An order under Section 33 of the Arbitration and Conciliation Act, seeking corrections of the arbitral award, cannot be challenged under Section 34 of the Act.

JUDGMENT

(Prayer: Petition filed under Section 34 (2) (a) and 2 (b) of the Arbitration and Conciliation Act, 1996 to set aside the Additional Award dated 25.09.2021 passed by Mr.K.V.Babu, Sole Arbitrator, in the arbitration proceeding between the petitioner and respondents arising out of Application No.1 of 2021 in O.P.No.125 of 2019 on the file of this Court for being against the public policy of India and patently illegal, therefore, liable to be set aside under Section 34 (2)(b) and 34 (2A) of the Act.)

1.This petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996, challenging an order dated 25.09.2021 passed by the Arbitral Tribunal under Section 33 of the Arbitration and Conciliation Act, dismissing the application filed by the petitioner, seeking for correction in the arbitral award dated 26.07.2021.

2. The contention of the petitioner is that, by inadvertence in the claim statement, they had disclosed the claim towards refund of liquidated damages as Rs.9,35,523/- instead of Rs.16,39,886/-.

3. The arbitral award dated 26.07.2021 was passed, pertaining to the dispute between the petitioner and the respondents which was sought to be corrected by the petitioner through an application filed under Section 33 of the Arbitration and Conciliation Act, 1996, before the Arbitral Tribunal, came to be dismissed under the impugned order dated 25.09.2021.

4. The following are the undisputed facts:

a) In the claim statement filed by the petitioner before the arbitral tribunal, the petitioner had disclosed that its claim towards the refund of liquidated damages was only for a sum of Rs.9,35,523/-;

b) In the petition filed by the petitioner before this Court under Section 11 of the Arbitration and Conciliation Act, seeking for appointment of an arbitrator, the petitioner had disclosed that its claim towards liquidated damages is only for Rs.9,35,523/-;

c) No prayer was sought for by the petitioner in its application filed before the arbitral tribunal, seeking for reception of additional documents for amendment of the claim;

d) Based on documents marked by consent of both the parties, the arbitral tribunal has passed an award on 26.07.2021 in favour of the petitioner by partly allowing the claim. In the said arbitral award, the arbitral tribunal, after giving due consideration to the claim statement and other documents, had awarded a sum of Rs.9,35,523/- together with interest and costs. The other claims were disallowed by the arbitral tribunal;

e) Thereafter, the petitioner had filed an application under Section 33 of the Arbitration and Conciliation Act, seeking for correction of the arbitral award dated 26.07.2021 on the ground that erroneously, eventhough the arbitral tribunal had given clear findings that the petitioner is entitled for liquidated damages, has by inadvertence disallowed a portion of claim towards liquidated damages.

5. According to the petitioner, the arbitrator ought to have allowed the claim of Rs.16,39,886/- toward liquidated damages, but, instead, by inadvertence, the arbitrator has awarded towards liquidated damages only for a sum of Rs.9,35,523/-. 6. The application filed by the petitioner under Section 33 of the Arbitration and Conciliation Act, seeking for correction of the arbitral award dated 26.07.2021 came to be dismissed under the impugned order dated 25.09.2021. The arbitrator while dismissing the application has given the following reasons:

a) The petitioner did not seek for amendment of the claim statement to amend the claim towards liquidated damages from Rs.9,35,523/- to Rs.16,39,886/-;

b) The petitioner had not sought for amendment of the claim during the pendency of the arbitration.

7. Learned counsel for the petitioner drew the attention of this Court to Section 33 of the Arbitration and Conciliation Act, 1996 as well as to the affidavit filed by the petitioner