Union of India v. Dayaram Parmar & Co. — 1991 DIGILAW 112 (CAL)

ORDER: This is an application under s. 30 read with s. 33 of the Arbitration Act filed by the Union of India represented by General Manager, Eastern Railway, Calcutta praying for setting aside the Award dated 20th July, 1989 passed by Shri A.N. Banerjee, Judge (Retired:, High Court Calcutta. the Sole Arbitrator. 2. The facts may be briefly stated as follows :- By a formal Agreement No. CE/Con/971 dated August 27, 1980 by and between the petitioner and the respondent no. 1, under Article 299 of the Constitution the respondent no. 1 was required to execute the residual work of section IV from KM 5,900 to KM 6,850 for earthwork in formation and construction of catch water drains and side drains etc. for the proposed new Broad-gauge lines between Karaila Road and Jayant (Proposed station in Singrauli Coalfield) within February 21, 1981. The monetary va1ue of the said Agreement was Rs. 55,98.938. The respondents commenced the work on or about July 28, 1980 after obtaining several extensions from time to time between February 21,1981 and October 15,1982, The petitioner claimed by their letter dated June 13, 1982 that the said work was completed prior to June 30, 1982. However, the petitioner by their letter dated June 3, 1982 directed the respondents to widen the gullet to a width of 3 meters on either side of central line and for that to submit a programme for completion of the widening of the gullet to 6 meters wide before taking up, the linking in the said section. Even though at first the respondents admitted by their letter dated December I, 1981 that they would try to widen The base and would make it to the minimum of 6 meters wide but ultimately changed their mind and motivatedly took the unlawful plea that they were not under obligation to execute the extra/additional work desired by the petitioner unless the rates for the same were not settled beforehand. In the circumstances, the petitioner had no other alternative but to take recourse to the express provision of the Agreement for terminating the said Agreement by serving on them due notices as stipulated in the said Agreement which would appear from the letter of the petitioner dated October 13, 1982 issued under Clause 61 of the General Conditions of Contract, 1969, which was incorporated in the Agreement. As 1 he said Agreement was lawfully determined by the petitioner, the respondent no. 1 has no claim to any payment either by compensation or otherwise under clause 60 of General Conditions of Contract, 1969. Even clause 61(2)(d) entitles the petitioner to pay to the respondents any amount on account of the contract until expiration period of work and thereafter until the cost of completion and maintenance/damage for delay in completion (if any) and all other expenses incurred by the petitioner have been ascertained and the amount thereof certified by the Engineer. Inasmuch as the respondents admittedly failed to complete the said work within the extended time as aforesaid, the petitioner -rescinded the said Agreement but the said respondents by their letter dated 19th October, 1982 purportedly raised the pretended dispute and demanded an Arbitration under Clauses 62 and 63 of the General Conditions of the Contract. As, according to the petitioner, the said claim made under pretended dispute by the respondents are mostly "excepted matters" which are not at all arbitrable as would appear from Clause, 62 and 63(1)of the General Conditions of Contract, the petitioner did not consider to appoint any Arbitrator in the matter The respondent no. 1, however made an application under s. 20 of the Arbitration Act and another application under s. 41 of the Act for appointment of an Engineer for taking measurement of works executed by the respondents. On the said application for appointment of an Arbitrator under s. 20 of the Arbitration Act, High Court at Calcutta appointed Mr. Salil Kumar Roy Chowdhury Retired Judge as Sole Arbitrator to adjudicate on the dispute between the parties. However, as he refused to act, the High Court by its letter dated August 5, 1983 appointed Mr. S.N Modak, Bar-at-Law in his place and stead. Shri S.N. Modak, Bar-at-Law held some sittings but as he died by a further order dated February 20. 1987, Shri A.N. Banerjee, another Retired Judge of the Calcutta High Court was appointed as the Sole Arbitrator and he was directed to commence the Arbitration proceedings accepting the previous proceedings of Shri Modak, since deceased. After several sittings held before Shri A.N. Banerjee he made the impugned Award on July 20, 1989 of which the petitioner came to know when the Solicitors and Advocates on behalf of the respondent no. After several sittings held before Shri A.N. Banerjee he made the impugned Award on July 20, 1989 of which the petitioner came to know when the Solicitors and Advocates on behalf of the respondent no. 1 by their letter dated July 25, 1989 sent a notice under s. 14(2) of the Arbitration Act. 3. The petitioner has thereafter filed this application for setting aside the Award challenging the Award on the following main grounds: 1. "The Learned Arbitrator misconducted himself and/or proceeding by proceeding on the basis of the final joint measurement of the special Officer appointed by the Court whereas no such joint measurement was placed before the learned Arbitrator excepting the alleged copy of the report made by the Special Officer without giving any opportunity to the petitioner of proving the infirmities in the said report and the learned Arbitrator has misconducted himself by relying on the alleged report of the alleged Special Officer without the Special Officer having been examined before him when the alleged report was particularly challenged by the petitioner before the learned Arbitrator by their letter dated September 7, 1983. 