STATE OF KERALA v. VALLIAMMAL BHASKARAN — 1989 DIGILAW 151 (KER)

JUDGMENT P. K. Krishnamoorthy, J. - The state and the Superintending Engineer, Kallada Irrigation Project are the appellants in both the appeals. These appeals arise out of arbitration proceedings in respect of certain disputes which arose out of a contract entered into by the respondent and the State. The contractor is the respondent in both the appeals. M.F.A. No. 188 of 1987 is against the order or the Sub-Judge, Trivandrum dated 8-9-1986 in I.A. No. 2255(a)/1986 in O.P. (Arb.) No. 137 of 1986. M.F.A. No. 323 of 1988 is against the judgment dated 4-2-1988 in O.P. (Arb.) No. 46 of 1987. The dispute between the parties arose under the following circumstances. The contract for the work of "Formation of R.B. Main Canal/18th Km. from Ch. 17000 to 18200 m. - Balance work" was awarded to the late husband of the respondent Sri V. K. Bhaskaran as per Selection Notice dated 5-12-1977 at 5% above the estimate rate. The agreement for the above work was dated 13-12-77 and the time for completion of the work was 22 months from the date of handing over of the site. The site was handed over on 21-1-1978 and the period of completion was till 20-11-1979. The estimated P.A.C. for the work was Rs. 24,03,789/-. On 1-1-80, Sri Bhaskaran (the original contractor) died when the work was incomplete. The respondent in the appeals who is the wife of deceased Bhaskaran and who was the nominee under the agreement, by a letter dated 7-1-1980 (Ext. R. 7 before the Arbitrator) expressed her desire to continue and carry on the balance work. By a letter dated 14-1-1980 (Ext. R. 8) her offer was accepted on condition that she should execute a supplemental agreement after producing the necessary heirship certificate. In pursuance of that, under Ext. R. 9 dated 16-5-1980, a supplemental agreement was executed by her in favour of the State agreeing to undertake the work on the same terms and conditions on which it was given to her deceased husband. On the same day, under Ext. R. 10 another supplemental agreement was executed by which the time for completion of the work was extended up to 31-12-1980. On the same day, under Ext. R. 10 another supplemental agreement was executed by which the time for completion of the work was extended up to 31-12-1980. That agreement further provided that : "The Contractor shall carry out all further works as under the said agreement within the said extended period at the rates and in the manner agreed to therein subject to all the other conditions prescribed in the said agreements and shall not claim any enhanced rate for such items of work, on account of the extension of time, either due to the increase in rate of labour or materials or any other ground whatsoever." Anyhow, she did not complete the work as agreed to and the State issued Ext. R. 11 notice requesting her to complete the work within the stipulated time. But inspite of that the work was not completed. By letter dated 29-9-1980, she stated that she was not able to complete the work due to paucity of funds and want of experience and promised to do the work as agreed to. Inspite of that, the work was not completed and she filed Ext. R. 19 petition dated 30-12-1980 before the Minister for extending the time for completion by another month. By Ext. R. 20 letter dated 3-1-1981, the Department extended the time for completion of the work till 18-1-1981. The work was not completed even within the extended time and in view of that the State terminated the contract on 26-2-1981 at the risk and cost of the contractor. 2. After the termination of the contract by the State, the contractor raised certain disputes, which according to her, arose under the contract, including mainly the following disputes : (a) The termination of the contract by order dated 26-2-81 is null and void and she has to be relieved and exonerated from any consequent liability for damages. (b) The measurements taken on the initial levels at the time when Sri Bhaskaran started the work were not proper and he was prevailed upon to sign the alleged final levels of another contractor when he took charge of the work. Before re-arrangement of work, proper measurements of the work done were not taken and the contractor is entitled to payments for these works less the amount already paid. Before re-arrangement of work, proper measurements of the work done were not taken and the contractor is entitled to payments for these works less the amount already paid. (c) The estimate for the work was prepared on the basis of dumping the cut soil from the canal reach into a forest poramboke. But during actual execution of the work, the above poramboke was not available and due to the non-availability of the above land the contractor had to incur extra expenditure which has to be compensated. (d) The work done by deceased Bhaskaran was the balance work left unfinished by the previous contractor. He had to do a huge quantity of cutting and removing of silt and excess quantity of earth in the canal bed, not accounted for in the levels, and he has to be compensated for the above work. (e) 5% excess over the rates agreed to by the parties. Certain other minor claims were also made by the contractor. According to the contractor, the State did not settle the disputes. There is an arbitration clause in the agreement under which the Chief Engineer, Arbitration was the named Arbitrator. As the parties could not settle the disputes, they were referred to the Chief Engineer, Arbitration. 