Punjab & Sind Bank vs Tej Properties Pvt. Ltd.

Ranjit Singh, J

In this appeal filed by the bank, the challenge is made to an order whereby the DRT-II, Delhi has corrected a clerical error in the order passed by it while disposing of the O.A. NO. 652/1995 on 18.4.1996. The O.A. NO. 652/1995 was allowed ex parte by the DRT in the following terms:-

That the defendants shall pay to the applicant a sum of Rs. 57,19,134/- which they shall be severally and jointly bound to pay.

That the defendants shall pay to the applicant an interest at the rate of 17.5% p.a. from the date of filing of the application till complete realization.

The cost of the applicant shall be borne by defendants. The recovery certificate be issued certifying the entitlement of the applicant bank to the said amount which shall be realized by sale of current assets of the defendant company and immovable property mortgaged with the applicant bank and sale of hypothecated goods and stocks.

While issuing the recovery certificate (R.C.) on 13.3.2000, the Presiding Officer ordered the respondents herein to pay to the applicant bank a sum of Rs. 57,19,134/- along with pendente lite and future interest @17.5% with quarterly rests w.e.f. 11.8.1988 till realization. The submission is that the R.C. is not in consonance with the direction issued by the Tribunal while allowing the O.A The part of the order reproduced above passed by the Tribunal below while allowing the O.A. clearly records that the defendants shall pay to the applicant an interest @17.5% per annum from the date of filing of the application till complete realization. There was no direction issued by the Tribunal that this interest was with quarterly rests and accordingly the respondents herein made a grievance in this regard. This issue came up before the Tribunal below for correction of the error which is apparent on the face of the record when respondent No.4 moved an application for correcting the error. Incidentally he was not a party to the O.A. No. 652/1995. When respondent No. 4 filed this application for correcting this clerical mistake, which has crept into the R.C. due to an oversight, the bank raised an objection in regard to the locus of respondent No. 4 to file such an application to seek correction of the mistake, on the ground that he was not a party to the proceedings in the O.A.

The Tribunal, while dealing with this objection, has referred to section 26(2) of the RDDBFI Act which has been considered along with the provisions of section 152 CPC. The Tribunal has noticed that the Court can carry out correction on its own motion as well and the applicant could be considered as a person who bring an error apparent on the record due to clerical mistake to the notice of Tribunal. The counsel for the appellant bank, however, would plead that this application was not maintainable and could not have been taken into consideration to correct any error etc. The counsel would also contest that the error pointed out and corrected by the Tribunal would be a clerical error which could be so corrected.

As per counsel for the respondents, there was no arithmetical error and as per the provision of section 26(2) of the RDDBFI Act the Tribunal could not have corrected this mistake in the certificate it being neither a arithmetical mistake nor a clerical mistake.

Section 26 of the RDDBFI Act talks of validity of certificate and amendment thereof. Sub-section (1) provides that it shall not be open to the defendant to dispute before the R.O. the correctness of the amount specified in the certificate and no objection to the certificate on any other ground is also to be entertained by the R.O. Sub-section (2) of section 26 leaves ample power with the Presiding Officer even where the certificate has been issued to the R.O. to withdraw the certificate or to correct any clerical or arithmetical mistake in the certificate that even by sending an intimation -to the RO. There is apparent slight difference in the wording of section 26(2) RDDBFI Act and section 152 CPC. Section 152 CPC states the clerical or arithmetical mistake in judgement, decree or orders or errors arising therein from any accidental slip or omission made at any time be corrected by the Court either of its own motion or on application of any of the parties. Sub-section (2) of section 26 of the RDDBFI Act empowers the Presiding Officer to withdraw the certificate or to correct any clerical error or arithmetical mistake in the certificate by sending intimation to the R.O. The distinctive powers conferred by these two provisions, in my view, are quite apparent. Sub-section (2) of section 26 apparently confers wider powers on the Presiding Officer. This section is distinct in a manner that it talks of carrying out correction in the R.C. and even empowers the Presiding Officer to withdraw the same. The Presiding Officer could correct 'any' clerical or arithmetical mistake just by sending an intimation to the R.O. Section 152 CPC talks of clerical or arithmetical mistakes in the judgement, decree or order or errors arising therein due to accidental slip or omission. There is no such restriction in sub-section (2) of section 26 of the RDDBFI Act which may appear from the reading of section 152 CPC. Section 26 of RDDBFI Act- does not require any application to be moved, but leaves an enabling power with the Presiding Officer to act even to withdraw the certificate or to correct the mistake once it comes to his notice. Even if this application was filed by a person who was not a party to the lis earlier, this, in my view, cannot be read to curtail the powers available with the Presiding Officer who in 'any' case can correct the clerical or arithmetical mistake in the R.C. word 'any' in wording of section is significant.

