ABHIRAM INFRA PROJECTS PRIVATE LIMITED Vs. COMMISSIONER

JUDGEMENT

(1.) This Writ Petition is filed by the Decree holder in Execution No.3835 of 2019 on the file of LXXXV Additional City Civil and Sessions Judge at Bangalore, allowing the memo dtd. 16/1/2020 filed by the judgment debtor.

(2.) Facts in nutshell are that, the petitioner had entered into an agreement No.001/2011-12 dtd. 3/8/2011 for execution of "Construction of Community Centres at thirteen locations under Phase-2 and work at the identified slums in Bengaluru City". The total amount for the project was Rs.6,41,58,238.00 and the time stipulated to complete the project was twelve months. However, for the reasons best known to the parties, the project was not completed within the stipulated period and as such the respondent herein refuted the claims made by the petitioner on account of the delay in execution of work and in that view of the matter the petitioner invoked arbitration clause in the agreement dtd. 3/8/2011. A Sole Arbitrator was appointed on 23/10/2017 for adjudication of dispute between the parties. The Arbitral Tribunal, by award dtd. 8/4/2019, ordered that the Decree holder/petitioner is entitled for Rs.63,97,750.00 with further simple interest at the rate of Rs.15.80% (SBI PLR + 2%) from 9/4/2016 till realisation. The counter claim filed by the respondent was rejected by the learned Arbitrator. Thereafter, the petitioner herein has filed Execution Petition No.3835 of 2019 on the file of the trial Court to execute the award made by the learned Arbitrator. In the Execution Proceedings the judgment debtor filed Memos dtd. 16/1/2020 and 12/12/2019; and the memo of calculation filed by the Decree holder on 16/1/2020. The trial Court heard the learned counsel appearing for the parties and allowed the memo dtd. 16/1/2020 filed by the judgment debtor/respondent and as such, modified the award. Feeling aggrieved by the same, the Decree holder/petitioner herein has presented this petition.

(3.) Sri Samaksh Sood, learned counsel appearing for the petitioner drew the attention of the Court to the award at Annexure-B made by the learned Arbitrator and also Sec. 33 of the Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as "Act"). He submitted that the Executing Court has no jurisdiction to correct the award made by the learned Arbitrator and therefore, he places reliance on the judgment of the Hon'ble High Court of Delhi in the case of S.P.S. RANA v. MTNL AND OTHERS decided on 14/1/2010; in the case of DO-IT COMPUTER JV A v. THE MUNICIPAL CORPORATION OF GREATER MUMBAI reported in 2018 SCC OnLine Bom.1192; and in the case of UNION OF INDIA v. POPULAR CONSTRUCTION COMPANY reported in (2001)8 SCC 470. Placing reliance on the above judgments, learned counsel appearing for the petitioner submitted that neither the petitioner nor the respondent have filed an application under Sec. 33 of the Act and therefore the impugned order passed by the Executing Court modifying the award requires interference in this Writ Petition.