J U D G M E N T

% 28.09.2022 O.M.P. (COMM) 410/2022

1. By way of the present petition, under Section 34 (4) of the Arbitration and Conciliation Act, 1996 (hereinafter called the Act), petitioner has challenged Award dated 13.07.2022 passed by sole Arbitrator. The petitioner prays for inclusion of certain reliefs as set out in the petition and for incorporation of the same by modification of Award.

2. By way of the impugned award dated 13.07.2022, an Award in the sum of Rs.6,76,00,000/- (Rupees Six Crores Seventy-Six Lakh) carrying an interest @ 6% per annum from the date of the Award has been passed in favour of the claimants, i.e., petitioners herein. Petitioners have been held entitled to refund of the aforesaid amount paid by them under the concerned transaction, which as per finding of Ld. Arbitrator, cannot be permitted to be retained by the respondents.

3. It is the case of ld. Senior Counsel for petitioners that present petition has been filed since some claims of petitioners, i.e., claimants in the arbitration proceedings, have not been included and that the petitioner is aggrieved by non-inclusion, non-grant and rejection of such of their claims and prayers. Thus, present petition has been filed, with specific averments made in paragraph – 2 of the petition that petitioner is seeking prayer for remand of matter to the Ld. Arbitrator. 4. It is contended that petitioners are seeking remand to the ld. Arbitrator on certain accounts. Learned Arbitrator has not granted interest on the paid amount in favour of claimants, i.e., pre-reference period and pendente-lite period. Attention of this Court has been drawn to paragraphs 91 to 95 of the impugned award. It is further submitted that ld. Arbitrator has restricted the interest to only 6% per annum in view of the contractual stipulations. Ld. Senior Counsel for the petitioners submits that petitioners are entitled to higher rate of interest in view of Section 31(7)(a) of the Act read with Section 2(b) of the Interest Act, 1978. He further submits that there are no directions as regards payment of costs to the petitioners in accordance with mandate of Section 31A of the Act.

5. Ld. Senior Counsel for petitioners further submits that their application seeking amendment of prayers with respect to the amounts already paid to the respondents has been rejected erroneously. He submits that the rejection of the said application for amendment is in violation of Section 22(2) and Section 21(3) of the Specific Relief Act, 1963.

6. It is submitted that Ld. Arbitrator has not included amount of Rs.13.26 Crores (Rupees Thirteen Crores twenty-Six Lakh) as amounts paid by claimants under the transaction in addition to the sum of Rs.6.76 Crores ordered to be refunded by way of the award, in view of the payment of said sum emerging as admission in the testimony of CW-4, Mr. Pankaj Sahni.

7. Learned Senior Counsel further submits that non-grant of compensation calculated @ Rs.6,62,18,127/- (Rupees Six Crores Sixty-Two Lakh Eighteen Thousand One Hundred & Twenty-Seven) and inclusion of direction to pay court fee on amounts ordered to be refunded i.e. Rs.6.76 crores, are issues that are required to be considered by ld. Arbitrator.

8. In support of their contentions, judgment in the case of Project Director, National Highways No. 45E and 220 National Highways Authority of India Vs. M. Hakeem and Another, (2021) 9 SCC 1, has been relied upon on behalf of petitioners to contend that in view of Sub-section 4 of Section 34, on receipt of an application under Section 34(1), Court may adjourn the Section 34 proceedings and give Arbitral Tribunal an opportunity to resume arbitral proceedings or take such actions as to eliminate the grounds for setting aside the arbitral award.

9. On the other hand, ld. Counsel appearing for respondent vehemently opposes the present petition. He submits that all these prayers with respect to non-inclusion of amount of Rs.13.26 crores as part of advance paid by claimants under tr