M/S. Anant Raj Agencies vs Delhi Development Authority
1989 Latest Caselaw 394 Del

ORDER

1. The plaintiff M / s. Anant Raj Agencies has filed this suit under Ss. 14 and 17 of the Arbitration Act with a request, that defendant No. 2 arbitrator should be directed to file award in court and on such filing this award be made a rule of court and decree be drawn accordingly. On service of notice the arbitrator filed his award dated 30th Sept., 1985 notice of filing of the award was accepted by the learned counsel for the plaintiff on 21st Nov., 1985 but no objections were filed by the plaintiff. Notice of filing of the award was served upon defendant No. I Delhi Development Authority on 3rd Dec., 1985 and it filed objections (I.A. No. 173 of 1986) against the award under Ss. 30 and 33, of the Arbitration Act on 2nd Jan., 1986. The objections were opposed on behalf of the plaintiff. The following issues were framed vide orders dated 29th Sept., 1986:

1. Whether the arbitrator has misconducted himself and the proceedings?

2. Whether there was any error apparent on the face of the award?

3. Whether the award was liable to be set aside?

4. Relief."

2. It was agreed between the parties that evidence on these issues would be recorded on affidavits and accordingly objector filed its affidavit in the first instance and then counter-affidavit was filed. I have heard the learned counsel for the parties and have gone through the record.

3. On going through the record it was found that there is some confusion with regard to the contract number and particulars of the matter referred to the arbitrator vis-a-vis the contract filed before arbitrator and particulars given in the award of the adjudicated matter by the arbitrator. In consequence notices were ordered to be issued to counsel for the parties to clarify this situation and I have gone through the clarification but I do not find myself persuaded to accept it. The work which was referred to arbitrator was "construction of 1264 DU's at S Sheikh Sarai (948 LIG = 316 Janta) SH Group III of 256 Qrs. (144 LIG = 48 Janta) i/c internal and external services vide Agreement No. I/ HDXV/SDI/1977-78". As against this the name of work given in the award is "construction of 1264 DUs at Sheikh Sarai (948 LIG = 48 Janta) i/c internal and external services" vide agreement No. I/HD XV/ SDI/ 1977-78. In the clarification application it is admitted that agreement number filed before the arbitrator on the basis whereof the award has been given is I/HD XV/SD-I/ 1977-78 as against I / had XXV/ SD-I/ 1977-78 given in the reference. This contradiction and difference in the name of work and particulars of contract is also not disputed by the parties but it is alleged to be a clerical error which can be corrected by this Court. Learned counsel for the plaintiff has drawn my attention to S. 15 of Arbitration Act which reads as under:

" 15. The Court may by order modify or correct an award -

(a) where it appears that a 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 contains 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."

In view of S. 15 it is urged that clerical error should be corrected by this Court. I do not think this is a case of mere clerical error; these mistakes rather go to the root of the award.

The power of the Court to correct awards is limited by clauses (a), (b) and (c) of S. 15 of the Arbitration Act. The Court cannot make substantial modifications in awards and if it does, it travels beyond its powers. Where there are omissions or defects in the award,the court cannot correct these. Recourse would have to be had to S. 16 of the Arbitration Act and the award would have to be remitted. Such defects and omissions cannot be corrected by the court itself. It is Section 16 of the Arbitration Act, which applies to the situation in hand. Section 16 of the Arbitration Act provides as under:

"16. (1) The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon, such terms as it thinks fit-

(a) where the award has left undetermined any of the matters. referred to arbitration, or where it determines any, matter not referred to arbitration-and such matter cannot be separated without affecting the determination of the matters referred; or

(b) where the award is so indefinite as to be incapable of execution; or

(c) where an objection to the legality of the award is apparent upon the face of it.

(2) Where an award is remitted under subsection (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court;

Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed."

4. I, therefore, hold that S. 16(l)(a) of the Arbitration Act comes into play and consequently it has become necessary to remit this award to the arbitrator for reconsideration on this aspect of the matter and for making fresh award after reconciling the differences. It is difficult to accept the contention of the learned counsel for the petitioner that it is only a clerical mistake or error from an accidental slip or omission. In these circumstances the award is remitted back to the arbitrator with the directions that the arbitrator shall make his award afresh within six months hereof clarifying the ambiguity and Arbitration proceedings record be also returned to the arbitrator. 1. As are filed. Accordingly suit is disposed of. No order as to costs.

5. Order accordingly.