Delhi High Court - Orders
Mr. Kalanithi Maran vs M/S Spicejet Ltd. & Anr on 15 October, 2020
Author: Rekha Palli
Bench: Rekha Palli
Via Video Conferencing
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ OMP (ENF.) (COMM.) 32/2019
MR. KALANITHI MARAN ..... Decree Holder
Through: Mr.Maninder Singh, Sr. Adv.with
Mr.ASL Sundaresan, Sr.Adv.with
Ms. Nandini Gore, Adv,
Ms. Natasha Sahrawat, Adv
Mr.Raghvendra Pratap Singh, Adv
Mr.Jasvir Singh Sabharwal, Adv.
Mr. Prabhas Bajaj, Adv
versus
M/S SPICEJET LTD. & ANR. ..... Judgement Debtors
Through: Mr Sanjeev Sindhwani, Sr Adv, along
with Mr. Sanjay Abbot, Mr. Arshdeep
Singh Khurana, Mr. Tanmay Mehta
and Mr. Abhinav Sharma Advocates
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 15.10.2020 EA 1023/2020 Allowed, subject to all just exceptions. The application is allowed. EA 1022/2020
1. This is an application filed by the judgment debtors (JDs) under Sections 151 and 152 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') read with Order XLVII Rule 1 CPC and Section 114 of OMP (ENF.) (COMM.) 32/2019 Page 1 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56 the CPC. The JDs have sought correction of some purported arithmetical errors in the order dated 02.09.2020 passed by this Court in E.A. Nos.680/2019 and 6947/2019 whereunder the judgment debtor was directed to deposit a sum of INR 242,93,70,845.56/- within a period of six weeks. The amount directed to be deposited was towards part discharge of the awarded amount, which remains a subject matter of challenge in the Section 34 petitions filed by both the parties herein.
2. At the outset, Mr. Maninder Singh, learned senior counsel for the Decree Holder (DH) /non-applicant opposes the application by stating that the JDs have already preferred a review petition against the order dated 02.09.2020 before this Court on the same grounds, a fact which has not been disclosed in this application. Moreover, the JDs are not even pursuing those review proceedings, thus this application is a ploy to hoodwink this Court. It is his contention that the present application is liable to be summarily rejected on this ground alone. In reply, learned senior counsel for the applicant/, Mr Sanjeev Sindhwani admits that the JDs had filed the review petition as averred by the DH, however the same could not be listed for hearing on account of several objections. He submits that as a result, the JDs intend to withdraw this petition from the Registry itself and assures this Court that the petition would be duly withdrawn. Mr. Sindhwani's statement is taken on record and in the light thereof, this objection need not detain the Court any further.
3. In support of the application, Mr Sindhwani has tried to point out three computational errors in respect of the amounts directed to be deposited under the order dated 02.09.2020. He submits that this Court has directed payment of post-award interest on the sum payable to the DH for refund of OMP (ENF.) (COMM.) 32/2019 Page 2 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56 payments made on warrants, i.e., INR 308,21,89,461/- without appreciating the fact that the said amount already stood deposited with this Court, after which no further interest could accrue on this amount. Therefore, no post- award interest was payable on the amount of INR 308,21,89,461/- pursuant to the date of deposit made before this Court. He further submits that the award restricted the period during which pre-award interest could accrue on the amount of INR 308,21,89,461/-, to a limited period of 30 months, which has been overlooked by this Court as well. He submits that even the interest component of 18% applied on the refund against CRPS payment of INR 270,86,99,209/- has been directed to be paid from an earlier date than the date stipulated in the award. He also submits that while accepting the calculations submitted by the DH, this Court has not considered the fact that the JDs' counter claim of INR 29,00,00,000/- had been allowed under the award and, therefore, was required to be set off while making the directions for deposit of interest. He submits that even though the JDs had specifically urged that the preliminary decision to issue IPO had not been proceeded with, paragraph 19 of the order dated 02.09.2020 still records otherwise. Finally, by placing reliance on the decision of the Supreme Court in Samarendra Nath Sinha & Anr. Vs. Krishna Kumar Nag AIR 1967 SC 1440, he submits that this Court has the power to correct the arithmetic errors in its order at any stage and, therefore, prays that the application be allowed.
