Delhi District Court
Institute Of Human Behaviour And Allied ... vs Ms Royal Cuisine on 6 June, 2025
IN THE COURT OF MS. KIRAN BANSAL, DISTRICT JUDGE,
COMMERCIAL COURT-02, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
OMP (COMM) 10/2024
INSTITUTE OF HUMAN BEHAVIOUR &
ALLIED SCIENCE
Tahirpur Road, SDN Hospital Rd
Dilshad Garden, New Delhi-110095
Email: [email protected]
.....Petitioner
VERSUS
M/S ROYAL CUISINE
Partner, Mr. Qazi Iqbal Ahmed,
410, Karkardooma Village,
Opp. Karkardooma Metro Station,
New Delhi-110092
Email: [email protected] .........Respondent
DATE OF INSTITUTION 05.12.2024
DATE OF RESERVING THE JUDGEMENT 24.05.2025
DATE OF JUDGEMENT 06.06.2025
OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 1 OF 14
JUDGEMENT
1. Vide this order this court shall decide the petition under section 34 of The Arbitration and Conciliation Act seeking the correction of typographical error in award dated 06.08.2024 alongwith an application for condonation of delay in filing the present petition.
Brief facts of the case:
2. By way of present petition, the petitioner wishes to seek the correction of typographical error in ex-parte award dated 06.08.2024 passed by Ld. Arbitrator in arbitration titled as Institute of Human Behavious & Allied Sciences (IHBAS) vs Royal Cuisine (DIAC/4221/05-22).
3. It is stated that the ld. Arbitrator has passed a well-reasoned award. However, some typographical errors were observed by the petitioner and, therefore, they seeks to correct it so as to avoid any confusion qua the arbitral award.
4. It is the case of the petitioner that it invited an e-tender dated 05.09.2016 for providing a cafeteria services in the canteen and Doctors Mess in the premises of the petitioner. In response to the tender, a total of 4 bids were received by the petitioner and the tender was allotted to the respondent and an offer letter dated 29.12.2016 was issued in favour of the respondent at the monthly license fee of Rs. 1,85,000/-.
5. Thereafter, the respondent vide its acceptance letter dated 04.01.2017 accepted the offer letter and deposited a sum of Rs. 3,70,000/- as OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 2 OF 14 security. Subsequently, an agreement was executed between the parties for a period of two years.
6. However, it is stated by the petitioner that the respondent showed lackadaisical and laid back approach and violated the terms and conditions of the agreement. It is also stated that the respondent defaulted in making the monthly payment and also defaulted towards the payment of electricity dues.
7. Subsequent thereto, the petitioner vide its letter informed that a fresh e-tender has been finalized for cafeteria services and requested the respondent to peacefully vacate the premises of petitioner by 30.11.2018. The petitioner has very elaboratively laid down the details of the dispute between the parties, which are not repeated here for sake of brevity.
8. Upon receiving no response, the petitioner invoked the arbitration clause in terms of Clause 39.1 of Tender Enquiry dated 05.09.2016 for the dispute of non-payment by respondent. Thereafter, the petitioner filed an application u/s 11 of the Arbitration and Conciliation Act seeking appointment of arbitrator before Hon'ble Delhi HC and the matter was referred to DIAC for appointment of sole arbitrator.
9. Subsequent to the order of Hon'ble HC, sole Arbitrator was appointed and the petitioner filed its statement of claim dated 25.04.2023 before ld. Arbitrator seeking payment of outstanding dues i.e. a sum of Rs. 24,48,270/-. The respondent did not appear before the arbitrator and vide order dated 18.09.2023, the respondent was proceeded ex-parte.
Thereafter, ex-parte award was passed on 06.08.2024.
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10. The petitioner states that the following are the typographical error in the award dated 06.08.2024:
a. Ld. Arbitrator has erroneously typed penalty amount as Rs. 7,14,000/- instead of correct amount of Rs. 9,04,500/- at para 19.2 and para 36(b) of the award.
b. The name of claimant's witness has erroneously typed as "Rajesh Jha"
whereas the correct name is "Rajesh Ahuja" in para 33 of the award
11. The petitioner has stated that correct amount of penalty was Rs. 9,04,500 and the same can be duly confirmed from the statement of claim filed by the petitioner. The petitioner has provided for following bifurcation of Rs. 24,48,270/-
Outstanding Licence Fee Rs. 14,39,181/-
Outstanding Penalty amount (Rs. 500/-*1809 Rs. 9,04,500/-
days) Outstanding water charges Rs. 10,206/- Outstanding Electricity Charges Rs. 94,383/- Total Outstanding Rs. 24,48,270/-
12. It is further stated that the total outstanding amount allowed and awarded is correct and the penalty amount was incorrectly typed. It is stated that the present petition has been filed before the present court as when the error was observed, the time provided under Section 33 of the A&C Act had expired and therefore, the present petition has been filed.
