Karnataka High Court
Kotak Securities Ltd vs Mr Chethan Bhandary on 23 November, 2018
Equivalent citations: AIRONLINE 2018 KAR 2513
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1 ®
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2018
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
REVIEW PETITION NO. 52/2017
IN
RFA NO.1199/2012
BETWEEN:
KOTAK SECURITIES LTD
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING TIS REGISTERED OFFICE
AT 27 BKC, C 27, G BLOCK
BANDRA KURLA COMPLEX
BANDRA(E), MUMBAI 400 061
REGIONAL OFFICE NO.107/7
UMIYA LAND MARK LAVELLE ROAD
BANGALORE-560 001
REP. BY MR BOJOY BOSE M
... PETITIONER
(BY SRI. S. R. KRISHNA KUMAR, ADV.)
AND:
1. MR CHETHAN BHANDARY
S/O SUBBAYYA BHANDARY
R/A NALINI CLINIC
NO.714 BILEKAHALLI
BANNERGHATTA ROAD
BANGALORE-560 076
(PARTY-IN-PERSON)
2. NATIONAL STOCK EXCHANGE
OF INDIA LTD., EXCHANGE PLAZA
BANDRA KURLA COMPLEX
2
BANDRA(EAST), MUMBAI-400 051
REP. BY ITS MANAGER
... RESPONDENTS
(BY SRI. CHETHAN BHANDARY, RESPONDENT NO.1
IS PARTY-IN-PERSON, R2 SERVED [ABSENT])
THIS REVIEW PETITION IS FILED UNDER SECTION
114 READ WITH ORDER XLVII RULE 1 OF THE CODE OF
CIVIL PROCEDURE, 1908 PRAYING TO REVIEW THE
IMPUGNED JUDGMENT DATED 22.02.2013 PASSED BY
THIS HON'BLE COURT IN R.F.A. NO.1199/2012 TO THE
EXTENT OF AWARDING INTEREST ON THE ARBITRAL
AMOUNT FROM 11.04.2012 (CHANGED TO 18.09.2007
BY ORDER DATED 19.02.2014 ON IA NO.2/2014 IN RFA
NO.1199/2012);
THIS REVIEW PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 25.10.2018, COMING
ON FOR 'PRONOUNCEMENT OF ORDER', THIS DAY
K.N. PHANEENDRA, J. MADE THE FOLLOWING:
ORDER
This Review Petition is filed seeking for review of the judgment passed by this Court in RFA No.1199/2012 dated 22.02.2013, to the extent of awarding interest on the arbitral amount from 18.09.2007 to till the date of receipt of the amount by the Respondent No.1 and also awarding cost of Rs.2 lakhs on the petitioner.
2. I have heard the arguments of the learned counsel for the Review Petitioner and also the respondent no.1 - 3 party-in-person before this court. Perused the entire materials on record. Respondent No.2 though served with notice remained unrepresented.
3. Before adverting to the factual matrix of this case as well as the grounds urged for review, it is just and necessary to bear in mind as to under what circumstances, the court can review its own order. In this regard, both the parties have submitted several rulings on this particular point.
4. The petitioner's counsel has relied upon a ruling of the Hon'ble Apex Court reported in (2005) 4 SCC 741 between Board of Control for Cricket in India and another & Netaji Cricket Club and Others. It is just and necessary to extract paragraphs 88 to 92 of the said judgment, which reads thus -
"88. We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law 4 does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".5
91. It is true that in Moran Mar Basselios Catholicos V. Most Rev. Mar Poulose Athanasius this Court made observations as regards limitations in the application of review of its order stating : (SCR p.529) "Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needles to emphasise that the scope of an application for review is much more restricted than that of an appeal.
Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the 6 time when the decree was passed,
(ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, at least analogous to those specified in the rule' ".
But the said rule is not universal.
92. Yet again in Lily Thomas this Court has laid down the law in the following terms:
(SCC pp. 247-48, para 52) "52. The dictionary meaning of the word 'review' is 'the act of looking, offer something again with a view to correction or improvement'. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v.