4. On the other hand, Mr Singh submits that the present application is a mala fide attempt on the part of the JDs to re-argue the matter and urge issues which were not raised by either of its counsel at the time when the order was being passed. He submits that the JDs have deliberately moved OMP (ENF.) (COMM.) 32/2019 Page 3 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56 the application at this stage when the six weeks' time to deposit the amount, granted to JDs by this Court under the order in question, is about to lapse as they are well aware that there is in fact no calculation error in that order. Rather, the directions passed on 02.09.2020 are in accordance with the award dated 20.07.2018. He also submits that the parties remain aware that the DH is seriously aggrieved by the decision of the learned Tribunal to award the JDs an amount of INR 29,00,00,000/- towards their counter claims whereas the JDs are aggrieved by the award of INR 270,86,99,209/- to the DHs against warrants, and both parties have challenged these aspects of the award. The order dated 02.09.2020 is mindful of this position and has not passed any directions with respect to either of these disputed amounts. He submits that in any event, the intermittent payments made by the JDs to discharge their obligations under the award do not really have a bearing upon the period of interest. By relying on the decisions of the Supreme Court in Master Construction Co. Pvt. Ltd. Vs. State of Orissa & Anr. AIR 1966 SC 1047, Dwarka Das Vs. State of M.P. & Anr. (1999) 3 SCC 500, State of Punjab Vs. Darshan Singh (2004) 1 SCC 328 and Indian Council for Enviro-Legal Actions Vs. Union of India & Ors. (2011) 8 SCC 161, he submits that the pleas of the JDs require interpretation of the directions under the award, which has already been done by this Court. He, thus, submits that these submissions of the JDs neither fall within the ambit of Section 152 of CPC nor merit a review of the order in question. In these circumstances, he prays for this application to be dismissed.
5. I have heard the learned senior counsel for the parties at length. Even though there can be no doubt about the fact that every Court has the power to correct or modify any arithmetic mistakes which may creep into an order OMP (ENF.) (COMM.) 32/2019 Page 4 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56 or judgment, the question is whether the issues raised by the JDs can be treated as arithmetic errors. The applicants have claimed that their contentions revolving around the period for which interest was finally ordered to be paid, the imposition of interest itself in some case, and the exclusion of the interest payable on their counter claims are all arithmetic mistakes in the order dated 02.09.2020.
6. Having perused the award dated 20.07.2018 and the order dated 02.09.2020, I am unable to agree with the submissions of Mr. Sindhwani. It is apparent that the JDs, having argued the matter at length through their two senior counsel at the time of passing of the order dated 02.09.2020, are now making an attempt to re-argue the whole case under the disguise of a review application. In my considered opinion, the issues sought to be raised by the JDs do not in any manner qualify as arithmetic errors. In fact, the JDs were unable to point out any calculation mistake in the order. Rather, their entire attempt was to persuade this Court to reinterpret the directions in the award, which in my considered view is not permissible within the limited scope of an application under Section 152 or even a review under Order XLVII of the Code of Civil Procedure, 1908.
7. Even though I find that the grounds raised by the JDs do not fall within the ambit of any arithmetic or clerical error, I have still examined the calculations at the insistence of the JDs. Their contention that interest on the sum of INR 308,21,89,461/- awarded against warrants was payable only for a limited period of 30 months is entirely without merit as the same is contrary to the specific directions on the award. There is no such period specified or limitation set down in the directions of the learned Tribunal. This is true for the remaining issues raised by the JDs on the ground of being OMP (ENF.) (COMM.) 32/2019 Page 5 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56 erroneous.
8. Next, the JDs have sought a correction in paragraph 19 of the order dated 02.09.2020 insofar as it bears a mention to their decision to issue an initial public offering (IPO) for JD No.1 Company, which they claim is incorrect because JD-1 never issued any IPO. In my view this plea is also meritless as, on 02.09.2020, it was submitted at the Bar on behalf of the JDs that the initial proposal for issuance of IPO was not acted upon. In any event, although this was one of the grounds adopted by the DH in its application to claim that the health of JD-1 was suffering, nothing turned on this ground itself while passing the order in question. There was enough material brought on record before this Court which threw a shadow over the financial health of JD-1, especially the Independent Auditor's report pertaining to JD No. 1. This aspect is also reflected in the order dated 02.09.2020 and was passed after a thorough examination of the material placed on record.
9. Even the JDs' contention that this Court ought to have paid due regard to its counter claim for a sum of INR 29,00,00,000/- while issuing the directions for deposit in the order dated 02.09.2020 does not have any merit since this Court, admittedly, did not pass any direction for deposit of amounts which were in dispute between the parties. This is evident from the fact that the DH's prayer for deposit of INR 270,86,99,209/- was also rejected as the claim therefor is presently under challenge by the JDs.
10. Before I conclude I must note that the order dated 02.09.2020 makes it clear that it was passed merely to secure the DH for the time being to the extent of the interest granted to it under the award. It was passed keeping in view the flailing financial health of the JDs and was made subject to any OMP (ENF.) (COMM.) 32/2019 Page 6 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56 final orders passed in the enforcement petition which is still pending adjudication. I, therefore, do not find any infirmity in the order dated 02.09.2020 which may merit review.
11. Accordingly, the application is dismissed with no order as to costs.
REKHA PALLI, J.
OCTOBER 15, 2020 dkb OMP (ENF.) (COMM.) 32/2019 Page 7 of 7 Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:17.10.2020 18:02:56