the Review Petitioner’s suit while its own suit was alive, and eventual unilateral withdrawal under Order XXIII Rule 1 are characterized as forum shopping and approbation–reprobation. Page 5 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 The Review Petitioner invokes estoppel, including Section 121 of the Bharatiya Sakshya Adhiniyam, 2023, to preclude the Opposite Party from shifting positions after inducing the Review Petitioner to litigate in the civil forum. (vi) Reviving or re-agitating claims abandoned by withdrawal of C.S. 598/2015 through arbitration offends the principles of constructive res judicata and the discipline of Order XXIII Rule 1 CPC. The High Court’s direction for arbitration, if read to permit such revival, inadvertently disregards settled Supreme Court authority extending these principles even to writs, and should therefore be corrected in review. (vii) The High Court’s order dated 11.04.2025 correctly quashed the Arbitrator’s order for relying on an unstamped and unregistered instrument but, by allowing arbitration upon stamping, inadvertently overlooked the parties’ waiver, the final rejection under Section 8 of the Act and the continuing pendency of C.S. 462/2017. This is projected as an error apparent on the face of the record warranting review under Section 114 read with Order XLVII Rule 1 CPC, without need for evidentiary reappraisal. (viii) Given the parties’ conscious election of the civil forum, the finality of the Section 8 rejection, allegations of suppression, and the subsisting seisin of the civil court over C.S. 462/2017 with impounding steps now underway, the Review Petitioner prays that relegation to arbitration be recalled and that adjudication proceed exclusively before the civil Page 6 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 court, preventing prejudice from further delay and foreclosing parallel or duplicative arbitral proceedings. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. The Learned Counsel for the Opposite Parties was conspicuously remained absent when the matter was listed on a few occasions. Hence, this Court deems it appropriate to proceed with the matter. IV. COURT’S REASONING AND ANALYSIS: 5. 6. Heard Learned Counsel for the parties and perused the documents placed before this Court. The present judgment is structured around seven distinct issues, namely: (1) the scope of review jurisdiction under Order XLVII Rule 1 CPC, (2) election of the civil forum and waiver of arbitration, (3) finality of the civil court’s order rejecting reference under Section 8 of the Arbitration and Conciliation Act, 1996, (4) the arbitrator’s jurisdiction vis-(cid:224)-vis prior judicial adjudication under the doctrine of Kompetenz-Kompetenz, (5) the effect of the unstamped and unregistered lease: curability of the defect and the consequences of prolonged delay, (6) the bar against revival of abandoned claims under Order XXIII Rule 1 CPC and the principle of constructive res judicata, and (7) the alleged suppression of material facts by the opposite party and the conduct of the parties. This Court shall examine each of these issues sequentially. Page 7 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 A. SCOPE OF REVIEW JURISDICTION UNDER ORDER XLVII RULE 1 CPC. 7. At the outset, it is necessary to delineate the limited scope of review jurisdiction. A review petition is not a disguised appeal and can only be entertained on grounds such as discovery of new evidence, an error apparent on the face of the record, or other analogous sufficient reasons. In other words, the error must be manifest and not one that requires elaborate argument to uncover. Re-appreciation of evidence or repetition of arguments on merits is impermissible in review. 8. This principle has been emphasized in multiple judicial precedents including Kamlesh Verma v. Mayawati1where it was held that a review lies only for a patent error which materially undermines the order’s soundness or causes a miscarriage of justice. The relevant excerpts are produced below: “16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: (A) When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason.” 9. Applying these principles, the present review is maintainable to the extent it points out a manifest error in the judgment dated 11.04.2025. The review petitioner does not seek a rehearing on merits, but correction of an oversight: namely, that this Court’s direction permitting continuation of the arbitration after stamp duty payment 1 (2013) 8 SCC 320. Page 8 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 overlooked crucial, undisputed facts and binding orders on record. These include the final rejection of a prior Section 8 application between the parties, and the parties’ long-standing election to submit to the civil court’s jurisdiction. Non-consideration of these material facts, which were part of the case history, is an error apparent on the face of the record. 10. It is well-settled that overlooking a binding judicial proceeding or a clear statutory bar constitutes an error warranting review. Moreover, if a party obtained the impugned order by suppressing or not disclosing material events (as is alleged here), the Court in review can remedy the resulting prejudice under the rubric of “any other sufficient reason,” that reason being analogous to correcting an apparent error or misrepresentation. 