Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.91/2019 ..1..
CNR No.MHCC010002302019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.91 OF 2019
IN
SUIT NO.4303 OF 2012 (Disposed off)
Kiran Gopal Samrit .. Plaintiff
Versus
Rupji Construction and Anr. .. Defendants
Mr. P. B. Joshi, advocate for plaintiff
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 02nd February, 2019
ORAL ORDER
Perused notice of motion. Heard counsel for plaintiff.
Defendants remained absent.
2. Notice of motion is taken out by the plaintiff seeking correction
in the operative order of judgment and decree dated 09.03.2018 passed
in suit No.4303 of 2012 on the count that typographical error has
occurred in mentioning the amount granted in favour of plaintiff and so
also in the area mentioned.
3. It is contended by plaintiff that he has made payment of
Rs.4,74,000/ in three installments. However, in order/judgment it is
mentioned that payment made by plaintiff to defendant no.1 is
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Rs.4,37,000/. Typographical error in operative part of order is to the
extent amount of which is mentioned in para 1 of operative order. It is
further contended that there is also typographical error in operative
part of decree to the extent of amount and area of flat mentioned in
para 1 of operative part of decree. Para 2 of operative part of decree is
not in consonance with para 2 of operative part of judgment. In para 2
of operative part of judgment amount mentioned is Rs.9,60,000/ and
area is mentioned as 480 sq. ft. while in decree para 2 of operative part
amount is mentioned as Rs.12,00,000/ and area is mentioned as 600
sq. ft. Therefore, plaintiff has sought correction in the operative part of
judgment and decree as under:
(a) In para 1 of operative part of judgment in line 2 instead of
Rs.4,37,000/ it should be Rs.2,87,000/ as per the amount
mentioned in plaint.
(b) In para 1 of operative part of decree in line 2 instead of
Rs.11,24,000/ it should be Rs.2,87,000/.
(c) In para 2 of operative part of decree in line 2 instead of
Rs.12,00,000/ it should be Rs.9,60,000/ i.e. as per amount
mentioned in order/judgment dated 09.03.2018.
(d) In para 2 of operative part of decree in line 2 instead of
600 sq. ft. it should be 480 sq.ft i.e. as per area mentioned in
order/judgment dated 09.03.2018.
4. I have gone through notice of motion, affidavit in support of it
and documents filed along with it. I have also perused original record
and proceeding in suit No.4303 of 2012. There cannot be any quarrel
that the decree should be drawn in accordance with judgment. On
perusal of judgment dated 09.03.2018 in above suit it is clear that in
clause 2 of operative order; defendant no.1 is directed to pay
Rs.9,60,000/ and for the purposes of calculating said amount area has
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been considered as 480 sq.ft. while in clause 2 of operative part of
decree it is mentioned that defendant no.1 is directed to pay
Rs.12,00,000/ and area is mentioned as 600 sq.ft. Thus, it is clear that
clause 2 of operative part of decree drawn is not in accordance with
clause 2 of operative part of judgment dated 09.03.2018 passed in
above suit. It is apparent that clerical error has occurred while
mentioning the amount directed to be paid by defendant No.1 and area
on the basis of which calculation of amount has been made in clause 2
of operative part of decree. Therefore, it is necessary to correct said
clerical error by mentioning amount of Rs.9,60,000/ instead of
Rs.12,00,000/ and area 480 sq.ft. instead of 600 sq. ft. in clause 2 of
operative part of decree.
5. So far as correction sought by plaintiff in respect of amount
mentioned in clause 1 of operative part of judgment is concerned
plaintiff has mentioned in para 6 of affidavit filed in support of notice of
motion that he has made payment of Rs.4,74,000/ in three
installments and by typographical error in clause 1 of operative part of
order in judgment it is mentioned as Rs.4,37,000/ instead of
Rs.4,74,000/. While correction sought is to mention Rs.2,87,000/
instead of Rs.4,37,000/ in clause 1 of operative part of judgment and
in operative part of decree it is sought Rs.2,87,000/ instead of
Rs.11,24,000/. On going through judgment it is clear that my learned
predecessor in para 65 held that plaintiff has paid total sum of
Rs.4,37,000/ to the defendant from time to time and in the interest of
justice the defendant should pay to the plaintiff the amount received
along with interest @ 9 % per annum from the date of receipt of
respective installments till its final realization.
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6. On perusal of plaint it appears that plaintiff in para 15A has
mentioned that he has paid in all Rs.4,37,000/. Scope of correction of
judgment and decree is limited to the extent of correction of clerical or
arithmetical error or when there is error arising due to omission or
accidental slip. In present case, my learned predecessor has given
finding in para 65 in relation to claim of amount to which plaintiff is
entitled. So, it would not be just to make correction in clause 1 of
operative part of judgment as per prayer made by plaintiff. However, if
plaintiff states that he has paid only Rs.2,87,000/ to the defendant
no.1 then while filing Execution Petition he can restrict his claim to
Rs.2,87,000/. So far as correction in operative part of decree is
concerned it should be in consonance with clause 1 of operative part of
order in judgment. Therefore, it is necessary to correct clause 1 of
operative part of decree by mentioning Rs.4,37,000/ instead of
Rs.11,24,000/. Hence, I pass following order.
ORDER
Notice of Motion No.91 of 2019 is partly allowed in following terms:
It is hereby ordered to correct clause 1 of operative part of
decree dated 09.03.2018 passed in Suit No.4303 of 2012 by mentioning
amount of Rs.4,37,000/ instead of amount of Rs.11,24,000/.
It is hereby further ordered to correct clause 2 of operative part of
said decree by mentioning amount of Rs.9,60,000/ instead of
Rs.12,00,000/ and area 480 sq.ft. instead of 600 sq. ft.
Registrar (Civil) to carry out correction in decree as per above
order.
Intimation be given to the decree department.
Record and proceeding in Suit No.4303 of 2012 be sent back to
Civil Record Department.
Accordingly, notice of motion stands disposed off.
(M. T. Asim)
Judge
Date : 02.02.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.02.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
02.02.2019
JUDGMENT/ORDER signed by P.O.
on
04.02.2019
JUDGMENT/ORDER uploaded on 04.02.2019
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