3. The Arbitrator entered the reference on 25-8-1984. Parties filed statements before the Arbitrator detailing their claims and contentions. The State also made a counter-claim for damages incurred due to re-arrangement of the work which the contractor left unfinished. After taking evidence and considering the documents, the Arbitrator passed a non-speaking award dated 18-7-1985. (There is a dispute between the parties as to the actual date on which, the award was made which will be considered later). The details of the award will be dealt with later and for the present it is sufficient to state that it was only partly in favour of the contractor and the major claims made by her were rejected by the Arbitrator. The award was originally filed in the Kottarakkara Sub-Court on 4-9-1985 and on the application of the claimant, that court returned it to the Arbitrator on 27-2-86. The contractor filed a petition on 12-3-1986 before the Arbitrator to file the award before the Trivandrum Sub-Court. Accordingly the Arbitrator filed the award along with the record in the Trivandrum Sub-Court. 4. The award was originally filed in the Kottarakkara Sub-Court on 4-9-1985 and on the application of the claimant, that court returned it to the Arbitrator on 27-2-86. The contractor filed a petition on 12-3-1986 before the Arbitrator to file the award before the Trivandrum Sub-Court. Accordingly the Arbitrator filed the award along with the record in the Trivandrum Sub-Court. 4. Dissatisfied with the above award, the contractor on 23-6-1986 filed O.P. (Arb.) 137/86 before the Sub-Court, Trivandrum, under Sections 8, 10, 11, 12, 16, 30 and 33 of the Arbitration Act to set aside the award, to revoke the authority of the named Arbitrator and to appoint a new Arbitrator in his place. She also filed I.A. No. 2255(a)/86 to set aside the award. 5. The State filed an objection to the above application with a prayer to pass a decree in terms of the award. By order dated 8-9-1986, the learned Subordinate Judge set aside the award and removed the named Arbitrator. He also directed the parties to file a panel of Arbitrators to be appointed in the case. On 11-9-1986, the contractor filed a panel of 5 names and on 22-9-1986, the State filed a panel containing the name of the Chief Engineer, Arbitration himself. By order dated 14-10-1986 the learned Sub-Judge appointed Sri K. C. George, Retired Chief Engineer, Trivandrum an Arbitrator and directed him to pass the award within four months from the date of receipt of the records. The State and the Superintending Engineer, Kallada Irrigation Project have filed M.F.A. No. 188 of 1987 on 17-2-1987, against the above order setting aside the award and the consequential orders passed by the learned Sub-Judge. 6. In pursuance to the order of the learned Sub-Judge as mentioned above, Sri K. C. George, the second Arbitrator, entered the reference on 27-10-1986 and passed an award in favour of the contractor on 31-1-1987, and filed it in the Sub-Court, Trivandrum. The State filed O.P. (Arb.) No. 46 of 1987 challenging the above award and to set aside the same. By Judgment dated 4-2-1988, the Subordinate Judge found that there are no grounds to set aside the above award and passed a decree in terms of the award. Against the order dated 4-2-1988, the State has filed M.F.A. No. 323 of 1988. 7. By Judgment dated 4-2-1988, the Subordinate Judge found that there are no grounds to set aside the above award and passed a decree in terms of the award. Against the order dated 4-2-1988, the State has filed M.F.A. No. 323 of 1988. 7. In M.F.A. No. 188 of 1987, Sri M. C. John, learned Government Pleader, contended that there was no justification of ground made out to set aside the earlier award dated 18-7-1985 and the consequential appointment of a new Arbitrator. He further contended that if the order dated 8-9-1986 is set aside by this court, the appointment of Sri K. C. George as Arbitrator and the award passed by him on 31-1-1987 are without jurisdiction. He further contended that the validity of the reference to the second Arbitrator and his award will depend on the correctness of the order dated 8-9-1986 in O.P. (Arb.) No. 137 of 1986. Counsel for the respondent-contractor also agreed that if the earlier order dated 8-9-1986 in unsustainable, then the subsequent reference and the award in pursuance thereto will have to be set aside. But counsel for the respondent contended that the appeal, M.F.A. No. 182 of 1987, cannot be entertained by this court as the State has taken part in the proceedings before the second Arbitrator, Sri K. C. George without demur and that the above appeal filed on 17-2-1987 after the second award was passed has become infructuous. It is his further contention that by taking part in the second arbitration