2. The learned Arbitrator should have applied his mind to the Order dated June 2, 1983 wherefrom it is evident that the petitioner has also been directed likewise to take measurement independently and as such, the measurement taken by the said Surveyor is not final as observed on the face of the Award by the learned Arbitrator. 3. The learned Arbitrator misconducted himself and/or the proceeding by exceeding his reference in considering the excepted matters, which ale not arbitrable at all under the express terms of Agreement. 4. The learned Arbitrator misconducted himself and/or proceeding by allowing claim nos. 2 and, which were purportedly made for damages and compensation by the respondent no. 1 in contravention of the express provision of the Agreement as contained in Clause 60(2) of the General Conditions of the Contract. 5. The learned Arbitrator misconducted himself and/or the proceeding by considering that Section V was also of the subject matter of the said Agreement and as such allowed the purported claim no. 5 without applying his mind to the Agreement itself. 6. The learned Arbitrator allowed and admitted claim for Rs. 5. The learned Arbitrator misconducted himself and/or the proceeding by considering that Section V was also of the subject matter of the said Agreement and as such allowed the purported claim no. 5 without applying his mind to the Agreement itself. 6. The learned Arbitrator allowed and admitted claim for Rs. 10,000/-knowing fully well that said claim was allowed by 'the learned Arbitrator, Shri A.M. Paul, Retired Judge of this Court while adjudicating the dispute over works done by the respondent no. 1 in Section I and as such he misconducted himself and/or the proceeding by allowing the Government to pay twice over the same claim and making the respondent unjustly enriched thereby taking advantage of the technical plea. 7. The learned Arbitrator misconducted himself and/or the proceeding by allowing the alleged claims nos. 4, 5, 7, 8, 12 and 13 of the respondent without any evidence at all before him as such his A ward is perverse. 8. The learned Arbitrator misconducted himself and/or the proceeding by committing the gross error of law by awarding interest pendente lite to the tune of Rs. 9.25,303 23 within thirty days from the date of the Award without supplying the copy of the said order to the petitioner. 9. The learned Arbitrator misconducted himself and/or the proceeding by violating the express term of the Agreement that no interest will be payable on amounts payable to the Contractor under the Contract. 10. The learned Arbitrator misconducted himself and/or the proceeding by violating the well established principle of law as set out by the Supreme Court in its series of Judgment by allowing the interest pendente lite. 11. The learned Arbitrator misconducted himself and/or proceeding by refusing to consider any of the counter-claims filed by the petitioner inasmuch as the counter-claim of the petitioner was admitted by the respondent inasmuch as it was not contested by any rejoinder to 1he counter-claim filed by the petitioner. 4 .In the affidavit-in-opposition filed by the respondent no. 1 all allegations made in the petition have been challenged. 4 .In the affidavit-in-opposition filed by the respondent no. 1 all allegations made in the petition have been challenged. It is submitted that the petitioner by its letter dated 3rd June, 1982 asked the respondent to widen the gullet 6 meters which was at that time quite impractible as the respondent had executed the gullet only upto 4 meters at previous instructions of the petitioner and the respondent bad completed the work as per the petitioner's day to day instructions at site. The respondent Submit that termination of the contract was unlawful and in breach of the contract and the respondent duly replied on 15th October, 1983 to the petitioner's letter dated 13th October, 1982. Consequently, as the Agreement was not lawfully determined the respondent was entitled to claim for payment of compensation in terms of the Agreement or according to the law of the land. It is therefore, contended that the disputes raised by the respondents by its letter dated 19.10.82 are not pretended but genuine. It was also denied that dispute raised by the respondents was excepted matters or was not arbitrable. It is also denied that the learned Arbitrator committed misconduct by accepting report of the Special Officer who has taken measurement in presence of the representatives of the Railways, that his report along with the relevant documents including the measurements taken by the Railway were submitted before the Court in the proceeding under s. 41 of the Arbitration Act and that the learned Arbitrator did not commit any illegality in considering the report of the Special Officer. It is also denied that allowing claim nos. 2 and 5 is in contravention of the express provision of the Agreement as contained in Clause 60(2) of the General Conditions of the Contract. It is also denied that claim no. 5 is in respect of the work done by the respondent in respect of Section no. V and it asserted that the said claim was very much in respect of the work under Section no. IV. It is also denied that the claim no. 9 was the same claim which was awarded by Shri A.M. Paul, Retired Judge of Calcutta High Court in respect of the work of the respondent in Section 1. It is also denied that there was no evidence before the learned Arbitrator to award the Claim nos. 4, 5. 