Pradyumnsinghji Arjunsinghji, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied 7 that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice.
Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and it s perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error."
(emphasis supplied).
Therefore, on meaningful understanding of the observation and the guidelines laid down by the Hon'ble Apex Court in the above said case, it is clear that even a mistake on the part of the court which would include a mistake in the nature of an undertaking, may also call for a review of the order. The application for review would also be maintainable, if there exists sufficient reason therefor. What would constitute 'sufficient reasons', would depend on the facts and circumstances of the case. The words sufficient reason are vide enough to include, even a 8 misconception of fact or law by a court or even an advocate. In such circumstances, in order to cure the defects, even if it is on facts or law, the review can be maintained. If the Review Petition is considered by the court, it would end up in reversing the judgment earlier passed. Therefore, it is not only restricted to correction of typographical errors, but also if the court finds that an error is pointed out in the Review Petition, if it would go to the root of the jurisdiction of the court or the error apparent on record which ought not to have been committed by the court under law or by interpretation of facts and Law resulted in miscarriage of justice. In such an eventuality, the court can review its judgment.
5. Per contra, the first respondent - party-in-person has relied upon a decision of the Hon'ble Apex Court rendered in Civil Appeal No.7944/2010, between Union of India and Sandur Manganese & Iron Ores Ltd., & Others, wherein the Hon'ble Apex Court has laid down certain principles which are enumerated at paragraphs 22 to 24 of the judgment, which reads thus -
"(22) It has been time and again held that the power of review jurisdiction can be 9 exercised for the correction of a mistake and not to substitute a view. In Parsion Devi and Ors. Vs. Sumitri Devi and Ors., (1997) 8 SCC 715, this court held as under:
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
(23) This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC.
(24) In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record 10 rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impunged judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case.
(emphasis supplied).
6. On the basis of the above said decision, it is clear that the Hon'ble Apex Court has relied upon its earlier decision and observed that Review Proceedings are not by way of an appeal, which strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. In exercise of the said provision, the court should not step into the shoes of the appellate court and re-hear the entire materials on record and come to a different conclusion unless there is an error apparent on the face of the record with reference to the facts or law involved in that particular case. 11
7. It is also to be noted that in the review jurisdiction, the court can interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, otherwise, review powers should not be exercised.
8. From the above said decisions and also on perusal of Order 47 Rule 1 of CPC, it is clear that generally and normally, the court should not venture upon to interfere with the judgment passed by it, unless there is a glaring mistake of law or mistake of fact, has been crept in the impugned judgment, which has the tendency to cause miscarriage of justice to either of the parties. Therefore, this court has to see whether there is any such serious mistake of fact or mistake of law has been committed by this court in passing the earlier judgment. In this background, it is just and necessary to have the brief factual matrix of this case.
9. The first respondent has secured an Arbitral award in the AM No.CM/C-0060/2007 against the petitioner herein. The award reads thus:
12
"(i) The application of M/s.Kotak Securities Ltd. Claiming an amount of Rs.7,87,740/- from the Respondent, Mr.Chetan Bhandary is dismissed.
(2) The Applicant, M/s.Kotan Securities
Ltd. is hereby directed to pay to the
Respondent, Mr.Chetan Bhandary the sum of Rs.8,74,750.00 (Rupees eight Lakhs Seventy four thousand seven hundred and fifty only) in full and final settlement of his account with them. The Award amount will bear interest @ 12% from 29th December, 2006 to the date of this Award.
(3) The applicant should also pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards the cost and other expenses of arbitration and compensation for the hardships caused to the Respondent.
(4) The Award amount of Rs.9,24,750.00 (Rupees nine lakhs twenty four thousand seven hundred and fifty only) being the aggregate of (ii) and (iii) above will bear interest at 18% per annum from the date of the arbitral Award to the date of Fixed Deposit Receipt (FDR) to be made out by the Applicant (TM) for a period of not less than 91 days from 13 the Clearing Bank where the TM has the settlement account and deposit such FDR with the NSE. The interest payable to the constituent from the date of FDR till the date of payment shall be the interest accrued on the FDR till the date of encashment."
