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2022 (3) TMI 687 - SC - Indian LawsSeeking a fresh appointment of Arbitrator - Section 33 of the Arbitration and Conciliation Act, 1996 - HELD THAT - Paragraph 160 of the award cannot be read in isolation. It was a part of the award dealing with the Application for amendment of counter claim filed by respondent-ECL. The award carried the subtitle before paragraph 157. Paragraph 160 contains mere submissions advanced on behalf of the appellant/claimant. MECON report was called with respect to the amendment of the counter claim regarding expenses required for putting the plant into running condition. After deliberating upon the said amendment, at the end of paragraph 161, the conclusion was that the application for amendment stood dismissed. The MECON report and the M/s AKB Power Consultants Pvt. Ltd. report, both related to the expenses sought to be incurred in bringing back the plant into running condition. Parties had filed their objections to both the reports as there was substantial difference in the figures indicated in the two reports. But once the Arbitrator found that the amendment in the Counterclaim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports - The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected. The application deserves to be rejected and is accordingly rejected.
Issues Involved:
1. Appointment of a Sole Arbitrator to examine the MECON report. 2. Correction in computation of rent under Section 33 of the Arbitration and Conciliation Act, 1996. Issue-wise Detailed Analysis: 1. Appointment of a Sole Arbitrator to examine the MECON report: The respondent, Eastern Coalfields Limited (ECL), filed an application (M.A. No. 20972 of 2021) seeking the appointment of a Sole Arbitrator to examine the MECON report as mentioned in paragraph 160 of the award. The applicant argued that the Arbitrator could not adjudicate upon the MECON report due to the need for further evidence and the death of the Arbitrator shortly after delivering the award. The appellant, India Power Corporation Limited (IPCL), opposed this application, stating that paragraph 160 should not be read in isolation but in conjunction with paragraphs 157 to 161, which dealt with the amendment of the counterclaim filed by ECL. The Arbitrator had dismissed the application for amendment, finding it irrelevant for determining the real question in controversy. The MECON report was related to the expenses for putting the plant into running condition, which the Arbitrator found unnecessary to consider further once the amendment was dismissed. The court agreed with IPCL, stating that paragraph 160 was part of the discussion on the amendment of the counterclaim and not a standalone issue. The Arbitrator had already dismissed the amendment, rendering the MECON report irrelevant. Thus, the request for appointing a new Arbitrator to examine the MECON report was rejected as it was based on a misreading of the award. 2. Correction in computation of rent under Section 33 of the Arbitration and Conciliation Act, 1996: ECL also raised an issue regarding the correction in the computation of rent payable for the period from March 2016 to October 2016, claiming it was inadvertently left out by the Arbitrator. They referred to paragraphs 126 to 130 and 132 of the award and argued that the limitation for moving an application under Section 33 had been extended by the court's orders in a suo moto petition. IPCL countered that the issue of rent computation was not pleaded or prayed in the application, and no correction was required as the Arbitrator had accepted the figures quoted by ECL. The court found that the Arbitrator had indeed accepted ECL's figures, and there was no error in the computation of rent. Additionally, the issue was not raised in the application and could not be introduced during arguments. Furthermore, the court noted that the Delhi High Court had already addressed this issue in Section 34 proceedings and had dismissed ECL's objections, affirming that the award was final and not interim. Conclusion: The court rejected the application for the appointment of a Sole Arbitrator to examine the MECON report and the correction in the computation of rent under Section 33. The award was deemed final, and no further deliberation or correction was necessary. The application was dismissed in its entirety.
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