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2009 DIGILAW 1120 (DEL)

Rani Parvati Devi v. Turner Morrison Ltd.

2009-10-15

SHIV NARAYAN DHINGRA

body2009
ORDER 1. This application has been made by the applicants (defendant Nos.1 and 2) for review of order dated 6th March, 2009 whereby it is stated by the applicants that para 3 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 3 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 pleas 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 3 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. 6,90,000/- on the construction of the building. 3. I have perused the record. The record shows that in the plaint, plaintiff had stated in para 9 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 9 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. 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 and Conciliation Act, 1996 the provisions of the Arbitration and Conciliation Act, 1996 would apply and there was no power of review under the Arbitration and Conciliation Act, 1996. 6. Both the arguments are fallacious. This Court was dealing with and application under Section 8 of the Arbitration and 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 and Conciliation Act. Merely because an application under Section 8 of the Arbitration and 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 and 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 in application under Section 8 of the Arbitration and 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 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 observations made in the order regarding 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 3 of the order dated 6th March, 2009 be read as under: “The entire amount on the construction of building was spent by the defendants from heir 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. Review Application allowed.