JUDGMENT Padma Khastgir, J : This appeal arises under the following facts and circumstances: On 25th April 1980 a notice of public auction for sale of damaged food grains was given under various terms and conditions which included in an arbitration clause of wide amplitude inasmuch as it was provided under Clause (Q) that all disputes, differences and questions which may at any time arise between the parties thereto, their respective representatives or assigns touching or arising out of or in respect of the subject matter except in every matter the decision of which has been expressly provided for in the agreement, shall be referred to the Sole Arbitration of any person appointed by the Zonal Manager, Food Corporation of India. It was agreed that such award of the Arbitrator shall be final and binding to the parties to the contract. At such auction sale held on 15/16th May 1980 the appellant Prohlad Rai Agarwalla was declared the highest bidder in respect of damaged stocks at Andal for 22,701,89.300 quintals as mentioned in the auction notice at a price of Rs. 23.20 per quintal. In accordance with the terms and conditions of such auction sale the appellant duly deposited 25% of the total price amounting to Rs. 1,31,700/- as earnest money. Thereafter the release order for 2,000 quintals was obtained by the appellant and paid Rs. 46,430/- being 75% of the price inasmuch as the balance Rs. 11,500/- was being adjusted against earnest money. However, instead of that, the appellant could only take delivery of 1639.25 quintals and the balance 360.75 quintals remained with the Food Corporation of India. In that view of the matter the appellant requested the Food Corporation of India that inasmuch as only 25% of the stock was available, the respondent should keep Rs. 30,000/- as earnest money and refund the balance of the earnest money or it could be adjusted against the release order to be issued in the future. Again the appellant reminded the respondent that inasmuch as only 20 tons were available for delivery there was no justification for withholding the entire amount as earnest money and requested again the Food Corporation of India to keep Rs. 30,000/- as earnest money and refund the balance amount. The appellant also requested for joint inspection for the purpose of assessing the availability of the existing stock which were available for delivery. 30,000/- as earnest money and refund the balance amount. The appellant also requested for joint inspection for the purpose of assessing the availability of the existing stock which were available for delivery. Acceding to such request the respondent by letter dated 1st July 1980 requested the appellant that unless the balance quantity were lifted after payment, the entire earnest money will be forfeited and the balance quantity available for lifting would be resold. Thereafter various correspondence passed by and between the parties. On 31st October 1980 the appellant again reiterated its prayer for joint inspection, refund of earnest money and also for invoking the arbitration clause inasmuch as disputes and differences arose by and between the parties as envisaged in the Arbitration Clause. 2. By letter dated 16th March 1981 the Food Corporation of India intimated the appellant that it had already forfeited the entire earnest money for Rs. 1,20,100/- and also a sum of Rs. 8,369.40 p. being the 75% of the price of the unlifted stock of 360 quintals. 3. Thereafter the appellant filed an application under s. 20 of the Arbitration Act being Special Suit No. 27 of 1981. In such suit under s. 41 Sri G. C. Dey, Learned Advocate, was appointed a Special Officer for the purpose of making an inventory of the actual stock of the damaged goods which was sold in auction. Such report of the Special Officer was filed to the effect that all the auctioned materials were lying scattered on the cemented floor which were filled in 71 bags and upon weighment the total quantity available for delivery was only 26 quintals and 5 kg. in weight. Mr. Justice S. C. Deb (as His Lordship then was) gave necessary direction for filing of arbitration agreement and reference was made with the direction to the authorities concerned for appointment of the Arbitrator to settle the disputes by and between the parties and file his award. Sri Chinmuy Samaddar, retired District and Sessions Judge, was appointed as the Sole Arbitrator in respect of the said reference. In the statement of claim filed before the Arbitrator the appellant claimed Rs. 1,20,100/- being the balance amount of the earnest money together with interest at the rate 18% from the date of the deposit i.e. 16th May 1980 till 31st July 1981 amounting to Rs. 21,121.75 p. and also a sum of Rs. In the statement of claim filed before the Arbitrator the appellant claimed Rs. 1,20,100/- being the balance amount of the earnest money together with interest at the rate 18% from the date of the deposit i.e. 16th May 1980 till 31st July 1981 amounting to Rs. 21,121.75 p. and also a sum of Rs. 8,369/- being the amount lying to the credit of the appellant under the release order dated 3rd