12/11/2014
If there is any clerical mistake in the award
and whole of the award need not be set aside for such
mistakes
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PUNJAB AND HARYANA HIGH COURT
Before :- Amarjeet Chaudhary, J.
First Appeal from Order No. 364 of 1992. D/d. 18.7.1994.
Gables India Pvt. Ltd. - Appellant
Versus
State of Punjab - Respondent
For the Appellant :- R.S. Mittal, Sr. Adv. with M/s Arun Singal,
and P.S. Rana, Advocates.
For the Respondents :- Mr. G.K. Chatrath, Advocate General,
Punjab with Mr. Arun Walia, Assistant Advocate General
Punjab.
JUDGMENT
Amarjit Chaudhary, J. - M/s. Gables 9 (India) Private Limited
has filed this appeal against the judgment of Sub-Jduge 1st
Class, Ropar, dated January 4, 1992, vide which the trial Court
on application under Sections 30 and 33 of the Arbitration Act
filed by the State of Punjab had set aside the award rendered
by the sole Arbitrator on 23.8.1990.
2. In order to appreciate the controversy raised in appeal, the
facts in brief may be noticed.
3. The appellant-firm entered into a contract with the State of
Punjab through Executive Engineer, Patiala Construction
Division for the construction of SYL Canal from RD 69.00 to
69.500 KM (Old). The contract was executed on 25.11.1985.
As per Clauses 63 of the agreement, in case of any dispute the
matter was to be referred to the sloe Arbitrator to be
appointed by the Chief Engineer, Construction Division, SYL,
Punjab Chandigarh.
4. A dispute having arisen between the State of Punjab and
the Contractor, the same was referred to Shri Tarlochan Singh,
Superintending Engineer, as sole Arbitrator, who was to
adjudicate upon the dispute with regard to various claims.
There were 10 claims in all, out of which the Arbitrator
awarded the following amounts against four claims only vide
his award dated 23.8.1990 :-
Claim No. 2(i) Rs. 1,04,982/-
(ii) Rs. 22,828/-
Claim No. 5 Rs. 11,040/-
Claim No. 6 Rs. 5,25,517/-
Claim No. 8 Rs. 10,930/-
However, the arbitrator did not award any amount on claims
No. 1,3,4,7,9 and 10.
5. The State of Punjab filed application under sections 30 and
33 of the Arbitration Act for setting aside the award in the trial
Court. The Trial Court allowed the application and quashed
the award of the Arbitrator. As such the same was not made
the rule of the Court. The Contractor being dissatisfied with
the judgment of Sub-Judge 1st Class, Ropar, had filed the
present appeal for quashing the said judgment.
6. In appeal, the appellants have assailed the judgment of the
trial Court on the ground that the trial Court gravely erred in
setting aside the award as a whole for the reason that while
deciding claim No. 2, the arbitrator numbered it as claim no. 6
and vice versa. Learned counsel had contended that if the
heading of the two claims is changed and numbered as '2' in
place of '6' and vice versa then a conclusion can be drawn
that the Arbitrator had committed no error.
7. It was next contended that the trial Court had set aside the
award as a whole. If there was any mistake in numbering the
claims, the trial court should not have quashed the award as
a whole because the claims at Nos. 5 and 8 were severable
from claims at item Nos. 2 and 6. The trial Court at least
should have made the award a rule of the Court in respect of
item Nos. 5 and 8. The trial Court had quashed the award in
an arbitrary manner without realizing that the Arbitrator had
given the award with respect to two more claims being claim
No. 5 and 8. There was no justification in rejecting the award
in toto. It was also contended that the typographical error can
be corrected by the court itself.
8. On the contrary the learned State counsel had contended
that the trial Court had rightly held that the finding given by
the Arbitrator against claim No. 6 cannot be read against
claim No.2. Under claim No. 2 the appellant had claimed that
the land acquired by the department was inadequate to
accommodate the whole excavated earth from canal section
and that rehandling had to be done for which the claimant
had to incur extra cost to the tune of Rs. 15,00,000/-. It was
further contended by the learned State counsel that the
Arbitrator had misconducted himself inasmuch as the finding
under claim No. 2 had no relevancy to this claim at all. The
Court had rightly held that the finding given by the Arbitrator
under claim No. 2 cannot be read against claim No. 6. The
counsel had also contended that the trial Court had rightly
observed that there was no application of mind by the
Arbitrator while disposing of arbitration matter.
9. I have considered the submissions of the learned counsel
for the parties, perused the paper-book and law cited at the
bar.
10. In order to adjudicate upon the controversy in hand, the
power of the Court under Section 15 of the Arbitration Act is
to be examined which reads as under :-
"S.15. The Court may by order, modify, or correct an award.
(a) Where it appears that part of the award is upon a matter
not referred to arbitration and such part can be separated
from the other part and does not affect the decision on the
matter referred; or
(b) where the award is imperfect in form or contained any
obvious error which can be amended without affecting such
decision; or
(c) where the award contains a clerical mistake or an error
arising from an accidental slip or omission."
