FA/2186/1996 4/ 6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2186 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= UNION OF INDIA THROUGH EXECUTIVE ENGINEER - Appellant(s) Versus INDUS ENGINEERING & CONSTR. CO.THROUGH PARTNER & 1 - Defendant(s) ========================================================= Appearance : MS PJ DAVAWALA for Appellant(s) : 1, MR NM DASTANE for Defendant(s) : 1, MRS NISHA M PARIKH for Defendant(s) : 1, MR PURVISH J MALKAN for Defendant(s) : 1, MS MANISHA LAVKUMAR for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 20/07/2010 ORAL JUDGMENT
This
appeal is filed against the judgment and
decree dated 30.4.1996 passed by the City Civil Court, Ahmedabad in
Civil Miscellaneous Application No.518 of 1993 whereby the award
dated 17.8.1993 made by the Arbitrator Shri J.Pal in arbitration
proceedings between the claimant and respondent is made Rule of the
Court, subject to the correction that the figure 25% appearing
in the sixteen sentence on page five of the award, be read as 50% .
The
facts of the case are such that the disputes between the parties were
resolved by the Arbitrator on 17.8.1993. Thereafter, the original
claimant filed an application for directing the Arbitrator to file
the award dated 17.8.1993 along with the full records pertaining to
the arbitration and upon filing the same, for proceeding as per
Sections 16,17 and 30 of the Arbitration and Conciliation Act, 1996
(hereinafter referred as the Arbitration Act for short). On the
notices having been served upon the parties in the said application,
learned Arbitrator along with the letter dated 3.9.1993 filed the
award and the documents under Section 14 of the Arbitration Act. The
same has been registered as Civil Miscellaneous Application No.518 of
1993. The original respondent filed objections to the said award and
one of the objections was that the Arbitrator had committed serious
arithmetical error in computing the quantum of the award pertaining
to the claims no.1,2,3 and 6. The original claimant requested the
Arbitrator by letter dated 14.10.1993 to correct the said mistake
under Section 13(d) of the said Act and to send the original
correction on stamp paper to the City Civil Court in Civil
Miscellaneous Application No.518 of 1993. The Arbitrator, thereafter,
corrected the figure 25% appearing in the sentence at page five
of the award as 50% under Section 13(d) of the Act and sent the
original correction on the stamp paper of Rs.100/- along with the
letter dated 20.10.1993 addressed to the City Civil Court.
Thereafter, the original claimant made application Exh.6 in Civil
Miscellaneous Application No.518 of 1993 and prayed to make the
corrected award rule of the Court. The original respondent raised
objections against the said correction made by the Arbitrator in the
original award under Section 13(d) of the Act without affording it
any opportunity of hearing and requested the court to set aside the
said correction in the award made and published on 21.10.1993.
The
learned trial Court, after discussing the evidence and after hearing
learned advocates for the parties, passed the order as stated above
which is challenged in this appeal by the original respondent.
Heard
the learned advocates for the parties and perused the judgment of the
learned trial Court.
Learned
advocate Ms.Davawala appearing for the appellant-original respondent
submitted that the Arbitrator had no authority to make any correction
in the award under Section 13 of the Act, when the award was already
filed in the Court and the validity of the same was already
challenged by the respondent in the Court and even then the learned
trial Court accepted the same and corrected the award which is not
permitted under the law and therefore the learned trial Court has
committed an error and the order passed by the learned trial Court is
required to be quashed and set aside. Ms.Davawala further submitted
that there are no reasons assigned by the Arbitrator for reducing
loss on the basis of 50% of the full strength overhead cost for first
24 months and so also it cannot be said that 25% mentioned by the
Arbitrator is typographical error and therefore also the order passed
by the learned trial Court is bad in law.
Learned
advocate Ms.Parikh appearing for the respondent-original claimant
submitted that prima facie it seems that 25% mentioned in the award
is typographical mistake because the total calculation was carried
out by the Arbitrator on the basis of 50% and reasons are also
assigned for that and so the learned trial Court has rightly passed
the order which is not required to be interfered with by this Court.
Learned advocate Ms.Parikh also argued that when reasoned award is
passed by the Arbitrator and is confirmed by the learned City Civil
Court, this Court has very limited power to interfere with the award
and can interfere only when prima facie it is found that any error in
law is committed by the learned trial Court.
At
this stage, it is pertinent to make reference to Section 16 of the
Arbitration Act which reads as under.
Section
16 :
The
Court may remit the award or any matter referred to the arbitration
to the Arbitrator or umpire for reconsideration, if the case falls
under any of the three situations namely :
(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.
The
learned trial Court, after considering this provision, rightly held
that the Arbitrator has not left the award undetermined nor the award
could be said to be so indefinite as to be incapable of execution and
so it cannot be remitted to the Arbitrator.
Further,
the Arbitrator calculated the average overhead expenses per month for
normal working within stipulated time to the extent of Rs.14,267.68
ps. The said overhead expenses has been further reduced to the extent
of 75%,50% and 10% on the full strength overhead costs, for the
period of 22 months, 24 months and 4 months respectively. The
Arbitrator has further made the calculation on the basis of 50% of
the full strength overhead cost for first 24 months of the period
from 20.1.1985 to 12.6.1987 and assigned the reasons for the same but
figure 25% is wrongly mentioned which is just typographical
mistake. Therefore, the learned trial Judge, considering the
provision of Section 15 of the Act which does not contemplate any
formal application from the party and the Court can by order correct
an award which contains any obvious error or a clerical mistake or an
error arising from an accidental slip or omission, rightly held that
the mention of 25% is just an accidental slip and typographical
error which does not ultimately change the substance in the award and
corrected the same and made the award of the Arbitrator Rule of
Court.
Considering
the above factual situation and the provisions of the Arbitration
Act, I am of the opinion that the appellant failed to show any
illegality or perverseness in the order passed by the learned trial
Court and therefore this appeal deserves to be dismissed and is
accordingly dismissed.
(
M.D.Shah, J )
ssrilatha