JUDGMENT 1. This is an application under section 33 of the Arbitration Act, Inter alia, for determination of the scope and effect of an arbitration agreement dated the 28th of January, 1960, as modified by the letter dated the 12th December, 1960 and 14th of January, 1961 and the jurisdiction of the Umpire to decide and entertain the questions referred to including the counter-claim and also for remitting the matter to the Umpire after giving directions. 2. The facts of the case appears to be that by an agreement dated the 28th of January, 1960, entered into between Indian Refineries Ltd. (predecessor-in-interest of the petitioner) and the Respondent, Industrial Gases Ltd. as modified by two subsequent letters dated the 12th of December, 1960 from the said Indian Refineries Ltd, to the Respondent and a letter dated the 14th of January, 1961 from the Respondent to the said Indian Refineries Ltd. The petitioners' predecessor-in-interest agreed to supply electricity and cooling water on the terms and conditions contained in the said agreement as modified. The Respondent also agreed to provide sewage disposal facilities connected with the Refineries sewage at the Cost of the said Indian Refineries Ltd. if requested. The said agreements was for a period of 25 years. In September, 1964, the petitioner, Indian Oil Corporation was formed by amalgamating the Indian Refineries Ltd and Indian Oil Corporation Ltd. and it took over the assets and liabilities of the amalgamated companies and as such the petitioner became entitled to the full benefits of the said agreement with the Respondent. It appears that the rate originally chargeable for electricity supplied by the petitioner (predecessor-in-interest) for the supply of electricity to the petitioner which was obtained exclusively from the Assam State Electricity Board. Subsequently, the petitioner arranged its own generating facilities at its Gauhati Refinery and commence supplies of electricity generated by it to the Respondent. The Assam State Electricity Board also claimed substantial increase in the rate of electricity supplied by it to the petitioner and disputes arose between the petitioner and the Assam State Electricity Board in relation to the rate chargeable for bulk supplies by the Assam State Electricity Board to the petitioner. In the meantime, a dispute also arose between the petitioner and the Respondent as to the rate of electricity charges payable for electricity supplied by the petitioner to the Respondent pursuant to the said agreement as modified. In the meantime, a dispute also arose between the petitioner and the Respondent as to the rate of electricity charges payable for electricity supplied by the petitioner to the Respondent pursuant to the said agreement as modified. The matter of the disputes were as to whether the provisions of the said letter dated the 12th of December, 1960 applied only to supplies of electricity prior thereto and also to supplies subsequent thereto and if so, whether the provisions thereof applied only to the cost of electricity supplied by the Assam State Electricity Board or also applied to the cost of electricity generated by the petitioner and supplied to the Respondent, and in either event, what was the method of circulation and procedure for billing and the time within which such bill to be paid by the Respondent and whether the Respondent was liable to pay interest for the arrears of charges of electricity. In addition, the dispute also arose in respect of charges for maintenance and service of sewage line and also cost of sewage line. After protracted correspondence between the parties the disputes, were agreed to be referred to arbitration in terms of the arbitration clause in the contract as evidenced by the petitioner's letter dated the 7th of September, 1968 and the Respondent's letter dated the 14th of September, 1968. The parties appointed their respective Arbitrators to adjudicate the said two disputes and the Arbitrator entered upon the reference and appointed an Umpire on the 10th of July, 1969. On the 30th of August, 1969, the petitioner filed the statement of claims relating to the said two disputes fond claimed an amount accrued up to 31st of March, 1969, and with a submission to direct the Respondent to pay the petitioner's bills for supplies and services rendered after the said period also after deciding the principles governing the rate and charges to be paid to the petitioner by the Respondent. The Respondent filed its counter-statement on the 10th of March, 1970 making a counter-claim which is alleged to be unconnected with the said two disputes and contrary to the agreement between the parties for reference to arbitration. The petitioner filed a rejoinder disputing the alleged counter-claim of the Respondent. Thereafter, it appears that the Arbitrator appointed by the petitioner resigned by his letter dated the 25th/29th of May, 1971. The petitioner filed a rejoinder disputing the alleged counter-claim of the Respondent. Thereafter, it appears that the Arbitrator appointed by the petitioner resigned by his letter dated the 25th/29th of May, 1971. Thereafter, the General Manager of the petitioner by his letter dated the 16th of June, 1971 appointed another arbitrator in place and stead of the out going Arbitrator. It further appears that the time to make the award by the Arbitrators expired which was extended from time to time till 4th of July, 1972. The two Arbitrators having differed on the question of admissibility of the counter-claim of the Respondent within the purview of the reference, the matter was referred by the Arbitrators to the Umpire by their letter dated the 8th of June, 1972. The Umpire duly entered upon the reference which is still pending. It appears that subsequent to the disputes between the parties were referred to arbitration several bills in respect of the supplies of electricity to the Respondent by the petitioner became due and payable but the Respondent restricted the payment only to the amount payable by them according to their own calculation and left a huge balance outstanding which were payable according to the calculation of the petitioner. It further appears that the Respondent by their letter dated the 4th or April, 1973 intimated the petitioner that as the question of alleged balance amount accumulated during the pendency of the arbitration was sub-judice before the Umpire, they were not in a position either to pay or to make any comment thereon. The petitioner by its Solicitor's letter dated the 13th of March, 1974 filed before the Umpire sought permission to file a supplementary statement in respect of its claim for supplies of electricity and charges for sewage line, maintenance and service during the pendency of the arbitration. On the preference held on the 13th of March, 1974, the Umpire stated that the matter would be decided at a subsequent date. On the 2nd of April, 1974 the Umpire after bearing the contention of both the parties held that he had no jurisdiction to entertain the claim of the petitioner for the subsequent period after the reference to arbitration was made. The petitioner through its Solicitor's letter dated the 9th of December, 1974, requested the Arbitrator to file its said decision dated the 2nd of April, 1974, by way of an interim award. The petitioner through its Solicitor's letter dated the 9th of December, 1974, requested the Arbitrator to file its said decision dated the 2nd of April, 1974, by way of an interim award. The Umpire after hearing both the parties on the 4th of December, 1974 ordered that his decision dated the 2nd of April, 1974 cannot be treated as an interim award and as such cannot be filed. The petitioner thereafter, on the 14th of February, 1975 made this application and after directions for filing affidavits were given, the parties filed their respective affidavits and the matter ultimately was heard. 