11. Sub-section (c) of Section 15 envisages that where there
is clerical mistake or an error arising from an accidental slip
or omission, the award can be modified. The trial Court as
mentioned earlier should have corrected the award in so far as
claims No. 2 and 6 are concerned. In this context it is relevant
to examine claims No. 2 and 6 which read as under :-
Claim No. 2.
In the matter of settlement of disputes for the work of shifting
of spoils due to non-availability of dumping sites, payment
due on account of rehandling of earth work.
Claim No. 6
In the matter of payment for the losses suffered on account of
delay in releasing the payments and non-finalisation of bills.
12. I am convinced that finding under claim No. 2 relates to
finding under claim No. 6 and similarly finding under claim No.
6 relates to finding under claim No. 2. It appears that the
error had crept in due to some typographical mistake, which
the Court under sub-section (c) of Section 15 can always
correct. In Tapan Kumar Paul v. Krishna Kanta Paul and
others, AIR 1980 Calcutta 28, it was argued that there were
some mistakes about the date of the arbitration agreement
and description of the premises, and the same showed non-
application of mind. The Court held that these mistakes are in
the recitals and on the non-essential parts of the award. Such
mistakes do not make the award bad.
13. The sole Arbitrator had recorded findings under wrong
headings in respect of claims No. 2 and 6 for which the Court
should not have accepted the award to that extent and the
award as a whole ought not to have been thrown out.
Otherwise also, the proposition of law is well settled that the
Arbitrator is master of facts and law and in order to set aside
the award, the Court has to see whether the Arbitrator had
mis conducted himself in the proceedings. The Court can set
aside the award under Section 30 of the Act on the following
grounds :-
30. Grounds for setting aside the award
An award shall not be set aside except on one or more of the
following grounds namely -
(a) that an Arbitrator or umpire has misconducted himself or
the proceedings;
(b) that an award has been made after the issue of an order
by the Court superseding the arbitration or after arbitration
proceedings have become invalid under Section 35;
(c) that an award has been improperly procured or is
otherwise invalid.
14. In Puri Construction Pvt. Ltd. v. Union of India, AIR 1989
SC 777, their Lordships of the Supreme Court observed that
when a Court is called upon the decide the objections raised
by a party against an arbitration award, the jurisdiction of the
Court is limited as expressly indicated in the Act. It has no
jurisdiction to sit as a Court of appeal and examine the
correctness of the award on merits.
15. In V. Anianeya Setty v. M/s M.G. Brothers, A.I.R. 1981,
A.P. 250, it was held that the Court can modify and correct
the clerical errors.
16. It is well settled proposition of law that the Court is to
intervene only if the Arbitrator has misconducted in the entire
proceedings and has acted beyond the scope of the
arbitration/reference or when the award is without jurisdiction.
In the instant case, the mistakes in the recitals are in non-
essential parts of the award which do not make the award
bad. However, this Court is of the opinion that the trial Court
should have declined to interfere with the award and should
not have set aside the award.
17. The Supreme Court in Food Corporation of India v.
Joginderpal Mohinder Pal and another, AIR 1989 SC 1263,
held that if the Arbitrator had considered all the specific issues
raised by the parties, he cannot be said to have misconducted
himself or the proceedings. These observations are fully
applicable to the facts of this case.
18. If the trial Court had doubt in its mind that the claims on
various heads have been wrongly mentioned in the award, in
that situation, the award, at the most, qua those items, should
have been set aside and not in its entirety. The award can be
set aside only if there is an error of law on the face of the
award. If the error which had occurred in the award of the
umpire relates to a matter which is distinct and separate from
the rest of the award and is severable, the entire award
cannot be set aside. This view is fortified by the decision
rendered in The Upper Ganges Valley Electricity Supply Co.
Ltd. v. The U.P. Electricity Board, AIR 1973 S.C. 683.
19. From the perusal of the award, it is observed that the
Arbitrator had considered all the aspects of the matter and on
certain items the Arbitrator had not awarded any amount. For
example on Sub-clause(ii) of claim No.2, the Arbitrator had
observed that the Department made payments @ Rs. 385/-
per cm against sanctioned rate of Rs. 394/- per cum. The
balance amount was rightly due to the claimant. Under claim
No.5, it was observed by the Arbitrator that the Department
had made payment @ Rs. 138/- per cm against sanctioned
rate of Rs. 189.87 per cum. Therefore, the balance amount
was rightly due to the claimant-contractor. It is also revealed
from the award that the Arbitrator had not awarded any
amount on account of delayed payments.
In view of the foregoing reasons, the judgment of the trial
Court dated 4.1.1992 is set aside and the award of the
Arbitrator is made a rule of the Court. The parties are left to
bear their own costs.
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If there is some clerical mistake or some mistake which can
otherwise be segrigated and cured - Court can correct such
mistakes by modifying the award and whole of the award
need not be set aside for such mistakes
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