Remission under Section 34(4) is limited to correcting curable defects and cannot be used for a review of the award.

JUDGMENT

(Prayer: Application under Section 34(4) of the Arbitration and Conciliation Act, 1996, has been filed seeking to remand the matter to the arbitral tribunal to enable it to eliminate the grounds of challenge to the impugned award dated 16.02.2023 as modified by order dated 26.03.2023 insofar as findings given by the arbitral tribunal on issue Nos.7,8,14,16&17 and the awarding of costs of arbitral proceeding.)

1. Application No. 2497 of 2023 has been filed under Section 34(4) of the Arbitration and Conciliation Act, 1996 (in short 'the Act') by the petitioner in Arb.O.P.(Com.Div.)No.190 of 2023. The applicant seeks to remand the matter back to the arbitral tribunal for the purpose of eliminating the grounds of challenge to the impugned arbitral award dated 16.02.2023 modified by order dated 26.03.2023.

2. In support of this application, the applicant has contended as follows:-

(a) The arbitral tribunal, while holding that the invocation of the bank guarantee and cash deposit to be valid, premised the finding on the reasoning that the applicant had failed to make payment to the respondent. According to the applicant, in the table of calculations, the arbitral tribunal made certain arithmetical errors, for which, the applicant filed an application under Section 33 of the Act to correct the arithmetical errors. According to the applicant, the application under Section 33 of the Act was allowed by the arbitral tribunal by its order dated 26.03.2023 and the arbitral tribunal corrected the errors and it was found that it was the respondent who has to pay a sum of Rs.2,92,06,576/- to the applicant. Therefore, according to the applicant, the basis for upholding the invocation of bank guarantee and cash deposit i.e., the applicant owed money to the respondent, does not exist in the award post the modification.

(b) The arbitral tribunal upheld the termination, since the applicant defaulted in paying the concession fee within 90 days period and owed a sum of Rs.32 crores. However, according to the applicant, as per the order dated 26.03.2023 passed under Section 33 of the Act, there is no due on the part of the applicant and in fact, it is only the respondent who is liable to pay the applicant a sum of Rs.2,92,06,576/- together with pendente lite interest at 9%. According to the applicant, the basis of upholding the termination has also vanished post the modification of the award. It is also the case of the applicant that non payment within 90 days as an event of default was neither an issue nor were any arguments advanced before the arbitral tribunal.

(c) The errors pointed out by the applicant are curable defects. According to the applicant, the Tribunal has already given findings on all issues, whereas the reasoning for certain findings has been obliterated on account of arithmetic errors, which were corrected by the arbitral tribunal by order dated 26.03.2023 passed under Section 33 of the Act. Therefore, according to the applicant, issues dealing with the validity of invocation of bank guarantee, the validity of termination, the findings as available in the arbitral award, are to be revisited in light of arithmetic errors, that were corrected and thereby concluded that it is only the respondent who owes money to the applicant and not vice versa.

3. Mr.V.P.Raman, the learned counsel for the applicant, reiterated the contents of the affidavit filed in support of this application during the course of his submissions.

4. On the other hand, it is the contention of the respondent that the instant application is not maintainable for the following reasons:-

(a) Both the parties have challenged the arbitral award under Section 34(1) of the Act, pleading grounds under Section 34(2)(b)(ii) of the Act. The applicant has preferred Arb O.P(Com.Div.)No.190 of 2023 and the respondent has preferred Arb O.P.(Com.Div.) No.433 of 2023.

(b) Arb.O.P.(Com.Div.) No.190 of 2023 pleads exhau