IMPORTANT POINT
Fresh appointment of Arbitrator – Once Arbitral Award finally decided dispute which was subject matter of reference, there is no need of appointment of another Sole Arbitrator.

JUDGMENT

Vikram Nath, J.

Civil Appeal No. 9847 of 2014 was allowed vide order dated 17.10.2014 whereby Justice S.S. Nijjar, a former Judge of this Court was appointed as sole Arbitrator to arbitrate upon the disputes between the parties. The said order is reproduced below: -

"Leave granted.

Heard Mr. Kapil Sibal, learned senior counsel appearing for the petitioner and Mr. Anupam Lal Das, learned counsel for respondent no. 1.

In the course of hearing, learned counsel for the parties very fairly submitted that they have no objection if a former Judge of this Court is appointed as a Sole Arbitrator to arbitrate upon the disputes that have arisen in respect of the contract.

Regard being had to the aforesaid submission, we appoint Justice S.S. Nijjar, a former Judge of this Court as the Sole Arbitrator to arbitrate upon the disputes. The learned arbitrator shall decide the terms and conditions after deliberating with the parties.

Registry is directed to forward a copy of this order to the learned Arbitrator.

The appeal is allowed on above terms. There shall be no order as to costs."

2. The sole Arbitrator gave the award dated 15.02.2021, after considering the claims and counter claims of the parties. The operative portion of the award as contained in paragraph 162 is reproduced below: -

"162. In view of the aforesaid conclusions the following award is made:

(a) The Respondent shall pay to the Claimant a sum of Rs. 24.7256 Crores as WDV.

(b) The aforesaid amount shall be paid with interest @9% with effect from 06.10.2016 till payment of the amount.

(c) The Claimant shall pay to the Respondent a sum of Rs. 18,66,86,521/-

(d) The aforesaid amount shall be paid with interest @9% with effect from 06.10.2016 till payment of the amount.

(e) All other Claims and Counter-Claims are hereby dismissed.

COSTS:

In the peculiar facts and circumstances of this arbitration, both the parties shall bear their own costs.

This Award is being issued on a stamp paper of Rs. 200/-. The Claimant shall pay the differential stamp duty in accordance with law."

3. M.A. No. 20972 of 2021 has been filed by the respondent 'Eastern Coal fields Limited' (hereinafter referred to as the "ECL") with a prayer to appoint a sole arbitrator to examine the issue pertaining to the report submitted by MECON as mentioned in paragraph 160 of the award. The relief claimed by means of this application is reproduced below: -

"PRAYER

In view of the facts and circumstances of the case, your Lordship may graciously be pleased to:

a) Appoint a Sole Arbitrator to examine the issue pertaining to the report submitted by MECON more particularly mentioned in paragraph No. 160 of the Award which was not adjudicated by the Hon'ble Tribunal;

b) Pass any other order/orders which this Hon'ble Court may deem fit."

4. The only ground raised for seeking a fresh appointment of Arbitrator is to the contents of paragraph 160 of the award. It is for this reason that the present application has been filed for appointment of Sole Arbitrator.

5. According to the respondent-applicant, the learned Arbitrator could not adjudicate upon the MECON report, as it required further evidence to be recorded, and soon after delivering the award, on 15.02.2021, the learned Arbitrator died on 26.03.2021.

6. Learned Counsel for the applicant, ECL during the course of the arguments not only requested for appointment of Arbitrator with respect to the contents of the paragraph 160 of the award but raised a further issue relating to Section 33 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the 1996 Act') for requiring correction in the computation of the rent payable to the applicant ECL for the period March 2016 till October 2016 which was inadvertently left out by the learned Arbitrator while giving the award. Reference was made to paragraphs 126 to 130 and 132 of the award. It is also submitted that although limitation for moving an application under Section 33 is 30 days but in the present case as the limitation h