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

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.

Punjab and Haryana High Court, Chandigarh

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 cum 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 cum 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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