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1991 DIGILAW 10 (CAL)

Authority v. Sushil Kumar Rot

1991-01-15

PRABIR KUMAR MAJUMDAR

body1991
Judgment 1. THIS is an application under sections 30 and 33 of the Arbitration Act for setting aside the award dated 30th September, 1988 made and published by the Sole arbitrator Mr. Hiranmoy Dutta. This Award is a non-speaking Award. 2. THE petitioner has taken several ground challenging the said award. At the hearing the learned Counsel for the petitioner has taken the grounds - (i) that the claim being the subject matter of arbitration is barred by the laws of limitation, and (ii) that the Arbitrator has allowed compensation in favour of the claimant, that is, the respondent, contrary to the provisions of the (contract entered into between the parties and in doing so the Arbitrator has ignored the rate prescribed by the Calcutta Metropolitan Development Authority. Regarding the first point taken by the learned counsel for the petitioner, I find there is no substance in this contention. It is a well settled law that the question of a claim being barred by laws of limitation is a question to be decided by the Arbitrator and whether a claim is actually barred by laws of limitation or not that itself is a dispute to be adjudicated by the Arbitrator. It is also the settled law that the Arbitrator is to adjudicate both the questions of fact and law and the Court dealing with an application under Sections 30 and 33 of the Act for setting aside the Award is not to sit in appeal over the decision of the Arbitrator. 3. THE law as fully enunciated by several decisions of the Supreme court as also the High Courts is that an Award can only be set aside if there is an error of law appearing on the face of the Award or that the Arbitrator has mis-conducted the proceedings or mis-conducted himself in the adjudication of disputes between the parties. 4. THE second point taken by the learned counsel for the petitioner is that the contractor is not entitled to any compensation for payment extra work and that is contrary to the provisions of the Contractor entered into by the parties. 4. THE second point taken by the learned counsel for the petitioner is that the contractor is not entitled to any compensation for payment extra work and that is contrary to the provisions of the Contractor entered into by the parties. The learned counsel has referred to a decision of the Supreme Court in the case of Continental Construction Company vs. State of Madhya Pradesh, reported in AIR 1988 SC 1166 where it has been held that the Arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and proper. The Arbitrator is be decide the disputes according to law and is bound to follow the law. I have already Indicated that this Award challenged in this proceeding is a non-speaking Award. It is not clear from the Award itself whether the Arbitrator has made any award for compensation or damages or whether such Award of compensation, if any, has been made ignoring any terms of the contract or contrary to the terms of the contract. The Supreme Court in the case of M/s. Sudarsan/Trading company vs. The Government of Kerala and Anr., reported in AIR 1989 sc 890 has observed that it is not open to the Court to probe the mental process of the Arbitrator and speculate, where no reasons are given by the Arbitrator, as to what impelled the Arbitrator to arrive at his conclusion and even if there are reasons the reasonableness of the reasons given by the Arbitrator cannot be challenged. An appraisement of evidence by the Arbitrator is never a matter which the court questions and considers. It has also been observed that the Arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the Arbitrator. It is also observed that if any amount is awarded by the Arbitrator by taking any particular view of the contract, the court cannot, substitute its own decision on interpretation of a contract. The interpretation of the contract is a matter for the Arbitrator. 5. It is also observed that if any amount is awarded by the Arbitrator by taking any particular view of the contract, the court cannot, substitute its own decision on interpretation of a contract. The interpretation of the contract is a matter for the Arbitrator. 5. IN another case of Food Corporation of India vs. Jogindarpal mohinderpal, reported in AIR 1989 SC 1263 the Supreme Court observed that if the Arbitrator had construed the effect of a particular clause of the contract then it cannot be said such a construction is a construction which is not conceivable or possible. Even assuming for argument that there was a mistake in interpreting the contract, such a mistake is not amendable to be corrected by the court. The Supreme Court also reiterates the view as has been held in the earlier decisions that court cannot sit in appeal over the decision of the arbitrator by re-examining and reassessing the materials on record. In this case before the Supreme Court there was a speaking Award and the arbitrator has chosen to give reasons for his conclusion. The law is clear that the Award can only be set aside if there is an error of law on the face of the Award. The error of law of the face of the Award means you can find in the Award or a document actually incorporated thereto, as for instance, note appended by the Arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the Award and which you can they say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what the contention is, and then going to the contract on which the parties' rights depends to see if that contention is sound. Even if there is more reference to the contract that by itself would not persuade the court to looking into the contract or by that it cannot be said that the contract has been incorporated to the Award. Even if there is more reference to the contract that by itself would not persuade the court to looking into the contract or by that it cannot be said that the contract has been incorporated to the Award. This is the view of the Privy Council in champsy Bhara's case (AIR 1923 PC 66) and this view has been taken with approval by the Supreme Court in several decisions and reference may be made to the few of such decisions, the Union of India v. Ralia Ram ( AIR 1963 SC 1685 ), Allenbury v. Union of India ( AIR 1971 sc 696 ). 6. IN the instant case the learned Arbitrator has made an Award and directed the respondent Calcutta Metropolitan Development authority to pay to the claimant Sushil Kumar Roy a sum of Rs.1,15,000/- only in full satisfaction of his claim under the contract between the parties arising out of the tender No. 112/ddii of 1976-77. The said respondent Calcutta Metropolitan Development Authority has also been directed by the said Award to pay costs to the claimant assessed at Rs.15,000/ -. It appears from the petition in para 2 that the claimant has made a claim for P. 4,50,726. 86 inclusive of interest at the rate of 18% per annum calculated up to 15th April, 1987 and the particulars of claim have also been set out in para 2 of the petition. The first heading of claim is on divergence of cost of materials before and after the flood of 1978. This is being challenged by contending that the Arbitrator in taking into account the claim has acted contrary to the provisions of law. I have indicated before the nature of the Award and from that it will not appear whether the arbitrator in making the said Award for the said sum has taken into account all these claims or not. It is also not clear as to which of such claims have been accepted and which of them have been rejected. The arbitrator has not indicated reasons as to acceptance and rejection of claims, and he is not bound to do so, unless it is provided in the arbitration agreement. The Court cannot probe the mental process of the arbitrator and speculate where no reasons are given, as to what impelled the arbitrator to arrive at his conclusion. The arbitrator has not indicated reasons as to acceptance and rejection of claims, and he is not bound to do so, unless it is provided in the arbitration agreement. The Court cannot probe the mental process of the arbitrator and speculate where no reasons are given, as to what impelled the arbitrator to arrive at his conclusion. Regarding the claim being barred by laws of limitation, I have already indicated that this is entirely within the jurisdiction of the arbitrator to decide and it appears from the petition that there has been an issue raised on that. 7. THE petitioner has taken several grounds in the petition. But at the hearing of this application, the learned counsel for the petitioner has urged only two grounds a indicated above. 8. FOR the reasons aforesaid I do not see any ground to interfere with the impugned Award. This Award dated 30th September, 1988, impugned in this proceeding, is free from any infirmity. This application for setting aside the Award taken out by the petitioner Calcutta metropolitan Development Authority is dismissed. There will be no order as to costs in the facts of the case. Interim order, if any, is vacated. Application dismissed.