Rani Parvati Devi vs Turner Morrison Ltd.
2009 Latest Caselaw 4183 Del

                  * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of Reserve : 3rd September, 2009
                                                           Date of Order: October 15, 2009

R.P. No. 160/2009 in CS(OS) No. 1650/2007
%                                                                           15.10.2009


         Rani Parvati Devi                                           ... Petitioner
                                     Through: Ms. Shyamlaha Pappu, Sr. Advocate with
                                     Mr. Krishna Moorthy & Mr. K.K.Singh, Advocates


                  Versus


         Turner Morrison Ltd.                       ... Respondents
                          Through: Mr. Lalit Gupta, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

ORDER

1. This application has been made by the applicants (defendants No.1 & 2)

for review of order dated 6th March, 2009 whereby it is stated by the applicants that para

03 of the order passed by this Court was contrary to the facts as reflected by the

pleadings of the parties. It is stated that this Court in para 03 of the order observed that

as per defendants, on the construction of building, an amount of Rs.6.9 crore was spent

by the defendants, whereas this was the plea of the plaintiff that an amount of Rs.6.9

crore was spent on the building by the defendants and it was not the plea of the

defendants that an amount of Rs.6.9 crore was spent on the building by the defendants,

rather the defendants had denied this plea taken by the plaintiff in the plaint.

2. Para 03 of the order dated 6th March, 2009 reads as under:

3. The entire amount on the construction of the building was spent by the defendants from their own pocket and as per defendants, the defendants had spent around Rs.6,90,00,000/- on the construction of the building.

3. I have perused the record. The record shows that in the plaint, plaintiff

had stated in para 09 that an amount of Rs.6.9 crore was spent by the defendant on the

construction of the building and this expenditure was shown by the defendant in its

balance-sheet. The defendant (review applicant) in WS denied this assertion and stated

that the contents of para 09 of the plaint were wrong. It was specifically denied that the

total cost of construction was Rs.6.9 crore. It was asserted that cost of construction

worked out to be more than Rs.2000/- per sq. foot which was agreed rate of recovery of

cost of construction from plaintiff. In para 11 of the plaint, the plaintiff had again

asserted that cost of construction was Rs.6.9 crore and in para 11 (Reply on merits) of

the WS defendant again denied that cost of construction was Rs.6.9 crore.

4. It is obvious that the order has an error apparent on record wherein it is

recorded as per defendants that the defendants had spent around Rs.6.9 crore on

construction of building.

5. The learned Counsel for the non-applicant submitted that the order

passed by this Court amounted to a decree and it has become final and the Court

cannot review this judgment. It is also submitted that since by the order the Court has

disposed of an application under Section 8 of the Arbitration & Conciliation Act, 1996 the

provisions of the Arbitration & Conciliation Act, 1996 would apply and there was no

power of review under the Arbitration & Conciliation Act, 1996.

6. Both the arguments are fallacious. This Court was dealing with an

application under Section 8 of the Arbitration & Conciliation Act, 1996, filed in a civil suit.

The proceedings carried out by this Court and the order passed by this Court would be

governed by CPC since they were orders in a civil suit. The proceedings being carried

by this Court were proceedings in a civil suit and not in proceedings under the Arbitration

& Conciliation Act. Merely because an application under Section 8 of the Arbitration &

Conciliation Act was made by the defendants in the pending suit would not mean that

the proceedings carried out by this Court were under the Arbitration & Conciliation Act.

A Civil Court while handling the suit has power to decide an application under Section 8

and the powers and jurisdiction of Civil Court are to be construed in accordance with

CPC. The other argument that the order amounted to decree is also a baseless

argument. By order dated 6th March 2009 the Court had allowed an application under

Section 8 of the Arbitration & Conciliation Act and appointed an Arbitrator for

adjudicating the disputes between the parties thus, the order does not amount to

passing a decree in favour of the plaintiff. The observations made in the order

regarding pleadings of parties had to be based on the facts stated therein. If there is an

error in the observations and the observations made in the order are contrary to the

pleadings such observations in the order can always be corrected.

7. The applicant has successfully been able to show that there was an error

apparent on the face of the order regarding averments of the parties made in the

pleadings. I, therefore allow this review petition. Para 03 of the order dated 6 th March,

2009 be read as under:

"The entire amount on the construction of building was spent by the

defendants from their own pocket. As per the plaintiff, the

defendants had spent around Rs.6.9 crore on the construction of the

building."

The review application is allowed in above terms.

October 15, 2009                                      SHIV NARAYAN DHINGRA, J.
vn