3. Before dealing with the contention of both the parties, it will be convenient to set out the relevant portion of the agreement dated the 28th January, 1960 and the modification thereof by the letters dated the 12th of December, 1960 and 14th of January, 1961, the Respondent is described as the "Suppliers" and the predecessor-in-interest of the petitioner is described as the "Buyers”............. "3. The Buyers agree to provide the Suppliers at the Refineric's site at Gauhati suitably levelled and plot of land duly demarcated on lease for a period of 25 years at a reasonable rent to be agreed upon, only for the specific purpose of production of oxygen and acetylene gases and by products and accessories and ancillary buildings and the Suppliers shall have no right to sublet the entire or any portion of this land to any other party. The area should measure about 1½ acres near the main road with direct access to it. The Buyers also agree to supply to the suppliers at their factory electric power supply of 150 KW capacity, electrical energy at 440 volts three phase and colling water as required by the Suppliers at cost prices of the Buyers which quantities are to be measured by means of meters to be further installed at Suppliers factory by the Buyers at Buyers' cost. The Buyers further agree to provide sewage at the Supplier's cost if requested by the suppliers. All the above facilities will be made available to Suppliers for the contracted period of 25 years provided the Buyers continue to operate the Refinery for the period." "20. Arbitration: All disputes arising out of this Agreement or incidental thereto shall be referred to arbitration of two persons; one to be appointed by each party. All the above facilities will be made available to Suppliers for the contracted period of 25 years provided the Buyers continue to operate the Refinery for the period." "20. Arbitration: All disputes arising out of this Agreement or incidental thereto shall be referred to arbitration of two persons; one to be appointed by each party. The said arbitrators shall appoint an Umpire before entering into the arbitration. The award of the arbitrators or the Umpire as the case may be, shall be final and binding upon the parties. The arbitration proceedings shall be conducted under the provisions of the Indian Arbitration Act, 1948 and the venue of the arbitration proceedings shall be mutually agreed upon. Signed at Gauhati this date 28th of January, one thousand nine hundred and sixty. Buyers : Suppliers : Sd/- Sd/- (S. K. Mallick) (K.L. Garg) General Manager Managing Director Indian Refineries Ltd. The Industrial Gases Ltd. Gauhati Refinery Project Sd/- Gauhati.. (R. Nath) Witness: Sd/- Pleader, (K. L. Sharma) Gauhati Accounts Officer Sd/- (M.G. Menon.) Planning Officer. " Relevant portion of the letter dated the 12th of December, 1960 written by the predecessors-in-interest of the petitioner to the Respondent: "It has been further agreed that the cost of electricity which I.R.L. charge from I.G.L., shall not be higher than the bulk rate which I.R.L. pay to Assam State Electricity Board plus five percent thereon". (here I.R.L. means Indian Refineries Ltd. and I.G.L. means Industrial Gases Ltd.) Ultimately, the disputes were referred to arbitration and from the statement of claim by the petitioner, it appears that dispute regarding the payment of electricity charges related to the period from 1st of April, 1962 up to the date i.e., 31st of March, 1969 and also a claim regarding the cost of sewage system and service and maintenance charges of the same upto 31st of March, 1969. The Prayer in the said statement of claim filed by the petitioner are, inter alia, as follows : "(a) A sum of Rs 3,24,513.51 (Rupees three lakhs twenty four thousand, five hundred thirteen and paise fifty one) be awarded against outstanding bills towards electricity supplied during the period 1.4.62 to 31.3.69, vide details in Annexure in Schedules 1 and 2. The Prayer in the said statement of claim filed by the petitioner are, inter alia, as follows : "(a) A sum of Rs 3,24,513.51 (Rupees three lakhs twenty four thousand, five hundred thirteen and paise fifty one) be awarded against outstanding bills towards electricity supplied during the period 1.4.62 to 31.3.69, vide details in Annexure in Schedules 1 and 2. (c) The second party be directed to settle bills in future promptly and regularly with 30 days of their presentation on the basis of the cost of generation or the rate at which the first party pays to Assam State Electricity Board plus 5% thereon which over is less, and that, for this purpose certificates issued by the Chief Accounts Officer of the first party should be accepted by the second party as adequate." The Respondent in their counter statement, inter alia, denying the claim of the petitioner as being time barred and also-the method and manner and procedure for calculation of the rate to be charged by the petitioner in respect of the said supplies of electricity, the Respondent also made a counter-claim alleging that the Respondents paid the bills for supplies of electricity by the petitioner in full and thereby, made an over payment of sum of the bills under pressure and coercion and annexed a copy of the alleged excess payments made by the Respondent being annexure "D" to the counter-statement. Beside the said counter-claim the Respondent also made a claim on account of alleged loss or damages suffered by it on account of alleged stoppage of power supply by the petitioner to the Respondent and also to the supplies of electricity at a lower capacity than the agreed capacity pursuant to the said agreement dated the 28th of January, 1960 and also damages for non-supply of cooling water by the petitioner to the Respondent and other claims for alleged breach of the terms of the agreement by the petitioner and the Respondent also asked for award in respect of their alleged counter-claims as would appear from the prayers in the said counter-statement filed by the Respondent before the arbitrators by its letter dated the 10th of March, 1970 and annexed to the petition at page 36. The petitioner filed a rejoinder dated the 31st of March, 1970 before the arbitrators which is annexed to the petition and are at pages 48 to 61. The petitioner filed a rejoinder dated the 31st of March, 1970 before the arbitrators which is annexed to the petition and are at pages 48 to 61. Thereafter, the Arbitrators by their order dated the 8th June, 1970 as appearing from the minute of the meeting of the Arbitrator held on that date, formulated the points of difference as follows and referred the same to the Umpire. The said Order is annexed to the petition at page 66 which is set out hereunder. (COPY) BEFORE THE ARBITRATORS SHRI H. B. SAHAI AND SHRI H. L. GUPTA IN THE MATTER OF ARBITRATION IN THE DISPUTES BETWEEN INDIAN OIL CORPORATION GAUHATI REFINERY AND THE INDUSTRIAL GASES LIMITED 15, GANESH CHANDRA AVENUE, CALCUTTA. ** -6 Date ORDER ACTION TAKEN 8.6.72 Both the parties are represented by their respective representatives, namely Mr. Bitharia for Claimants and Mr. T.S. Mundra and Mr. T.K. Majumdar far Respondents. The Claimants