6, 7, 8, 12 or 13. 9 was the same claim which was awarded by Shri A.M. Paul, Retired Judge of Calcutta High Court in respect of the work of the respondent in Section 1. It is also denied that there was no evidence before the learned Arbitrator to award the Claim nos. 4, 5. 6, 7, 8, 12 or 13. It is also denied that the learned Arbitrator committed any illegality by awarding pendente life interest. It is also contended that the learned Arbitrator did not commit any misconduct by disallowing petitioner's counter-claim. It is submitted that even through the respondent could not file any rejoinder but denied and disputed all the counter-claims of the petitioner and the said counter-claims were fought out before the learned Arbitrator at length and the learned Arbitrator after hearing the parties disallowed the counter-claims and there was no error apparent on the face of the A ward to set it aside. 5. I would now consider the objections raised by the petitioner challenging the Award of the Learned Arbitrator The first ground of challenge of the Award is that Award in respect of claim no. 1 is illegal on the ground that the Learned Arbitrator made Award in respect of Claim no. 1 relying on a document namely, the Surveyor's alleged report which was produced by the claimant. It is contended that the claimant did not produce the original of the alleged report. that the said document was not admittedly taken on record by him that the original report is still in custody of the Learned Court while it was deposited by the Surveyor and that the Learned Arbitrator should have decided the admissibility of the document submitted by the claimant at least judicially before making his Award based on the same. In that view it is submitted by the Learned Advocate for the petitioner relying on Velore Electricity Corporation's case reported in AIR 1959 Madras 351 and AIR 1974 Jammu & Kashmir 40 that the Arbitrator cannot admit inadmissible evidence in the proceeding and should not base his Award thereon and if he does so he commits legal misconduct. On behalf of the respondent it is denied that the Learned Arbitrator made the Award in respect of Claim no. 1 on the basis of inadmissible evidence. On behalf of the respondent it is denied that the Learned Arbitrator made the Award in respect of Claim no. 1 on the basis of inadmissible evidence. It is pointed out that at the time when the application under s. 20 of the Arbitration Act was moved before the High Court, Calcutta application was made by the respondent under s. 41 of the Arbitration Act praying for appointment of a Special Officer for taking joint measurement as regards the work done by the respondent and the Learned Judge appointed a Special Officer even though at one point he was described as Surveyor yet he was to act as Special Officer and the report submitted by the Special Officer before the Court after such joint inspection was definitely lying with the Court. But it is submitted that a duplicate copy of such report was handed over to the respondent and the said duplicate copy bore the signature of the Special Officer and that annexed with the claim petition submitted by the present respondent before the Learned Arbitrator and that the petitioner never disputed its admissibility. My attention has been drawn to the letter dated 7th September, 1983 issued by the General Manager, Eastern Railway to M/s. Dayaram, Parmer & Company, the present respondent in Which the General Manager also admits to have received a copy of the report of the measurement by the officer appointed by the Court for taking measurements of the work done by the respondent in respect of the contract in question The said report was only objected to on the ground that the measurement recorded by Mr. Sarkar, the officer appointed by the High Court-was not acceptable to the Railway Administration as the same was not free from errors. That letter is annexed as Annexure 'C' to the affidavit-in-opposition. 6. I have carefully considered the copy of the order annexed with the petition passed by the Learned Judge appointing Shri A.K. Sarkar to take measurement in respect of the work done by the respondent-Contractor in question. It was not disputed that the said measurement was done in presence of the representatives of the petitioner. The petitioner on receiving copy of the report raised dispute regarding the measurement taken by the Special Officer. 7. All these matters were placed before the Learned Arbitrator. It was not disputed that the said measurement was done in presence of the representatives of the petitioner. The petitioner on receiving copy of the report raised dispute regarding the measurement taken by the Special Officer. 