JUDGMENT - A.A. CAZI, J. : ---This petition is for setting aside the Arbitrators, Award dated 7th September, 1989 which is filed as Award No. 178 of 1989. 2. On 22nd December, 1978 there was an agreement between the petitioners and the respondents, under which the respondents agreed to construct hostel, canteen and connecting corridor at the petitioners' Institute at Powai. Under the said agreement, the work was to be commenced on 29th September, 1978 and it was to be completed by 28th December, 1979. There are what are stated to be' conditions of contract which are annexed to the agreement and also form part of the agreement between the parties. It is mentioned in the agreement that M/s. M.K. Talpade Associates has prepared the drawings and specification describing the work to be done. The term "the Architects''in the conditions means the said Messrs. M.K. Talpade and Associates. Under condition 20, a provision was made in respect of delay and extension of time. Conditions 21 related to damages for non-completion. Condition 23 related to measurements of work. Condition 24 relate to certificates and payments and in the Appendix to these Conditions it is stated with reference to condition 24 that the time for honouring the certificate was 14 days. Condition 26 states "—Any amount payable by the employer (the petitioners herein) to the Contractor (the respondents herein) in pursuance of any certificate given by the Architects hereunder shall, if not paid within the period for honouring certificate named in the Appendix, carry interest at the rate named in the Appendix as the Rate of Interest for delayed payments from the date upon which sum ought to have been paid by the Employer until payment'' "and in the Appendix it is stated with reference to Condition 26 that the rate of interest for delayed payment would be 6% per annum. The respondents carried out the work but the work was not completed by 28th December, 1979 and it was completed on 24th November, 1982. Thus the delay was for a period of almost three years. On 8th October, 1984 the final certificate was signed by M/s. M.K. Talpade and Associates. 3. On 3rd March 1987 (vide Exhibit 160) the advocates of the respondents wrote to the Director of the petitioners demanding the following payments: a) Amount certified from bill by the Architects vide their certificate dated 8th October, 1984. Rs. 1,55,807.70. On 8th October, 1984 the final certificate was signed by M/s. M.K. Talpade and Associates. 3. On 3rd March 1987 (vide Exhibit 160) the advocates of the respondents wrote to the Director of the petitioners demanding the following payments: a) Amount certified from bill by the Architects vide their certificate dated 8th October, 1984. Rs. 1,55,807.70. b) Interest plus additional compensatory interest from 8th November, 1984 upto 15th February, 1987 on Rs. 1,55,807.70 at the rate of 21% compound interest Rs. 90,042.16. c) Compensatory amount as agreed to be paid by the Institute during the progress of the work. Rs. 3,90,280.00. d) Interest plus additional compensatory interest on the claim of Rs. 3,90,280/- from 22nd August, 1983, upto 15th February 1987 at 21% compound interest Rs. 3,93,694.43. ———————— Rs. 10,29,824.29. Demand was also made for further compensatory compound interest at 21% from 16th February, 1987 upto the date of payment. It was stated that in default of compliance with the requisitions for a period of 15th days from the receipt thereof the respondents shall be constrained to take legal action in the matter against the Institute. On 16th July, 1987 (vide Exhibit 162) the petitioners gave a reply to the respondents disputing the claims. On 5th August, 1987 (vide Exhibit 163) the respondents wrote to the Dean (Planning) Indian Institute of Technology, stating:''— in view of your express request to settle the matter out of Court by having recourse to arbitration, we have acceded to your request to let our difference be referred to arbitration. We appoint Mr. S.G. Ranadive, F.I.I.A., Partner, Messrs. Goregaon Batley King., Chartered Architects, Charter Bank Bldg., M. Gandhi Road, Bombay -1 as our arbitrator. Kindly appoint your arbitrator within two weeks and let us know. This may be said to be the commencement of the reference to arbitration. The petitioners appointed Mr. T.V. Prabhakaran as their Arbitrator. The two Arbitrators entered jointly upon the reference and ultimately made their Award on 7th September 1989. 