are also represented by their Counsel Mr. Chakravarti and Mr. Mondal. Since the parties did not come to any agreement about making a fresh joint reference either confining the reference to the two disputes originally raised by the claimants or including some other disputes raised by the Respondents in their Counter-Statements and since the parties did not take any step so far to revoke our authority as suggested in our order Serial No.4 dated 26.1.1972 we noticed the parties to hear again finally today and to chalk out the future course of action in this proceeding. We have already expressed the situation created by certain actions of the parties and our differences due to existence of those circumstances in our order dated 26.1.1972. It was however, submitted on behalf of the Claimants that as our order dated 26.1.1972 is not very clear regarding differences of opinion between us, a clear order indicating points of differences should be passed and the matter should be referred to the Umpire for his decision. The same action was also suggested in the letter dated 10.5.72 bearing No. GA/A/Misc./16/III of the Claimants. We have, therefore, decided to record our points of differences hereunder and to refer the same for the decision of the Umpire, Shri P.K. Sarkar retired judge, High Court residing at P-385, Keyatolla Street, Calcutta 29 for his decision. The same action was also suggested in the letter dated 10.5.72 bearing No. GA/A/Misc./16/III of the Claimants. We have, therefore, decided to record our points of differences hereunder and to refer the same for the decision of the Umpire, Shri P.K. Sarkar retired judge, High Court residing at P-385, Keyatolla Street, Calcutta 29 for his decision. points of differences: i) Whether we should decide only the two disputes raised in the letter dated 7th of September, 1968 bearing No. GA/68 of the Claimants? 2) Whether we should decide those two disputes raised by the Claimants and any or all the disputes raised by the Respondents in their Counter-Statements dated 10th of March, 1970? The parties are requested to make available copies of their pleadings and correspondence to the Umpire. Sd/- Sd/- (H. B. SAHAI) ARBITRATORS (H. L. GUPTA) After the Arbitrators referred the matter to the Umpire by their said order dated the 8th of June, 1972, the Umpire entered into the reference and on the 2nd of April, 1974, the Umpire, inter alia, decided that claim for the subsequent period for electricity charges claimed by the petitioner was not within the scope of the reference before the Umpire and as such beyond his jurisdiction. It will be convenient to see out the material portion of the order dated the 2nd of April, 1974 passed by the Umpire which is at page 82 of the petition: "In view of this objection and opposition and having regard to the letters which gave rise to this arbitration, I am inclined to accept his view and I hold that the claim for she subsequent period is not within my jurisdiction to decide in this proceeding. The claimants can avail themselve of all legal means open to them. This order is without prejudice to any contention that may be raised hereinafter by both parties with regard to the claim or any portion of it included in this arbitration proceeding," Thereafter, on the 19th of November, 1974, the petitioner through its Solicitor requested the Umpire to file the said decision dated the 2nd of April, 1974 under section 14 of the Arbitration Act as an interim award under section 27, but the Umpire in his sitting dated the 4th of December, 1974, after hearing the parties decided that his order dated the 2nd of April, 1974, can never be treated as interim award. The minutes of the said meeting dated the 4th of December, 1974, is annexed to the petition and is at page 84 and it will be convenient to set out the minutes of the said meeting hereunder ; (COPY) MINUTES OF THE SITTING HELD ON WEDNESDAY 4TH DECEMBER, 1974 AT 6.30 P.M. AT THE RESIDENCE OF THE UMPIRE. In the Matter of Arbitration Between Indian Oil Corporation (Refinery) and Industrial Gases Limited Present: 1. Mr. P. Sarkar, Umpire. 2. Mr. R.L. Sinha, Counsel with Mr. R.N. Ghost, Solicitor for the Claimant 3. Mr. M.K. Banerjee and Mr. A.N. Ganguli, Counsel with Mr. S.B. Mondal, Solicitor and Mr. Venkateswaralu and Mr. Dhanuka for the Respondent. 4. Stenographer. ………… …………….. ….. ………. ………. The respondent's Solicitor, Mr. S.B. Mondal, sent to me a letter containing their objections to the letter of Mr. R.N. Ghose referred to in the last order. The same is placed before the learned Counsel today and the matter is fully argued. The only short question remains for me to decide is whether my order dated 2nd of April, 1974 can be treated as an interim award. As the order itself makes it clear this was an order holding that the claim regarding the rates of electricity for the period subsequent to March 31, 1959 cannot be considered by me as not being within my jurisdiction. The objection petition of the respondent has also contended that there was never any reference of the dispute concerning this subsequent claim to me. There has been no arbitration proceedings also in respect of this alleged claim. An interim award under section 27 of the Arbitration Act can only be made in respect of the dispute decided by the Arbitrators or the Umpire within their jurisdiction. As I have held that the matter regarding the subsequent claim is not within my jurisdiction I am unable to make an interim award under section 21 of the Arbitration Act. The order dated 2nd April, 1974 can never be treated as an interim award. Mr. As I have held that the matter regarding the subsequent claim is not within my jurisdiction I am unable to make an interim award under section 21 of the Arbitration Act. The order dated 2nd April, 1974 can never be treated as an interim award. Mr. Sinha submits that a reference may be made in the order to the fact that be again claimed that the letters of the respondent addressed to the claimant on April 4, 1973 and also on November 18, 1972, referred to in my order dated 2nd of April, 1974 constituted an estoppel against the respondent and, in any event, gave the Umpire jurisdiction to deal with the claim. This point has already been decided by me in my order dated 2nd of April, 1974 holding that the matter is not within my jurisdiction and cannot be reopened as submitted by Mr. Banerjee and I am only making a reference of the argument in pursuant of the submission of Mr. Sinha. The meeting has lasted for an hour and a half. The parties should pay my fee for the day amounting Rs. 200/- on the next day inequal shares, and I.O.C. should pay Rs 100/- more on that day for the sitting held on 27th November, 1974. The silting fixed on 10th of December, 1974 will be held on 12th December, 1974 at 6.30 p. m. when Nr. Nayar should remain present for recording his deposition. Sd/- (P.K. SARKAR) UMPIRE As would appear from the said minutes of the sitting of the Umpire dated the 4th December, 1974, or Respondent's letters dated the 18th of November, 1972 and 4th of April, 1973 are practically the basis of the petitioner's contention as to the enlargement of the scope of the reference and conduct constituting estoppel against the respondent as to the Umpire jurisdiction to deal with the subsequent claim. It, will be convenient to set out the said three letters hereunder. The letter dated the 18th of November, 1972 is annexed to the affidavit-in-opposition affirmed by Sardar Singh Bapna on the 22nd of March, 1975. GTI/14/20824 Registered