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2013 (8) TMI 774 - HC - Companies LawMistake in the scheme - Constitution of an arbitral tribunal u/s 11 of the Arbitration and Conciliation Act, 1996 - It was possible for the applicant to prosecute its request under Section 11 of the 1996 Act with a caveat that the order sanctioning the scheme as drawn up carried a mistake in the North Mill not having been specifically included in the schedule to the scheme - despite such mistake, the surrounding circumstances made it obvious that such property had passed to the applicant under the sanctioning order - The order on the request u/s 11 may then had been without prejudice to the applicant's contention that the order sanctioning the scheme was mistaken or left unaffected the applicant's right to urge such ground at a subsequent stage – Whether the North Mill was transferred to the petitioner – Held that:- Once the applicant had asserted its right to the North Mill on the basis of the order sanctioning the scheme as drawn up, and failed - it was no longer open to it to claim that the order was erroneously drawn up in the North Mill not being included in the schedule thereto - A mistake of court in an order that operates in rem may be corrected at the instance of any person demonstrating to be prejudiced thereby - but the right of such person may not be recognised any longer if he has stood by and allowed a previous opportunity to pass when he ought to have asserted the mistake and attempted to have it rectified particularly if such conduct has resulted in a right having accrued to any other - The consequence may be harsh and may confer an undeserving windfall on another - But the ethos of the applicable principles in matters of public policy demands that the applicant be left to its fate for a course of conduct that it consciously charted for itself at an earlier point of time.
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