11. In this context, the review petitioner has demonstrated that certain material developments, notably the final refusal of arbitration by the civil court on 17.05.2018 and the continued pendency of Civil Suit No. 462/2017, were not brought to the Court’s attention when passing the order under review. These are not disputed facts requiring fresh evidence; they are part of the record of judicial proceedings between the parties. Their omission has a direct bearing on the correctness of relegating the parties to arbitration. 12. Therefore, this Court is satisfied that the review petition is within the narrow confines of Order XLVII Rule 1 CPC, as it highlights an apparent error and seeks to prevent a miscarriage of justice. This Page 9 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 Court, accordingly, proceeds to examine the merits in light of the true factual and legal position, mindful that our jurisdiction is only to correct the specific error pointed out without rearguing the entire case. B. ELECTION OF CIVIL FORUM AND WAIVER OF ARBITRATION. 13. On merits, the foremost consideration is whether the parties, by their own conduct, waived or abandoned the arbitral forum in favour of the civil court. Section 8(1) of the Arbitration and Conciliation Act, 1996 (as amended) is peremptory that a judicial authority “shall” refer the matter to arbitration only if the party seeking reference applies “not later than the date of submitting his first statement on the substance of the dispute”. 14. In other words, the defendant must invoke the arbitration clause before or at the time of filing the written statement or any other pleading on merits. If a party fails to do so and instead submits to the court’s jurisdiction by filing its statement on the dispute, the right to arbitrate is deemed waived. 15. The Supreme Court in the case of P. Anand Gajapathi Raju v. P.V.G. Raju2authoritatively laid down that reference to arbitration is obligatory only when the application is made prior to the first substantive defence in the lawsuit. Once a party has filed a written statement (or equivalent reply on merits) without insisting on 2AIR 2000 SUPREME COURT 1886. Page 10 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 arbitration, the court proceedings can continue and nothing remains to be decided under the arbitration agreement in that action. The relevant excerpts are produced below: “A further question arises whether the Court is in these circumstances obliged to refer the parties to arbitration and if so with what effect. In the matter before us, the arbitration agreement covers all the disputes between the parties in the proceedings before us and even more than that. As already noted, the arbitration agreement satisfies the requirements of Section 7 of the new Act. The language of Section 8 is peremptory. It is, therefore, obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement. Nothing remains to be decided in the original action or the appeal arising therefrom. There is no question of stay of the proceedings till the arbitration proceedings conclude and the Award becomes final in terms of the provisions of the new Act.” 16. The flipside is that a belated invocation of arbitration, after engaging with the merits in court, is not allowed, as the party’s conduct manifests an unequivocal intention to proceed with the suit and to abandon the benefit of arbitration agreement. This principle was delineated by the Supreme Court in the case of Food Corporation of India and Anr. v. Yadav Engineer and Contractor3wherein it held as follows: “Each and every step taken in the proceedings cannot come in the way of the party seeking to enforce the arbitration agreement by obtaining stay of proceedings but the step taken by the party must be such step as would clearly and unmistakably indicate an intention on the part of such party 31983 SCR (1) 95. Page 11 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 to give up the benefit of arbitration agreement and to acquiesce in the proceedings commenced against the party and to get the dispute resolved by the court. A step taken in the suit which would disentitle the party from obtaining stay of proceeding must be such step as would display an unequivocal intention to proceed with the suit and to abandon the benefit of the arbitration agreement or the right to get the dispute resolved by arbitration.” 