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COMPUTATION, CLERICAL AND TYPOGRAPHICAL ERROR OR ANY OTHER ERROR OF SIMILAR NATURE -

ACTUS CURIAE NEMINEM GRAVABIT PRINCIPLE:-

137. Section 33 enables parties to move the Arbitral Tribunal to correct any computational error, any clerical error or typographical error or any other errors of similar nature. Section 33(3) enables the arbitral Tribunal itself to correct any of those errors. No doubt, a time limit of 30 days has been prescribed for the parties to move unless there is a contract to the contrary. Equally, sub-Section 2 of Section 33 directs that the correction should be made within 30 days and sub-Section 6 of Section 33 states that the arbitral Tribunal may if necessary extend the period of time within which it shall make a correction.

139. With regard to computational errors, clerical or typographical error or any other error of similar nature – (the expression any other error of similar nature will be read ejusdem generis and will apply to errors similar to computational errors, clerical or typographical errors), what should be the course of action if the party has not moved under Section 33 or having moved the arbitrator has mechanically rejected the correction?

140. With regard to Section 152 CPC, this Court after holding that Section 152 is founded on the maxim - actus curiae neminem gravabit speaking through Dr. Arijit Pasayat J. in U.P. SRTC vs. Imtiaz Hussain, (2006) 1 SCC 380 lucidly explained the position thus.  “8. The basis of the provision under Section 152 of the Code is founded on the maxim “actus curiae neminem gravabit” i.e. an act of court shall prejudice no man. The maxim “is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law”, said Cresswell, J. in Freeman v. Tranah [12 CB 406 : 138 ER 964] (ER p. 967). An unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa [(1966) 3 SCR 99 : AIR 1966 SC 1047] it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.” (Emphasis supplied)

141. Ordinarily errors of the nature set out above like computational error, clerical or typographical error or any other error of a similar nature would not be objected by other party. However, in the unlikely event of an objection and in a scenario where the arbitrator has not been moved under Section 33 or having moved the Arbitral Tribunal has been obstinate in not correcting, a Court in Section 34 to uphold the maxim actus curiae neminem gravabit can invoke the power and correct computational errors, clerical or typographical errors or any other errors of similar nature without modifying, altering or adding to the original award. It should not be forgotten that under Section 35 finality is granted to the arbitral awards subject to the provisions in part I and under Section 36 where the time for making an application to set aside the arbitral award under Section 34 has expired, then subject to the provisions of sub-Section 2 such award shall be enforced in accordance with the provisions of the Code of Civil Procedure in the same manner as it were a decree of the Court. Hence, a limited exception alone to the holding in Hakeem (supra) is made. SEVERABILITY UNDER SECTION 34:-

Question No. 3 & 4 - The power to set aside will not include the power to modify since the power to modify is not a lesser power subsumed in the power to set aside and, as held hereinabove, the power to set aside and power to modify do not emanate from the same genus and are qualitatively different powers in the context of the A&C Act. Question No. 5 - The judgment in Hakeem (supra), insofar as it holds that a Section 34 Court has no power to modify the award, lays down the correct law. The only exception made in this judgment is with regard to the power to carry out corrections in computational errors, clerical errors or typographical errors and any other errors of similar nature. This is based on the principle of actus curiae neminem gravabit (act of court shall prejudice no one).