Union of India v. Shakambari — 1990 DIGILAW 388 (CAL)

JUDGMENT Majumdar, J. 1. This is an appeal from a judgment and order dated 30th May, 1985 passed by a learned single Judge of this Court in Award Case No. 457 of 1984. By the said judgment and order the learned Judge dismissed in part the application of the appellant herein under Sections 30 and 33 of the Arbitration Act, 1940 for setting aside the award dated 15th November, 1984. The impugned award directed payment of a sum of Rs.27,96,821.46p along with interest and cost. The learned Judge, however, set aside this part of the award relating to interest. 2. The appellant Union of India entered into a contract with the respondent on or about 8th April, 1977 and the said contract contained in arbitration clause. The disputes and differences arose between the parties in connection with the said contract and the respondent M/s. Shakambari & Co. made an application under Section 20 of the Arbitration Act, being Special Suit No. 72 of 1982, for filing of the arbitration agreement and reference of disputes in terms of the arbitration agreement. On or about 17th December, 1982 an order was made which order was later modified by an order dated 20th April, 1983. Pursuant to the order passed by this Court on the said application under Section 20 of the Arbitration Act, the arbitrators entered into the reference and passed the impugned award dated 15th November, 1984. 3. It was contended on behalf of the appellant before the Court of first instance that the aware in respect of certain items of claim was beyond the jurisdiction or the arbitrators since such items were "excepted matters" within the meaning of Clause 63 of General Conditions of Contract. The appellant submitted before the Court on the first instance that the arbitrators did not take into consideration the General Conditions of Contract and thereby misconducted themselves. It was contended on behalf of the appellant before the Court of the first instance that arbitrators failure to consider material documents amounted to legal misconduct and on that ground the award was liable to be set aside irrespective of whether it was speaking award or not. 4. The other point taken by the appellant before the Court of first instance was a question relating to interest. 4. The other point taken by the appellant before the Court of first instance was a question relating to interest. The appellant contended before the Court of first instance that arbitrators allowed the interest on item No. 13 although no claim was made for the same. It was submitted by the appellant before the Court of the first instance that the arbitrators have awarded Rs.6,00,630.51 by way of interest on item Nos. 1, 7, 10, 13, 15, 18, 20 and 21 from the date of the demand of the arbitration by the respondent and it was also urged by the appellant before the Court of the first instance that the claim for interest on item No. 13 was not referred to arbitration at all as, according to the appellant, would appear from the list of claims read with the letter dated 23rd January, 1982 of the General Manager, South Eastern Railway enclosing the list of claims and those claims as contained in the said list were referred to the arbitration for adjudication. There is no claim for interest under item No. 13. Therefore, it is submitted by the appellant that by allowing such interest the arbitrators had acted without jurisdiction and the said award relating to interest was further challenged by the appellant before the Court of the first instance on the ground that the arbitrators by giving a lump sum interest without mentioning the rate also committed an error apparent on the fact of the award. 5. The learned trial Judge held against the appellant on the first submission that the arbitrators acted without jurisdiction by taking into consideration the matters which were "excepted matters" within the meaning of the Clause 63 of the General Conditions of Contract. On the question relating to interest the learned trial Judge held in favour of the appellant. The learned Judge held that the award for interest could not be upheld on the ground that same was not referred to the arbitration, and was beyond the scope of the reference. Accordingly, the learned Judge set aside this part of the award relating to interest and upheld the rest of the award. It was observed by the learned Judge that excepting those two grounds no other grounds had been pressed in this case. In the circumstances, the learned trial Judge upheld the award excluding the interest for Rs. 6,00,630.51. 6. Accordingly, the learned Judge set aside this part of the award relating to interest and upheld the rest of the award. It was observed by the learned Judge that excepting those two grounds no other grounds had been pressed in this case. In the circumstances, the learned trial Judge upheld the award excluding the interest for Rs. 6,00,630.51. 