A. D. 18.11.1972 Indian Oil Corporation Limited, Gauhati Refinery, Gauhati-20 Assam. Re : Accounts. Dear Sirs, We are in receipt of your letter No. A/Misc./16/371-73 dated 13th November, 1972 along with details of your alleged but standing against us. GTI/14/20824 Registered A. D. 18.11.1972 Indian Oil Corporation Limited, Gauhati Refinery, Gauhati-20 Assam. Re : Accounts. Dear Sirs, We are in receipt of your letter No. A/Misc./16/371-73 dated 13th November, 1972 along with details of your alleged but standing against us. We do not admit that any amount mentioned in your above letter is payable by us. We are paying your electricity charges in accordance with our agreement with you regularly and we deny that we are making only part payment against your letters as alleged by you. Yours faithfully, For The Industrial Gases Limited Sd/- Asstt. Secretary The petitioner's reply to the said letter dated the 28th of March, 1973 and is at page 69 of the petition which is as follows;- (Copy) Regd. ANNEXURE-B No. A/Misc./16/744 Dated 28.2.83 M/s. Industrial Gases Ltd., 15, Ganesh Chandra Avenue, Post Box No. 853. Calcutta. Ref. Your letter No. GTI/14/20824 dated 18.11.1972 Dear Sirs, . With reference to your above letter we are to inform you that the clarification given about the outstanding debit balance against you vide our letter No. A/Misc./16/371-73 dated 13.11.1972 is correct. It is fact that we have regularly raised bills on you for supply of electricity. After acknowledging receipt of our such bills you have been making payment again the bills keeping a substantial balance from each bill. Hence there remains always a debit balance of each bill and the accumulated debit balance of each such bill upto 31.3.1972 amounts to Rs.5,04,154.22 on account of supply of electricity. Another bill No. A/Misc./WE/66-67/308 dated 31.3.67 for supply of water for Rs.254.15 has not been paid yet by you. Hence the total outstanding debit balance against your account on 31.3.72 is Rs.5,04,408.37. You are, therefore, requested to clear the above outstanding before 31.3.73. Yours faithfully, for and on behalf of Indian Oil Corporation Limited Sd/- (G.N. Barua) ACCOUNTS OFFICER. And letter dated the 4th of April, 1973 is annexed to .the petition and is at page 70 (Copy) The Industrial Gases Limited 15, Ganesh Chandra Avenue, Post Box 853 Calcutta - 1 Our Ref. GTI/14/6I50 4.4.1973 Accounts Officer, Indian Oil Corporation Limited, Gauhati Refinery, Gauhati 20 Dear Sir, We are in receipt of your letter No. A/Misc./I6/744 dated 28th March, 1973. We do not admit the liability as mentioned by you. GTI/14/6I50 4.4.1973 Accounts Officer, Indian Oil Corporation Limited, Gauhati Refinery, Gauhati 20 Dear Sir, We are in receipt of your letter No. A/Misc./I6/744 dated 28th March, 1973. We do not admit the liability as mentioned by you. The subject-matter is already subjudice being pending before an Umpire, We, therefore, refrain from writing anything more than what we have stated in our letter No. GTI/14/20824 dated 18.11.1972. Yours faithfully for the Industrial Gases Limited Sd/- (Asstt. Secretary) It appears that on the 13th of March, 1974, the petitioner', Solicitor by his letter addressed to the Umpire, submitted a statement in respect of the claim in the subsequent period from 1st of April, 1969 to 31st of March, 1973. 'The said letter is annexed to the petition and is set out hereunder. (COPY) Sri P.K. Sarkar, MARCH 13, 1974 The Umpire Sir, Arbitration between Indian Oil Corporation Ltd, and The Industrial Gases Ltd. In continuation of the claim of Indian Oil Corporation Limited against the opposite party. The Industrial Gases Ltd. for the period 1962-69, I am submitting herewith a further claim of my clients Indian Oil Corporation Ltd., Gauhati Refinery on account of dues repayable from the opposite party. The Industrial Gases Ltd. for the period 1st April, 1969 to 31st March, 1973. The claim is being submitted herewith in the form of statements of Claim along with Annexure thereto numbering 184 pages. As soon as the aforesaid claim is allowed to be filed in this proceeding we shall forward a copy of the same to the Opposite Party. Yours faithfully, Sd/- (R.N. Ghose) Thereafter, the respondent raised the dispute as to the arbitrators jurisdiction to entertain the subsequent claim as the same was beyond the scope of the reference and the Arbitrator decided that it had no jurisdiction in respect of the claim of the petitioner for the subsequent period by his order dated the 2nd of April, 1974 which has been set out before. This application was filed on the 29th of February, 1975 under section 33 of the Arbitration Act for determination of the scope and effect of the arbitration agreement and deciding the Umpire jurisdiction entertain the subsequent claim of the petitioner and consider the counterclaim of the respondent in the reference before him and for remitting back its matter to the Umpire to proceed with the reference in accordance with the order and/or direction to be given by the Court. 4. Mr. R.L. Sinha, appearing for the petitioner, submitted that there is no dispute as to the: existence of the arbitration agreement between the parties. He has drawn my attention to the letters dated the 28th of March, 1973, 4th of April, 1973, 13th of March, 1974 and the order of the Umpire at page 80 of petition respectively all of which I have set out before and submitted that from the said document the scope of the reference was enlarged by agreement or conduct of the parties was as to include the claim by the petitioner for the subsequent period from Ist of April, 1969 to 31st of March, 1972. Mr. Sinha also referred to the paragraph 16 of the affidavit-in-opposition filed on behalf of the respondent wherein the respondent contended that the petitioner claim for the subsequent period is barred by waver or estoppel by its conduct and it cannot go behind the Older of the Umpire dated the 2nd of April, 1974 or raising the matter again and also the claim is barred by limitation and also to the said letter dated the 18th of November, 1972 of the Respondent the petitioner which I have set out before and submitted that the petitioner's claim for the subsequent period should be held to be included in the reference by conduct of the parties. Mr. Mr. Sinha also referred to the statement filed by the petitioner before the Arbitrators which is at page 28 of the petition and also to the counter-statement filed by the respondent which is at page 37 of the petition and submitted that the nature of the disputes between the parties clearly indicated that it is of a continuous nature giving rise to the claim of the petitioner for electricity charge against the respondent under the said agreement dated the 28th of January, 1960 as modified by the letters dated the 12th of December, 1960 and 14th of January, 1961 by the parties. He submitted that the arbitration clause in the said contract is wide enough to include the future claim of the petitioner if disputes arises out of the said contract. Mr. Sinha also referred to a letter dated the 7th of September, 1968 from the petitioner to the respondent for referring the disputes arising out of the said agreement dated the 28th of January, 1960 as modified to arbitration. The said letter is at page 32 of the petition. Mr. Sinha also referred to a letter dated the 14th September, 1968 of the respondent which is at page 23 agreeing to the matter of dispute being referred to arbitration and relying on those letters, Mr. Sinha submitted that from