17. In the present case, both parties unequivocally elected to have their dispute decided in civil suits, thereby waiving any arbitral reference. The undisputed chronology reveals that the opposite party itself instituted Civil Suit No. 598/2015 in the Puri Civil Court, claiming relief under the very same lease deed. The review petitioner (as defendant in that suit) filed a comprehensive written statement on 20.09.2017, resisting the claims on merits. Issues were framed and the civil court even directed the parties to lead evidence on affidavit, which steps both sides complied with. 18. All of this amounted to each party submitting its first statement on the substance of the dispute in the civil forum, without ever pressing for arbitration at that stage. In fact, the opposite party’s own plaint in C.S. 598/2015 did not reserve any right to arbitrate, to the contrary, it pursued the suit as the chosen remedy. Likewise, when the review petitioner later filed a separate suit (C.S. 462/2017) over the same lease dispute, the opposite party initially participated in that suit too (by seeking extensions, etc.), and only on 20.11.2017, several months into the litigation, did it belatedly raise an application under Section 8 of the Act in C.S. 462/2017. By that time, however, significant steps had Page 12 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 already been taken in court by both sides. It is telling that even in C.S. 598/2015 (the opposite party’s own suit), the opposite party itself pleaded in the plaint (para 32 and 40) that arbitration was not maintainable due to the lease being unstamped and unregistered. Such a pleading in a first action is a clear representation that the dispute should be decided by the court, the opposite party cannot approbate and reprobate by later seeking arbitration on the same dispute after having availed the court’s jurisdiction to its advantage. 19. Given these facts, the legal effect is that the arbitration agreement stood waived by conduct. Section 4 of the Act stipulates that a party who proceeds with litigation without insisting on arbitration, despite knowledge of the arbitration clause, is deemed to have waived the right to arbitrate. Indian courts have consistently held that filing a written statement on the merits, or otherwise submitting to the court’s jurisdiction, constitutes a waiver of the arbitration clause. 20. In fact, the Delhi High Court in the case of SSIPL Lifestyle Pvt. Ltd. v. Vama Apparels (India) Pvt. Ltd.4 observed that an arbitration clause can be waived in 2 ways: (1) by filing the statement of defence in the suit and (2) by undue delay in seeking referral i.e. not filing the Section 8 application before or by the time the defence is submitted. 21. Both these circumstances squarely apply here. The opposite party not only filed a plaint (in one suit) and engaged in that suit until issues were framed, but also missed the window in the review petitioner’s 4CS (COMM)No. 735 of 2018. Page 13 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 suit by attempting Section 8 only after substantial participation. Accordingly, by the combined operation of Section 8(1) and Section 4 of the Act, the right to arbitrate was forfeited. C. FINALITY OF CIVIL COURT’S ORDER REJECTING ARBITRATION (SECTION 8). 22. Reinforcing the above conclusion is the fact that the Civil Judge (Senior Division), Puri has already passed a judicial order on 17.05.2018 rejecting the opposite party’s Section 8 application in C.S. 462/2017. That order categorically declined to refer the parties to arbitration. It is not contested that the opposite party chose not to challenge the rejection by way of a Section 37 appeal. Consequently, the order attained finality in law. The legal implication is that the competent civil court has conclusively affirmed its own jurisdiction over the subject matter, after considering and negating the plea of arbitration. Once this determination has attained finality (no appeal having been filed within the prescribed time), it binds the parties and governs subsequent proceedings. Any direction by this Court to nonetheless revive or continue arbitration would directly collide with the binding decision of the civil court. It would, in effect, amount to sitting in appeal over the unchallenged order of 17.05.2018 or conferring jurisdiction on the arbitrator after the same was judicially denied. Such an outcome is untenable in law and would violate the principle of res judicata/issue-estoppel. Page 14 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 23. It is also noteworthy that even this High Court, in earlier proceedings between these same parties, appeared to acknowledge the primacy of the court process. By orders dated 03.11.2017 and 09.04.2021 in ARBP No. 39/2013 (an earlier arbitration-related petition), this Court refused to extend the arbitral time and directed the parties “to act strictly in accordance with law”. The review petitioner understood this as the Court tacitly recognizing that the disputes should continue in the civil court (which was already seized of them) rather than be resuscitated in arbitration. While the interpretation of those orders may be debatable, the fact remains that after April 2021, neither party was pursuing arbitration, the opposite party had not taken any steps to revive the arbitrator’s mandate at that time. Instead, both sides focused on the ongoing civil litigation. All these factors cement the position that the civil court’s jurisdiction had been irrevocably elected and affirmed. D. ARBITRATOR’S JURISDICTION VS. PRIOR COURT ADJUDICATION (KOMPETENZ-KOMPETENZ). 