6. Aggrieved by the said judgment and order dared 30th May, 1985 the appellant prefers this appeal. The respondent being aggrieved by the portion of the said judgment and order which related to the question of interest has also filed cross objection in the appeal preferred before us. 7. In this appeal, the learned Counsel appearing for the appellant has raised four contentions which are as follows: i) The arbitrators have exceeded the jurisdiction in making an award in respect of the claim Nos. 1, 2, 3, 4, 10, 13 end 17 since the same were "excepted matters" and as such not referable to arbitration. In taking into consideration of the said claims the arbitrators exceeded the jurisdiction inasmuch us the same were beyond the scope of the reference. ii) The award in respect of claim Nos. 5, 6, 7, 12, 15 and 24 is contrary to the express terms of the contract and as such the same has been made in disregard of the relevant provisions of the contract. iii) The arbitrators have given reasons for some of the items but not for the other. iv) The reasons which have been disclosed are not the reasons tenable in law and there were errors on the face of the award vitiating the impugned award. 8. In regard to his contention that the arbitrators have exceeded the jurisdiction in making the award in respect of claim Nos. 1, 2, 3, 4, 10, 13 and 17 being "excepted matters", the learned Counsel has submitted that the said claims related to earth work in different challenges. The learned Counsel has further contended that the said claims were based upon classification of soil for which there is an express provision in the General terms and conditions of the Contract under which a decision by a competent authority was final relating to classification of soil and as such was an “excepted matters”. The learned Counsel has further contended that the said claims were based upon classification of soil for which there is an express provision in the General terms and conditions of the Contract under which a decision by a competent authority was final relating to classification of soil and as such was an “excepted matters”. The document on which the learned Counsel for the appellant relied was the note to the schedule “A” to the said contract at page 15 of the paper book. It was contended on behalf of the appellant that by a letter dated 24th April, 1979 written by the District Engineer to the respondent which is at page 51 of the paper book, the said District Engineer had given a decision in terms of the said note to the said schedule “A” at page 15 of the paper book and hence the claims under Items Nos. 1, 2, 3, 4, 10 and 17 were "excepted matters" and as such the arbitrators had no jurisdiction to adjudicate upon the same. It was submitted on behalf of the appellant that the arbitrators erroneously assumed jurisdiction by adjudicating the said "excepted matters" and this being at the root of the matter, the arbitrators had no jurisdiction either to consider or to adjudicate upon the said claim. The arbitrators had exceeded the jurisdiction and misconducted themselves. The learned Counsel for the appellant also urged that in order to filed out whether those items were "excepted matters" or not within the meaning of the said Clause 63 of the General conditions of Contract, the court could in deciding this application for setting aside the award, look into the terms of the contract Irrespective of the question whether the said contract was incorporated or not in the award. It was urged on behalf of the appellant that the court could took into the contract as the challenge to the jurisdiction of the arbitrators was being thrown on the ground of the misconduct of the arbitrators and it was not on the ground of an error of law apparent on the face of the award. 9. It was urged on behalf of the appellant that the court could took into the contract as the challenge to the jurisdiction of the arbitrators was being thrown on the ground of the misconduct of the arbitrators and it was not on the ground of an error of law apparent on the face of the award. 9. With regard to the appellant’s contention on the question of the “excepted matters” it was urged on behalf of the respondent that the decision dated 24th April, 1979 at page 51 of the paper book was not a decision on the classification of soil as contemplated in the said note to the schedule 'A' to the said contract at page 51 of the paper book since, according to the learned Counsel for the respondent, it was merely purported to be a rejection of the respondent’s claim but it did not contain any pronouncement on the classification of the soil. It is also urged on behalf of the respondent in continuation of its contention that in any event the District Engineer was not the authority in terms of the said note to decide the claims made by the respondent and therefore, it was not and it could not be a decision by competent authority on the classification of the soil and as such these were not "excepted matters" as sought to be contended on behalf of the appellant. 