the conduct of the respondent in agreeing to refer the disputes regarding the outstanding bills of the petitioner for payment of the electricity charges and maintenance and service of sewage charges under the said agreement dated the 28th of January, 1960 as modified by the subsequent letters mentioned above. It must be held that the parties agreed to refer the future claim of the petitioner arising out of the said contract to be included in the reference in terms of the arbitration agreement. Mr. Sinha referred to a Supreme Court decision in (1) Sahebzada Mohammad Kamgarh Shah v. Jagadish Chandra Deo Dhabal Deb & Ors., AIR 1960 SC 953 in support of his contention that the document which constitutes an agreement or grant or waiver of a right should be strictly construed against the promisor or the grantor or the author and no subsequent going back to be allowed to take away the effect of the promise or grant or any other act constituting waiver subsequently, Relying on the said proposition Mr. Sinha submitted that the letter dated the 4th of April, 1973 which I have set out before the respondent clearly and unequivocably agreed to include in the said reference of subsequent claims of the petitioner arising out of the said agreement dated the 28th of January, 1960 as modified thereafter by the parties in the said reference by alleging that the subsequent claim raised by the petitioner in respect of the arrears of electricity charges under the said agreement were subjudice that is pending before the Arbitrators who has entered upon the reference in terms of the arbitration clause in the agreement. Mr. Sinha, thereafter, referred to the two Supreme Court decisions in (2) Waverly Jute Mills Co. Ltd. v. Raymon & Co. (India) Pvt. Ltd., AIR 1963 SC 90 at page 28, paragraph 28 wherein the principles and law relating to the scope of the reference has been laid down and also a decision (3) Union of India v. A.L. Raliaram, AIR 1963 SC 1685 where it has been held that parties may enter into a fresh agreement and modify the original term of reference and extend the scope of reference. Relying on those decisions, Mr. Sinha submitted that the said correspondence between the parties dated the 18th of November, 1972, 28th of March, 1973 and 4th April, 1973 which have been set out before constituted fresh agreement between the parties to enlarge the scope of reference of including subsequent claims of the petitioner regarding the electricity charges payable by the respondent under the said agreement dated the 28th of January, 1960 as modified which accrued during the pendency of the reference. Mr. Sinha also referred to the Supreme Court decision in (4) Century Spinning & Manufacturing Co. Ltd. & Anr. Mr. Sinha also referred to the Supreme Court decision in (4) Century Spinning & Manufacturing Co. Ltd. & Anr. v. The Ulashnagar Municipal Counsel & Anr., AIR 1971 SC 1021 in support of his proposition that the respondents are estopped from raising the question as to the jurisdiction of the Umpire to entertain the claim for the subsequent period in respect of electricity charges payable by the respondent to the petitioner in the reference as the respondent by its conduct, particularly in view of its letter dated the 4th of April, 1973, clearly represented to the petitioner that the respondents are agreeable to include the future claims of the petitioner in the said reference by its contention on that such claim is sub-judice in the pending reference under the arbitration clause in the said agreement between the parties. Mr. Sinha submitted that the present application for determination of the scope and effect of the arbitration and the reference is purely a question of law as it involves only the interpretation of the agreement between the parties including the arbitration clause therein and the subsequent correspondence between the parties particularly the letters by which the parties agreed to refer the disputes to arbitrators in terms of arbitration clause in the agreement and the subsequent letter including the claim for the subsequent period of the petitioner under the said contract which the respondent by their letter dated the 4th of April, 1973 agreed to be included in the reference already pending before the Arbitrators as sub-judice and therefore, it must be held that the parties agreed for a fresh to include the claim of the petitioner for the subsequent period in the reference in the event if it is held that the arbitration clause is not wide enough to include the future disputes as to the subsequent claim of the petitioner in respect of electricity charges and sewage charges payable by the respondent under the said agreement in the arbitration clause itself. 5. Mr. Milan Kumar Banerjee, appearing with Mr. 5. Mr. Milan Kumar Banerjee, appearing with Mr. Sib Das Banerjee, for the Respondents, submitted that the agreement clearly indicated as to the rate of electricity to be charged by the petitioner that supply of electricity to the respondents and the disputes as to 31st of March, 1969 in respect of the petitioner's alleged claim against the respondents are agreed to refer to arbitration and the claim for the subsequent period cannot be included in the reference as there is not agreement between the parties to do so. Mr. Banerjee after drawing my attention to the various document in the petition and the affidavit-in-opposition submitted that in the facts of this case, it cannot be said that the respondents' said letter dated the 4th of April, 1973 could constitute a fresh agreement to refer a dispute for subsequent period to the Arbitrators and thereby enlarge the scope of reference by a fresh agreement as contended by the petitioner. Mr. Banerjee referred to Russel on Arbitration 18th edition page 77 where the principles regarding the scope of the reference and claim before and after the date of submission has been clearly stated" He submitted that the said principle is quite clear that the Arbitrators have no power or jurisdiction to include in the reference claim arising after the date of the submission before them. Mr. Banerjee, thereafter, referred me to the statement and counter-statement of the parties and submitted that dispute regarding the claim of the petitioner up to 31st of March, 1969 was referred to the arbitrators and that cannot include claim beyond the said period as is now sought to be included by the petitioner. Mr. Banerjee referred to the decision of Bachwat, J, in (5) Nandram Hanutram v. Raghunath and Sons Limited, AIR 1954 Calcutta 245 at 246 where it has been laid down as to what is a disputes which is an essential condition for reference to arbitration. "6. Mr. Banerjee further submitted that the Umpire order dated the 2nd of April, 1974, makes it clear that he has no jurisdiction to entertain the claim for the subsequent period for charges of electricity against the Respondent as sought to be made by the petitioner by tiling a supplementary claim. "6. Mr. Banerjee further submitted that the Umpire order dated the 2nd of April, 1974, makes it clear that he has no jurisdiction to entertain the claim for the subsequent period for charges of electricity against the Respondent as sought to be made by the petitioner by tiling a supplementary claim. In this case there is no question of estoppel as against the respondent as it has objected to the petitioner including its claim for subsequent period in the reference before the Umpire has given his decision of the 2nd of April, 1974, holding that he has no jurisdiction to entertain