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44. Sub Section (2) of Section 31 is material inasmuch as it provides that in an Arbitral proceeding with more than one arbitrator, signature of majority of the members shall be sufficient so long as the reason for omission of any signature is stated. In the instant case the original award was passed by four arbitrators and the revised Award by five arbitrators, two of whom are new and were not part of the Council which passed the main award. Section 31 also provides for payment of interest of 2% higher than the current rate prevailing. Thus on analysing Section 33, the following becomes clear viz. correction, interpretation and additional award can be carried out only upon one of the parties making a request to the tribunal. The 30 days period within which such an application is to be made may be enlarged by parties by consent. As a result request for correction interpretation and additional ARP-116-2018-CONNECTED MATTERS.odt award can be made beyond 30 days period but the essential part is that under Section 33 it is for one or the other or both parties to apply. The Tribunal also is empowered to carry out corrections, offer an interpretation or an additional award of its own initiative. Thus Section 33 operates at the request of a party or parties or by the initiative of the tribunal itself. It does not contemplate the Court stepping in .

47. Thus in the case at hand one of the aspects that has arisen for consideration is whether the application to the tribunal for correction, interpretation and additional award was made pursuant to Section 34(4) and I am of the view in facts of the case the matter referred was clearly pursuant to Section 34(4). As stated earlier, if I have to accept Mr. Quraishy's submission that the application was one made under Section 33 alone, the ARP-116-2018-CONNECTED MATTERS.odt respondent must demonstrate that the parties, any one or both of them requested the tribunal to correct errors contemplated under Section 33(1)(a) and that the parties agreed and requested tribunal to give an interpretation or correct the award. The tribunal has not in the present case done so of its own initiative. In the case at hand however, all that the parties have done is to agree that the Award is incapable of interpretation and therefore request correction and interpretation and seek issuance of an additional award after termination of proceedings under Chapter VI and after presentation of a petition seeking recourse against an arbitral award. Once the matter crosses the threshold of Chapter VII and an application for setting aside an arbitral award is filed in a Court, the parties would not be in a position to apply for correction without leave of the Court. It is possible that an application for correction may be filed by one party to the arbitral proceeding and an application for setting aside under Section 34 has been filed by another party. In such a situation the correction ensuing from such application may well be one under Section 33. For instance a party who has not challenged the award, but has applied for correction will be entitled to contend that the order passed by the arbitral tribunal was one under Section 33. However, if a party seeks correction after challenge petition is filed, an application could only be made under Section 34(4) and a party would not be able to make an application under Section 33 without leave of the Court under Section 34(4). This becomes clear on a plain reading of the aforesaid two Sections. ARP-116-2018-CONNECTED MATTERS.odt

51. Thus once having sought an adjournment and the Court having passed an order in terms of the minutes as can be seen from the operative portion of the Court's order it will constitute an application under Section 34(4) read with Section 33. The Court has therefore adjourned the matter after observing that the parties have agreed that grounds may exist for setting aside the award since they were unable to arrive at consensus for interpreting the amount payable and that being the primary mover had agreed with leave of the Court to approach the Council under Section 33. The application for adjournment of proceedings was granted. It could have been so granted only ARP-116-2018-CONNECTED MATTERS.odt under Section 34(4). The arbitral tribunal therefore had opportunity to resume arbitral proceedings rather than merely eliminate grounds for setting aside since paragraph 3 of the consent minutes provide that the parties had agreed to submit in writing all queries and documentary evidence in the form of affidavits. This would entail in my view a resumption of arbitral proceeding since parties submissions of documentary evidence probably would have involved a contest on the material sought to be placed before the Facilitation Council which would have required resumption of arbitral proceeding and after hearing the parties. Here the Council erred seriously in not hearing the parties before issuing the Additional Award.

56. The decision in Kinnari Mullick (supra) applies squarely to the facts at hand inasmuch as the Court could only set aside the Award or adjourn the matter when the petition was first urged and in view of the consensual approach of the party the Court adjourned the matter in the first instance. Having adjourned the matter the Facilitation Council has proceeded to publish an additional award which according to it complies with the direction of the High Court. The question is whether the petition under Section 34 today survives as against both the original award and the additional award and in my view the answer must be in the affirmative. The facts in Kinnari Mullick (supra) reveal that the Award had already been set aside and the Court had suo moto sent the parties to the tribunal. This was found to be unsustainable inasmuch as the Supreme Court found that the limited discretion available to the Court under Section 34(4) would have been exercised only upon a written application made by a party to the arbitral proceeding and the court could not exercise this power suo moto. Moreover this request had to be made by the parties in writing and before ARP-116-2018-CONNECTED MATTERS.odt the Award was formally set aside. It is only then that a request could be made to the arbitral tribunal and the Court also observed that if the party to the proceeding does not request the Court to defer the proceeding pending before it, then it is not open to such a party to move an application under Section 34(4) since upon setting aside of the Award the main proceeding under Section 34 would have been disposed and the Court would become functus officio. Thus the limited jurisdiction of the Court under Section 34(4) was to be invoked and to be exercised by the Court before an Award was set aside. That is precisely what has happened in the instant case inasmuch as pending the decision on the 34 petition the parties sought an adjournment to go back to the Council for obtaining correction, interpretation or additional award so as to eliminate the ground of challenge and if thought fit to resume proceedings before the tribunal.