10. It is also submitted on behalf of the respondent with regard to the appellant’s said contention, that whether there has been any proper decision on any matter for which there is a provision for such decision or not is itself a dispute which is for the arbitrators to decide and the question whether there has been a proper decision by a competent authority in terms of the note to schedule. “A” to the said contract became a dispute on which the arbitrators were competent to entertain and decide. The learned Counsel for the respondent drawing the attention of the Court to Clause 64 of the General Conditions of the Contract being the arbitration clause in the contract has submitted that the said arbitration clause is wide in its scope and ambit. The learned Counsel for the respondent drawing the attention of the Court to Clause 64 of the General Conditions of the Contract being the arbitration clause in the contract has submitted that the said arbitration clause is wide in its scope and ambit. It is urged by the learned Counsel for the respondent that as it would appear from Clause 64 that in the event of any dispute and difference between the parties hereto as to the construction or operation of the contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account may be referred to the arbitration. The learned Counsel for the respondent referring to the said arbitration clause has submitted that the expression “construction or operation” or “the respective rights and liabilities of the parties on any matter in question, dispute or difference as on any account" is wide' enough to take within its fold a dispute as to the question whether a particular matter has become an "excepted matters" or whether there has been any decision by competent authority in terms of the relevant provision of the contract. 11. It is also urged by the learned Counsel for the respondent that in the instant case the reference to the arbitration was made by an order of this Court passed on 17th December, 1982 which is at page 68 of the paper book and the said order did not contain any reservation regarding "excepted matter" end all claims, of the: respondent as contained in the letter dated 4th July, 1982 written by the respondent which appears at page 126 or the paper book were referred to arbitration and further items during the arbitration proceedings. The appellant did not raise any objection about the arbitrator’s jurisdiction on the alleged “excepted matters” at any stage of the arbitration proceedings and it would further appear from the letter dated 7th July, 1983 written by the appellant’s General Manager to the Joint Arbitrators that General Manager of the appellant called upon the arbitrators to adjudicate upon each item of the claim contained in the said letter which included alleged excepted matters. In the said letter dated 7th July, 1983 the General Manger of the appellant called upon the Joint Arbitrators to give the award on all the matters referred to the arbitration indicating therein the break up of the sums in the award separately and on each individual items of dispute in terms of the General Conditions of the contract. It is therefore, submitted on behalf of the respondent that by virtue of the said order of reference as also the said letter dated 7th July, 1983 the parties themselves invited the arbitrators to give a decision in respect of the Item of claims which are now being claimed as "excepted matters" According to the learned Counsel for the respondent, it is not now open to the appellant to agitate this point of objection at this stage when the award is made and published. It is also submitted on behalf of the respondent that the appellant by not raising any objection as to the arbitrators' jurisdiction to entertain the aforesaid claims, has waived its objection regarding "excepted matters" or has abandoned the same. 12. As stated above, the appellant has also contended that the award in respect of the claim Nos. 5, 6, 7, 12 and 15 are contrary to express terms of the contract and have been made in utter disregard of the relevant provisions of the contract. To this contention, it is urged by the respondent that the award in respect of the said claims has not been in disregard of any of the terms of the contract and in any event, as submitted on behalf of the respondent, it is not open to the appellant now to invite this Court to look into the terms of the contract and test the validity of the award since neither the contract nor any part thereof has been incorporated in the impugned award. It has been submitted on behalf of the respondent that, it is now settled law that if only the contract or a part thereof stand incorporated in the award, the court can look into the said contract or any of its terms. 'But the challenge to an a ward on the said ground should not be allowed to be made when, in particular, the award has not made any reference to the contract or incorporated the contract into the award. 'But the challenge to an a ward on the said ground should not be allowed to be made when, in particular, the award has not made any reference to the contract or incorporated the contract into the award. In support of his submission, that the court cannot look into the contract which has not been incorporated in the award, the learned Counsel for the respondent has relied on a decision of the Court of Appeal in England in the case of (1) Giacomo Costa Fu Andera v. British Italian Trading Ltd. reported in 1962(2) All ER 53. Reliance has also been placed on the decision of the Supreme Court in (2) Allenbury & Co. v. Union of India reported in AIR 1971 Supreme Court 696. The learned Counsel for the respondent has also referred to a decision of Division Bench of this Court in (3) Hindustan Steel Ltd. V. Ved Prakash Ramlal reported in 90 CWN 995, to which one of us was a party (P.K. Majumdar, J.). Relying on the said decision of the Court of appeal in England reported in 1962(2) All ER 53, as also the decision of the Supreme Court in Allenbury & Co. v. Union of India reported in AIR 1971 Supreme Court 696, the learned Counsel for the respondent argues that the test for determining whether a contract is incorporated in the award or not is, "does the arbitrator come to a finding on the wording of the contract”? It is alleged by the learned Counsel for the respondent that on the perusal of the impugned award it cannot be said that the arbitrators came to a finding on the wording of the contract. The learned Counsel for the respondent also in this connection, relied on a passage in the speech of Lord Dunedin in the case of Giacomo Fu Andrea v. British Italian Trading Ltd. (Supra), which reads "it seems to be, therefore, that on the cases there is none which compels us to held that a mere reference to the contract in the award entitles us to look at the contract……….”