10. Having succeeded before the Arbitrator, the first respondent felt satisfied with the award. However, the petitioner herein being not satisfied with the award filed an Arbitration Suit in A.S. No.22/2009 before the VI Addl. City Civil & Sessions Judge, Bengaluru City. The said Arbitration Suit was dismissed on 14.12.2010 itself confirming the Arbitration Award passed in favour of the first respondent.
11. The first respondent filed IA No.III under Order 21 Rule 11 sub Rule 2 on 8.4.2010 for execution of the Arbitrator's Award and IA No.IV filed u/s.151 of CPC on 23.4.2010, in support of IA No.III on 8.4.2010 were dismissed. The first respondent herein had filed a Writ Petition before this court in WP No.9792/2011 (GM-RES) and this court directed the trial Judge in A.S.No. 22/2009 to decide the applications filed by the first respondent for 14 execution of the award on merits in accordance with law. Therefore, the trial Court has taken up IA No.III and IV for disposal and ultimately, the said applications were dismissed by the trial Court. Being aggrieved by the same, the first respondent herein has filed an appeal in RFA No.1199/2012 before this court. This court vide orders dated 22.2.2013, in the above said RFA, allowed the appeal and granted the relief to the first respondent, wherein this court has awarded interest at the rate of 18% from the date of the award till the date of realization. This Court has also awarded compensation of a sum of Rs.2 lakhs as costs to be payable by the petitioner herein to the first respondent herein.
12. The said order passed by this court was called in question by the Review petitioner before the Hon'ble Apex Court in Special Leave Petition (C) Nos.10711- 10712/2014 vide order dated 11.07.2016, wherein the Hon'ble Apex Court has made an observation that, the defendant has got opportunity to file Review Petition before the High Court itself. Therefore, giving liberty to the petitioner to approach this court by way of Review 15 Petition and seek for an appropriate order, disposed of the Special Leave Petitions. In view of the liberty given by the Hon'ble Apex Court, the present Review Petition is filed.
13. The contention of the Review Petitioner is that this court has exceeded its jurisdiction in allowing the interest at the rate of 18% p.a. from the date of the award till the date of realization, as against to the award itself by the Arbitrator, which has been accepted by the respondent No.1 and not challenged the said award. Further, this court has also exceeded its jurisdiction in awarding cost, damages or compensation whatever it may be, in a sum of Rs.2 lakhs, and this is also not the verdict of the Arbitrator. This court has not given any finding as to how it can over come the award passed, when the said award has not been subjected to any challenge by the first respondent. The interpretation made by this court in awarding interest and cost, is not an issue before this court in the appeal as the Award on that point was not challenged by the respondent by way of suit for modification of the Award or he has not claimed any further cost. The said issues also cannot be raised in 16 execution proceeding while executing the Award. In this context, the learned counsel has relied upon a decision of the Hon'ble Apex Court reported in (1996) 5 SCC 728 between Rameshwar Dass Gupta and State of UP and another, wherein the Hon'ble Apex Court has held at paragraph 4 thus -
"An executing court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 CPC. In view of the fact that it was a money claim, what was to be computed was the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree holder, the executing court exceeded its jurisdiction in stepping out and granting a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution. The order of the executing court was without jurisdiction and therefore, void."
(Emphasis Supplied) 17 On plain reading of the observation made by the Hon'ble Apex Court, that the executing court cannot go beyond the award or the decree passed by the competent court having jurisdiction. Executing court can only execute the order in accordance with the procedure laid down under Order 21 of CPC. Under Order 21 of CPC, the said provision does not in any manner empower the executing court to grant any additional relief which was not sought for in the earlier proceedings or in any appellate jurisdiction, but it can only execute the decree as it is. Therefore, this court has committed serious error in not considering this particular aspect while disposing RFA No.1199/2012.