proceedings without demur, the state is estopped from challenging the earlier order of the court by which the second Arbitrator was appointed. On the other hand, the learned Government Pleader contended that the filing of an appeal against the order dated 8-9-1686 is a statutory right vested in him under Section 39 of the Arbitration Act and that the mere fact of taking part in the second arbitration proceedings will not preclude the State from prosecuting the appeal against the order dated 8-9-1986. He further submitted that the appeal was filed in time after an attested copy was obtained and there was no representation by the State by which the contractor was placed in a disadvantageous position. He further submitted that an appeal can be filed only after getting an attested copy of the order and the appeal was filed within the statutory time allowed by law. He further submitted that an appeal can be filed only after getting an attested copy of the order and the appeal was filed within the statutory time allowed by law. It is true that the second Arbitrator had in compliance with the direction of the court passed an award within four months but that will not affect their statutory right of appeal under Section 39 of the Act. 8. In support of his contention the learned Counsel for the respondent laid great stress on a decision of the Supreme Court reported in Prasun Roy v. Calcutta K.D. Authority (AIR 1988 SC 205), where in their Lordships observed as follows : "The principle is that a party shall not be allowed to blow hot and cold simultaneously. Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction." In the case before the Supreme Court, by order dated 19-4-1983, a learned Single Judge of the Calcutta High Court appointed an outside Arbitrator in the place of a named Arbitrator, on the ground that the party might not get justice or proper relief in the circumstances of the case. In pursuance to that order, the appointed Arbitrator entered the reference and held 74 sittings which were attended to by the parties and their counsel and time was also extended by agreement of both parties. In the year 1985, before the award was passed, the 1st respondent before the Supreme Court, challenged the validity of the order dated 19-4-1983 on the ground that it was against the provisions in the agreement and prayed to set aside the order. Another learned Single Judge, by order dated 8th December, 1986 set aside the earlier order of the Single Judge dated 19-4-1983 and the appeal was against the above order, it is well-settled that a dictum laid down by the Supreme Court or any other High Court has to be understood in the context and the factual situation in that case. The observation, quoted above, by their Lordships of the Supreme Court was made in the context mentioned above, namely that an outside Arbitrator was appointed as early as in 1983 and the parties look part in the proceedings before him without demur till 1985. The observation, quoted above, by their Lordships of the Supreme Court was made in the context mentioned above, namely that an outside Arbitrator was appointed as early as in 1983 and the parties look part in the proceedings before him without demur till 1985. Their Lordships have also taken into account the fact that if the respondents were not satisfied, they could have moved an appeal against the order dated 19-4-1983. Instead, they participated in the arbitration proceedings and acquiesced in such appointment. In the present case, the State has filed an appeal against the earlier order dated 8-9-1986, after obtaining the copy of the order and within the statutory time. The State has done everything to challenge that order at the earliest opportunity. Though, no doubt, by the time the State obtained a copy of the order and filed the appeal, the second Arbitrator had passed his award within the time granted by the Sub-Court, we feel that the above fact cannot in any way affect the statutory right of the State to file an appeal under Section 39 of the Arbitration Act. There cannot be any estoppel against a statutory appeal. 9. The decisions in Union of India v. Radhanath Nanda (AIR 1961 Orissa 143), Union of India v. K. P. Mandal (AIR 1958 Cal. 415) and N.I. Assurance Co. v. Dalmia I. & S. Ltd. (AIR 1965 Cal. 42) relied on by the learned Counsel for the respondent, have no application to the facts of this case as the question whether there can be an estoppel against a statutory right did not arise for consideration. The only question which arose was whether a party after having taken part in the proceedings before the Arbitrator without demur can challenge his jurisdiction after the award is passed. It is in that context that their Lordships held that "the principle of estoppel will generally apply where a party having consented to arbitration by a person and participated in the proceedings before him subsequently attempted to challenge the jurisdiction of the Arbitrator." 