. 13. 13. With regard to the contention of the appellant that the arbitrators made an award in express disregard of the terms of the contract and as such misconducted themselves, the learned Counsel for the respondent submits that the similar point arose in the case of (4) Union of India v. D. Bose reported in AIR 1981 Calcutta 95 and the said contention was negatived by the Division Bench of this Court in the said case. The respondent also refers to other decisions of this Court as also the Supreme Court on this question. The cases are (5) Food Corporation of India v. Sarwan Kumar Chowdhury reported in AIR 1985 Calcutta 225, (6) N. Chellappan v. Secretary, Kerala State Electricity Board reported in AIR 1975 SC 230 . 14. It is also the contention on behalf of the respondent that the award in the instant case is a non-speaking award and does not incorporate the terms of the contract in it. Therefore, according to the learned Counsel for the respondent, it is not open to the appellant to invite this court to test the validity of the award with reference to the terms of the contract in question and further no proposition of law would appear from the award which may be said to amounting to an error of law appearing on the face of the award. 15. Regarding the cross objection of the respondent with regard to the interest, it has been submitted by the respondent that the learned trial Judge erred in fact in coming to the conclusion that the reference to the arbitration was made on the basis of the letter dated 7th August, 1981 it has been submitted that on perusal of the order passed by this Court on 17th December, 1982 which is at page 68 of the paper book order was made in terms of prayers (a), (d) and (e) of the petition. The said prayers are as follows: a) That the arbitration agreement referred to in paragraph (4) will be filed; b) An order of reference be made for adjudication of the disputes raised in the petitioner’s letter dated 4th July, 1982 being annexure "C" to the petition. 16. The said prayers are as follows: a) That the arbitration agreement referred to in paragraph (4) will be filed; b) An order of reference be made for adjudication of the disputes raised in the petitioner’s letter dated 4th July, 1982 being annexure "C" to the petition. 16. It is, therefore, the submission of the learned Counsel for the respondent, that the reference to arbitration was made on the basis of the letter dated 4th July, 1982 which is at page 126 of the paper book and not the letter dated 7th August, 1981 as stated by the learned Judge. It is apparent from item No. 24 at page 132 of the paper book that interest was claimed on all items except items Nos. 11, 12, 16 and 22. It is, therefore, evident that interest was claimed under item No. 13 and further it is to be noted that item No. 13 of the letter dated 4th July, 1982 is exactly the same as in item No.13 in the annexure to the award at pages 70 to 79 of the paper book. It is also submitted by the respondent that. even in the letter dated 7th August, 1982 which is at page 12 of the paper book there is a claim for interest under item No. 14 which is stated as item No. 13 in the letter dated 4th July, 1982. Therefore, it is apparent that even in the letter dated 7th August, 1981 the interest was claimed by the respondent under item No. 14 of the said letter which was corresponding to item No. 13 in the letter dated 4th July, 1932. It is also submitted by the respondent that even in the letter dated 7th July, 1983 by which the General Manager, called upon the Joint Arbitrators to adjudicate certain claims of the respondent, there is claim for interest on item No. 13 and the item No. 13 in the said letter is exactly similar to item No. 13 in the annexure to the award. In the premises, it is submitted by the respondent that the learned Judge was in fact wrong in coming to the conclusion that there is no claim for interest in the annexure to the award and that the Joint Arbitrators exceeded their jurisdiction in awarding such interest. 17. In the premises, it is submitted by the respondent that the learned Judge was in fact wrong in coming to the conclusion that there is no claim for interest in the annexure to the award and that the Joint Arbitrators exceeded their jurisdiction in awarding such interest. 