24. The opposite party’s attempt to continue with arbitration despite the above circumstances also raises an important jurisdictional issue. It is argued by the review petitioner that the arbitral tribunal lacked competence to override or ignore the civil court’s binding decision rejecting the reference to arbitration. We find considerable merit in this submission. While Section 16 of the 1996 Act embodies the principle of “Kompetenz-Kompetenz” (allowing the arbitrator to rule on Page 15 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 his own jurisdiction), that principle cannot be stretched to confer upon an arbitrator the power to sit in appeal over, or neglect, a prior judicial determination on arbitrability between the same parties. Kompetenz- Kompetenz operates primarily in the first instance, where no court has decided the issue, to allow the tribunal to consider objections to its jurisdiction. But once a competent court has already decided that a dispute is not referable to arbitration (as in the present case, via the Section 8 order), that decision is binding unless overturned by a higher court. The arbitrator cannot resurrect the arbitration by purporting to re-decide the very question of arbitrability that a court of law has settled. 25. The Supreme Court has underscored that certain findings at the reference stage are not open to re-litigation before the arbitrator. In S.B.P. Co. v. Patel Engineering Ltd.5, a seven-judge bench held that the issue of existence and validity of the arbitration agreement, when decided by the court in a Section 11 petition, is binding on the arbitral tribunal which cannot re-examine those findings under Section 16. By parity of reasoning, an order under Section 8 (especially one that has attained finality) binds the parties and the arbitrator cannot ignore it under the guise of Kompetenz-Kompetenz. In order to do so would be to countenance conflicting jurisdictions, with the arbitrator effectively undoing a judicial order, an impermissible scenario. In the present case, the civil court’s order of 17.05.2018 implicitly (if not 5(2005) 8 SCC 618. Page 16 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 expressly) held either that no valid arbitration agreement existed/applicable (perhaps due to the stamping issue or waiver) or that the right to arbitrate was lost by submission to the court. 26. It is clear that the findings strike at the arbitrator’s jurisdiction. The arbitrator could not simply proceed as if that court order did not exist. Any such proceedings before the arbitrator were coram non judice, without jurisdiction, and any resultant orders would be nullities in the
Decision
eyes of law. In fact, this Court itself, in the writ petition (W.P.(C) No. 32426 of 2022), recognized one aspect of the arbitrator’s lack of jurisdiction by quashing the arbitrator’s order dated 01.08.2022 on the ground that it relied on an inadmissible (unstamped, unregistered) lease deed. Thus, the Court intervened upon finding a “patent illegality” in the arbitrator’s decision, which is one of the limited grounds justifying interference even before an award. 27. At this juncture, it is relevant to address the opposite party’s contention that orders of an arbitral tribunal are not amenable to writ jurisdiction and that the High Court should exercise extreme restraint under Articles 226/227 in matters governed by the Arbitration Act. There is no quarrel with the general principle invoked – indeed, Section 5 of the 1996 Act mandates minimal judicial intervention, and the Supreme Court in Deep Industries Ltd. v. ONGC Ltd.6 has cautioned that the High Courts’ supervisory jurisdiction should be used sparingly in arbitral cases. Routine or second bite challenges 6AIRONLINE 2019 SC 1958. Page 17 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 through writ petitions are discouraged, especially when statutory remedies (like Section 34/37) are available. Routine or second bite challenges through writ petitions are discouraged, especially when statutory remedies (like Section 34/37) are available. However, the same authorities also clarify that Articles 226/227 remain available in exceptional situations, such as when the tribunal has acted without jurisdiction or in bad faith, or where there is a gross patent error of law that strikes at the root of the matter. The relevant excerpts are produced below: “This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.” into account taking 28. The constitutional powers cannot be nullified by Section 5, and a clear injustice is not left remediless. In Deep Industries (Supra)for instance, the Supreme Court acknowledged that a petition under Article 227 Page 18 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 could be maintained to correct jurisdictional errors, albeit with circumspection. 