9911796707
TMI Blog2021 (11) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... , the City Civil Court as well as the High Court have committed a grave error in dismissing the arbitration suit/appeal under Sections 34 and 37 of the 1996 Act respectively. The modified award passed by the learned arbitrator allowing the application under Section 33 of the 1996 Act cannot be sustained and the same deserves to be quashed and set aside. The impugned judgment and orders passed by the High Court in an appeal under Section 37 of the 1996 Act and City Civil Court in arbitration suit under Section 34 of the 1996 Act and the order passed by the learned arbitrator dated 14.1.2011 modifying the original award dated 04.12.2010 are hereby quashed and set aside - the original award passed by the learned arbitrator dated 04.12.2010 stands restored. Appeal allowed. - CIVIL APPEAL NO. 6876 OF 2021 - - - Dated:- 22-11-2021 - M. R. SHAH And B. V. NAGARATHNA , JJ. JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18.03.2021 passed by the High Court of Karnataka at Bengaluru in M.F.A. No.7098 of 2018 (AA), by which the High Court has dismissed the said appeal preferred by the appellant herein under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an award that in the alternative, the appellant shall pay to the claimant/respondent within the said period of three months, the market value of 3648.80 grams of pure gold along with interest @ 18% per annum calculating the value of the gold at ₹ 740 per gram from 24.07.2004 till the date of payment. 4. Subsequently, the respondent filed an application under Section 33 of the 1996 Act and requested to modify the award dated 04.12.2010 by correcting computational/arithmetical/clerical error by deleting at ₹ 740 per gram as claimed in the claim statement at page 14, second para, line 20 and to delete ₹ 740.00 per gram at page 17, para 15(b), line 3, and substitute the same by ₹ 20,747/- per 10 grams at page 17, para 15(b), line 3. 5. The learned arbitrator allowed the said application under Section 33 of the 1996 Act vide order dated 14.01.2011 and corrected the original award dated 04.12.2010 as under: a) the respondent is directed to return to the claimant within three months from today 3,648.80 grams of pure gold along with interest @ 18% per annum calculating the value of gold at ₹ 740.00 per gram from 24.07.2004 and up to the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made by the original claimant after a discussion on merits and on appreciation of the evidence on record. 8.2 It is submitted that in exercise of powers under Section 33 of the 1996 Act, only an arithmetical and/or clerical error can be corrected in the award. It is submitted that in the application under Section 33 of the 1996 Act, the respondent original claimant came out altogether with a new claim which was not permissible in an application under Section 33 of the 1996 Act. 8.3 It is therefore submitted that both, the City Civil Court as well as the High Court have materially erred in upholding the order passed by the learned arbitrator allowing the application filed under Section 33 of the 1996 Act and modifying the award in purported exercise of powers under Section 33 of the 1996 Act. 9. Shri Sajan Poovayya, learned Senior Advocate appearing on behalf of the respondent, as such, is not a position to defend the order passed by the learned arbitrator allowing the application under Section 33 of the 1996 Act and modifying the award. However, he submitted that what has been modified by the learned arbitrator on an application filed under Section 33 of the 1996 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of 3,648.80 grams due to them as ₹ 27,00,112.00. The counsel for the claimant submitted that as has been laid down by the Hon ble Supreme Court in the decision in Dhian Singh Sobha Singh and another vs. Union of India AIR 1958 SC 274 in an action of wrongful detention of plaintiff s chattel otherwise known as judgment for the plaintiff in detinue is for delivery of the chattel or payment of its value and damages for detention. The counsel for the respondent has submitted that in this case it can either be ordered for return of 3,648.80 grams of pure gold (24 carats) or in the alternative the payment of its value as on the date of the award. I think that this is a just and reasonable course to be followed. I also find that the claimant should be allowed appropriate interest on the said market value even in the event of the respondent returning the gold itself to the claimant. No doubt, the market value of gold has increased to a great extent as on today but in the absence of any reliable proof in this behalf I find that as claimed in the claim statement it is just and reasonable to allow interest on the market value of the balance gold in question at ₹ 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