10. The question whether the right to move the Supreme Court for special leave to appeal will be forfeited by subsequent events was considered by their Lordships of the Supreme Court in Chandra Mohini v. Avinash Prasad (AIR 1967 SC 581). That case arose under the Hindu Marriage Act, dissolution of marriage and for a decree of divorce. The question whether the right to move the Supreme Court for special leave to appeal will be forfeited by subsequent events was considered by their Lordships of the Supreme Court in Chandra Mohini v. Avinash Prasad (AIR 1967 SC 581). That case arose under the Hindu Marriage Act, dissolution of marriage and for a decree of divorce. The respondent before the Supreme Court brought a sum against the appellant under Section 13 of the Hindu Marriage Act for a decree of divorce on the ground that the appellant was living in adultery. The wife denied that she has been living in adultery. The Trial Court held that the appellant was not living in adultery and consequently the petition for dissolution of marriage was dismissed. Against the above decree, the husband went in appeal to the High Court. The High Court allowed the appeal and dissolved the marriage. Against the above decree of the High Court, the wife filed Special Leave Petition before the Supreme Court which was granted on 25-8-1964. Later, the respondent before the Supreme Court filed C.M.P. No. 2935 of 1966 praying for revocation of the special leave granted. In that petition it is alleged that the Special Leave Petition by the wife was presented in the Supreme Court on 7-4-1964 and she did not convey that she was intending to challenge the decision of the High Court nor did she pray for the stay of operation of the order of the High Court. The husband believing that the wife had submitted to the order of the High Court married another woman on 2nd July, 1964. Though special leave was granted on 25-8-1964, the husband came to know of the filing of the special petition only on 9-9-1964 when he got notice of the grant of special leave. In the meantime he had already married another woman and a son was born to that woman on 20th May, 1965. The husband contended that as he was not informed of the filing of the Special Leave Petition and taking into account the fact of his second marriage and the birth of a son through her, the leave already granted should be revoked. The above contention of the husband was negative by the Supreme Court with the following observations : "We are opinion that special leave cannot be revoked on grounds put forward on behalf of the first respondent. The above contention of the husband was negative by the Supreme Court with the following observations : "We are opinion that special leave cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act inter alia provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in force, as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Section 15 provides that "when a marriage has been dissolved by a decree of divorce and there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again." These two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for filing appeal has expired without an appeal having been presented, or if an appeal has been presented it has been dismissed. It is true that Section 15 does not in terms apply to a case of an application for special leave to this court. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court to this court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave petition to this court. If a person does so, be takes a risk and cannot ask this court to revoke the special leave on this ground." The Supreme Court in a similar case which arose under the Hindu Marriage Act in Tejinder Kaur v. Gurmit Singh (AIR 1988 SC 839) reiterated the aforesaid principle. "11. In M.F.A. No. 289 of 1986 we had to consider the maintainability of an appeal under the Hindu Marriage Act under similar circumstances where the appeal was filed out of time. But the delay in filing the appeal was condoned and when the appeal came up for final hearing the same contention regarding the maintainability of the appeal was raised. Adopting the same principle we had held that the statutory right to file an appeal cannot be forfeited by the subsequent events. 12. In view of the principles laid down in the above decisions, it is clear that the statutory right of appeal vested in a party under Section 39 of the Arbitration Act cannot be forfeited by the mere fact that the second Arbitrator passed an award in compliance with the impugned order. 13. The matter can be viewed from another angle also. The second award dated 31-1-1987 is also in challenge in M.F.A. No. 323 of 1988. It is well-settled that in considering the validity of an award, the court can go into the question as to whether there is a valid reference to the Arbitrator. 