29. Here, as already discussed, the arbitral proceedings suffered from multiple jurisdictional infirmities: the arbitrator was entertaining a dispute on the basis of a document that was legally inadmissible and on issues that the civil court had reserved for itself. These are precisely the kind of “patent lack of jurisdiction” scenarios where writ intervention is justified. Moreover, the posture of the present case is a step removed, the High Court has already exercised writ jurisdiction to quash the arbitrator’s order, and this Courtis now in review of its own order. In doing so, this Courtis not trenching upon the arbitral tribunal’s domain; rather, itis ensuring that our earlier direction conforms to the law and facts that ought to have been considered. The review petitioner does not ask the Court to decide the merits of the dispute, only to honour the prior court decisions and the parties’ election of forum. This Court finds this request not only permissible but compelled by law, to prevent an arbitral proceeding from being used in a manner that subverts binding judicial orders and the rights accrued thereunder. E. EFFECT OF UNSTAMPED/UNREGISTERED LEASE: CURABILITY VS. CONSEQUENCES OF DELAY. 30. It is undisputed that the lease deed dated 01.05.2012, which contains the arbitration clause (Clause 19), was neither stamped nor registered at the time of its execution. This defect has significant legal Page 19 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 consequences. Under the Indian Stamp Act, an instrument that is not duly stamped is inadmissible in evidence and cannot be acted upon by any authority until the requisite duty and penalty are paid (Sections 35 and 38 of the Stamp Act). The arbitration clause in such an instrument does not legally “exist” for the purposes of appointing an arbitrator until the instrument is impounded and stamped. 31. The Supreme Court in Garware Wall Ropes Ltd. v. Coastal Marine Constructions an Engg. Ltd.7firmly held that a court must ensure stamping before referring a matter to arbitration, because an arbitration agreement in an unstamped contract is unenforceable in law. In fact, it was explicitly observed that an arbitration clause in an unstamped agreement does not exist in law until the stamp duty is paid, since an agreement not enforceable by law (for want of stamp) cannot give rise to any valid arbitration. The relevant excerpts are produced below: “A close look at Section 11(6A) would show that when the Supreme Court or the High Court considers an application under Section 11(4) to 11(6), and comes across an arbitration clause in an agreement or conveyance which is unstamped, it is enjoined by the provisions of the Indian Stamp Act to first impound the agreement or conveyance and see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. It is important to remember that the Indian Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such 7AIR 2019 SUPREME COURT 2053. Page 20 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 agreement or conveyance so as to give it an independent existence, as has been contended for by the respondent.” Applying this principle, when the opposite party invoked arbitration 32. back in 2013 (by appointing an arbitrator through ARBP No. 39/2013), that arbitration was premature and defective in law, because the lease deed had not been stamped or registered. It is precisely for this reason that in a parallel proceeding, W.P.(C) No. 7893/2017, this High Court on 08.05.2017 directed the lease deed to be impounded for stamp duty assessment. Tellingly, the opposite party itself had taken the position in its pleadings (para 32 and 40 of the plaint in C.S. 598/2015) that the arbitration clause could not be acted upon due to the document’s unstamped and unregistered nature. This stance is an admission of the legal bar at that time. The arbitrator’s order of 01.08.2022 (which presumably proceeded to decide issues without the stamp having been paid) was therefore in clear breach of the Stamp Act, and was rightly quashed by this Court on 11.04.2025 as coram non judice. The arbitration could not validly continue on the strength of an inadmissible document. 33. Subsequently, in compliance with this Court’s directions in the writ judgment, the Collector has undertaken the statutory assessment of stamp duty and penalty under Section 40 of the Indian Stamp Act. The opposite party has thereafter taken steps to tender the assessed amount, as reflected in the impounding application dated 06.05.2025. In law, upon payment of the deficit duty and penalty, the bar on admissibility attaching to the instrument stands lifted, and the Page 21 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 document becomes capable of being acted upon for the purposes of adjudication. 34. However, the issue before this Court is not confined to the technical admissibility of the lease document. The core question is whether, after the passage of time and in light of the parties’ conduct, the dispute can now be diverted back to arbitration at all. The fact that the stamp defect is curable does not, by itself, mandate a referral to arbitration, particularly in the face of supervening circumstances of waiver, submission to civil jurisdiction, and prior adjudication already discussed. 35. It is undisputed that the opposite party delayed the payment of stamp duty for nearly eight years, from 2017 until 2025, despite being fully aware of the defect. This lapse is not a mere oversight but a material equitable factor. It indicates that the opposite party treated the arbitration agreement as inoperative for a prolonged period and only sought to revive it when it became advantageous to do so. A party cannot be allowed to derive benefit from its own default. 