Though the counsel for the appellant made a valiant attempt to show that the R.C. was in consonance with the claim made in the O.A and was rightly drawn, but was unable to dispute the proposition that the R.C. has to be on the basis of order passed in the O.A. Concededly, no direction was passed in the O.A. for interest to rest quarterly and accordingly this part of the direction was be.y.ond the scope of the order passed in the O.A. which was allowed. When this apparent mistake or error came to the notice of the Presiding Officer, may be on an application filed by a person who was not a party to the proceedings, the Presiding Officer has acted to correct this error which is a clerical mistake. The submission that this application was filed by a person, who was not competent, thus would not impress me. The Tribunal, in my view, has rightly observed that the review is a remedy which is available to the parties to the lis but so far as action of correcting the clerical mistake is concerned, such requirement may not even be insisted upon. It would be immaterial how the error comes to the notice of the Court, but action taken to correct the error seems to bean the basis of the error found by the Presiding Officer, which is apparent from the record itself.

The second submission made by the learned counsel for the appellant is concerning the delay in moving the application to seek correction. This has also been dealt with by the Tribunal. The Tribunal has observed that delay can never passed as valid consideration to decline settings the things right when mistake is brought to the notice of the Court Once it was found that there is a mistake apparent in the R.C., this could not have been ignored and allowed to perpetuate for the times to come. Once it came to the notice of the Tribunal, it has acted to correct the same and settle the rights of the parties in accordance with law. Judgment of the Tribunal had contained directions about the interest which could not have been varied in R.C. Delay cannot be a ground to defeat the rights of a party to which it is entitled to on the basis of the judgement passed by a Court. Incidentally, no restrictions regarding time limitations are contained in section 26 of the RDDBFI Act for the Presiding Officer to withdraw the certificate or to correct clerical or arithmetical mistake. The interest of justice has to prevail to pass an appropriate order under the provisions of the RDDBFI Act.

The reliance placed by the learned counsel for the appellant in the case of Deputy Chief Engineer vs. Jolly Mattappillil, 2012 (1) KHC 622, would not fully support the contentions raised by the counsel for the appellant. In this judgement, the Court has held that a correction under section 152 of CPC, for which no time limit is prescribed, then culpable laches or deliberate default on the part of the party and the application for correction is applied beyond just and reasonable time that would be a circumstance that has to be looked into by the Court in examining the merit of the application. This judgement in no way bars the Court to carry out correction. Rather the court has gone on to observe that any act of the Court shall not cause any prejudice or injury to any of the parties to the proceedings. It is further observed that if at all a mistake or error had been committed by the Court and that is patently evident, while delivering a judgment or drafting a decree or order, and such mistake or error falls within the ambit and scope of section 11, 52 of the CPC, it has to be rectified when it is pointed out. It is rightly observed that basis of section 152 of the CPC is founded on the maxim 'actus curiae neminem gravabit', an act of Court shall prejudice no man.

Accordingly, I am not impressed with the submission that the delay in ordering correction would render the correction carried out bad or illegal in any manner. The mistake, if any, was on the part of the Tribunal while drawing the R.C. and whenever it came to the notice of the Tribunal, the same is corrected and rightly so, in my view, as the act of the Court could not have been allowed to harm the interest of party.

I see no reason to interfere in the impugned order and would dismiss this appeal. Parties to bear their own cost.

Copy of this order be furnished to the parties as per law.