the said claim. Moreover, Mr. Banerjee submitted that this question is a question of jurisdiction and as such, cannot be a question of waiver or estoppel but of authority of the Arbitrator and as such, there cannot be any question of submitting to the jurisdiction of the Arbitrators by the Respondent. Therefore, there cannot be any question of estoppel against the respondent in this case. Mr. Banerjee referred to Russel's on Arbitration 18th Edition at pages 226 to 229 and submitted that in this case the Umpire has already decided his jurisdiction as the question as raised in respect of the subsequent claim made by the petitioner any decided that he has no jurisdiction. As such, the question on waiver by or estoppel against the Respondent does not arise. Mr. Banerjee also referred to the Supreme Court decision in (6) Messrs Amar Chand Lalit Kumar v. Sree Ambica Jute Mills Ltd., AIR 1966 SC 1036 where dealing with the question of Court's power to revoke the authority of the Arbitrator, it was held that the Court in exercising the said discretionary power should exercise cautiously and sparingly and only where there are, inter alia, question of excess or refusal of jurisdiction of the Arbitrator which would lead to substantial miscarriage of justice and the Court is satisfied about the said ground, the power of revocation may be exercised. Mr. Mr. Banerjee submitted relying on the said decision that in this particular case the reference was only made in respect of the petitioner's claim for the electricity charges against the respondent arising out of the said contract dated the 28th of January, 1960, as modified thereafter as aforesaid and the scope of the reference cannot be enlarged without a fresh agreement between the parties by the including the claim for the subsequent period as sought to be made by the petitioner and rightly rejected by the Umpire. Mr. Banerjee also submitted that there is no question that the Arbitrators and thereafter the Umpire the jurisdiction to entertain the counter-claim of the respondents in the reference before him as claimed in the counterstatement of the respondent. Therefore, Mr. Banerjee submitted that no order should be made in this application. Mr. Banerjee also submitted that the petitioner has already appointed its arbitrator for referring the disputes for the subsequent period and called upon the respondent to appoint its arbitrator by the letter as dated 26/27 December, 1974 and as such this application is not maintainable and should be dismissed. 7. Considering the respective contentions very carefully, I am of the view that the order or decision of the Umpire dated the 2nd of April, 1974 deciding that he has no jurisdiction to entertain the claims for the subsequent period as made by the petitioner being outside the scope of the reference cannot be said to be an interim award as it is not an interim award within the meaning of section 2(b) read with section 27 of the Arbitration Act, 1940. As ordinarily, the Arbitrator or Umpire has no jurisdiction to decide his own jurisdiction but when he decides such question if raised, that is subject to scrutiny by the Court at the subsequent stage. But such decision cannot be an award within the 'meaning of the Arbitration Act but merely incidental to the reference without adjudication of any disputes which have been referred to the Arbitrator or Umpire under the Arbitration agreement unless such question was specifically referred. Therefore, setting aside the said decision dated the 2nd of April, 1974, of the Umpire as prayed by the petitioner cannot be maintainable, firstly, the same is not an interim award and secondly, that is not filed before the Court under section 14 of the Arbitration Act. Therefore, setting aside the said decision dated the 2nd of April, 1974, of the Umpire as prayed by the petitioner cannot be maintainable, firstly, the same is not an interim award and secondly, that is not filed before the Court under section 14 of the Arbitration Act. Therefore, there cannot be any question of either setting aside the said decision of the Umpire dated the 2nd of April, 1974 or remitting back to the Umpire with direction or order as prayed for by the petitioner in this application. There is no power of the Court remitting any decision of an Umpire or an Arbitrator which is not an award and which is not filed in Court for passing a judgment upon award. Power of remitting by Court is under section 16 which specifically refers to award which includes interim award and not to a mere decision on a question of jurisdiction of the Arbitrator or Umpire which was incidentally raised. 8. Therefore, the next question arises in this application whether the arbitration agreement is wide and comprehensive enough to include future claims as made by the petitioner in this instant case. The law on this question is very well summarised in Russel's on Arbitration 18th Edition at page 77 as follows : - "A reference of all matters in difference gives an Arbitrator power over all matters down to the period of the submission, but does not, except under very special circumstances, enable him to award on future and contingent claims, or to give damages in respect of money demands becoming due after the date of the submission, though pursuant to an agreement made previous to it, or indeed respecting any subjects-matter of dispute arising after the reference. Even if the submission be of all differences and "of anything in any wise relating thereto", these latter words do not extend the power of the Arbitrators to matters which, though relating to the existing differences arise after the date of the submission, nor do they authorise the calculation and awarding of interest subsequent to that date. Even if the submission be of all differences and "of anything in any wise relating thereto", these latter words do not extend the power of the Arbitrators to matters which, though relating to the existing differences arise after the date of the submission, nor do they authorise the calculation and awarding of interest subsequent to that date. The parties may, however, if they please, give the Arbitrator power to determine on contingent claims or all matters in dispute or demands arising after the date of the submission, and this Court has often been pursued." It will be also convenient for me to refer the Halsbury's Laws of England 4th Edition Volume 2 paragraph 533 at page 272 which is as follows:- "Unless future disputes are expressly mentioned, the reference does not include difference which arose after the arbitration agreement. Disputes referred by an arbitration clause in a contract include all disputes within the purview of the clause up to the date of the appointment of the Arbitrators; but disputes arising after this date must be subject to all separately proceedings unless the parties agree to the contrary." Now applying the said principles to the facts of this case, can it be said that the arbitration clause is wide enough to include the subsequent claims of the petitioner after the reference was made to the Arbitrators in terms of the arbitration clause. The relevant words in the arbitration agreement which I have set out before are "all disputes arising out of this agreement or incidental thereto shall be referred to arbitration......." Can those words are said to have included the subsequent claims? In my view, it is not clear from the plain reading of the said words and therefore, under the said arbitration clause simplicitor it cannot be definitely said