36. Further, Clause 19 of the lease places the burden of stamping upon the lessee, i.e., the opposite party. If arbitration was truly intended, the opposite party ought to have ensured proper stamping at the outset. Instead, it used the unstamped status of the document first as a weapon to oppose arbitration in court and prolong civil litigation and later as a shield to assail the arbitrator’s order. Such inconsistent and dilatory conduct cannot be rewarded. Allowing a second attempt at Page 22 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 arbitration at this late stage, when the civil suit has already progressed, would undermine procedural discipline and incentivize forum manipulation. 37. Our legal system frowns upon parties taking contrary stands to suit their convenience, the doctrine of approbation and reprobation would estopthe opposite party from now asserting the arbitration clause, having earlier renounced it. Section 121 of the new BharatiyaSakshya Adhiniyam, 2023 (Indian Evidence Act) encapsulates the principle of estoppel: if a person by their declaration or conduct has caused another to believe in a certain position and act on it, that person “cannot later deny the truth of that matter in any legal proceeding involving the same parties.” F. BAR AGAINST REVIVING ABANDONED CLAIMS: ORDER XXIII RULE 1 AND CONSTRUCTIVE RES JUDICATA. 38. A further material circumstance is the withdrawal of Civil Suit No. 598/2015 by the opposite party. On 05.12.2019, the opposite party unilaterally sought to withdraw that suit under Order XXIII Rule 1 of the Code of Civil Procedure, and there is nothing on record to indicate that liberty to institute a fresh suit on the same cause of action was either sought or granted. The learned Civil Judge accordingly permitted the withdrawal and dismissed the suit as withdrawn. 39. By the express mandate of Order XXIII Rule 1(3) CPC, once a suit is withdrawn without liberty, the plaintiff is barred from initiating any fresh proceeding founded on the same cause of action. The underlying Page 23 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 rationale is to prevent abuse of process and fragmented litigation: a party who abandons its claim cannot reserve it for a second attempt except with the court’s permission, which is granted only in exceptional circumstances. 40. The disputes raised in C.S. 598/2015 are substantially identical to those which the opposite party now seeks to press by way of arbitration. To pursue them in a different forum after voluntarily withdrawing the suit amounts to an attempt at re-agitation of abandoned claims. Such a course is impermissible, both under the CPC’s prohibition against claim revival after withdrawal and on the broader principle of constructive res judicata. 41. The Supreme Court has recently extended the Order XXIII Rule 1 principle to arbitration petitions as well. In M/s HPCL Bio-Fuels Ltd. v. M/s Shahaju Bhanudas Bhad8, the Court held that if a party unconditionally withdraws an application for appointment of arbitrator (Section 11) or abandons an arbitration proceeding without reserving rights, it amounts to abandoning the arbitration itself, barring a subsequent attempt on the same cause. The relevant excerpts are produced below: “If that is so, the unconditional withdrawal of a Section 11(6) petition amounts to abandoning not only the formal prayer for appointing an arbitrator but also the substantive prayer for commencing the actual arbitration proceedings. It amounts to abandoning the arbitration itself. It results in abandonment of the notional ‘arbitration proceeding’ that 82024 INSC 851. Page 24 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 had commenced by virtue of Section 21 and thus amounts to an abandonment of a significant nature. Therefore, it is all the more important to import and apply the principles underlying Order 23 Rule 1 of the CPC to abandonment of applications under Section 11(6).” 42. The underlying rationale is that a cause of action cannot be pursued in multiple innings once a party voluntarily abandons the first attempt. In the abovementioned precedent, the Supreme Court applied the logic of Order XXIII Rule 1 CPC to arbitral proceedings and held that a second request for arbitration on the same disputes is barred where the first has been withdrawn without liberty. The Court carved out a narrow exception only for genuinely new disputes arising after the earlier proceedings, an exception that is not attracted here, since the dispute continues to arise from the same lease transaction of 2012. 