7. All these matters were placed before the Learned Arbitrator. No copy of the minutes has been annexed by the petitioner to suggest that at any point admissibility of the copy of the report submitted by the Special Officer or Surveyor as the case may be before the learned Arbitrator was disputed. No prayer was made by the petitioner to call for the original report from the Court nor was the duplicate copy annexed in the claim petition challenged by the petitioner as not the true copy of the original report. Moreover, if the duplicate copy signed by Shri A.K. Sarkar was produced before the learned Arbitrator and the admissibility of the same was not disputed by the petitioner, the petitioner cannot now challenge before this Court that the learned Arbitrator based his Award in respect of the claim no. 1 on the basis of inadmissible evidence, It is well-settled that the Evidence Act is not applicable to Arbitration proceeding, Our High Court in AIR 1987 Cal. page 126 has laid down that even though the Evidence Act is not applicable but the Arbitrator has to follow the principle of natural justice in conducting the Arbitration proceedings. But in the said decision it has also been pointed out that it is not for the Court to judge whether the evidence before the Arbitrator was improper, inadmissible or inadequate because the Arbitrator was the sole Judge of the Law and of the facts and if the Arbitrator had taken the decision on the basis of whatever evidence was on record and have allowed the claim, his Award cannot be challenged on the ground of inadequacy or inadmissibility or impropriety of the evidence, particularly when both the parties had full opportunity to argue their respective cases and to lead evidence. In that decision it has been pointed out that the situation will, however, be different when there is total absence of evidence or there is failure of the Arbitrator to take into consideration the material documents on record or admission of parties in arriving at the finding. In that decision it has been pointed out that the situation will, however, be different when there is total absence of evidence or there is failure of the Arbitrator to take into consideration the material documents on record or admission of parties in arriving at the finding. It is only in such cases' there can be a good ground for challenging the proceeding for legal misconduct of the Arbitrator. 8. Moreover, I am of the view that there is nothing to show that the copy of the report submitted along with the claim petition was inadmissible in' evidence. There was no requirement to follow the provision of the Evidence Act and to call Shri A.K. Sarkar to appear before the learned Arbitrator to prove the report submitted by him because the Evidence Act is not applicable to the Arbitration proceeding. If the duplicate copy signed by the Arbitrator was produced then it cannot be said that it was an inadmissible evidence. In Mulkraj v. Hemraj, AIR 1974 J & K, 40 to which the learned Advocate for the petitioner has placed his reliance, the Arbitrator relied on a previous statement of a party which had been recorded in his absence. It was in such circumstance that Jammu & Kashmir High Court has held that the Arbitrator cannot rely on a previous statement of a party or a witness recorded in his absence. In this connection the decision of the Supreme Court in AIR 1973 SC 1338 Kapur Nilokheri Co-operative Dairy Farm Society v. Union of India should be looked into. In that decision the Supreme Court has held that if the Arbitrator admits some evidence even if the same cannot be admitted on the basis of the principle of natural justice, yet the party can waive such objections and if the party does not raise any objection to the admission of the inadmissible evidence before the learned Arbitrator, he cannot after the Award was passed against him challenge sl1ch award on the ground that the Arbitrator had admitted inadmissible evidence. In that view the Claim no. In that view the Claim no. I being for payment of the final bill as per the final joint measurement taken by the Special Officer appointed by High Court, Calcutta awarded by the Arbitrator cannot be challenged on the ground that it is vitiated for legal misconduct of the Arbitrator because he awarded the claim on the basis of the copy of the report of the joint measurement taken by the Special Officer appointed by High Court, Calcutta. If even on considering the objection of the present petitioner against such report that the measurement taken by him was not taken correctly, the learned Arbitrator overruled it and amend the claim no. 1, then it being a finding of fact and there being no error apparent on the face of the Award there is nothing for this Court to interfere. 