whether the claims for the subsequent period for electricity and sewage charge, payable by the respondent to the petitioner under the said agreement as modified can be included in the reference. But having regard to the facts of this case in my view there seems to be special circumstances which brings in it the subsequent claims for electricity and sewage charges under the said contract within the scope of the arbitration agreement and the reference. But having regard to the facts of this case in my view there seems to be special circumstances which brings in it the subsequent claims for electricity and sewage charges under the said contract within the scope of the arbitration agreement and the reference. Firstly, because of the fact that the nature of the agreement clearly indicates that it relates to continuous rights and obligations for a period, and the said rights and obligation to be exercised by the parties during the period mentioned in the said agreement and therefore, if during the said period disputes arises in terms of the said contract that becomes a dispute of continuous nature limited within the period under the said agreement. There may be successive claims for successive periods but if all the claims of same nature are raised within the period fixed under the said agreement, in my view, having regard to the special type of agreement, the claims for the subsequent period may also be included in one reference otherwise it would be contrary to the general principles of preventing multiplicity of proceedings, which in my view should also include arbitration proceeding before an Arbitrator or Umpire. Therefore, although prima facie, from the plain reading of the said words in arbitration clause claims for the subsequent period under the said contract may not be said to come within the reference, but having regard to the special circumstances of this particular case. it should be interpreted to include within the reference as the Arbitrators or Umpire is to decide the mode, manner and rates of the electricity and sewage charges payable by the respondent to the petitioner under the said contract and such decision would also govern the payment of subsequent bills of electricity and sewage charges under the .said contract as payable by the Respondent to the petitioner and it would be mere applying the said principles or formula for calculating the amounts payable for the subsequent periods which would also apply to the claim for the original period up to the date of the reference. Therefore, in my view, this is clearly a special circumstances which indicate that the scope of the arbitration clause is wide enough to include the subsequent claims during the period, the contract will be in force between the parties pendening the reference. Therefore, in my view, this is clearly a special circumstances which indicate that the scope of the arbitration clause is wide enough to include the subsequent claims during the period, the contract will be in force between the parties pendening the reference. Moreover, in my view, that is how the parties also understood and the respondent by its letter dated the 4th of April, 1973 make it abandondly clear as it also treated the arbitration clause to be wide enough so as to include in the pending reference claim for all subsequent periods as made by the petitioner. I have set out the said letter before by which the respondent has clearly, categorically and unequivocally admitted that the claim as made by the petitioner for the subsequent period and the liability for the same of the respondent to pay were being already sub-judice and pending before the Umpire, as such the respondent did not intend to deal with the said claim. Therefore, in my view, the scope of the reference and also the scope of the arbitration clause in the agreement is being clearly understood by the parties to have included the claim for. subsequent periods made by the petitioner arising out of the said contract. It is now well-settled that for interpretation and construction of a contract, the surrounding circumstances and the subsequent conducts of the parties may be taken into account when there is some uncertainty or ambiguity about the terms and scope of the contract and to find out the intention of the parties. The principle is well-established as it would appear from the following decisions. In (7) Watchman v. Attorney General of East Africa, 1919 AC 533 (PC), in (8) Wickman Machine Tool Sales Ltd. v. L. Schuler A.G., 1972(2) AER 1173, in (9) Union of India v. Amarendra Nath Sarkar, AIR 1967 Calcutta 119 and in (10) The Godhra Electricity Co. Ltd. v. The State of Gujarat and Another, AIR 1975 SC 34. 9. In (7) Watchman v. Attorney General of East Africa, 1919 AC 533 (PC), in (8) Wickman Machine Tool Sales Ltd. v. L. Schuler A.G., 1972(2) AER 1173, in (9) Union of India v. Amarendra Nath Sarkar, AIR 1967 Calcutta 119 and in (10) The Godhra Electricity Co. Ltd. v. The State of Gujarat and Another, AIR 1975 SC 34. 9. Therefore, reading the arbitration clause together with the conduct of the parties particularly as evidenced by the correspondence between the parties resting with the respondent's said letter dated the 4th of April, 1973, it is clearly indicated that the parties intended that the Arbitration Clause would include all future and contingent claims arising out of the said contract pending the reference, even, if it is for a particular period, that would not exclude the Arbitrator's or Umpire's jurisdiction to deal with the future and subsequent claims arising on the same basis as in this case. Any other interpretation would render the contention of the Respondent meaningless as there would have been no point in its saying that the "subject-matter is already sub-judice, being pending before the Umpire" in relation to the petitioner's demand for subsequent period in respect of charges for supply of electricity to the respondent and sewage charges under the said contract. It appears that after the said letter of the respondent dated the 4th of April, 1973, the petitioner also accepted the position and in due course submitted their further claim before the Umpire and thereby, that the Arbitration Clause in the special circumstances of this case having regard to the nature of the Contract involving mutual rights and obligations of the parties being a continuance one spreading over the whole period of the contract would include all subsequent claims for electricity and sewage charges disputed on the same ground by the respondent which was pending before the Arbitrator and are included in the scope and ambit of the arbitration clause and the pending reference and as such, can be put forward by a further claim for the subsequent periods before the Umpire. In that view of the matter it is hardly possible for the respondent now to contend that the claims for the subsequent periods cannot be included in the reference pending before the Umpire. In that view of the matter it is hardly possible for the respondent now to contend that the claims for the subsequent periods cannot be included in the reference pending before the Umpire. In my View, in the facts and circumstances of this case, the respondent should be held to be estopped from contending, otherwise, it has clearly, unequivocally and in so many words have admitted, that all subsequent claims in respect of the charges for supply of electricity by the petitioner to the Respondent and sewage charges are covered and/or included within the scope and ambit of the arbitration