14. Per contra, the respondent No.1 contended that on meaningful reading of the award passed, it clearly discloses that, the respondent is entitled for interest at the rate of 18% p.a., from the date of the award till depositing of the amount and further interest on FDR till the date of payment shall be the interest accrued on the FDR. Merely because the said amount is deposited by the first respondent as per the award, it will not absolve the first respondent from paying interest upto the date of payment. 18 It is also contended that, even after the award being passed unnecessarily, the petitioner herein has challenged the said award before the civil court and made the first respondent to wait for such a long period for more than three years to reap the amount under the award. Therefore, the first respondent is entitled for damages of Rs.2Lakh as rightly awarded by this court. Therefore, there is no mistake of fact or law involved. Hence, the Review Petition deserves to be dismissed.
15. In the above said rival contention, now first let me read and understand what exactly the award passed by the Arbitrator.
16. The award passed by the Arbitrator as quoted above particularly at item No.(ii) & (iii), the Arbitrator in specific terms has stated that the respondent is entitled for a sum of Rs.8,74,750/- in full and final settlement of his account with interest at 12% p.a., from 29.12.2006 till the date of the award. At item No.(iii) the Arbitrator has also awarded an amount of Rs.50,000/- towards cost and other expenses of Arbitration and compensation for the hardships caused to the respondent. Consolidating the 19 above, at item No.(iv) the Arbitrator again in specific terms, said that the claimant/respondent herein is entitled to in all Rs.9,24,750/- which is the aggregate of item Nos.(ii) & (iii) on the said amount, the respondent is entitled for 18% p.a. from the date of the arbitral award to the date of the Fixed Deposit Receipt. Therefore, it is clear that the interest awarded was restricted to till the date of deposit of the amount by the petitioner herein. It is further clarified that the said Fixed Deposit shall be for a minimum period of 91 days, but no maximum period was fixed. The interest from the date of depositing of the FDR is also further clarified by stating that interest payable to the constituent from the date of the Fixed Deposit Receipt till the date of payment shall be the interest accrued on the FDR till the date of encashment.
17. Therefore, it is very much clear in categorical terms that for the delayed payment, an amount of Rs.50,000/- has been levied as cost and the total quantum also has been calculated and interest at the rate of 18% p.a., is awarded from the date of the award till the date of deposit. If once the deposit is made, it is further clarified 20 that the respondent is only entitled for the interest accrued on the FDR and not at the rate of 18% p.a..
18. As I have already narrated, this order, has not been challenged by the respondent by way of filing any Arbitration suit on the ground that there is no clarity with regard to the awarding of the interest or awarding of the interest at the rate of 18% p.a., only till the date of the FDR, as not correct and awarding of compensation also not proper. Perhaps may be for the reason, the respondent had satisfied the award passed by the Arbitrator, by depositing the amount. Now, he cannot turn back and say that he is entitled for interest at the rate of 18% p.a., from the date of award till the date of realization. Therefore, the decree or the award passed by the Arbitrator has been logically came to an end when the suit filed in Arbitration Suit No.22/2009 filed was dismissed on 14.12.2010. Therefore, the executing court is only obliged to execute the award, as it is, passed by the Arbitrator.
19. Now, coming to the applications filed i.e., IA Nos.III & IV by the respondent before the trial Court by way of execution, he claim interest at the rate of 18% 21 p.a., from the date of award, till the date of realization and also for awarding compensation for dragging the respondent to the court and filing Arbitration suit and also delayed the payment for a period of 3 ½ years. The said applications were dismissed as noted above.