17. The appellant, however submitted before us that the appellant was entitled to attack the question of awarding interest on the other grounds and in the submission of the appellant that the learned trial Judge was right in striking down the award so far as the interest is concerned although for other reasons. It was further contended by the appellant that even though they have not taken those grounds in the appeal, they were entitled to urge the same as the same was in the main application for setting aside the award which is part of the paper book. 18. It is firstly contended on behalf of the appellant that under Section 3 of the Interest Act no interest should be awarded in the instant case as there was no notice given by the respondent under the Interest Act. It was, therefore, urged by the appellant that award on the question of interest was, therefore, had by reason of non-compliance of requirement under the Interest Act. 19. It is submitted on behalf of the respondent that on a plain reading of the language of Section 3(1)(b) of the Interest Act, 1973. It will appear that all this required under the said provision is that a notice must be given in respect of the entire claim of interest. The respondent submitted that the letter dated 4th July, 1962 is really demand for interest and/or notice for interest as contemplated under the Interest Act and in the said notice the respondent claimed for interest. Therefore, according to the learned Counsel for the respondent this requirement is also complied with. 20. Appellant has also challenged the award relating to interest by referring to Clause 62 of the General Conditions of the Contract which provides, inter alia, that payment of interest was barred on any sum payable by the Railway to the Contractor and as such no interest could be awarded under the Interest Act. The learned Counsel for the respondent has referred to a circular dated 25th October, 1979 issued by the Railway Board which is at page 137 of the paper book. The learned Counsel for the respondent has referred to a circular dated 25th October, 1979 issued by the Railway Board which is at page 137 of the paper book. It has been stated that despite provision in the General Condition of the Contract, if a notice is given by the Contractor claiming interest the claim for interest may be tenable. It is, therefore, the contention on behalf of the respondent that the said Clause 16(2) of the General Conditions of the Contract stood abrogated by the said Circular of the Railway Board which was produced before the Joint Arbitrators. However, according to the respondent a ward or interest cannot be attacked on the ground of Clause 16(2) of the General Condition of the Contract. Therefore, according to the learned Counsel the learned trial Judge was wrong in setting aside this part of the award relating to interest and the Arbitrators were right in awarding interest. In this connection, also, it has been submitted on behalf of the respondent, that in case of lump sum award of interest, the arbitrators need not mention either the rate of interest or the period for which interest is awarded. 21. The appellant in assailing the said award has referred to certain decisions which are as follows : (7) Christopher Brown Ltd. v. Genossensehaft Oesterreichischet W.H.R.G.M.B. Haflung, 1953(2) All ER 1039 (1041) (8) Raj Narayan Mishra v. Union of India, 91 CLJ 145 (148) (9) The Upper Ganges Valley, Electricity Supply Co. Ltd. v. U.P. State Electricity Board, AIR 1973 SC 683 : 1973(1) SCC 254 (10) M/s. Khusiram Venarashilal v. M/s. Mathuradass Goverdhan Dass, 52 CWN 826 (11) K.P. Poulose v. State of Kerala & Anr., AIR 1975 SC 1259 M/s Allen Burry & Co. Ltd. v. Union of India, AIR 1971 SC 696 (12) M/s. Alopi Prashad & Sons Ltd. v. Union of India, AIR 1960 SC 588 (13) M/s. Bhai Sardar Singh & Sons, New Delhi v. New Delhi Municipal Committee & Anr., AIR 1981 Del 374 (14) Delhi Development Authority v. M/s. Bhawat Construction Co. Pvt. Ltd., AIR 1984 Del 358 22. The learned Counsel for the appellant has relied on bench decision of this Court reported in 91 CLJ 145 (Supra). Pvt. Ltd., AIR 1984 Del 358 22. The learned Counsel for the appellant has relied on bench decision of this Court reported in 91 CLJ 145 (Supra). We feel that there is no quarrel to the principles settled in the said decision and Bachawat, J. speaking for the Court, Inter alia, observed as follows: "The Arbitrator is supreme. His Award on both facts and law is final. The parties choose him for better and for worse. There is no appeal from his verdict. The Court cannot ordinarily interfere if there is an honest misconduct of law or fact in his adjudication. The Court cannot review his award and correct the mistake in adjudication ......... " We also feel that mistake does not necessarily amount to misconduct on the part of the arbitrator. 23. The decisions of the Supreme Court in AIR 1971 SC 696 and AIR 1973 SC 683 relied on by the learned Counsel for the appellant really support the case of the respondent. It has been made clear in those decisions that an error of law must appear on the face of the award to render it liable to be set aside. Alopi Parshad's case reported in AIR 1960 SC 588 which is relied on by the learned Counsel for the appellant reiterates the principle already settled i.e., the award can be set aside if it is demonstrated to be erroneous on the face of it. 24. The learned Counsel for the appellant has also placed much reliance on the decision reported in AIR 1975 SC 1259 (K.P. Poulose’s case). In our view, this decision is not applicable to the present case as in that case the arbitrator made a speaking award giving reasons for rejecting the claim of the claimant. In the present case the award is not speaking award and it does not give any reasons not it refers to argument made before the learned Arbitrators. Therefore, whether this award is good or bad cannot be tested with reference to the terms of the agreement since the agreement has not been appended to or incorporated into the award. 