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1987 DIGILAW 183 (DEL)

PRAG DISTILLED WATER AND ICE FACTORY v. MUNICIPAL CORPORATION OF DELHI

1987-04-09

S.N.SAPRA, S.S.CHADHA

body1987
S. S. CHADHA, J. ( 1 ) THE three appeals raise an additional argument relating to the scope of the reference in relation to certain disputes in regard to the fuel adjustment charges levied by the Delhi Electric Supply Undertaking made to Shri S. N. Andley, a retired Chief Justice of this Court. The common issues have been dealt with in the judgment announced today in FAO (OS) 56/86 (reported in AIR 1988 Delhi 26) and that will also dispose of the contentions raised ( 2 ) A petition under Section 20 of the Arbitration Act, 1940 seeking the reference of disputes relating to fuel adjustment charges came up before Ranganathan, J. It was stated that "it is common ground that there is an agreement between the parties which provides for arbitration in the event of such disputes. Both parties also agree that as in certain other matters between the Delhi Electric Supply Undertaking and other assessees (including the petitioner), Shri S. N. Andley, retired Chief Justice of this Court, may be appointed arbitrator to adjudicate upon the disputes set out in para 6 of the petition. It is so directed. " ( 3 ) RN. Kirpal J. who was seized of several suits including suit No. 518-A/73, in his judgment dt. May 24,1984 had earlier referred the disputes. The dispute formulated was whether the fuel adjustment charges have been fixed and are being demanded by respondent No. 2 from time to time in accordance with the Tariff for the year in question. This reference was felt as comprehensive enough to include all questions which could be raised before the arbitrator, including the question as to whether the provisional revision of such charges can be made, from time to time, with retrospective effect. The arbitrator in para 1 of the award noticed the judgment of B. N. Kirpal, J. as also in other suits referred to the arbitrator for arbitration by various orders by Ranganathan, J. It is thereafter that the scope of reference was discussed and the issues before the arbitrator for decision were formulated. It is, therefore, not correct to urge that the arbitrator never addressed himself to the reference made by Ranganathan, J. ( 4 ) THE main contention of Mr. It is, therefore, not correct to urge that the arbitrator never addressed himself to the reference made by Ranganathan, J. ( 4 ) THE main contention of Mr. Chawla is that the entire disputes mentioned in para 6 of the petition have not been determined by the arbitrator and the award deserves to be remitted under S. 16 (l) (a) of the Arbitration Act. The disputes mentioned in para 6 are these: " (A) Whether the demand for the period 1978-79 and 1979-80 is not time barred ?. (b) Without prejudice to the above contention whether the demand is justified when the agreement speaks of only coal charges and not additional costs like power purchased from other source, cost of oil, etc. ? (c) Whether the present demand is justified when along with the demand the audit certificate is not given ? (d) Whether the demand is in accordance with the formula for increase agreed to between the parties ? (e) Whether the demand is justified when according to the agreement the supplementary bill should have been issued latest within one year of the accounting year ? (f) Whether the present fuel charge at the rate of 36. 61p is in accordance with the agreement and the Tariff formula. "it is clear from a reading of the disputes formulated in para 6 -that in sum and substance, they related to fixation of fuel adjustment charges and their demand from time to time in accordance with the Tar iff for the year in question. This dispute has been squarely determined by the arbitrator in his award. Some additional differences are mentioned in para 6. They are not referred to or included as contentions in the written arguments before the arbitrator. The arbitrator has not dealt with them in his award We, therefore, agree with the learned single Judge that the other points of disputes were either given up or not pressed before the arbitrator during the proceedings. If an award is silent on a particular item of dispute, then the law is that the claim in respect of such item should be taken as rejected by the arbitrator. ( 5 ) THERE is no dispute that S. 16 (l)ofthe Arbitration Act empowers the Court to remit the award or any matter referred to arbitration to the arbitrator or Umpire for reconsideration upon such terms as the Court thinks fit. ( 5 ) THERE is no dispute that S. 16 (l)ofthe Arbitration Act empowers the Court to remit the award or any matter referred to arbitration to the arbitrator or Umpire for reconsideration upon such terms as the Court thinks fit. The power to remit the award is distinct from the power to remit any matter referred to arbitration and the exercise of one or the other power may lead to different result In "mehta Teja Singh and Co. v. Fertilisers Corporation of India", AIR 1968 Delhi 188, it was held that S. 16 of the Act dealing with the power of the Court to remit the award should be construed independently and the remission of the award or any matter contemplated by this section is not intended to include within its fold setting aside of the award or a part of it as contemplated by S. 30 which is apparently an exhaustive provision specifically dealing with setting aside of awards. In our view, the real dispute between the parties that was referred to the arbitrator was about the fixation of fuel adjustment charges and that was determined. It has to be presumed that the arbitrator disposed of finally all the matters in difference and thus there is no basis for remitting the award. In"smt Santa Sila Devi v. Dhirendra Nath Sen", AIR 1963 SC 1677 , it was held: "before dealing with this point it is necessary to emphasise certain basic positions. The first of them is that a court should approach an award with a desire to support it, if that is reasonably possible, rather than to destroy it by calling it illegal (See Sel by v. Whitbread and Co. , (1917) 1 KB 736 at p. 748 ). Besides it is obvious that unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each claim or matter separately, but can deliver a consolidated award, the legal position is clear that unless so specifically required an award need not formally express the decision of the arbitrator on each matter of difference. (Vide Re, Brown and the Croydon Canal Co. , (1839) 9 Ad and Ell 522 : 112 ER 1309 and Jewell v. Christie (1867) 2 CP296 ). (Vide Re, Brown and the Croydon Canal Co. , (1839) 9 Ad and Ell 522 : 112 ER 1309 and Jewell v. Christie (1867) 2 CP296 ). Further, as Parke, B. himself put it during the course- of arguments in (1853) 138 ER 1254 : "unless the contrary appears the Court will presume that the award disposes finally of all the matters in difference. "and to repeat a sentence from the extract quoted earlier: "where an award is made de praemissis, the presumptions is, that the arbitrator intended to dispose finally of all the matters in difference; and his award will be held final, if any intendment it can be made so. "we shall approach the argument addressed to us in the light of these considerations. Now the award opens with a paragraph which recites, after setting out the reference : "whereas I have heard and duly considered allthe allegations advanced evidence adduced before me regarding the respective cases of the parties. . . . . . I do hereby make and publish this, my award in writing as to allthe disputes mentioned above. "it need hardly be added that the arbitration agreement and the statements filed extracts from which we have set out earlier were among the documents incorporated with this award and included among the matters considered by the arbitrator which disputes he intended to resolve by this award. The award, therefore, on its face intended and purported to decide all the disputes raised for this adjudication and therefore the Court will assume that he has considered and disposed of every claim made or defence raised. Since the award now impugned expressly states that it is made"de praemissis" i. e. , of and concerning all the matters in dispute referred to the arbitrator, there is a presumption that the award is complete. In the circumstances the principle of construc- tion enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to that relief. " ( 6 ) FOR the above reasons, the appeals in so far as they raise the additional arguments fail The appeals are partly allowed in terms of the order in FAO (OS)56/86 with no order as to costs.