13. The matter can be viewed from another angle also. The second award dated 31-1-1987 is also in challenge in M.F.A. No. 323 of 1988. It is well-settled that in considering the validity of an award, the court can go into the question as to whether there is a valid reference to the Arbitrator. In Union of India v. Om Prakash (AIR 1976 SC 1745) in considering the scope of Section 30(c) of the Arbitration Act, their Lordships held as follows : "The words "or is otherwise invalid" to Clause (c) of Section 30 are wide enough to cover all forms of invalidity including invalidity of the reference. There is no reason why the general and unqualified language of Clause (c) should not include an award on an invalid reference which is a nullity." If that be the position, the question whether the second reference is valid or not can be considered and looked into by the court. The second Arbitrator got jurisdiction to enter on the reference only by the order of court dated 8-9-1986. If that order is invalid, the second reference is without jurisdiction. As the second award is also in challenge in these proceedings, the court is certainly entitled to look into the validity of the reference to the second arbitrator, especially when that order itself is in challenge before this court. This court is entitled to look into the correctness or validity of the earlier order and the passing of the second award will not preclude this court from looking into the validity of the reference to the Arbitrator. In view of the above, we are clearly of the opinion that the contention of the respondent that the appellants are estopped from prosecuting N.F.A. No. 188 of 1987 is without any merit and we overrule the same. 14. The learned Counsel for the respondent has produced as additional evidence the objections filed by the State to the execution petition filed in pursuance to the decree passed in terms of the second award, by filing C.M.P. No. 19793 of 1988 in M.F.A. No. 188 of 1987. He relied on the statement in paragraph 2 wherein it is stated as follows : "The claims claimed under heads 'b', 'c' and 'd' are admitted. Hence a total of Rs. 11,23,900/- (Rupees Eleven Lakhs Twenty Three Thousand and Nine Hundred) is due to the claimant. He relied on the statement in paragraph 2 wherein it is stated as follows : "The claims claimed under heads 'b', 'c' and 'd' are admitted. Hence a total of Rs. 11,23,900/- (Rupees Eleven Lakhs Twenty Three Thousand and Nine Hundred) is due to the claimant. But a counter claim of Rs. 22,348.41 has been allowed by decree. That has already been admitted by the claimant also. Thus only an amount of Rs. 11,01,551.59 is due to the claimant." It was contended on the basis of the above objection that the State had already admitted their liability under the decree and that in view of the admission the State cannot be allowed to contend otherwise. We find no force in this argument. It is to be noted that it was an objection filed in execution of the decree. The judgment-debtor can raise only such objections as are in conformity with the decree that is being executed. The statement in that paragraph is correct as per the decree and it is to be further noticed that the said objection was filed after the filing of M.F.A. No. 188 of 1987. The objection filed by the State his to be considered in the light of the above facts and not in isolation. That objection was filed only during the pendency of the appeal and a statement made in execution proceedings which is made in accordance with the decree as it stood, cannot be a bar for proceeding with the appeal filed earlier. We overrule the above objection also. 15. Coming to the merits of M.F.A. No. 188 of 1987, the award of the first Arbitrator was set aside by the lower court on three grounds : (i) The Arbitrator had actually made the award on 15-7-85 and he later deliberately corrected the date to 18th July, 1985. The award was actually passed prior to the filing of the objection by the contractor to the final bill dated 15-7-1985 and he could not have digested or appreciated the objection dated 15-7-1985 on the same day. In view of that the learned Judge found that the award was passed without considering the materials before him. (ii) The Arbitrator was biased and was against the contractor and he had not acted with fairness and justice. The contractor was not given an opportunity to examine the witnesses which she wanted. In view of that the learned Judge found that the award was passed without considering the materials before him. (ii) The Arbitrator was biased and was against the contractor and he had not acted with fairness and justice. The contractor was not given an opportunity to examine the witnesses which she wanted. (iii) The award was not passed within four months of the entering on the reference. At the outset it has to be stated that it is not merely legal misconduct that in alleged against the Arbitrator by the contractor, but personal misconduct is also alleged. In such circumstances, it is mandatory, to be in accordance with the principles of natural justice, that the Arbitrator should have been made a party in the application to set aside, the award. Rule 12 of the Arbitration Rules framed by this court also provides for this. The Arbitrator is not impleaded in these proceedings. Apart from that on going through the file of the Arbitrator and the materials on record we and that the above findings are absolutely erroneous and not based on any evidence. The original award made by the Arbitrator is in his own handwriting and it is found at page 397 of the files. It is dated 18-7-1985. There is absolutely no basis for the