Application No.2497 of 2023 in Arb O.P(Com.Div.) No.190 of 2023 etc

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 29.09.2023

Pronounced on : 04.10.2023

CORAM:

THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

Application No.2497 of 2023

in

Arb O.P.(Com.Div.)Nos.190 and 433 of 2023

M/s.Evolve Business Ventures

A Proprietary concern -

Rep. by its Proprietor Mrs.Mamtalunked

No.18/1, S.Kariappa Road,

Model House Cross Road,

Basavanagudi, Bangalore - 560 004.

.. Applicant

vs.

The Airport Director,

The Airport Authority of India,

Chennai Airport,

Chennai - 16.

.. Respondent

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.

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Application No.2497 of 2023 in Arb O.P(Com.Div.) No.190 of 2023 etc

For applicant

: Mr.V.P.Raman

For respondent

: Mr.R.Sankaranarayanan

Senior Counsel,

for M/s.Pranav Shankar &

Mr.Ramaswamy Meyyappan

ORDER

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

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Application No.2497 of 2023 in Arb O.P(Com.Div.) No.190 of 2023 etc

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

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Application No.2497 of 2023 in Arb O.P(Com.Div.) No.190 of 2023 etc

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 erro