June 1980 due to non-delivery of 360 quintals and 75 kgs calculated at the rate of 23.20 per quintal and also the appellant claimed interest thereon at the rate of 18% from 3rd June 1980 to 2nd August 1981. The appellant also made a claim for damages stated to have been suffered by the appellant due to breach of contract by the respondent being the difference of price between the contract rate and the market rate on the extended date of the delivery during October and November 1980 for the balance quantity of 21062 quintals 64 kgs. and 300 grams at the difference rate of Rs. 10/- per quintal amounting to Rs. 2,10,626.43 p. Thus the total claim of the appellant before the arbitrator was Rs. 3,66,975.15 p. In the counter statement and claim the respondent claimed Rs. 9,91,367.46 together with interest at the rate of 18%. After 68 sittings and after giving due hearing to both the parties and their Learned Lawyers and relying upon various documents, correspondence and evidence led on behalf of the parties the Learned Arbitrator passed his award on 23rd December 1983 thereby allowing only refund of the earnest money to the extent of Rs. 1,20,100/- and allowing interest at the rate of 18% from 30th July 1981 that is the date of entering of the reference up to the date of the award i.e. 23rd December 1983. In the award a sum of Rs. 8,369.40 was also allowed towards the price of 360 quintals of materials undelivered by the Food Corporation of India allowing interest at the rate of 18% on the said sum amounting to Rs. 3,509.96 p. totalling to sum of Rs. 1,82,349.30 p. The Arbitrator also awarded costs in favour of the appellant for a sum of Rs. 12,846.90 p. Thereafter in the usual course the notice of the filing of the award was served on the respondent on 17th January 1984. 3,509.96 p. totalling to sum of Rs. 1,82,349.30 p. The Arbitrator also awarded costs in favour of the appellant for a sum of Rs. 12,846.90 p. Thereafter in the usual course the notice of the filing of the award was served on the respondent on 17th January 1984. Then the respondent took out the application for setting aside the said award by judgment dated 20th December 1984 delivered by Praribha Bonnerjea, J. (as she then was) the said award was set aside. In her judgment the Learned Judge recorded that this reference was made by Court by order dated 19th June 1981 in Special Suit No. 27 of 1981. She further recorded that the appellant demanded a specific performance of the contract of whatever goods were lying in the godown and also claimed proportionate refund of the earnest money on the ground that the quantity of the goods were not made available by the Food Corporation of India although she observed when an order is made in a special suit of disputes in the petition and in the affidavit in opposition are automatically referred unless expressly excluded by any order such disputes from the subject matter of the reference. But the Learned Court below observed in the manner following:- "It is very unfortunate that when the reference actually started the purchaser (appellant) abandoned his claim for specific performance of the contract and instead claimed damages and the reference proceeded on that basis. This was entirely new case made out before the Arbitrator at the stage of hearing and was not the subject matter of the order of reference dated 19th June 1981. This will be evident from the statement of fact filed before the Arbitrator and the contents of the petition in Special Suit No. 27 of 1981". 4. From the statement of claim filed before the Arbitrator as indicated earlier, would evidently show, that the present appellant had made a claim under the agreement itself for specific performance and in the alternative for damages and/or refund of the earnest money in the event the Food Corporation of India was unable to perform its part of the agreement. The observation of the learned Court below was entirely erroneous inasmuch as in the statement of claim the appellant did not give go-by to its rights under the agreement and make out a completely new case for claim for damages only. The observation of the learned Court below was entirely erroneous inasmuch as in the statement of claim the appellant did not give go-by to its rights under the agreement and make out a completely new case for claim for damages only. Under the circumstances the finding of the Court below that the scope of the reference was completely changed by the parties was an erroneous finding. The parties did not change, enlarge or alter the scope of the reference. As such the finding of the Court below that the Arbitrator had no jurisdiction to entertain any dispute which is not referred to him by the order is not borne out by facts. In the circumstances the conclusion arrived at by the learned. Court below that the reference became bad in law and the award dated 23rd December 1983 consequently became bad, is unacceptable to this Court in the facts and circumstances of the case. The lack of jurisdiction of the Arbitrator to entertain such case was not raised earlier in the application which was made for setting aside the award. On the contrary there had been actual participation and acquiescence on the part of the Food Corporation of India by participating in the arbitration proceedings and it is only after finding that the award had gone against it the application was taken out for setting aside the said award. 