clause under which the disputes were referred to arbitration and is pending before the Umpire. The respondent seems to be enjoying the benefits of getting supply of electricity and sewage facilities from the petitioner and paying at the rates according to their own calculations, which is being disputed by the petitioner and/or pending before the Umpire in the arbitration reference and as such, the petitioner seems to have changed this position to its detriment by not initiating fresh proceeding initially in respect of the disputes regarding the electricity charges and other charges payable by the respondent for the subsequent periods. Therefore, it appears that the arbitration agreement is on very wide import by which the parties intended to include claims arising out, of the contract or incidental thereto during the entire period of the said contract if it involves a decision as to principle or formula to be applied for calculating the amount payable, and as such, the arbitrators or Umpire would have jurisdiction to decide all future and contingent claims of the parties arising during the reference that is, after the appointment of the Arbitrators and the entering upon the reference till the award is made. It is looked from another angle. It is looked from another angle. the correspondence between the parties refting with the respondent's letter dated the 4th of April, 1973, clearly constitute a fresh agreement to refer all subsequent claims arising out of the contract to the arbitration of the Umpire and thereby, including the said further claims within the scope of the reference which was pending before the Umpire and as such, the Umpire has the jurisdiction to entertain the further claim as put forward by the petitioner for the subsequent periods in respect of the charges payable by the respondent under the said contract out of which the disputes arose. If that view of the matter, it appears to me that the Umpire was wrong in doing that he has jurisdiction to deal with the further claim of the petitioner relating to the charges payable by the respondent to the petitioner under- the said contract. That has amounted to refusal of jurisdiction by the Umpire. 11. Regarding the next question as to whether the Umpire can entertain counter-claim of the respondent filed in the arbitration proceeding which is now pending before the Umpire. In my view, it is clearly within the jurisdiction of the Arbitrator and Umpire to consider the counter-claim made by the respondent if the same arises out of the same contract out of which the disputes arose and covered by the Arbitration clause. I have gone through the counter-claim as made out in the counter statement filed by the Respondent in the arbitration which is at pages 37 to 46 of the petitioner. The counter-claims clearly arises out of the same contract and are maintainable and are within the Umpire's jurisdiction to entertain and go into the same. One of the earliest case which held that counter-claim and set off can be entertained in arbitration is that of (11) Russel v. Pellegriene, 119 ER 1144 and thereafter, in the decision of (12) Weall & Anr. v. James & Anr., 68 LT 54. Same view was taken in the Division Bench decision of this Court in (13) R.N. Jhunjhunwala & Co. Pvt. Ltd. v. Alliance Jute Mills Co. Ltd., 74 CWN 510 at 520 in paragraph 24 where it is held that counterclaim is maintainable and can be entertained in the reference before the Arbitrator. v. James & Anr., 68 LT 54. Same view was taken in the Division Bench decision of this Court in (13) R.N. Jhunjhunwala & Co. Pvt. Ltd. v. Alliance Jute Mills Co. Ltd., 74 CWN 510 at 520 in paragraph 24 where it is held that counterclaim is maintainable and can be entertained in the reference before the Arbitrator. Again, in the Supreme Court decision in (14) Union of India Jainarayan Mishra, AIR 1970 SC 753 in paragraph 2 at page 754 and also in (15) Union of India v. Ramon Iron Foundary, AIR 1974 SC 1265 the question of counter-claim and mutual claims of the parties in a contract, disputes regarding which have been referred to arbitration have been recognised and also to be entertainable by the Arbitrators or the Umpire in the reference, if it arises out of the same contract or transaction under which disputes have arisen and reference have been made to arbitration under the arbitration clause contained in the said contract. Therefore, it is quite clear and well-settled that the Umpire has not only the jurisdiction but also has the duty to entertain the counter-claim of the Respondent, having arisen out of the same transaction either as set off or as a defence to the claim of the petitioner and considering the mutual claims of the parties in the reference, and the award to be made adjudicating the respective claims against each other in the reference. Therefore, I hold that the Umpire is entitled to entertain the counter-claim of the respondent in the reference as raised in the counter-statement filed before him to which the petitioner has duly filed a reply in the reference. 12. Regarding the contention of Mr. Banerjee that the petitioner by its letter dated the 26/27th of December, 1974, has appointed its Arbitrator and called upon the Respondent to appoint its Arbitrator and the Respondent by their letter dated the 11th of January, 1975, appointed its Arbitrator and thereby making the present application not maintainable the said two letters are annexed to the affidavit-in-opposition affirmed by Sardar Singh Bapna on the 22nd of March, 1975 and are at pages 44 to 49 thereof. The said letters make it clear that both the parties acted without prejudice to their contentions and as such that cannot constitute any waiver or estoppel. The said letters make it clear that both the parties acted without prejudice to their contentions and as such that cannot constitute any waiver or estoppel. As I have already held that the Umpire was I wrong in his decision in the facts and circumstances of this case that he had no jurisdiction to entertain the subsequent claims regarding electricity charges and sewage charges of the petitioner against the respondent. There is no question of this application of the petitioner being not maintainable. This is a question of refusal of exercising jurisdiction of the Umpire and as such, it is a jurisdictional fact and there cannot be any question of waiver or estoppel. Apart from that it is clearly mentioned in the said two letters that the same was without prejudice to the rights and contentions of the parties and as such, the question of estoppel or waiver does not arise. 13. In that view of the matter and for the reasons I have mentioned before, I am passing the following order. 14. It is declared that the arbitration agreement includes that claims for subsequent period in respect of charges payable by the respondent to the petitioner under the said agreement and the Umpire has jurisdiction to entertain the same. It is further declared that the Umpire has the jurisdiction to entertain the counter-claim of the respondent in the reference before him. 15. It is not necessary to pass any further order save and except as it appears that during the pendency of this application, time to make and publish the award by the Umpire has expired, I am extending the time to make the award by the Umpire by four months from date. The Umpire and all parties to act on a signed copy of the minute on the petitioner’s solicitor’s undertaking to complete and file this order. There will be no order for costs. Stay asked for refused.