Great Eastern Energy Corporation Limited vs Sopan Projects

C. Hari Shankar, J

Arbitral proceedings between the appellant and the respondent culminated in an arbitral award rendered on 25 August 2017.

The respondent moved an application before the learned Arbitrator under Section 33(1) [Correction and interpretation of award; additional award.-

(1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties-

(a) a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;

(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.] of the Arbitration and Conciliation Act 1996 "the 1996 Act", for correction of the award and for consideration of certain claims which, according to the respondent, had not been considered.

The learned Arbitrator initially passed an amended award on 25 October 2017, dealing with the Section 33 application filed by the respondent. However, on the appellant moving an application objecting to the said order on the ground that it had been passed without hearing the appellant, the said amended award was recalled by consent and, vide a subsequent order dated 10 November 2017, the Arbitrator proceeded to pass an amended award.

This amended award was challenged by both parties by way of petitions under Section 34 of the 1996 Act. OMP (Comm) 451/2017 was preferred by the appellant and OMP (Comm) 100/2018 was preferred by the respondent.

Both OMPs stand disposed of by a learned Single Judge of this Court by judgment dated 26 April 2023.

This judgment forms subject matter of challenge in the present appeal before us.

We have heard Mr. Raj Shekhar Rao, learned Senior Counsel for the appellant, and Mr. Vadlamani Seshagiri, learned Counsel for the respondent, at length.

The impugned judgment, after an exhaustive discussion, sets aside the amended arbitral award dated 10 November 2017 in para 28, which reads thus:

"28. In view of the above, the Impugned Amended Arbitral Award cannot be sustained and is liable to be set aside."

The learned Counsel for the parties are ad idem that, with the setting aside of the amended arbitral award, the prayers in the OMPs instituted by the parties effectively stood disposed of. However, the learned Single Judge has thereafter entered into other aspects from paras 29 to 38 and, in para 37 of which the learned Single Judge has also set aside the original award dated 25 August 2017.

It is this decision of the learned Single Judge, to set aside the original arbitral award dated 25 August 2017, which has prompted the present challenge at the instance of the appellant. The appellant contends that the learned Single Judge could not have proceeded to set aside the original award dated 25 August 2017; firstly, because no such prayer was made by either party in its Section 34 petition and, secondly, because, once the amended arbitral award had been issued, any challenge had to be to the amended award, and no challenge to the original award could thereafter be maintained.

There was, in the Section 34 petition filed by the respondent, no prayer for setting aside the original arbitral award dated 25 August 2017. Even otherwise, the Supreme Court has held in U.S.S. Alliance v. The State of Uttar Pradesh 2023 SCC OnLine SC 778, held that, once an arbitral award is amended while adjudicating an application under Section 33 of the 1996 Act, what has to be challenged is the amended award and not the original award.

The parties have, therefore, correctly challenged the amended arbitral award dated, 10 November 2017 which was set aside in para 28 of the impugned judgment.

Neither side expresses any reservation with the decision, of the learned Single Judge, to set aside the amended arbitral award dated 10 November 2017.

The recitals from paras 29 to 37 of the impugned judgment, therefore, are both superfluous as well as in excess of the jurisdiction vested in the learned Single Judge.

By consent of learned Counsel, therefore, we uphold the impugned order to the extent it set asides the amended arbitral award, vide para 28 thereof, and set aside the observations and findings recorded from paras 29 to paras 37 thereof, which would include the decision to set aside the original arbitral award dated 25 August 2017.

Accordingly, without expressing any opinion on any other aspect of the matter, the present appeal stands disposed of in the aforesaid terms.

Parties are left to their own remedies as available in law, if so advised.