finding of the lower court that the award was post-dated by the Arbitrator. The date of the award is clearly given and we do not find any overwriting or suspicion regarding any correction in the date of the award. Therefore, the finding of the lower court on this point cannot stand. The contractor has not adduced any evidence, either oral or documentary, in the proceedings to set aside the award before the lower court. On going through the file of the Arbitrator and other papers, we do not find any justification or any basis for the finding of the lower court that the Arbitrator was biased. In fact, the proceedings have been conducted properly and there cannot be any complaint of any violation of natural justice. Another ground on which the learned Subordinate Judge set aside the award was that it was not passed within four months from the date of entering on the reference by the Arbitrator. This finding also is equally erroneous as can be seen from the following facts. The Arbitrator entered the reference on 25-8-1984. Another ground on which the learned Subordinate Judge set aside the award was that it was not passed within four months from the date of entering on the reference by the Arbitrator. This finding also is equally erroneous as can be seen from the following facts. The Arbitrator entered the reference on 25-8-1984. We find from the Arbitrator's file that the counsel representing both parties had filed a signed statement before the Arbitrator, agreeing to extend the time for passing the award till 24-6-85. Later, on 4-6-1985, counsel on both sides together filed a signed statement agreeing to extend the time by four months from 25-6-1985. By virtue of the above agreement the Arbitrator had time till 24-10-1985 to pass the award and it having been passed on 18-7-1985 is within time. It is well-settled that the parties can by agreement, after the Arbitrator has entered on the reference, extend the time for passing the award. The question had arisen before the Supreme Court in the decision in Hari Krishna v. Vaikunth Nath (AIR 1973 SC 2479). It was observed therein as follows : "Sub-section (2) of Section 28, however, indicates one exception to the above rule that the arbitrator cannot enlarge the time, and that is when the parties agree to such an enlargement. The occasion for the Arbitrator to enlarge the time occurs only after he is called upon to proceed with the arbitration or he enters upon the reference. Hence, it is clear that if the parties agree to the enlargement of time after the Arbitrator has entered on the reference, the Arbitrator has the power to enlarge it in accordance with the mutual agreement or consent of the parties. That such a consent must be a post reference consent, is also clear from Section 28(2) which renders null and void a provision in the original agreement to that effect. In a sense where a provision is made in the original agreement that the Arbitrator may enlarge the time, such a provision always implies mutual consent for enlargement but such mutual consent initially expressed in the original agreement does not save the provision from being void. In a sense where a provision is made in the original agreement that the Arbitrator may enlarge the time, such a provision always implies mutual consent for enlargement but such mutual consent initially expressed in the original agreement does not save the provision from being void. It is, therefore, clear that the Arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after entering on the Arbitration the parties to the arbitration agreement consent to such enlargement of time." The above decision has been followed by the Supreme Court in a later decision reported in State of Punjab v. Hardyal (AIR 1985 SC 920). Thus it can be seen that the award was passed in time and it cannot be set aside on the ground that it was not passed within the time allowed by law. None of the reasons stated by he learned Subordinate Judge, to set aside the award or to remove the named Arbitrator, has been proved in this case. 16. Counsel for the respondent-contractor supported the setting aside of the award by the lower court on the ground that the award dated 18-7-1985 was not stamped in accordance with the provisions of the Kerala Stamp Act. He contended that the original award was not made on a stamp paper and that only a copy of it was made on the stamp paper. He relied on the decision of the Supreme Court in Rikhabdass v. Ballabhdas (AIR 1962 SC 551) for this purpose. We are not inclined to accept this contention as the objection was not raised before the lower court. The contractor proceeded before the lower court as if there was a valid award and she never objected that the award should not be acted upon on the ground that it is not duly stamped. Section 35 of the Kerala Stamp Act is a clear bar for raising such a contention at the appellate stage. 17. For the aforesaid reasons we held that the setting aside of the award and the removal of the named Arbitrator on the grounds mentioned by the lower court are erroneous. We therefore set aside the order of the learned Subordinate Judge dated 8-9-1986 and his consequential order dated 14-10-1986, setting aside the award dated 18-7-85, removing also the named Arbitrator and appointing a second Arbitrator. 