9. The second ground on which the Award is challenged is in respect of the Claim no. 2. Under Claim no. 2 Rs. 2,77,671.31 by way of damages for illegally taking away claimant's work of construction of catch water drains has been claimed by the Respondent. On behalf of the petitioner it is submitted "that the Arbitrator has gone against the specific terms of the Contract by awarding such claim. It is contended by the petitioner that under Clause 31.4.1. of the Agreement the Engineer of the petitioner has the power of modification of the contract that is "To diminish or to reduce" the works contracted for that. This Clause read also with Clauses 62 and 63(1) of the General Conditions of the Contract is "excepted matter" And as such not arbitrable and that in any event denying the works relating to "Catch water drains" to the claimant, the said Act of the petitioner cannot on the face of the agreement be described as illegal upon which the purported Award was given. On behalf of the respondent it is contended that the work of construction of "Catch water drains" was illegally taken away by the Railway. It is contended that Clause 30.4.1 of instruction to Tenderers at page 15 of the Agreement stated that any such modification to contract should be by order in writing. It is submitted that no such order in writing was ever given by the Engineer. It is contended that Clause 30.4.1 of instruction to Tenderers at page 15 of the Agreement stated that any such modification to contract should be by order in writing. It is submitted that no such order in writing was ever given by the Engineer. It is further submitted that the above Clause speaks of reduction of the work but not actually taking or snatching away of already contracted work and giving the same to other party for execution as has illegally been done in this case. It is also contended that as to whether Claim no. 2 was a "excepted matter" in terms of Clauses 62 and 63(1) of General Conditions of the Contract or not were agitated before the Learned Arbitrator by both the sides that when the Arbitrator made the Award he, therefore, negatived the petitioner's plea that it was an "excepted matter" and that the matter of interpretation of the Contract namely whether the claim falls under the "excepted matter" or not is for the Arbitrator to decide. It cannot be disputed that as regards the merits of the claim this Court under s. 30 of the Arbitration Act has no jurisdiction to decide. I am, however, of the view that if it can be proved before this Court that on the face of It the Claim no. 2 was not permissible under the express term of the contract then and then only this Court can in a proceeding under s. 30 look into the terms of the Contract and may set aside such claim But as to whether Clause 30.4.1. of the instruction to Tenderers at page 15 of the Agreement entitles the Railway to completely take away a particular item of work awarded to the respondent under the terms of the Agreement was a matter of dispute before the Arbitrator. It was contended before the Arbitrator as pointed out by the learned Advocate for the respondent that such taking away was illegal and could not be justified under the above Clause. Therefore, it was a matter of interpretation of the Clause 30.4.1 of the instruction to Tenderers at page 15 of the Agreement by the Arbitrator. Moreover, as to whether the said claim came within the purview of the "excepted matter" in terms of Clauses 62 and 63(1) of the General Conditions of the Contract was also a matter for decision of the learned Arbitrator. Moreover, as to whether the said claim came within the purview of the "excepted matter" in terms of Clauses 62 and 63(1) of the General Conditions of the Contract was also a matter for decision of the learned Arbitrator. But it has now been well-settled by the Supreme Court that the interpretation of the Contract comes within the jurisdiction of the. Arbitrator and if on interpretation of such Contract the Arbitrator treats the matter to be not an "excepted matter" and passes a non-speaking award allowing the whole claim then it must be presumed that the contention of the petitioner in this respect was disallowed, by the learned Arbitrator and the Court in a proceeding under s. 30 of the Arbitration Act cannot interfere with it. Reference may be made to the Supreme Court decision reported in AIR 1989 of 890 Sudarsan Trading Co. v. Government of Kerola and also AIR 1989 SC 1263 (FCI v. Jogindar Pol Mahendar Pal). In AIR 1989 SC 777 Puri Construction Co. Pvt. Ltd. v. Union of India, the Supreme Court has held that when a Court is called upon to decide the objections raised by a party against the Arbitration Award the jurisdiction of the Court is limited as expressly indicated in the Act and it has no jurisdiction to sit in appeal and examine the correctness of the Award on merits. In view of the above, I am unable to hold that the Arbitrator committed any legal misconduct in awarding the claim no. 2. 10. The next challenge against the Award of the learned Arbitrator is regarding Claim No.5. It is contended on behalf of the petitioner that the said claim relates to alleged loss suffered by the claimant due to the Railways failure to get removed the dam like solid rock barrier at the beginning of the Section V. The present respondent claimed Rs. 9,37,122.75 but the Arbitrator awarded Rs. 2,49,899 towards that claim. 11. Even though the whole claim. made by the Arbitrator has not been awarded in respect of that claim no. 9,37,122.75 but the Arbitrator awarded Rs. 2,49,899 towards that claim. 