20. Now, coming to the appeal in RFA No.1199/2012 earlier which was allowed, this court has granted interest at the rate of 18% p.a., from the date of the award till the date of encashment of the amount. There is no dispute that the amount has been encashed on 18.2.2011, in a sum of Rs.11,77,452-38 being the amount along with interest accrued to the Fixed Deposit by the first respondent as per the orders of the Arbitrator. This Court at paragraphs 16 & 17, discussed with regard to the interest awarded at 18% p.a. interest from the date of award till the payment of Rs.9,24,750/-. The said paragraphs of this court requires to be extracted as under:
"16. Per contra, the learned counsel for the appellant's contended that he is entitled for the interest from the date of Fixed Deposit Receipt. Now, the question is whether the proposition is right or the contention of the 22 first respondent. On such stray sentence of the award cannot be the basis. The entire award has to be read and on doing so, it admits of no doubt that while quantifying the aggregate of (ii) and (iii), a sum of Rs.9,24,750/- was taken as the figure. It had to be the basis. As found in item No.2, interest is fixed at 12% and date was also fixed from 29.12.2006 till the date of award. This is where the trial court has committed serious error because item No.4 reads the award amount of Rs.9,24,750/- being the aggregate of (ii) and (iii) above will bear interest @ 18% per annum from the date of the arbitral award to the date of Fixed Deposit receipt (FDR) to be made out by the Applicant (TM) for a period of not less than 91 days from the Clearing Bank where the TM has the settlement account and deposit such FDR with the NSE. The interest payable to the constituent from the date of FDR till the date of payment shall be the interest accrued on the FDR till the date of encashment.
17. Therefore, computation of interest vide Item No.2 is at 12% from 29.12.2006 to the date of award whereas aggregate of item No.2 and 3 further interest has been awarded from the date of arbitral award which is not 23 covered in item No.2 till the date of encashment. Thus it is a question of fact as to whether the payment is made. Hence, an enquiry had to be conducted to decide on which date the applicant was given the amount. The appellant's contention is he could encash it only on 18.02.2011 and till that time, the mount was still with the second respondent. Second respondent being bound by the arbitral proceedings had to comply with the direction which they have failed. In that situation, there should have been no doubt in the mind of the trial court while interpreting this portion of the award to award interest on that amount.
18. I am therefore, constrained to reject the contention of the first respondent that it is liable to pay interest only for limited period. If we calculate the legitimate entitlement of the appellant, he will be entitled to interest from the date of award i.e., *18.9.2007 till payment of Rs.9,24,750.00 The interest rate fixed by the award is 18% from *18.09.2007. Thus, appellant will be entitled to interest on the amount quantified in item no.2 and item No.3 at the award for Rs.9,24,750/- till he recovers it, irrespective of when the FD was made."24
21. This court found that the entire award has to be read and on doing so, it admits of no doubt that while quantifying the aggregate of (ii) and (iii), a sum of Rs.9,24,750/- was taken as the figure and interest is fixed at 12% and the date was also fixed from 29.12.2006 till the date of the award. It is observed at paragraph 17 that future interest has been awarded from the date of Arbitral award which is not covered in item No.(ii) till the date of encashment. This court has misread item Nos.(ii) & (iii) reading them separately without reading the same along with item No.iv. As I have said, if it is in consonance with each other, the Arbitrator has clarified that from the date of the award till the date of deposit of the amount only, the respondent is entitled for 18% interest p.a., but from the date of deposit in Fixed Deposit he is entitled for interest that may be accrued on the said Fixed Deposit till the date of encashment.
22. Therefore, with great respect I differ from the interpretation made by this court to virtually modify the award portion and awarded interest at the rate of 18% from the date of the award itself till the date of realization 25 of the amount. This court has also observed that the trial Court has committed serious error because item No.iv was only read by the trial Court and it is said that it is a stray observation and in the award Suit award cannot be made basis to deny the interest.
23. The above said order in my opinion may not be in consonance with the award itself, whether it is a stray sentence or any mistake committed while passing the award that can only be corrected by the Arbitrator himself if any review petition is filed before him or it can be corrected in a duly constituted Arbitration Suit which has not been done by the respondent in this case. More over, the respondent also not filed any counter claim in the Arbitration Suit itself stating that awarding of the interest by the Arbitrator is not correct and the same requires to be modified, clarified and corrected in the Arbitration suit itself. When that has not been done, on plain reading of the Arbitration award, which with clarity says that, the respondent is entitled for interest at the rate of 18% p.a., from the date of the award till the date of deposit of the amount in Fixed Deposit Receipt, therefore, this court has 26 mistaken the facts and law in this regard, therefore, the said order deserves to be reviewed.