5. In the case reported in AIR 1988 SC page 205 the learned Judges of the Supreme Court were of the view that where though a party is aware from the beginning that by reason of some disability the matter is legally incapable of being submitted to arbitration, participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees the award has gone against him comes forward to challenge the whole of the arbitration proceedings is without jurisdiction. On the ground of known disability the same cannot be alleged. The principle applies both before and after making of the award. The principle is that a party shall not be allowed to approbate and reprobate simultaneously. Long participation and acquiescence in the proceedings precludes such party from contending that the proceedings were without jurisdiction. In paragraph 5 of the said judgment Sabyasachi Mukharji, J. referred to the case of Jupitar General Insurance Co. vs. Corporation of Calcutta reported in AIR 1956 Cal. Long participation and acquiescence in the proceedings precludes such party from contending that the proceedings were without jurisdiction. In paragraph 5 of the said judgment Sabyasachi Mukharji, J. referred to the case of Jupitar General Insurance Co. vs. Corporation of Calcutta reported in AIR 1956 Cal. page 470 for relying on the observation of P. B. Mukharji J. (as His Lordship then was,) the learned Judge observed at the outset that Courts did not favour this kind of contention and conduct of an applicant who participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him comes forward to challenge the whole of the arbitration proceedings as without jurisdiction on the ground of known disability or performance. The learned Judges also quoted from Russel on Arbitration 18th edition, page 105 and ultimately referring to the other cases of the Supreme Court were of the view that such conduct of a litigant who participated in the proceedings without any demur and had acquiesced in the matter should not be allowed to challenge the proceedings subsequently finding that the award had gone against him. 6. Similarly in the case reported in AIR 1980 SC p. 2045 the learned Judges were of the view that if the parties to the reference had agreed beforehand to the mode of appointment or after acquiesced in the appointment made with full knowledge of all the facts and circumstances they will be precluded from objecting to such appointment as invalidating subsequent proceedings. In paragraph 2 Sabyasachi Mukharji, J. referred to Russel on Arbitration 18th Edition, page 105 and also referred to a case stated by the Judicial Committee of Privy Council in Chowdhuri Murtaza Hossain v. Mussumet Bibi Bechunnissa reported in 3 Indian Appeals page 209 where it was observed in the manner following :- "On the whole therefore their Lordships thought that the appellant having a clear knowledge of the circumstances on which she might never founded an objection to the arbitration proceedings to make the award but submitted to the arbitration going on allowed the arbitrator to deal with the case as it stood before them taking his chance the decision being more or less in favour to himself and that it is too late for him after the award has been made and on the application to file the award to insist on the objection of the filing of the award". Learned Judges did not allow the award to be set aside on such objection. 7. Learned Lawyer appearing on behalf of the appellant contended that the terms of the agreement incorporating the arbitration clause was comprehensive allowing the parties to refer all their disputes and differences and facts and circumstances relating to the Arbitrator. Learned Judge making the reference did not limit the course of reference. More so in view of the observation of the Court below as quoted earlier that all disputes as made out in the petition and in the affidavit in opposition were automatically referred to arbitration and they formed the subject matter of the reference, hence the finding that the appellant's statement of claim filed before the Arbitrator was completely out of the scope of reference when there had not been in fact any enlargement of the scope of reference by entertaining any claim of the appellant extraneous to the case made out by the claimant did arise. The appellant did not abandon his claim for specific performance of the contract. In fact from the award, which is a speaking award, every reason had been given supporting the various claims of the claimant and also of the respondent and after duly considering the evidence, both oral and documentary, and the submissions made by the Learned Lawyers appearing for both the parties, Prahlad Rai v. Food Corporation (Mrs. In fact from the award, which is a speaking award, every reason had been given supporting the