11. Even though the whole claim. made by the Arbitrator has not been awarded in respect of that claim no. 5 yet the learned Advocate for the petitioner has urged that it was in respect, of alleged claim for Section V but the Contract that was awarded to the petitioner is in respect of Section IV and therefore the Arbitrator went beyond his reference by making an award in respect of a claim which was beyond the Contract in respect of which the dispute arose between the parties and for which the reference was made to the Arbitrator under s. 20(4) of the Arbitration Act for settlement of the dispute. It is contended that when the claim did not relate to Section IV but in respect of Section V then the Arbitrator had no jurisdiction to award that claim. 12. On behalf of the respondent the above contention of the petitioner has been seriously challenged. It is contended that the petitioner suffered loss for doing the works of construction in Section IV as there existed the Dam like solid rock barrier at the beginning of Section V and as the Railway failed to remove the dam like solid rock barrier the respondent had to incur extra expenses for doing the work in Section IV and when such extra expenses bad to be incurred due to failure of the Railway Administration to remove such solid rock barrier at the beginning of Section V resulting in loss suffered by the respondent in doing the construction work of Section IV then the respondent was perfectly justified in making claim for the loss which he had to suffer due to inaction on the part of the Railway. 12A. On considering the description of the claim no. 5 as given in the award I am of the view that said claim is not in respect of the present respondent doing any work or extra work or suffering any damage for any work done in Section V. As a matter of fact, the respondent Contractor had nothing to do with Section V. He was entrusted with the work to a portion of Section IV for construction of Broad-gauge Railway line in Section IV alone. The claim on the face of it is the alleged loss suffered by the claimant for the Railway's failure to get removed the Dam like solid rock barrier at the beginning of Section V It is the case. of the respondent that as the Railway failed to do that, the respondent had to incur extra expenditure for which the petitioner gave evidence as regards extra expenditure incurred by the respondent and the learned Arbitrator on considering the case on its merits awarded a part of that claim on being satisfied about the merits of the claim but did not allow the whole claim but a part claim. I am of the view that when there is nothing in the Award to suggest that the Arbitrator made any Award for any alleged loss suffered by the respondent-Contractor for doing any work in Section V. This loss, according to respondent, arose in the matter of construction in Section IV. I am of the view that when there is nothing to show that it was in respect of any loss suffered in respect of Section V then 'when on merits the Arbitrator on the basis of the materials produced before him allowed a part of the claim, this Court cannot enter into merits of such claim and there being no error apparent on the face of the Award and there being nothing to show that allowing of the said claim in respect of Claim no. 5 was beyond the reference made to him, there does not appear to be any legal misconduct on the part of the Arbitrator in allowing the claim no. 5 in part as he did in the Award. 13. It is next contended by the petitioner that the Arbitrator allowed the item no. 9 of the claim even though the said Claim was allowed by Shri A.M. Paul, another Retired Judge of Calcutta High Court in respect of Award made in favour of the present respondent in Section I and the Arbitrator awarding the same amount to the respondent-Claimant has allowed the Contractor to be unjustly enriched because in that case for the self-same matter he has been awarded the claim twice. 14. The respondent has disputed the above contention of the petitioner. 14. The respondent has disputed the above contention of the petitioner. It is submitted that the Claim no 1 being the claim for refund of excess amount recovered by the respondent for supply of explosive relates to the present Con tract. The respondent had another claim of refund in this respect for the work done in Section I and that the Award in respect of such claim by Shri A.M. Paul has nothing to do with the Award made by the learned Arbitrator in respect of the present contract. 15. As to whether this claim was the same claim awarded by Shri A. M. Paul in the other Award for dispute in respect of work done by the respondent in Sec 1 or a separate claim was a matter for decision by the learned Arbitrator and if the learned Arbitrator allowed the said claim it must be presumed that he negatived the contention of the' present petitioner that the said claim was already allowed by Shri A.M. Paul, another referred Judge of this Court in the matter of his Award for the dispute raised by the respondent for work done in Section 1. As I have already pointed out that this Court cannot enter into merits of the claim am unable to interfere with the said Award in respect of the claim. I am unable to interfere with the said Award in respect of Claim no. 9 when there is no error apparent on the face of the Award. 16. On behalf of the petitioner the Claim no. 20 has been challenged on the ground that the Arbitrator has no jurisdiction to Award pendente lite interest and the learned Arbitrator committed a legal misconduct by awarding pendente lite interest on the total claim of Rs. 14,31.56879 @ 12% per annum from the date from which the reference before the outgoing Arbitrator's commenced that is 2.3 84 to the date of the Award that is 20.789. 