24. So far as the award of compensation of Rs.2 lakhs is concerned, it is also not proper and correct as the Arbitrator has awarded a sum of Rs.50,000/- towards cost and compensation. Therefore, again awarding cost in the Execution proceedings does not arise.
25. It is worth to refer here the Arbitration suit filed by the petitioner herein for which he was legally entitled to under law. Even it is said that it is a deliberate action on the part of the petitioner in filing the Arbitration Suit. The cost should have been claimed in the Arbitration Suit itself, if it was a deliberate action on the part of the petitioner, no such counter claim was made by the respondent in Arbitration Suit No.22/2009, so the trial court felt that it is not appropriate to award any further cost. Therefore, it is clear that, in the Arbitration Suit, if no further cost was awarded, the executing court cannot independently take a decision as if it is a Original Court for the purpose of granting additional compensation. 27
26. When the executing court itself has no jurisdiction, either to modify or to alter the arbitration award, this court being the appellate court as against the impugned orders of the executing court, it cannot in any manner alter or modify the order passed by the Arbitrator. Therefore, when the executing court has no jurisdiction to do the above said acts, on IA III and IV; consequently this court also gets no jurisdiction to modify, alter, add or to delete anything from the award passed by the Arbitrator. The duty vests upon the executing court is to execute the award as it is without making any addition or deletion from the award, unless the Arbitrator himself has no jurisdiction to pass such an award.
Therefore, looking to the above said facts and circumstances, it is very much clear that this court under the mistaken facts and law passed the above said judgment in RFA No.1199/2012 vide judgment dated 22.2.2013. The decision cited supra reported in (2005) 4 SCC 741, is aptly applicable to the present set of facts and circumstances of the case. Therefore, when there is a miscarriage of justice occurred on the basis of mis- 28 conception of facts and law, the court can review its own order.
27. As it is noted above, the Hon'ble Apex Court has clarified in the above cited decision reported in (1996) 5 SCC 728, between Rameshwar Dass Gupta and State of UP and another, the executing court cannot travel beyond the order or decree under execution. In this case, the executing court itself has no jurisdiction to travel beyond the decree. Consequently, this court also gets no jurisdiction to travel beyond the order or decree. Consequently, this court also gets no jurisdiction to travel beyond the Arbitrator's Award. This court has virtually passed the order modifying the Arbitrator's award and also in addition to the cost awarded by the Arbitrator, this court has granted further cost of Rs.2 lakhs which in my opinion, has no jurisdiction to award such cost.
28. There is no dispute in this particular case, that after the award being passed by the Arbitrator, the amount has been deposited in the Fixed Deposit on 27.09.2007 when the second respondent has passed the award on 18.9.2007. Therefore, from 18.9.2007 till 27.09.2007, the 29 respondent is entitled for interest at the rate of 18% p.a., but the awarded amount of Rs.9,24,750/- and from the date of FDR till the date of realization of the amount is only entitled for the interest accrued on the Fixed Deposit. Therefore, in this particular case, the first respondent is not entitled for 18% p.a., interest from the date of the award till the date of realization as claimed and also he is not entitled for additional cost of Rs.2 lakhs as awarded by this court.
29. The filing of the suit is a subsequent proceedings and filing of the Writ Petitions are also subsequent to Arbitration Award. Till the said award was put into execution, nowhere the said award passed by the Arbitrator has been modified. Therefore, that award in stricter sense is only to be executed without any addition or deletion or modification by the executing Court. However, this court has modified the award as if this court is the appellate court on the Award, that in my opinion, is without jurisdiction. Therefore, the Review Petition deserves to be allowed. The consequence of this Review Petition is the reversal of the earlier order passed by this 30 court and consequential dismissal of the appeal. Hence, I proceed to pass the following:
ORDER Review Petition is hereby allowed. Consequently, the judgment passed by this court in RFA No.1199/2012 dated 22.2.2013 is hereby reviewed and reversed therefore, the appeal in RFA 1199/2012 is hereby dismissed. Parties to bear their Costs.
Sd/-
JUDGE PL*