13. The petitioner has stated that the award passed by the Ld. Sole arbitrator is justified, reasonable and in consonance with law. Moreover, the said OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 4 OF 14 errors are mere typographical errors and the same may be rectified under section 34(4) of The Arbitration and Conciliation Act.
Prayer has been made to correct the typographical error(s) in order to cure the arbitral award dated 06.08.2024.
Application Under Section 151 CPC r/w Section 5 of The Limitation Act For Condoning The Delay In Filing the Present Petition
14. The petitioner has filed an application under section 151 of The Code of Civil Procedure, 1908 r/w Section 5 of The Limitation Act, 1963 for condoning the delay of 19 days in filing the present petition.
15. It is stated that the present petition has been filed seeking correction of some typographical errors in arbitral award dated 06.08.2024. The petitioner states that the initial period of three months elapsed on 06.11.2024 and that delay has been caused due to the fact that counsel for the petitioner had earlier filed the petition before Hon'ble Delhi HC and the said fact was also realized by the counsel only after registry of Hon'ble Delhi HC had raised the objection in this regard. Thus, the prayer has been made to condone the delay of 19 days in filing the petition.
16. Notice of the petition was issued to the respondent vide order dated 09.12.2024 and 18.01.2025. The respondent was served through speed post on 11.02.2025 and through whatsapp on 10.02.2025. The respondent was given opportunity to file the reply but no reply has been filed by the respondent till date despite service.
17. Arguments Heard. Record Perused.
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18. Firstly taking up the application for condonation of delay. The law related to the applicability of Limitation Act in proceedings u/s 34 of the Arbitration Act is settled by the Hon'ble SC in the case of M/s R K Transport Company vs. M/s Bharat Aluminum Company Ltd 1, wherein Hon'ble SC while relying upon the case of My Preferred Transformation and Hospitality Pvt. Ltd. and Anr. vs M/s Faridabad Implements Pvt Ltd2 has held as follows:
"9. We will now deal with how limitation must be calculated in the present case. The law on the applicability of the Limitation Act to Section 34 proceedings has been summarised by us in a recent decision in My Preferred Transformation & Hospitality Pvt Ltd v. Faridabad Implements Pvt Ltd as follows:
"23. ...Through the above discussion, it is amply clear that there is no wholesale exclusion of the provisions of the Limitation Act in calculating the period of limitation under Section 34(3). Rather, each provision's applicability/exclusion has been individually tested by this Court, on a case-to-case basis, based on the language and purpose of the specific provision in the Limitation Act, the language of Section 34(3) of the ACA, and the scheme and object of the ACA...""
19. The period of limitation for filing the petition under section 34 of the Arbitration and Conciliation Act is three months from the date of receiving the arbitral award and further period of thirty days can be condoned subjected to 1 2025 INSC 438 decided on 03.04.2025 2 2025 INSC 56 decided on 10.01.2025 OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 6 OF 14 discretion of the court on providing with the sufficient cause for not filing it within period of three months. Section 34(3) of Arbitration and Conciliation Act is as follows:
"(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
20. The petitioner is calculating the period of three months from the date of award i.e. 06.08.2024 and no averment has been made by the petitioner as to the date when the award was received by the petitioner. Thus, the period of limitation of three months will be computed from 06.08.2024.
21. The petitioner itself states that the period of three months elapsed on 06.11.2024 and the present petition was filed 06.12.2024. The further period of Thirty days stood expired on 06.12.2024.
22. The petitioner states that earlier inadvertently the same petition was filed before Hon'ble Delhi HC and it was only after the registry has raised the objections, the petitioners came to know that pecuniary jurisdiction to try the matter lies with District Court and not Hon'ble HC. The petitioner has also filed OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 7 OF 14 screenshot of filing before the Hon'ble Delhi HC which shows that the same was filed before the Hon'ble Delhi HC on 05.11.2024.
23. The petition has been filed on the last day of the extended period of thirty days and the counsel has also provided with the sufficient cause for not filing it within the prescribed period of three months. The petition has been filed within the period wherein the delay can be condoned.