17. There is no doubt that the Arbitrator awarded the above amount which is nothing but pendent lite interest. This is not an Award in a reference made by the Court under s. 21 of the Arbitration Act. 17. There is no doubt that the Arbitrator awarded the above amount which is nothing but pendent lite interest. This is not an Award in a reference made by the Court under s. 21 of the Arbitration Act. Therefore, there are several decisions of the Supreme Court beginning from Abhaduta Jena's case that the Arbitrator his no jurisdiction to Award pendente lite interest in respect of an Arbitration other than an Arbitration in a pending suit under s. 21 of the Arbitration Act. In Executive, Engineer, Irrigation v. Abhadute Jena AIR 1988 SC 1520 , the Supreme Court has clearly held that in regard to the pendente lite interest that is interest from the date of reference to the date of Award the claimant would not be entitled to the same for the simple reason that the Arbitrator is not a Court within the meaning of s. 34 C.P. Code nor were the reference to Arbitration made in the course of a suit. This decision of the Supreme Court has been followed in State of Orissa vs. D. Sahu. AIR 1988 SC 1791 , State of Orissa vs. Construction India, AIR 1988 SC 1530 , Gujrat W.S. & S.B. vs. Unique Erectors, AIR 1989 SC 973 , State of Orissa vs. Niranjan Swain AIR 1990 SC 685 & M/s. Hind Builders Vs. Union of India, AIR 1990 SC 1340 . 18. On behalf of the respondent it is contended that this is an Arbitration with the intervention of the Court the proceeding was initiated by all application having been filed by the present respondent before this Court for referring the dispute to the Arbitration in terms, of the Arbitration award and when the Arbitration has been initiated because of the order passed by this Court under s. 20(4) of the Arbitration Act then it must be held that it is an Arbitration in connection with a suit because it is pointed out that when an application under s. 20 is flied before a Court of Law it is to be registered as a suit. 19. On carefully considering the above Supreme Court decisions I am of the view that reference under s. 20 is not a reference in the pending suit. It is only a reference with the intervention of the Court. 19. On carefully considering the above Supreme Court decisions I am of the view that reference under s. 20 is not a reference in the pending suit. It is only a reference with the intervention of the Court. But reference with the intervention of the Court is not same thing as a reference made by a Court in a pending suit under s. 21 of the Arbitration Act. In all the above - decisions beginning from Abhadute Jena's case it has been clearly pointed out that only when a reference is made by the Court in a pending suit then and then only the Arbitrator has the jurisdiction to invoke s. 34 of the Civil Procedure Code because in Such a case the Arbitrator being directed by the court in a pending civil suit to arbitrate as regards dispute raised in this suit is performing the function of a Court of Law and in such a case s, 34 would be attracted. This is the reason behind the Supreme Court laying down the proposition of law in decision beginning from Abhaduta Jena's case that it is only when the Arbitration is made by Arbitrator in the reference made by Court in a pending suit the Arbitrator has the jurisdiction to award pendente lite interest. Therefore, I am of the view that the Award of the Arbitration in Item no. 20 of the Claim awarding pendent lite interest is illegal and liable to be set aside. As this part of the Award is severable from the other parts of the Award, the whole Award is not required to be set aside only that portion is set aside. 20. The Arbitrator has also awarded interest on the amount of Rs. 14,31 558.79 from the date of the Award till the date of the payment or the decree upon the Award whichever is earlier, The question arose before the Supreme Court in Gujrat W.S. and S.B. vs. Unique Erector AIR 1989 SC 973 as to whether the Arbitrator has the jurisdiction to award interest from the date of the Award to the date of the decree or not. Sabyasachi Mukherjee, J. as His Lordship then was in para 14 did not specifically decide the question as to whether the Arbitrator had such power or not, but has observed as follows ;- "We think interest should be allowed for this period on the principle that this Court can once proceeding under ss. 15 to 11 are initiated to grant interest pending the litigation before it that is from the date of the Award to the date of the decree". 21. Therefore, the Supreme Court in that decision has observed that the Court has the power to grant interest from the date of the Award to the date of decree and has not held that Arbitrator has that power. In that view that part of the Award granting interest on the amount awarded from the date of the award to the date of the payment or the date of the decree whichever is earlier is also deleted. But the Court will be at liberty to award appropriate interest for the above period while making the Award the rule of the Court. 