various claims of the claimant and also of the respondent and after duly considering the evidence, both oral and documentary, and the submissions made by the Learned Lawyers appearing for both the parties, Prahlad Rai v. Food Corporation (Mrs. Khastgir, J.) 371 with reasons the Arbitrator had chosen to pass an award in favour of the appellant. After setting out the various issues and after duly considering the materials on record, both oral and documentary, and after giving reasons for the same the learned Arbitrator rejected the claim of the appellant so far as the damages and other reliefs were concerned but allowed in favour of the appellant refund of a sum of Rs. 1,20,100/- towards earnest money plus interest of Rs. 50,369.94 p. on the said earnest money. The learned Arbitrator allowed a further sum of Rs. 8,369 40 p. together with interest of Rs. 3,509.96 and cost of Rs. 12,846.90 p., amounting to a total sum of Rs. 1,95,196.20 p. It is apparent from the said award that it was only towards refund of the earnest money and the price of the goods not delivered together with interest which had been allowed by the arbitrator. The claim for damages had been disallowed. Under the circumstances there had not been any departure from the original claim of the claimant nor there had been any enlargement of the scope of the reference as held by the learned Court below inasmuch as there had not been any change in the cause of action or the claim nor any new case had been introduced for the first time before the Arbitrator. 8. Mr. Chatterjee the learned lawyer appearing on behalf of the respondent Food Corporation of India submitted first of all that when there had been a breach of contract committed by the appellant, its claim for refund of the earnest money under the contract should not have been allowed nor the petitioner's claim for damages should have been entertained as made out in the statement of claim before the Arbitrator. In this connection he relied upon a case reported in 55 Indian Appeals 360 where it was held that a plaintiff who by his plaint has claimed pursuant to s. 19 of the Specific Relief Act, 1877 specific performance of a contract and compensation in addition or in substitution, subsequently gives notice abandoning his claim for compensation, he cannot recover damages for breach of the contract without amending his plaint, since relief under s. 19 can be decreed only where the plaintiff is ready and willing to perform the contract and which is still subsisting. In the instant case the appellant is not guilty of breach of contract. The appellant was ready and willing to perform his part of the agreement but it was the Food Corporation of India which has committed the breach by not being able to supply the materials in respect of which such action had been held. Mr. Chatterjee further referred to the case reported in AIR 1938 Calcutta 136 and submitted that a Division Bench of this High Court also held that under the provisions of s.19 the Court has power to award compensation to the plaintiff for breach of contract if the plaintiff has not debarred himself from claiming specific performance of the contract. Mr. Chatterjee further submitted that the reference to arbitration was beyond the claim of the appellant and in that respect he craved reference to a case reported in AIR 1977 SC 2014 where it was held that when an agreement is filed in Court and an order of reference is made under s. 20 sub-s. (4) then the claim as a result of the order of reference is limited to a particular relief and the arbitrator cannot enlarge the scope of the reference and entertain fresh claims without a further order of reference from Court. There in the facts of that case an amount had been specified in the plaint and when the reference was confined to the claim made in the plaint, the arbitrator had to restrict his award only to the claim but there in that case the arbitrator had exceeded his jurisdiction in embarking on the claim that was for the first time put forward before him by the respondent. Hence, there was an error apparent on the face of the award. Hence, there was an error apparent on the face of the award. There could be no quarrel as to the principle laid down in that case that when the reference is made in respect of a particular amount, the arbitrator had no jurisdiction whatsoever to enlarge 'the scope of the claim by awarding' a higher amount than was put forward before him. The ratio of that case no application to the facts and circumstances of this case. Here it is not the case of anybody that the arbitrator has passed an award which was beyond the claim of the appellant as made out in the statement of claim. Under those circumstances, in our view, that case has no relevance to the facts and circumstances of this case. 9. Mr. Chatterjee further relied upon a case reported in AIR 1954 SC 340 where it was held that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. That had been observed by the learned Judges of the Supreme Court in a suit was decreed on an erroneous assumption of jurisdiction by a subordinate Court as a result of