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Judgment
I.A. No. 767 of 2024:- This is an application where following prayers have been made:-
(a) Allow the present Application and pass an appropriate order/direction modifying/correcting/clarifying the correct project completion date from 03.12.2023 to 03.12.2024 as mentioned in the judgment dated 13.09.2023 passed by this Honble Tribunal, and;
(b) Pass any other Order(s) that this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
Learned Counsel for the Appellant submits that in the Appeal which was filed by the Respondent challenging the order passed by the Adjudicating Authority in paragraph 2, the date mentioned on 03.12.2023 was an error which need to be corrected in exercise of inherent jurisdiction of this Tribunal.
Learned Counsel for the Respondent refuting the submission of the Appellant submits that there is no error committed by this Tribunal while noticing the date 03.12.2023 since that was the date which was noticed by the Adjudicating Authority in the impugned order against which impugned order dated 19.05.2023 the Appeal was filed.
Learned Counsel for the Appellant sought to contend that in the subsequent certificate issued by RERA, the date is 03.12.2024. Counsel for the Appellant in support of his submission relied on the judgment of the Honble Supreme Court in Niyamat Ali Molla vs. Sonargon Housing Cooperative Society Ltd. and Others- (2007) 13 SCC 421. He has relied on paragraphs 19, 20 and 21 of the judgment which is as follows:-
19. The Code of Civil Procedure recognises the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the Code but also inherent power in general. The courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the court is well recognised.
In Samarendra Nath Sinha v. Krishna Kumar Nag [AIR 1967 SC 1440 : (1967) 2 SCR 18] this Court held : (AIR p. 1443, para 11)
11. Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
Every court, said Bowen, L.J. in Mellor v. Swire [(1885) 30 Ch D 239 (CA)] has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made.
In Janakirama Iyer v. Nilakanta Iyer [AIR 1962 SC 633] the decree as drawn up in the High Court had used the words mesne profits instead of net profits. In fact the use of the words mesne profits came to be made probably because while narrating the facts, these words were inadvertently used in the judgment.
The question came up for consideration before the Calcutta High Court in Bela Debi [AIR 1952 Cal 86] , wherein it was held : (AIR pp. 89-90, paras 19-20)
19. It will thus be seen that there is a diversity of judicial opinion as to how far a court can go in rectifying its own decree. Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see St. Nazaire Co., In re [(1879) 12 Ch D 88 (CA)]
; Preston Banking Co. v. William Allsup & Sons [(1891-94) All ER Rep 688 : (1895) 1 Ch 141 (CA)] ). Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire [(1885) 30 Ch D 239 (CA)] ). But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves. Mistakes in the description of properties in deeds, is illustrative of this kind of mistake. It is the parties who have made the mistake, and the mistake is continued in the pleadings and the decree. According to one view, Section 152 is confined to acts of the Court and, therefore, mistakes of parties made in the pleadings or deeds and documents evidencing the transaction cannot be corrected (L. Ram Chander Sarup v. Mazhar Hussain [AIR 1919 All 264] ). The second view is that under this section and Section 151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar [AIR 1934 Oudh 352] , AIR at p. 354; Ram Chandra Sahu v. Jamna Prasad [AIR 1935 Oudh 92] ). A third view is that it is permissible under such circumstances to amend the decree and it is unnecessary to amend the plaint (Badri Pande v. Chhangur Pandey [AIR 1933 All 102]; Jamini Bala Biswas v. Bank of Chettinad, Ltd. [AIR 1935 Rang 522] , AIR at p. 523). Lastly, there is the view, which I have already noted, which goes to the extent of holding that the Court cannot only rectify pleadings and decrees but rectify documents evidencing the transactions themselves, upon which the suit was founded.
I shall now state, what in my opinion, is the true meaning of Section 152, Civil Procedure Code. I am not in favour of giving a narrow construction to Section 152. I do not agree that Section 152 must necessarily refer to an accidental slip or omission of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Court's own accidental slip or omission, or that of its ministerial officers, there can be no doubt that the section applies. But it gives power to rectify any accidental slip or omission in a judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an accidental slip or omission. A mistake made by the parties in a deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an accidental slip or omission. Where it is clear, that such is the case, then I do not see why the Court cannot set it right. In doing so, what is going to be rectified is, the judgment decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In making such corrections, however, the Court can only proceed on the footing that there could be no reasonable doubt as to what it really intended to say in its judgment, decree or order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that description, and a decree passed, it is not permissible in proceedings under Section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle, C.J. that such a question can only be dealt with, in appropriate proceedings under the Specific Relief Act (see T.M. Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar [AIR 1948 Mad 13] ). But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as 24 Chowringhee Road, Bhawanipur. It would be clear to everybody what property was meant, and it cannot be seriously doubted that in stating that the property was in Bhawanipur, the parties had committed an accidental slip or omission. In such a case, I would not go to the extent of holding that the Court has no power to correct the judgment, decree or order which has repeated the mistake. In doing so, the Court need not correct the pleadings or the document but its own decision. In my opinion, it is not necessary in such a case to amend the pleadings or to rectify the deed, therefore, no question arises as to whether the Court has power to do so. It is, however, quite clear that such cases must be of rare occurrence, and the scope thereof is severely limited. The power cannot be extended to the resolving of controversial points, and a decision as to what the parties intended or did not intent to do. Apart from this exceptional case, I hold that the Court cannot correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way of a suit under Section 31, Specific Relief Act. To this extent, I agree respectfully with the view enunciated by Gentle, C.J. in T.M. Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar [AIR 1948 Mad 13] and the view expressed by Young, J. in Shujaatmand Khan v. Govind Behari [AIR 1934 All 100 (2)] . Applying these principles to the facts of this case, I think that the rectification asked for is impossible. If there has been a mistake in the original agreement it is a mistake which is fundamental, and it is impossible without going into evidence, to decide as to what the parties meant. There are facts in favour of the contention put forward by either party and I cannot describe it as an error (if there is at all any error) as can be called an accidental slip or omission as contemplated in Section 152. In any event, such slips or omissions cannot be rectified in proceedings under Section 152 or even under Section 151 of the Code.
We, with respect, agree with the aforenoticed view.
There can be no dispute to the preposition that this Tribunal has inherent power to correct mistake or slip occurred in the order that such power is preserved in the Rule 11 of the NCLAT Rules, 2016 but the power cannot be exercised when there is no mistake or slip in the order or decree. Present is not a case where any mistake or slip occurred in the order passed by this Tribunal. The date 03.12.2023 was a date which was noticed by the Adjudicating Authority in the impugned order and which date is reflected in the order while dismissing the appeal. We, thus, do not find that it is a fit case to exercise any inherent jurisdiction to correct any error in the judgment. Application is rejected.