Instrumentation Ltd. vs E. Kuttappan

G.H. Guttal, J.—C.R.P. No. 1028 of 1991 is against the dismissal of Arbitration O.P. No. 12 of 1989 and C.R.P. No. 839 of 1991 is against the dismissal of I.A. No. 2772 of 1989 in Arbitration O.P. No. 7 of 1989. I.A. No. 2772 of 1989 and Arbitration O.P. No. 12 of 1989 filed before the learned Principal Subordinate Judge, Palakkad, were for amendment of the award, dated 10th March 1989 made by the Arbitrator. The amendment was sought u/s 15 read with Section 41 of the Arbitration Act. The ground was that "the award contains clerical mistake or an error arising from an accidental slip or omission". The learned trial Judge dismissed both the O.P. No. 12 of 1989 and I.A. No. 2772 of 1989.

The Petitioners herein are Instrumentation Limited, a Government of India undertaking. The Respondent is their contractor. The O.P. No. 12 of 1989 and I.A. No. 2772 of 1989 were filed by the Petitioners, as they considered that an excess amount of Rs. 46,649 had been awarded to the Respondent on account of the aforestated clerical mistake.

On 13th May 1978 the Petitioners awarded to the Respondent a contract for carrying out the work of construction of certain buildings such as dispensary, shopping complex and so on. The work was completed on 31st March 1980. In view of certain dispute between the Respondent invoked the arbitration clause in the contract and on 18th August 1981 filed a suit u/s 20 of the Arbitration Act. On 22nd November 1982, the court appointed Mr. Rao, the then General Manager of Hindustan Photo Films as the arbitrator. However upon the application O.P. No. 1 of 1984, dated 24th November 1984 under Sections 5 and 11 of the Arbitration Act, the court by its order, dated 5th October 1987 appointed Mr. Justice (retired) Narendran as the arbitrator in the place of Mr. Rao. On 10th March 1989 the arbitrator published the award.

The substance of the Petitioners'' case is that the amount of Rs. 46,649 has been awarded twice: one in granting the claim No. 1 of the claim petition and again while granting claim No. V. This was the "clerical mistake or error arising from accidental slip or omission". It is therefore necessary to understand what was actually done by the arbitrator. In paragraph 11.11 of the award, the Arbitrator has decided whether the Respondent was entitled to receive back Rs. 46,649 which represented the security deposit. He held that the total security amount was Rs. 91,959 out of which a sum of Rs. 45,308 was earlier refunded. According to the arbitrator after accounting for Rs. 45,308 a sum of Rs. 46,649 was due and payable to the Respondent. Although in paragraph 11.11 the amount payable to the Respondent was determined to be Rs. 46,649 in the same paragraph at page 37-38 the Arbitrator says;

Admittedly only Rs. 45,308 was released to the claimant. So the claimant is entitled to the balance of Rs. 46,649. But the final bill position contained in Ext. R-29 Annexure I, does not make mention of this amount. This amount and the amount of bank guarantee encashed form the subject matter of claim No. V and hence I will deal with them separately.

(emphasis supplied)

Claim No. V is considered in paragraph 14.1 to 14.3 of the award. Claim No. V was for refund of Rs. 2,09,265 lying with the Petitioners. A sum of Rs. 1,96,649 was found as payable towards this item. This, no doubt, includes the disputed amount of Rs. 46,649.

On 20th May 1989, the Respondent filed application O.P. No. 7 of 1989 under Sections 17 and 29 of the Arbitration Act for having judgment and decree in terms of the award. The judgment in O.P. No. 7 of 1989 records that the Petitioner had "no objection in proceeding to pronounce judgment according to the award and pass a decree accordingly." The only contention raised by the Petitioner in O.P. No. 7 of 1989 was that "interest at the rate of 18 per cent per annum from the date of the decree till the date of payment or realisation is excessive." Consistent with the above state of pleadings, the learned Judge raised'' only one issue. That was about the rate of interest. Therefore, in O.P. No. 7 of 1989 no contention except that the rate of interest was excessive, was raised by the Petitioner. What is of significance is that the Petitioner conceded that judgment and decree be passed in accordance with the award. Eventually a decree in terms of the award was made on 20th September 1989 with interest at the fate of 12 per cent per annum.

In November, 1989, the Petitioner filed I.A. No. 2772 of 1989 in O.P. No. 7 of 1989. A separate O.P. No. 12 of 1989 under Sections 15 and 41 was also filed. As already stated, both the applications were dismissed on 18th October 1990 giving rise to the two civil revision petitions, now under my consideration.