18. We therefore set aside the order of the learned Subordinate Judge dated 8-9-1986 and his consequential order dated 14-10-1986, setting aside the award dated 18-7-85, removing also the named Arbitrator and appointing a second Arbitrator. 18. As we have held that the appointment of the second Arbitrator is invalid, it necessarily follows that the award passed by the second Arbitrator on 31-1-1987 is also invalid, and is liable to be set aside under Section 30(c) of the Arbitration Act. We accordingly set aside the award dated 31-1-1987 passed by the Arbitrator Shri K. C. George. 19. Counsel for the respondent contended that even if we are not accepting the reasons given by the lower court for setting aside the first award dated 18-7-1985, there are other grounds on which that award is liable to be remitted. He contended that the award is indefinite and is incapable of execution. In order to consider the above argument, it is necessary to extract the award dated 18-7-85 : "Whereas certain differences arise between the Claimant and the Respondents out of a contract in writing for the work of "K.I.P. Formation of R.B. Main Canal - 18th Km. from Ch. 17000 to 18200 m. - Balance works", under contract Agreement No. 38/77-78 dated 13-12-77 and supplemental Agreement No. 2 dated 16-3-80." AND WHEREAS I am empowered to act as ARBITRATOR as per the said Agreement. NOW, THEREFORE, I, A. JOHN CHERIAN, the Chief Engineer (A.T.R.) having taken upon myself the burden of the reference and having heard and fully weighed and considered the allegations and the evidence produced by both the parties before me, do hereby make and publish this final award in writing of and concerning the matters referred to me. I Hereby Award and Direct as follows : Claim (a) The contract stands terminated. The rearrangement of the balance works shall not be at the risk and cost of the Claimant. (b) & (c) The Claimant is not entitled to any further amount under these claims than what is admitted by Respondents in the final bill filed by them on 29-6-1985. (d) The Respondents shall pay to the Claimant an amount of Rs. 5,000/- (Rupees Five Thousand only) under this claim in addition to the F.C.C. prepared and presented by them. (e), (f) & (g) Rejected. The Claimant is entitled to the refund of the Retention and Security Deposit for the work. (d) The Respondents shall pay to the Claimant an amount of Rs. 5,000/- (Rupees Five Thousand only) under this claim in addition to the F.C.C. prepared and presented by them. (e), (f) & (g) Rejected. The Claimant is entitled to the refund of the Retention and Security Deposit for the work. The Respondents are entitled to adjust these against liabilities due to the department for the work. The Claimant is not entitled to any excess over the agreed rates. The parties will bear their respective costs in these proceedings. Counter-claims : These are covered by the Award on Claims (a) to (c) and the Award on Retention and Security". In award under the based (b) and (c), the Arbitrator has held that the contractor is not entitled to any further amount under these claims than what is admitted by the respondents in the final bills filed by them on 29-6-1985. But counsel for the respondent contended that according to the final bill dated 29-6-1985, amounts are due to the State from the contractor and in view of that the award on those heads is vague. He further contended that the above award taken along with the award on counter claims is vague and is incapable of execution. The Government Pleader on the other hand, contended that the above award by the Arbitrator is only in respect of claims (b) and (c) and the mere fact that the final bill which takes in other claims also shown the amounts due to the State from the contractor will not make the award vague. On going through the award and the final bill dated 29-6-1985, we feel that the award is indefinite in this respect and that it has to be remitted to the named Arbitrator, namely the Chief Engineer, Arbitration for reconsideration on those issues. 20. In the result, we allow M.F.A. No. 188 of 1987 and remit the award dated 18-7-1985 to named Arbitrator (the Chief Engineer, Arbitration), Trivandrum for reconsideration under Section 16(b) of the Arbitration Act, in the Light of the observations made above. The Arbitrator shall file his revised award within four months from the date of receipt of the records from the lower court. Consequently we allow M.F.A. No. 323 of 1988 and set aside the award dated 31-1-1987 passed by the second Arbitrator Sri K. C. George. There will be no order as to costs. The Arbitrator shall file his revised award within four months from the date of receipt of the records from the lower court. Consequently we allow M.F.A. No. 323 of 1988 and set aside the award dated 31-1-1987 passed by the second Arbitrator Sri K. C. George. There will be no order as to costs. The records will be transmitted to the lower court forthwith to enable that court to forward the papers to the Arbitrator.