24. The petitioner states that delay in filing the same is of 19 days. However, it is not correct as the petition has been filed on 06.12.2024. Thus, the period of delay to be condoned is of 30 days and not 19 days.
25. Since the petitioner has provided for a sufficient cause for not filing the petition within period of 3 months. Thus, the delay of 30 days can be condoned, in the interest of justice. The application is accordingly allowed.
Now coming on to merits.
26. The law related to the power of the court to modify the arbitral award has been settled by the Hon'ble SC in the case of Gayatri Balasamy vs M/s ISG Novasoft Technologies Limited 2025 INSC 605.
27. The Hon'ble SC held that the purpose of the arbitration is quicker and cost effective alternative to courtroom litigation. This implies the minimal judicial interference, role of domestic courts remains crucial as facilitative capacity and expedite the resolution of disputes.
28. It was also observed that if it is held that courts cannot modify the award and the award results in significant hardships, escalated costs etc would defeat the purpose of the Arbitration.
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29. The Hon'ble Supreme Court further held that modification represents a limited and narrow power in comparison to the annulment/ setting aside of award. The court held that reading the provision in such a manner would mean that power of the court to vary or modify the award vests in the court u/s 34 of the Arbitration and Conciliation Act.
30. The relevant para of the judgement is as follows:
"43. Equally, Section 34 limits recourse to courts to an application for setting aside the award. However, Section 34 does not restrict the range of reliefs that the court can grant, while remaining within the contours of the statute. A different relief can be fashioned as long as it does not violate the guardrails of the power provided under Section 34. In other words, the power cannot contradict the essence or language of Section 34. The court would not exercise appellate power, as envisaged by Order XLI of the Code of Civil Procedure, 1908.
44. We are of the opinion that modification represents a more limited, nuanced power in comparison to the annulment of an award, as the latter entails a more severe consequence of the award being voided in toto. Read in this manner, the limited and restricted power of severing an award implies a power of the court to vary or modify the award. It will be wrong to argue that silence in the 1996 Act, as projected, should be read as a complete prohibition.
45. .....
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46. Mustill and Boyd have observed that an order varying an award is not equivalent to an appellate process. The authors suggest that a modification order would only be appropriate where the modification, including any adjustment of costs, follows inevitably from the tribunal's determination of a question of law. This approach would be beneficial, as it would reduce costs and delays. The courts need not engage in any fact-finding exercise. By acknowledging the Court's power to modify awards, the judiciary is not rewriting the statute. We hold that the power of judicial review under Section 34, and the setting aside of an award, should be read as inherently including a limited power to modify the award within the confines of Section 34."
31. The Hon'ble SC held that while reviewing the award under section 34 of the Act, the court possess the power to rectify computational, clerical, typographical and other errors which are manifest and does not require the merit based examination. The relevant para of the judgement is re-produced as under:
"49. Notwithstanding Section 33, we affirm that a court reviewing an award under Section 34 possesses the authority to rectify computational, clerical, or typographical errors, as well as other manifest errors, provided that such modification does not necessitate a merits-based evaluation. There are certain powers inherent to the court, even when not explicitly granted by the legislature. The scope of these inherent powers depends on the nature of the provision, whether it OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 10 OF 14 pertains to appellate, reference, or limited jurisdiction as in the case of Section 34. The powers are intrinsically connected as they are part and parcel of the jurisdiction exercised by the court."
32. The Hon'ble SC further held that while modifying the award, the court should not take up role of the appellate court. The relevant part of the judgement is as follows:
"In the same vein as these judgments, we hold that inadvertent errors, including typographical and clerical errors can be modified by the court in an application under Section 34. However, such a power must not be conflated with the appellate jurisdiction of a higher court or the power to review a judgment of a lower court. The key distinction between Section 33 and Section 34 lies in the fact that, under Section 34, the court must have no uncertainty or doubt when modifying an award. If the modification is debatable or a doubt arises regarding its appropriateness, i.e., if the error is not apparent on the face of the record, the court will be left unable to proceed, its hands bound by the uncertainty. In such instances, it would be more appropriate for the party to seek recourse under Section 33 before the tribunal or under Section 34(4)."
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33. Thus, on the basis of the above judgement, it is clear that the courts can modify the arbitral award when the error is not debatable and is only arithmetical or typographical.
34. As far as the errors, sought to be corrected, in the present petition is concerned, one pertains to the penalty amount and other one being the name of witness.
