I.T.D.C v. Balwant Singh Virdee

order as to costs."

¶14Thus, from the perusal of the award passed by the arbitrator after remit and the order passed by the learned Single Judge on earlier occasion, it is quite vivid that the interest component was not paid from 1993 but from the date of the award upto the date of the payment for the post award period. The post award period has

to be understood in the context in which the arbitrator has awarded the interest. We have already reproduced the said paragraph from the award. The arbitrator has mentioned that amount of Rs.6,61,461.31 is to be paid to the respondent within four weeks from the "date of this award" with the further stipulation that in case the same is not paid within four weeks, future interest @ 15% simple interest shall be payable till the date of payment. The terms used in the award and the grant of four weeks have their own signification.

¶15The learned Single Judge made the said award Rule of Court. Thus, he accepted the award in entirety. The question that emerges for consideration is whether there is any justification to modify the decree on the ground that for the purpose of calculating interest, the date should have been 15.12.1993. The arbitrator on the earlier occasion, while passing claim on the earlier award, had specifically not awarded interest in respect of the amount and rightly so as the same was not quantified. He has clarified the position in the second award which was accepted by the learned

Single Judge. No objection was filed by the contractor. On the contrary, there was an agreed position.

Under these circumstances, the question that emerges for consideration is whether a petition for rectification / modification of the decree under Section 152 of the Code of Civil Procedure, 1908 could have entertained by the learned Single Judge on the ground that there was no justification to deny the interest component in view of the decision rendered by this Court in M/s Swadeshi Karyalaya (supra). The decision in M/s Swadeshi Karyalaya (supra) dealt with a situation where the question arose after the award was remitted for reconsideration by the arbitrator and the arbitrator submitted the award after reconsideration. Thereafter, the Court was dealing with the objections raised before it. In that factual backdrop, this Court held that the interest from the date of the original award deserved to be calculated. In our considered opinion, there cannot be any quarrel over the said legal proposition. But, in the case at hand, as is perceived, after the award was made Rule of Court by the learned Single Judge a

decree was drawn up in accordance with the terms of the award. What is sought to be modified is the decree under Section 152 of the Code. Section 152 of the Code of Civil Procedure, 1908 reads as follows: "152. Amendment of judgments, decrees or orders. – Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be correct by the Court either of its own motion or on the application of any of the parties."

¶16In this context, we may refer with profit to a passage from Shyamal Bihari Mishra and others v. Girish Narain Missir and another, AIR 1962 Patna 116 wherein it has been held thus: "17. It is a cardinal principle of the law of procedure that the decree should agree with the judgment. Where, therefore, its decree is at variance with its judgment, and, when the decree does not correctly express what was really decided and intended by the Court, it has an inherent power to vary or amend its own decree or order so as to carry out its own meaning and intention. In doing so, it does nothing but exercise a power to correct a mistake of its ministerial officer by whom the decree or order was drawn up. It only insists

that the decree drawn up in the office of the Court should correctly express the judgment given by the Court. In the words of Lindley, L. J. in re Swire; Mellor v. Swire (1885) 3 Ch. D. 239 at page 246: "there is no such magic in passing and entering an order as to deprive the court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right but must go to the House of Lords by way of appeal."

X

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¶23Section 152 however, permits clerical or arithmetical mistakes in judgments decrees or orders to be corrected at any time. Section 152, therefore, deals with one of the two cases, stated above, in which only the Court can amend or vary a decree or order after it is drawn up and signed. Under this section, where there has been a clerical or arithmetical mistake, or an error arising from an accidental slip or omission in a judgment, decree or order, it may, at any time, be corrected by the Court either on its own motion or on the application of any of the parties. The amendment petition under Section 152 of the Code is not a continuation of the suit or proceedings therein. It is in the nature of an independent proceeding, though connected with the order of which the amendment is

sought. The jurisdiction of the Court to amend its decree or order on the ground that by inadvertence, because of any clerical mistake, the decree or order as drawn up does not give effect to the intention of the Court as expressed in its judgment is undoubted. In order that the manifest rights of a party, which were intended to be effected by its decision may not be defeated, the Court always exercises its right to amend its decree or order, if as drawn up, it is not in conformity with its judgment due to a clerical or arithmetical mistake in it." [Emphasis supplied]

