Delhi High Court
Ahmad Mian vs Bhasin Infotech & Infrastructure ... on 1 August, 2018
$-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st August, 2018
+ O.M.P.(COMM.) 292/2018
AHMAD MIAN ..... Petitioner
Through Mr.Kshitij Sharda, Adv.
versus
BHASIN INFOTECH & INFRASTRUCTURE PVT. LTD.
(THROUGH ITS DIRECTORS) ..... Respondent
Through Mr.Vinayak Kapur and
Mr.Lokesh Bhola, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
I.A. No.9003/2018 (Delay)
1. This is an application seeking condonation of delay in filing of
the petition.
2. Learned counsel for the petitioner submits that the Award
which is in favour of the petitioner, has by a clerical mistake, in the
final relief mentioned, shop number as 104, Lower Ground Floor in
shopping mall known as 'Grand Venezia' situated at Plot No. SH-3,
Site-IV, Industrial Area, Surajpur, Greater NOIDA, Uttar Pradesh
instead and in place of Shop No. 73, Lower Ground Floor in the same
OMP(COMM.) 292/2018 Page 1
shopping mall on the same floor. He submits that this mistake in the
Award remained unnoticed and in fact, the petitioner filed an
application seeking execution of the said Award before the Court of
District Judge, Gautambudh Nagar, Noida, Uttar Pradesh. It is only
after the filing of the Execution Petition that the petitioner realized
the mistake, however, as by that time the period for making the
application under Section 33 of the Arbitration and Conciliation Act,
1996 (hereafter referred as to the 'Act') had expired, the filing of the
present petition was necessitated. He submits that due to this
bonafide error there is a delay of 29 days in filing of the present
petition.
3. Learned counsel for the respondent does not deny that the
respondent itself had indeed changed the allotment of the petitioner
from Shop No.104 to Shop No.73.
4. In view of the above, I find merit in the present application.
The delay in filing of the present petition is condoned and the
application stands allowed.
O.M.P. (COMM) 292/2018
1. The present petition under Section 34 of the Act has been filed
challenging the Award dated 27.01.2018 to the limited extent that
under relief no.6 the Arbitrator has, due to an inadvertent error
directed the respondent to hand over the vacant, physical and
peaceful possession of the Shop No.104 in the abovementioned Mall
instead of and in place of Shop No.73 in the said Mall.
2. Learned counsel for the petitioner draws my reference to the
petition filed by the respondent under Section 34 of the Act
OMP(COMM.) 292/2018 Page 2
challenging the same Award being OMP(COMM) 182/2018, wherein
the respondent in paragraph 17 admitted that with the mutual
agreement, the allotment of the unit/shop in favour of the petitioner
was changed from unit/shop no.104 to unit/shop no.73 in the
abovementioned Mall. Paragraph 17 is reproduced herein below:
"17. Further, it is submitted that due to revision
of floor plan and due to change in architectural
drawings, the Parties mutually agreed for change in
Allotment of the Initial Unit and the same was duly
changed from Unit No.104 to Unit No.73 admeasuring
705.09 square feet at the Lower Ground Floor of the
said Project (hereinafter referred to as "the said
Unit"). Further, except the change of the Unit number
from 104 to 73, there was no change in the terms and
conditions of the said Allotment Letter executed
between the Parties i.e. all the terms and conditions as
mentioned in the said Allotment Letter remain
unchanged and were applicable on the said Unit."
3. Learned counsel for the respondent does not deny the above
position. He however submits that the proper remedy of the
petitioner would have been in filing an application under Section 33
of the Act and not by way of challenging the Award under Section 34
of the Act.
4. On the other hand, learned counsel for the petitioner relying
upon the following judgments submits that, where the Award suffers
from the error apparent on the face of the record, the said correction
can be made, if it does not require any modification to be made by
giving reasons for the same:
OMP(COMM.) 292/2018 Page 3
1. Chennai-Ennore Port Road Co. Ltd. v. RDS Project Ltd.,
2016(2) Arb. LR 155 (Delhi) (DB);
2. B.R. Arora & Associates (P) Ltd. v. Airport Authority of
India, 2015 III AD (Delhi) 375;
3. Reliance Industries Ltd. v. Madan Store Pvt. Ltd., 2008 V
AD (Delhi) 36.
5. The learned counsel for the petitioner submits that in the
present case, the petitioner is not challenging any of the findings of
the Arbitral Tribunal but is only seeking a correction of an
inadvertent error that has made in the operative portion of the Award.
6. In my opinion, Section 33 of the Act provides an additional
remedy in favour of the petitioner to seek correction of any
typographical error that may have crept in the Award. As in the
present case, it is not denied by the respondent that the respondent
itself had changed the allotment in favour of the petitioner from shop
no.104 to shop no.73, merely because the petitioner, due to oversight
not noticing the said mistake in the Award and, therefore, not filing
an application under Section 33 of the Act before the Arbitrator,
cannot be made to suffer for such typographical error.
7. In view of the above, the petition is allowed holding that the
operative portion of the Impugned Award shall stand modified and
the petitioner is held entitled to get clear title of Shop No. 73, Lower
Ground Floor in shopping mall known as 'Grand Venezia' situated at
Plot No. SH-3, Site-IV, Industrial Area, Surajpur, Greater NOIDA,
Uttar Pradesh along with vacant, physical and peaceful possession
OMP(COMM.) 292/2018 Page 4
thereof from the respondent. Other conditions / directions mentioned
in the Award shall remain unaltered.
8. The petition is allowed in the above terms, with no order as to
cost.
Dasti.
NAVIN CHAWLA, J
AUGUST 01, 2018/Arya
OMP(COMM.) 292/2018 Page 5