22. The last point that requires to be decided whether the learned Arbitrator committed any misconduct in rejecting the counter-claim of the present petitioner. 23. It is submitted on behalf of the petitioner that the Award would clearly show that at least ten items of counter-claim were made before the learned Arbitrator by the present petitioner, but the learned Arbitrator arbitrarily rejected all the said counter-claims. It is, therefore, submitted that such arbitrary refusal makes the Award vitiated as the Arbitrator' did not adhere to the principles of justice and fair play. My attention has been drawn to the Supreme Court decision reported in 1989(2) SCC 347 at para 7 wherein it was held as follows: "Law of Arbitration should be made simple, less technical and more responsive to the actual realities of the situation and to the canons of justice and fair play. The Arbitrator should be made to adhere to such process and norms which will create confidence not only by doing justice between the parties, but by creating a sense that justice appear to have been done" 24. The Arbitrator should be made to adhere to such process and norms which will create confidence not only by doing justice between the parties, but by creating a sense that justice appear to have been done" 24. On behalf of the respondent it is submitted that there is nothing to I show that the Arbitrator did not adhere to the' principle of justice and fair play, that that Arbitration proceeding continued for several years, that the learned Arbitrator adjudicated upon and decided on the claims, counterclaims and disputes between the parties, that fair play is not absent in view of the fact that the award was made claim wise by the learned Arbitrator and that it is in full conformity of Clauses 63(3) (A) (iii) of the General Conditions of the Contract which requires the Arbitrator to give the award of all matters referred to Arbitration indicating therein break-up of the sums awarded separately on such claims. It is submitted that the Arbitrator his rightly given his award after having fully examined and considered, the statement of facts filed by the claimant, counter statement of facts by the present petitioner and all other correspondences, documents, papers and records placed before him and after having heard and fully considered all matters submitted to him concerning the claims, counter claims and other disputes the award has been made, that during the Arbitration proceeding equal and full opportunities were given to both the parties to present their respective cases with supporting documents relevant records and to make arguments and only thereafter the award was made and that there cannot be any question of lack of fair play and justice as alleged by the present petitioner. 25. I have carefully considered the submissions made by the learned Advocates for both the parties. Only because all the counter claims were rejected by the learned Arbitrator it cannot be said that such rejection was -arbitrary. It was incumbent upon the petitioner to produce necessary materials before the Arbitrator in support of each item of counter claim and if the learned Arbitrator on considering those materials did not find any of the counter-claims to be justified and refused it, such refusal amounts to finding of fact by the learned Arbitrator. It is not that opportunities were not given to the petitioner to produce materials in support of the counterclaim. It is not that opportunities were not given to the petitioner to produce materials in support of the counterclaim. But if on considering all those materials counter-claims were rejected, this Court cannot act as Court of Appeal to sit in Judgment over it. Moreover, only because the present respondent did not file a rejoinder against the counter-claim it cannot be said that they admitted the same. H is submitted on behalf of the respondent that each and every counter-claim were objected to by the petitioner before the Arbitrator and the learned Arbitrator considering such objection overruled them. In view of the above I am unable to hold that the counter-claims have been rejected arbitrarily or that the Arbitrator has not adhered to principle fair play and justice in refusing the counter-claim, I would like to point out that even the learned Arbitrator did not allow all the claims made by the present respondent. Some of the claims were wholly rejected and some of them were also partially allowed. In the result I am unable to hold that the learned Arbitrator while refusing the counter-claim or while allowing he main claim of, the Arbitrator committed any misconduct or that the award is otherwise invalid. However, the award of interest amounting to Rs. 9,25,303.23 as per Item 20 of the claim is hereby deleted. The award of interest from the date of the award till the date of the payment or till the date of the decree whichever is earlier is also deleted subject to this that the respondent will be entitled to pray for such interest at the time when the award as modified by this Court is made the rule of the Court. The petition is, therefore, allowed in part subject to the modification as indicated in the above, the Award shall stand and shall be made the rule of the Court. In the circumstances, I direct the parties to bear the respective costs of this proceeding themselves. Award to stand subject to modifications indicated in the judgment.