Arbitrator Cannot Modify Award On An Application Under Section 33 Arbitration Act: SC
Arbitrator Cannot Modify Award On An Application Under Section 33 Arbitration Act
1. Legal Provision: Section 33 of Arbitration and Conciliation Act, 1996
Section 33 empowers the arbitrator to correct an award or give an additional award on the parties’ application.
The scope of Section 33 is limited to:
Correction of errors (e.g., clerical mistakes, typographical errors, calculation errors).
Making an additional award on claims presented but omitted from the original award.
It does not empower the arbitrator to modify, alter, or review the award in its essence or substitute one finding for another.
2. Judicial Position: Supreme Court of India
The Supreme Court has clearly laid down that Section 33 is not meant for modification or review of an award.
3. Key Supreme Court Judgments
a) National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd., (2009) 1 SCC 267
The Supreme Court observed that:
Section 33 permits correction of mistakes only in the sense of typographical or clerical errors or arithmetical slips.
It does not permit an arbitrator to re-open the case and reconsider the evidence.
The arbitrator cannot modify the award on merits through an application under Section 33.
The Court held that:
“Section 33 does not empower the arbitrator to modify the award or reconsider the evidence... It is confined only to correction of errors of a clerical or arithmetic nature or to make an additional award.”
b) Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India, (2019) 14 SCC 439
The Court reiterated that:
Section 33 can be used to correct patent errors apparent on the face of the award.
Any attempt to modify the award’s substantive decision amounts to a review or re-appreciation of evidence, which is not permissible.
The Court emphasized the finality of arbitral awards.
4. Scope of Section 33 Applications
| Allowed Corrections under Section 33 | Not Allowed under Section 33 |
|---|---|
| Typographical or clerical mistakes | Change in findings of fact or law |
| Arithmetical errors | Review of evidence |
| Omissions regarding claims | Modification or substitution of award |
| Additions in respect of omitted claims | Reopening merits of the dispute |
5. Practical Implications
Parties should not misuse Section 33 applications to seek a fresh adjudication or reconsideration of the award.
If dissatisfied with the award, the remedy is to approach the Court under Section 34 (challenge to award), not to seek modification under Section 33.
The arbitrator’s power to correct or add is limited and procedural, preserving the finality and sanctity of the award.
6. Summary Table
| Aspect | Explanation |
|---|---|
| Section Involved | Section 33, Arbitration and Conciliation Act, 1996 |
| Power under Section 33 | Correction of clerical, typographical, or arithmetical errors or making an additional award for omitted claims |
| Prohibited under Section 33 | Modifying or reviewing the substantive parts of the award |
| Supreme Court Authority | National Insurance Co. Ltd. v. Boghara Polyfab; Ssangyong Engineering case |
| Remedy for challenge | Section 34 of Arbitration Act (challenge to award in court) |
| Purpose | To maintain finality and avoid endless litigation |
Conclusion
The Supreme Court of India has unequivocally held that an arbitrator cannot modify an arbitral award on an application under Section 33 of the Arbitration and Conciliation Act beyond correcting errors of a clerical or arithmetical nature or adding awards on omitted claims. Attempts to modify the award substantively are impermissible and would defeat the purpose of the arbitration’s finality. For substantive challenges, parties must resort to Section 34 proceedings before the courts.
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