over-valuation or under-valuation and as a consequence there was failure of justice. In the instant case the arbitrator had jurisdiction to enter into the reference and decide upon the dispute by and between the parties. There was no inherent lack of jurisdiction on the pan of the arbitrator to enter into reference or decide the dispute by and between the parties in view of the widest possible arbitration clause in the agreement itself. Under the circumstances the principles laid down in that case has no application to the facts and circumstances of this case. In the instant case the question of inherent lack of jurisdiction is not there. Further Mr. Chatterjee submitted that the arbitrator had no power to grant interest pendente lite. Under the circumstances the principles laid down in that case has no application to the facts and circumstances of this case. In the instant case the question of inherent lack of jurisdiction is not there. Further Mr. Chatterjee submitted that the arbitrator had no power to grant interest pendente lite. In that respect he craved reference to the case reported in AIR 1988 SC 1791 . In paragraph 13 Mr. Justice Sabyasachi Mukharji observed, "It is now well settled that interest pendente lite is not a matter within the jurisdiction of the arbitrator. In this connection reference may be made to the observation of this Court in Executive Engineer (Irrigation), Baliamela v. Abhaduta Jena ( AIR 1988 SC 1520 ) where this Court held that the arbitrator could not grant interest pendente lite. In the aforesaid view of the matter this direction in the award for the payment of such interest must be deleted from the award. So, we delete the following portion from the award..............." The learned Judges modified the order of the High Court to that extent by confirming the award subject to the deletion of the interest indicated in the order. Under those circumstances Mr. Chatterjee submitted that the arbitrator had no jurisdiction to grant pendente lite interest in favour of the appellant. 10. In the case reported in AIR 1988 SC 1520 the learned Judges of the Supreme Court while considering the powers of the arbitrator to award interest pendente lite in paragraph 13 held that the case of Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., reported in AIR 1967 SC 1030 was a case where arbitration was in a suit. Before the Arbitrator no claim was made for interest prior to the institution of the suit, the interest was claimed from the date of the institution of the suit till recovery of the amount. The arbitrator awarded interest on the sum determined by him from the date of the award till the date of the payment. There the award was filed in Court. One of the objections was that the grant of interest during the pendency of the suit relying on the observations of the Seth Thawardas Pherumal v. Union of India s. 34 of the Civil Procedure Code did not apply to the arbitration proceedings. There the award was filed in Court. One of the objections was that the grant of interest during the pendency of the suit relying on the observations of the Seth Thawardas Pherumal v. Union of India s. 34 of the Civil Procedure Code did not apply to the arbitration proceedings. The Court observed that the observation lent colour to the argument that the arbitrator had no power to award pendente lite interest, but the observations were not intended to lay down such a broad and unqualified proposition. 11. Reference was also made to the case reported in AIR 1960 SC 307 and AIR 1961 SC 908 where one of the disputes in the suit was whether the respondent was entitled to pendente lite interest. The arbitrator could decide the dispute and could award pendente lite interest just as a Court could do so under s. 34 of the Civil Procedure Code. Though in terms s. 34 of the Code of Civil Procedure does not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente lite interest as the Court give if it decided the dispute. It was held that the contention that the arbitrator in a suit had no power to award pendente lite interest must be rejected. Although the Court did not dispute the proposition that the arbitrator was not a Court but it held that in a case where the reference was made to arbitration in a suit, the arbitrator would have the same power as the Court to award interest. After discussing various cases with regard to power of the arbitrator to award interest, in paragraph 13 of the said judgment it was observed in the manner following: "The question of award of interest by an arbitrator was considered in the remaining cases to which we have referred earlier Nachiappa Chettiar v. Subramaniam Chettiar ( AIR 1960 SC 307 ), Satinder Singh v. Umrao Singh ( AIR 1961 SC 908 ), Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd. ( AIR 1967 SC 1030 ), Union of India v. Bungo Steel Furniture Pvt. Ltd. ( AIR 1967 SC 1032 ), Ashom Construction Company v. Union of India ( 1971 3 SCC 66 ), State of Madhya Pradesh. v. M/s. Saith & Skelton Pvt. Ltd. (AIR 1927 SC 1507) were all cases in which the reference to arbitration was made by the Court, of all the