25. The learned Counsel for the appellant has referred to a decision reported in AIR 1981 Delhi 374. In that case, it was found that the contract was not produced before the Arbitrators but that is not the case in the present appeal. 25. The learned Counsel for the appellant has referred to a decision reported in AIR 1981 Delhi 374. In that case, it was found that the contract was not produced before the Arbitrators but that is not the case in the present appeal. Here, the contract was before the learned Arbitrators and on a construction of the terms of the contract, the arbitrators had made certain finding. It is now well-known proposition of law that the Court dealing with an application for setting aside the award does not sit in appeal over the learned Arbitrator’s decision, unless of course, as settled in the various decision of the Supreme Court that the Court can interfere with the award only if there is an error apparent on the face of the award. We do not see any such error apparent on the face of the award. 26. It has, however, been contended by the learned Counsel for the appellant that the observation contained in pages 70 to 84 of Paper Book in annexure to the award under the head “List of claims" are the reasons given by the arbitrators. It will appear upon some scrutiny that these are merely reproduction of the description of the claims as contained in the said letter dated 7th July, 1983 referring the disputed to the Arbitrators and in the statement of facts filed before the Arbitrators. We do not accept this part of the argument of the learned Counsel for the appellant and we cannot hold that these are the reasons given by the learned Arbitrators. 27. It has also been contended on behalf of the appellant that in making the award the learned Arbitrators have taken into account the rates in other contracts which amount to reception of evidence by the Arbitrators which is inadmissible. Therefore, according to the appellant, the Arbitrators are guilty of misconduct. In this connection the learned Counsel for the appellant has referred to a decision in (15) Wallor baker & Co. v. Macfie & Sons reported in (1915) LJKB 2221. The learned Counsel for the appellant has also relied on a decision in (16) Agro Export V. N.N. Goorded Import Cy. S.A. reported in (1956) 1 Lloyd’s Report 319. 28. The learned Council for the respondent has however, referred to certain passages in Russel (20th Edition) at pages 275 to 276 and also at page 419 of the said Edition. The learned Counsel for the appellant has also relied on a decision in (16) Agro Export V. N.N. Goorded Import Cy. S.A. reported in (1956) 1 Lloyd’s Report 319. 28. The learned Council for the respondent has however, referred to certain passages in Russel (20th Edition) at pages 275 to 276 and also at page 419 of the said Edition. It has been observed by the learned Author that the Dictum of Lush, J. in the decision reported in (1915) LJKB 2221 (Supra), has been disapproved in another decision of the Court of Appeal in (17) G.K.W. v. Mathro reported in (1976) 2 Lloyd’s Report 555. It has also been observed in the same edition of Russel at page 275 that Agro Export case (supra) has been distinguished in (18) W.N. Lindsay & Co. Ltd. v. European Grain and Shipping Agency Ltd. reported in (1963)1 Lloyo's Report 437. In view of such observations, it appears to us that the earlier two English cases cited by appellant are no longer good law. 29. The appellant has also relied on a decision in (19) Dr. S. Dutt v. University of Delhi reported in AIR 1956 SC 1050. In that case, the Arbitrator had recorded in the award that the points required to be determined included, inter alia, the question as to whether dismissal of Dr. Dust by a resolution passed by the Executive Council was mala fide and illegal and, therefore, wrongful and In effectual considering the said question. The Arbitrator In that case held that Dr. Dutt Will wrongfully dismissed and made the award in favour of Dr. Dutt. The Supreme Court had come to conclusion that the award in that case directed specific performance of contract of personal service and it involved legal preposition which formed the basis of the award and which was clearly erroneous. The said legal preposition in that case was apparent on the face of the award. 30. We have already indicated above, and we also reiterate here that the award in the instant case is a non-speaking award and does not incorporate the terms of the contract in it. The said legal preposition in that case was apparent on the face of the award. 30. We have already indicated above, and we also reiterate here that the award in the instant case is a non-speaking award and does not incorporate the terms of the contract in it. Relying on the principles in the various decisions of the Supreme Court as also the English cases particularly Giacomo Costa Fu Andrea v. British Italian Trading Ltd. (Supra), it is not open to the appellant to invite this Court to test the validity of the award with reference to the terms of the contract in question. We do not also see any proposition of law made as basis of the impugned award or in any event any proposition or law which could be said to be erroneous on the face of the award. Therefore, in our view, the point attacking the award fail and this award should be sustained and is hereby sustained excluding decision as to interest to which we refer later. We reject the contention of the appellant as aforesaid regarding the invalidity of the impugned award. 