Sunil Thomas, J.:— This review petition is filed by the original petitioner seeking a review of the judgment of this Court dated 8th September 2015, by which the original petition was dismissed. The original petition was filed challenging the order in I.A No. 486/2009 in O.S No. 9/2009 of the Principal Sub Court, Kochi, by which the court had held that the suit was not liable to be referred for arbitration under Section 8 of the Arbitration and Conciliation Act 1996. This finding of the court below was confirmed in the original petition and consequently the original petition was dismissed.
2. The review petition is laid mainly on two grounds. Firstly, that the factual basis for the finding of this Court that the transportation involved was not a Multimodal Transportation is wrong. Secondly, in O.P No. 244/2014, initiated at the instance of the petitioner herein, the Hon'ble High Court of Madras by its judgment had appointed an arbitrator invoking the provisions of the Arbitration and Conciliation Act even before this Court had pronounced the Judgment. On the basis of that judgment, it was contended that the arbitration clause was applicable in the present case.
3. According to the review petitioner, the transportation of goods involved in the present case was from Allapuzha to to Bandar Abbas in Iran. On facts, this Court held that transportation in the present case by Ext.P3 transport contract involved only one mode of transport by ship from Cochin to Bandar Abbas. The petitioner herein, relying on paragraph 7 of the written statement filed in the suit, pointed out that the consignment was brought from Allapuzha to Cochin Port Trust by road and was loaded on the vessel. Thereafter, the consignment was taken to Colombo from where it was transshipped to Bandar Abbas in Iran. During the transshipment, the container was unloaded and taken to the yard at Colombo by road and thereafter re-loaded on to the truck and then moved into the nominated vessel. Hence, it was pleaded that it involved two modes of transport.
4. Admittedly the transshipment at Colombo and movement by road were not disclosed at the time of consideration of original petition. According to the learned counsel for the petitioner, the above facts were not disclosed at the time of hearing of the original petition since the necessity of filing the written statement had not arisen at that point of time. The apprehension of the petitioner herein is that the finding of this Court that there was only one mode of transport involved is sustained, it would cause great prejudice to the petitioner herein in future.
5. It is pertinent to note that the finding of this Court on the basis of the transport document was essentially on the basis of the available materials in which, though it was claimed that transport was from Allapuzha to Iran, the available materials only disclosed the transport from Allapuzha to Cochin by road and thereafter by ship. There was no material to hold that the transport from Allapuzha to Cochin by road was undertaken by the petitioner herein pursuant to the transport agreement so as to bring it within the ambit of multimodal transport. Further, the petitioner herein pursuant to the transport agreement, who was expected to submit all the materials facts in relation to the contention, had not disclosed that there was a transshipment at Colombo. This is a new fact disclosed for the first time in the review petition only. Hence, the finding of this Court on the multimodal contract was essentially on the basis of the available materials and that it was only for a limited purpose of deciding the preliminary question whether the multimodal Transportation of Goods Act would apply and consequently whether an arbitration clause can be invoked. However, it is made clear that this will not prelude the petitioner herein from raising the question of facts in any other forum.
6. The second limb of the argument of the learned counsel for the petitioner was based on Annexure A2 which shows that the Hon'ble Chief Justice of Madras High Court by order in O.P No. 244/2012 had appointed an arbitrator. According to the learned counsel for the petitioner herein, this showed that the arbitration clause would be applicable in this case also and consequently the suit is not maintainable. It is pertinent to note that the above order is dated 9/1/2015 wherein the pendency of O.P No. 522/2013 is referred to. However, the order in the present original petition is dated 8 September, 2015, and at the time of hearing, the facts about the order in O.P No. 244/2012 was not brought to the notice of this Court.
7. Though it may appear that if both the grounds now raised had been brought to the notice of this Court at the appropriate stage, the fate of the original petition would have been different, the question is whether it amounts to ground for review under Section 114 of CPC. Evidently, both the new facts now raised were within the knowledge of the petitioner. If that was not properly conveyed to the counsel at the relevant time, as is clear from the reasons stated in the application to condone the delay, that will not arm the petitioner herein with a ground for review. Evidently, it was a fact which could have been brought to the notice of this Court at the time of hearing, had the petitioner applied due diligence. Hence, Section 114 is not attracted in this case.
8. In the light of the above findings, the review petition is not legally sustainable and is liable to be dismissed. The review petition is accordingly dismissed.