¶17In Century Textiles Industries Limited v. Deepak Jain and another, (2009) 5 SCC 634, the Apex Court has ruled thus: "22. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree-holder was to seek amendment of the decree under Section 152 CPC, as was canvassed before us by learned counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be reconsideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e. an act of court shall prejudice no man. In our

judgment, the issue requiring adjudication by the executing court did not call for and was clearly beyond the scope of Section 152 CPC." [Emphasis added]

¶18In the case at hand, as is evincible, the decree is not at variance with the judgment and, therefore, we have no agitation in holding that the learned Single Judge has fallen into error by directing modification / rectification of the decree under Section 152 of the Code of Civil Procedure, 1908.

¶19Consequently, the appeal is allowed and the order passed by the learned Single Judge is set aside. There shall be no order as to costs.

CHIEF JUSTICE

MARCH 10, 2011

SANJIV KHANNA, J. pk,dk

* THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 3rd March, 2011 % Judgment delivered on: 10th March, 2011 + LPA No. 2304/2006 I.T.D.C. ..... Appellant Through: Mr. V.K. Rao, Sr. Advocate with Mr. Karunesh Tandon, Adv. versus BALLWANT SINGH VIRDEE ..... Respondent Through: Mr. Rajesh Yadav, Ms.Ruchira, Advocates CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present intra-court appeal is directed against the order dated October 6, 2006 passed by the learned Single Judge in Execution Petition No.70/2003 arising out of C.S. No. 1494/1993. 2. At the very outset, we may note with profit that the present appeal was initially registered as EFA (OS) No.23/2006 and thereafter, on 5.1.2006, recording the submission of the learned counsel for the appellant that the same should have been registered as an LPA, it was directed that it should be registered as an LPA. The issue of maintainability of the appeal was kept open. In the course of hearing of the appeal, the learned counsel for the parties fairly conceded that the appeal be decided on merits without adverting to the issue whether EFA would lie or an LPA would lie. Accordingly, we proceed to deal with the merits of the appeal keeping the issue of maintainability open. 3. The facts which are essential to be stated for adjudication of the appeal are that the respondent was awarded the work of supply, installation, testing and commission of electrical system at Hotel Ashok, Bhopal (MP) by the India Tourism Development Corporation (ITDC) vide Work Order dated 11.10.1985. As disputes arose between the parties, the matter was referred for arbitration. The learned arbitrator passed an award on 26.5.1993 and sent the proceedings to this Court which was registered as Suit No. 1494/1993. The notice of filing of the award was issued to the parties and in response to the said notice, the ITDC filed objections resisting the award in relation to the allowing of the contractor"s claims 1(a) and 1(b). This Court, vide order dated 9.1.1998, upheld the award in all aspects except the award passed pertaining to claim item Nos. 1(a) and 1(b). It was held that the arbitrator had not quantified the amount awarded to the contractor in respect of claim No. 1(a) and, therefore, to that extent, the award was indefinite and incapable of execution. As regards claim No.1(b), the contractor was awarded a sum of Rs.3 lakhs. The learned Single Judge scanning the anatomy of Clause 18 of the agreement, which stipulated that if the amount awarded was Rs.50,000/- or more, came to hold that the arbitrator was under obligation to give reasons, but the arbitrator had ascribed no reasons 4. In view of the aforesaid analysis, the matter was remitted to the arbitrator only in respect of the aforesaid two claims. 5. After the award was passed, the appellant filed its objections but the same were rejected and the award was made Rule of Court vide order dated 27.1.2003. Thereafter, the respondent filed execution petition for execution of the award dated 10.5.1998 and in pursuance of the decree, the appellant paid the entire amount to the respondent and satisfied the decree. After the amount was paid, the respondent filed an application under Section 152 of the Code of Civil Procedure stating that at the time of preparation of the decree sheet, on account of accidental slip, certain clerical mistake had crept-in in the decree sheet and due to such a ministerial mistake, the date of filing of the award was mentioned 20th May, 1998 in place of 15th December, 1993 and, therefore, the said mistake should be rectified and he should be entitled to the interest from the first date, i.e., 15.12.1993. 6. After the remit, the learned arbitrator considered the matter and passed an award dated 10.5.1998. In