35. Perusal of the record reveals that the petitioner has filed evidence by way of affidavit dated 04.102023 of Mr. Rajesh Ahuja. Moreover, the perusal of the order of the Ld. Sole Arbitrator dated 04.102023 reveals that the matter was listed for recording of ex-parte evidence of claimant. It was observed that evidence by way of affidavit of CW-1 Mr. Rajesh Ahuja was filed and was taken on record. Vide order dated 08.11.2023, the evidence by way of affidavit of CW1 Rajesh Ahuja was tendered and in that order the name of the witness has been correctly mentioned as Rajesh Ahuja.
36. Moreover, on 07.12.2023 CW-1 Rakesh Ahuja was called for further cross examination in chief and the same was also recorded. Even in the order dated 07.12.2023 name of CW 1 is correctly typed as Mr. Rajesh Ahuja.
37. The contention of the petitioner is that in para 33 of the award, name of witness is wrongly typed as Mr. Rajesh Jha as CW1. The para 33 of the award is as follows:
"33. That on 18.09.2023 the claimant was directed to file ex-parte award evidence by way of affidavit and the claimant accordingly filed its Evidence by way of an affidavit of Mr. Rajesh Jha as CW1."
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38. On the perusal of the record, it is clear that name of the claimant's witness was Mr. Rajesh Ahuja. Moreover vide order dated 18.09.2023, which is also referred by the arbitrator, the name of the witness was recorded as Rajesh Ahuja and not as Rajesh Jha.
39. Moreover the statement of claim was accompanied by the affidavit of Mr. Rajesh Ahuja. In the entire proceedings, the name of CW1 is maintained as Mr. Rajesh Ahuja and there is no mention of Mr. Rajesh Jha, therefore, the name of CW1 written as Rajesh Jha in para 33 is a typographical error.
40. As far as the second error regarding the amount of penalty is concerned, the arbitrator in his award at para 19.2 titled as Claim towards the outstanding dues, the amount of penalty is wrongly typed as Rs. 7,14,000/. At this stage, it is relevant to refer to para 5 of the statement of claim wherein the petitioner has elaboratively set out the detailed calculation of the total outstanding due. The detail of the said calculation is not reproduced herein for sake of brevity. in part B of the said table the penalty has been calculated as penalty for late payment of licence fee for 1809 days. The penalty was calculated from 11.05.2017 and the amount came to be Rs. 9,04,500/-.
41. It is also pertinent to note here that total claim of the petitioner of Rs. 24,48,270/- was inclusive of the penalty amount i.e. Rs. 14,39,181/- + Rs. 9,04,500/- + Rs. 10,206/+ Rs. 94,383/-.
42. It is relevant to note that in para 19 of the award, the ld. Arbitrator has observed that total claim of the petitioner/claimant is of Rs. 24,48,270/- and has re-produced the bifurcation as laid down by the petitioner in its statement of claim. However, as far as penalty for late payment of licence fee is concerned the same was wrongly typed as Rs. 7,14,000/-.
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43. Also, the arbitrator has awarded Rs. 24,48,270/- towards the outstanding dues. Thus, it is not the case that arbitrator has computed the due outstanding on some different basis and has awarded a different amount than what was claimed.
44. Thus, it can be safely said that the amount of Rs. 7,14,000/- as penalty amount is wrongly typed in para 19.2 of the award and the correct amount is Rs. 9,04,500/.
45. Therefore, in view of the above discussion the errors pointed out by the petitioner in its petition are mere typographical error and are not error on merits. The errors clearly are typographical errors and to rectify it, the court does not require to appreciate the merits and can be modified only on the basis of prima facie view.
46. Therefore, the errors sought to be rectified are rectified as follows:
i. The name of the claimant's witness in para 33 of the impugned award be read as and is changed from Mr. Rajesh Jha to Mr. Rajesh Ahuja.
ii. The penalty amount in para 19.2 of the impugned award be read as and is changed from Rs. 7,14,000/- to Rs. 9,04,500/-.
Thus, the petition of the petitioner is allowed in above said terms. Filed be consigned to RR after due compliance. Copy of the judgment be supplied to both parties. Digitally signed by KIRAN KIRAN BANSAL (Kiran Bansal) BANSAL Date:
2025.06.06 13:08:17 +0530 District Judge, Commercial Court-02 Shahdara District, Karkardooma Cours Delhi/06.06.2025 OMP (COMM) 10/2024 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCE Vs. M/S ROYAL CUISINE PAGE NO. 14 OF 14