31. We will now deal with the cross appeal of the respondent regarding the award for interest. In the judgment under appeal the learned single Judge setting aside the award for interest observed that the said sum was awarded on account of interest loss except on item Nos. 11, 12, 16 and 22 (pages 82 to 84 of the Paper Book). Although, according to the learned Judge, there was no claim for interest on item No. 13, the learned Judge came to the conclusion that this reference to the arbitration was made on an application under Section 20 of the Arbitration Act and the application was made on the basis of a letter dated 7th August, 1981 in which there was no claim for interest under Item No. 13. The learned Judge concluded that there was no claim for interest under Item No. 13 in the statement of claim. 32. It has been submitted on behalf of the respondent that the learned Judge erred In fact in coming to the aforesaid conclusion. The learned Judge concluded that there was no claim for interest under Item No. 13 in the statement of claim. 32. It has been submitted on behalf of the respondent that the learned Judge erred In fact in coming to the aforesaid conclusion. It is submitted by the respondent that it will appear from the said order dated 17 December, 1982 (page 68 of the paper book) made on the application under Section 20 of Arbitration Act that the order of reference was made for adjudication of the disputes raised in the petitioner's letter dated 4th July, 1982 being annexure "C" to the petition. This letter dated 4th July, 1982 is at page 126 of the Paper Book. It will be apparent from item No.24 at page 132 of the Paper Book that interest was claimed on all the items except on item Nos. 11, 12, 16 and 22. According to the learned Counsel for the respondent, it would be evident that the interest was claimed on item No. 13 and it will further appear that item No. 13 of the letter dated 4th July, 1982 is exactly the same as the item No. 13 of the annexure to the award at pages 70 to 79 of the paper book, and item No. 24 is exactly to the similar to the item No. 24 of the said annexure of pages 80 to 84 of the paper book. 33. It is also submitted by the learned Counsel for the respondent that even in the letter dated 7th August, 1981 which is at page 117 of the paper book, there is a claim for interest under item No. 14 which is the same as item No. 13 in the letter dated 4th July, 1982. 34. The learned Counsel for the respondent has also referred to a letter dated 7th July, 1983 by which the General Manager called upon the Joint Arbitrators to adjudicate certain claim of the respondent and there will also appear a claim for interest on item No. 13 and this item No.13 has submitted by the learned Counsel for the respondent is similar to item No. 13 to the annexure to the award. It is, therefore, the submission of the learned Counsel for the respondent that the conclusion of the learned Judge is wrong on this factual aspect. 35. We need not detain ourselves on this question. It is, therefore, the submission of the learned Counsel for the respondent that the conclusion of the learned Judge is wrong on this factual aspect. 35. We need not detain ourselves on this question. The question relating to pendente lite interest has been settled in a very recent decision of the Supreme Court in the case of (20) Executive Engineer Balimala v. Abadut Jana reported in AIR 1988 SC 1520 . The Supreme Court has held that the Arbitrator is not competent to award any pendente lite interest that is from the date of reference to the date of the award. This view has been reiterated by the several subsequent decisions of the Supreme Court. Looking at the award relating to interest, it appears that learned Arbitrators have allowed interest on item Nos. 1 to 7, 10, 13, 15, 17,18, 20 and 21 only from the date on which the claimant sought for arbitration to the General Manager, South Eastern Railway on 23.1.82 in terms of the Interest Act, 1978. 36. In that view of the matter, we find it difficult to uphold the award relating to interest. We, therefore, delete this portion of the award relating to interest being item No.24 and also it is not in dispute that this part is severable from the other part of the award. 37. We have indicated above that the other part of the award is sustainable in law and we do not find any error apparent on the face of the award nor do we find any instance of the legal misconduct of the Joint Arbitrators. The award excluding the interest for Rs. 6,00,630.51 is upheld. 38. We, therefore, affirm the judgment and order under appeal. The learned Judge has, however set aside the award of interest on a factual ground, as we have indicated above. This part of the award relating to interest is not sustainable in view of the recent pronouncement of the Supreme Court on this question. This appeal is, therefore, dismissed. For the reasons aforesaid, we also dismiss the cross objection preferred by the respondent. There will be no order as to costs. Jain J. : I agree.