disputes in the suit. It was held that the arbitrator must be assumed in those circumstances to have the same power to award interest as the Court. It was on that basis that the award of pendente lite interest was made on the principle of s. 34 Civil Procedure Code. In Nachippa Chettiar v. Subramaniam Chettiar, Firm Madanlal Roshanlal Mahajan. v. Hukumchand Mills Ltd, Union of India v. Bungo Steel Furniture Pvt. Ltd, and State of Madhya Pradesh v. M/s. Saith & Skelton Pvt. Ltd. In regard to interest prior to the suit, it was held in these cases that since the Interest Act, 1839 was not applicable interest could be awarded if there was an agreement to pay interest or a usage of trade having the force of law or any other provisions of substantive law entitling the claimant to recover interest. Illustration of the provisions of substantive law under which the arbitrator could award interest were also given in some of the cases. It was said, for instance, where an owner was deprived of his property, the right to receive interest took the place of the right to retain possession, and the owner of immovable property who lost possession of it was therefore, entitled to claim interest in the place of right to retain possession. It was further said that it would be so whether possession of immovable property was taken away by private treaty or by compulsory acquisition. Another instance where interest could be a warded was under s. 61 (2) of the Sale of Goods Act which provided for the award of interest to the seller or the buyer, as the case may be, under circumstances specified in that section" 12. There the learned Judges made a distinction between cases where the reference to arbitration was made by Court of all disputes in suit there it must be held that the arbitrator must be assumed in those circumstances to have the same power to award interest as the Court had and on that basis award on pendente lite interest was made on the principle of s. 34 of the Code of Civil Procedure. In paragraph 22 of the said judgment after discussing various cases a distinction was made by the learned Judges between the references in suit and to arbitration outside the intervention of the Court. It was further observed that where there was a slightest possibility of entitlement of the claim to interest on one or the other of the legally permissible grounds, it may not be open to the Court to go behind the award and decide whether the award of interest was justifiable and the learned Judges allowed interest during the pendency of the arbitration proceedings. It was only because such arbitration was without the intervention of the Court, under the circumstances the award of interest by the arbitrator was disallowed. 13. In the case reported in AIR 1988 SC 1530 Mr. Justice Sabyasachi Mukharji while delivering judgment observed that award of interest cannot be granted for the period between the commencement of the reference and the date of the reference relying upon the judgment reported in AIR 1988 SC 1520 . Mr. Gupta appearing on behalf of the appellant submitted that this reference to arbitration was without the intervention of the Court. Under the circumstances the arbitrator had no jurisdiction to award pendente lite interest. Under those circumstances the observation of the learned Judge has no application to the facts and circumstances of this case. 14. In the case reported in AIR 1988 SC 734 the learned Judges of the Supreme Court were of the view that pendente lite interest could not be granted by the arbitrator. In paragraph 19 Mr. Justice Sabyasachi Mukharji observed, "In deference to the latest pronouncement of this Court, which is a pronouncement of the three learned Judges, we must hold that the grant of pendente lite interest in this case was not justified. Though the award in this case is a speaking award it was not made clear on what basis the interest was awarded. We are of the opinion that the arbitrator was in error in granting the interest in the manner he did. It is true that in specific term there was no denial of this right to grant interest belt there was no denial as to get it in accordance with law". This case has been distinguished by Mr. Gupta on the ground that in that case also that was not a reference through intervention of Court in a suit. It is true that in specific term there was no denial of this right to grant interest belt there was no denial as to get it in accordance with law". This case has been distinguished by Mr. Gupta on the ground that in that case also that was not a reference through intervention of Court in a suit. Under the circumstances the arbitrator had no jurisdiction to grant pendente lite interest. In the instant case the reference had been made not in a suit by Court. 15. Under those circumstances this appeal is allowed with only this modification that the appellant should not be entitled to the interest except to the costs as awarded by the arbitrator. There will be no order as to costs. There will be a stay of the operation of this order for two weeks. Mahitosh Majumdar, J.: I agree. Appeal allowed with modification.