The Petitioners have sought correction of the award and invoked the power of the Court under Clause (c) of Section 15 of the Act. The question is whether the award contains "a clerical mistake or an error arising from an accidental slip or omission." The words quoted by me are the words used ''in Clause (c) of Section 15 of the Act. The use of the words "clerical" "mistake" "error" "accidental" "slip" and "omission" have significance because they illustrate what kind of corrections the court is empowered to make, u/s 15(c) of the Act.

The word "clerical", as understood in its ordinary connotation means connected with office, or clerks or work such as typing or secretarial job. The error sought to be corrected must, therefore, be connected with copying, writing and such other matters. Then, "error" is Anr. word used by the statute. It conveys or refers to an act involving an unintentional deviation from accuracy. In a writing, such error may involve inaccurate spelling, or use of inappropriate phrases conveying unintended meaning. "Error" is synonymous with "mistake" and is often used interchangeably with the latter. Again, the word "mistake" too, has a meaning. It means wrong action proceeding from diverse causes like faulty judgment ignorance or inadvertence. Therefore, having regard to the meanings of the words "error" and "mistake" a clerical error must be an unintentional deviation from accuracy in a statement or a wrong action resulting from inadvertence, faulty judgment or ignorance. But the essence of clerical error is that it must be an error of the nature committed, while copying, writing or doing official work. It must not be an error relating to the merits of the contents of a document or an error in regard to the substance of the matter. It is a mistake or error relating to a peripheral matter and not to the substance or content.

The word "accidental" which is an adjective from the noun "accident" also needs to be understood. The word "accident" is understood in the sense, opposed to design or deliberation. An accident is, therefore an event or condition occurring by chance or arising from an unknown or remote cause. It is something unforeseen, unplanned, unintended and sometimes sudden. Its occurrence may be related to carelessness, ignorance and such other behaviour. If this is what an "accident" means, the word "accidental" denotes a happening or event ensuing without design, intent or motive or through inattention, or carelessness. Therefore the error which can be corrected u/s 15(c) must be of the nature answering the meaning of the word "accidental".

Then the word "slip". "Slip" in the context of Section 15(c) and the nature of the correction sought, means an unintentional or trivial mistake or fault. The essence of a "slip" is that it is not only unintentional but is also trivial. A major error cannot be a "slip". Another feature of "slip" is that it is unintentional and is not designed.

Lastly, the word "omission" means something neglected or left undone. It is the failure to perform or abstention from performance. It is something omitted to be done.

Bearing in mind the meanings of different words used in Clause (c) of Section 15 of the Act, I will now consider whether the correction of the award sought by the Petitioner can be made under Clause (c) of Section 15 of the Act.

While considering the claim No. I the arbitrator no doubt, referred to the claimant's right to receive Rs. 46,649. In the passage from the award quoted by me in paragraph 4 above, after adverting to the claimant's right to this amount, the arbitrator deliberately and designedly, refrained from directing the Petitioner to pay the amount to the Respondent. That is why the arbitrator says that he would deal with the claim for Rs. 46,649 separately. Then, while considering the claim No. V he actually granted this amount of Rs. 46,649 to the claimant.

This action of the arbitrator shows that the Petitioner's case that the amount of Rs. 46,649 was awarded twice is factually incorrect.

I am of the opinion that the arbitrator has, while dealing with the claim No. I, designedly omitted to award the amount of Rs. 46,649 to the claimant. But having determined that the claimant is entitled to the amount, he postponed the actual grant of this amount until he came down to consider claim No. V. It is at that stage that he granted the amount of Rs. 46,649. Therefore the arbitrator did not act inadvertently or without intending to do what he actually did. This takes away from the award, the element of error or mistake. Suppose, what he did is an error. The error cannot be said to be of a clerical nature, for the simple reason that it relates to the contents of the award, the reasoning, deliberation and substance of the whole matter. The discussion of the claim for Rs. 46,649 in paragraph 11.1 and postponement of the grant of the amount until paragraph 11.11 is not an accidental action or something done by chance. It was known to the arbitrator that the amount was due but he chose to grant it only when he considered the claim No. V. There is thus a clear design and intent to grant the amount of Rs. 46,649 only under claim No. V in paragraph 11.11. This eliminates the element of accident. There is no slip in what he did. He acted deliberately. The grant of Rs. 46,649 is not a trivial act. Thus there was no slip. In my opinion having regard to the requirements of Clause (c) of Section 15 there is no error or mistake of the kind referred to'' therein the award. Consequently Clause (c) of Section 15 has no application, in the circumstances of this case.

An additional factor against the Petitioner is that in the O.P. No. 7 of 1989, the application for having judgment and decree in terms of the award, the Petitioner conceded that the judgment and decree should be made in terms of the award. They cannot now turn round and seek a different award and decree.

For all these reasons the petition is dismissed with costs.