43. Although the said judgment arose in the context of a Section 11 petition, its reasoning squarely applies to the present case. The opposite party first instituted a civil suit and subsequently abandoned it. It had also initiated arbitral proceedings earlier (in ARBP No. 39/2013) and allowed them to lapse, thereafter submitting to the civil court’s jurisdiction. These steps, taken cumulatively, signify an unequivocal abandonment of the arbitral forum. In such circumstances, the bar under Order XXIII operates with full force, preventing a party from re-opening the same cause of action in a different forum after having relinquished it once. Page 25 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 44. Even in the writ jurisdiction, the Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior9 held that allowing a second petition after the first has been withdrawn without liberty would encourage forum-shopping and bench hunting. The Court extended the principle underlying Order XXIII to writ proceedings on grounds of public policy, and held that a petitioner who withdraws a writ petition without permission should be deemed to have abandoned that remedy in relation to the same cause of action. The relevant excerpts are produced below: “The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao’s case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India 91987 AIR 88. Page 26 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.” 45. By parity of reasoning, the opposite party here, having abandoned its suit, cannot be allowed to pursue the same cause in a different forum (arbitration) as that would defeat the policy against repetitive litigation. The door to an arbitral adjudication of the lease dispute was effectively shut by the opposite party’s own procedural decisions in the past. G. BAR AGAINST REVIVING ABANDONED CLAIMS: ORDER XXIII RULE 1 AND CONSTRUCTIVE RES JUDICATA. 46. The review petitioner has alleged that the opposite party consistently failed to disclose material facts across various proceedings, including the rejection of the Section 8 application, the pendency of C.S. 462/2017, and its own earlier pleadings questioning arbitrability. Without entering into findings of mala fides in these review proceedings, it is sufficient to note that the record reflects a pattern of shifting positions depending on the forum: before the civil court, the opposite party challenged the arbitration clause on the ground of insufficient stamping, whereas in arbitral proceedings and the related writ, it downplayed the extent of its participation in the civil forum. Significant orders, including that dated 17.05.2018 rejecting the Section 8 application, were apparently not brought to the notice of the arbitrator or to the learned Single Judge when extensions were sought. Page 27 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 47. This conduct reinforces the view that equitable considerations do not favour the opposite party’s request to change forums at this stage. It is settled law that a litigant must approach the court with clean hands and must disclose all material facts. Non-disclosure of an adverse order, such as the rejection under Section 8, is a serious omission. Had that order been disclosed, the outcome of the writ petition permitting continuation of arbitration may have been different. Now that the complete factual matrix is before this Court in review, we are duty- bound to give effect to its legal consequences, so that no party gains an undue advantage by withholding material information. V. CONCLUSION: 48. For the reasons set out above, this Court is satisfied that the portion of the judgment dated 11.04.2025 passed in W.P.(C) No. 32426/2022, which permitted continuation of arbitration upon payment of stamp duty and penalty, suffers from an error apparent on the face of the record. That direction was issued without consideration of material facts and binding orders which, had they been brought to notice, would have led to a different conclusion. The parties had already elected the civil forum, and such election stood judicially affirmed when the Civil Judge (Sr. Division), Puri rejected the Section 8 application on 17.05.2018. That rejection was never challenged under Section 37 of the Arbitration and Conciliation Act, 1996 and has therefore attained finality. Permitting arbitration at this stage would run contrary to that judicial determination, disregard the bar against Page 28 of 29 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Dec-2025 18:50:39 re-agitating abandoned claims, and disturb the settled course of the proceedings. In these circumstances, the disputes arising from the lease deed fall to be adjudicated to their logical end in the pending civil suit, C.S. 462/2017, where evidence is underway, rather than being bifurcated between parallel fora. 49. The Review Petition is, accordingly, allowed. The judgment dated 11.04.2025 is reviewed to the limited extent that the direction permitting continuation of arbitral proceedings after stamping is recalled and set aside. As a consequence, the arbitration initiated in ARBP No.39/2013, along with all proceedings and orders of the learned arbitrator, thereafter, shall stand terminated as non est in law. The disputes between the parties shall be adjudicated in Civil Suit No. 462/2017 pending before the Court of the Additional Civil Judge (Senior Division), Puri, which has rightly assumed jurisdiction. The parties are directed to extend full cooperation for expeditious disposal of the said suit, and no parallel proceedings shall be pursued with respect to the subject matter. 50. Interim order, if any, passed earlier stands vacated. (Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 29th November, 2025/ Page 29 of 29