4. Originally the claim made by the respondents before the Arbitrators was as follows: a) Balance amount to be received from the amount of Rs. 14,25,707.70 certified by the Architects M/s. M.K Talpade Associates on 8-10-84. Rs. 1,55,807.70. (kindly refer architects certificate and final bill corrected by the Architect). b) Interest plus additional compensatory interest for unconscionably excessive delayed payments from 8th November, 1984 up to 30th November, 1987 on Rs. 14,25,707.70 certified by the Architects M/s. M.K Talpade Associates on 8-10-84. Rs. 1,55,807.70. (kindly refer architects certificate and final bill corrected by the Architect). b) Interest plus additional compensatory interest for unconscionably excessive delayed payments from 8th November, 1984 up to 30th November, 1987 on Rs. 1,55,807.70 at the rate of 21% compound interest. Rs. 1,32,149.20 c) Compensatory amount agreed to be paid by the Institute (worked out by us.) Rs.4,32,624.74 d) Interest plus additional compensatory interest on the claim of Rs. 4,32,624.74 from 22nd August, 1983 up to 30th November, 1987 at 21% compound interest. Rs. 5,86,147.86. ——————— Claim upto 30th November, 1987. Rs. 13,06,729.58 (Rupees Thirteen lakhs six thousand seven hundred and twenty nine and paise fifty eight only) e) Plus interest and further compensatory compound interest at 21% from 1st December, 1987 up to date of payment on Rs. 13,06,729.58. On 9th August, 1989 the respondents made a revised claim which is as follows: a) Balance amount due on 30th November, 1987 as per architects' certificate dated 8-10-1984 (Ex. 148) Rs. 1,55,807.70 b) Compensatory interest for unconscionably excessive delayed payments from 8th November, 1984 upto 30th November, 1987 on — Rs. 1,55,807.70 at the rate of 21% simple interest. Rs. 1,00,310.28. c) Compensatory amount agreed to be paid by the Institute. Rs. 4,32,624.74. d) Compensatory interest on claim of Rs. 4,32,624.74 from 22nd August, 1983 upto 30th November, 1987 at the rate of 21% simple interest. Rs. 3,88,544.39 e) 21% simple interest on tender deposit of Rs.12,500/- from Virtual Completion date of 24th November 1982 upto date of payment 29th January, 1988 (Ex. 138 and clause 36 of the contract). Rs. 13,606.84 Rs. 10,90,893.99. (Rupees Ten lakh ninety thousand eight hundred ninety three and paise ninety nine only) Plus add 21% simple interest on Rs. 5,88,432.44 (Rs. 1,55,807.70 + Rs. 4,32,624.74) from 1st December 1987 upto 29th January 1988 when Rs. 70,359/- (Rupees Seventy thousand three hundred fifty nine only) were received from the respondents, and further interest on Rs. 5,18,9073.44 (Rs. 5,88,432.44 less Rs. 70,359) from 30th January, 1988 upto the date of the award. The petitioners filed a written statement disputing the claims. 5,88,432.44 (Rs. 1,55,807.70 + Rs. 4,32,624.74) from 1st December 1987 upto 29th January 1988 when Rs. 70,359/- (Rupees Seventy thousand three hundred fifty nine only) were received from the respondents, and further interest on Rs. 5,18,9073.44 (Rs. 5,88,432.44 less Rs. 70,359) from 30th January, 1988 upto the date of the award. The petitioners filed a written statement disputing the claims. The two Arbitrators made their Award on 7th September, 1989 in favour of the respondents which reads as follows : "After hearing the parties their respective Advocates and after considering the overall and documentary evidence produced before us, and after hearing the legal submissions of the respective Advocates, we pass the following award ...... We hereby award a sum Rs. 8, 08, 380.00 ( Rupees Eight Lakhs Eight Thousand Three Hundred and Eighty Eight only ) which includes Rs. 22,500.00 towards cost, to the claimants M/s. Ratan Surveyor Co. Any claims of either party made, not hereby dealt with in the award shall be treated as rejected. Sd/- Sd/- 7.9.89 7.9.89 (T.V.Prabhakaran) (S.G.Ranadive) Joint Arbitrators. 5. The grounds on which the petitioners challenge the Award are as follows: Grounds (a), (b) and (c) of Para-6 of the petition speak of S.G. Ranadive being biased. Ground (d) is that the Arbitrators had committed patent error by overruling and disallowing valid and vital questions of the petitioners' Counsel put to the respondents' main witness and thereby they had shown bias against the petitioners. Ground (e) was not pressed before this Court. Grounds (f) and (g) are that the Arbitrators showed their bias against the petitioners by first making a wrong record of the evidence given by Prof. A.K.De and corrected the same only after protest. Grounds (h), (i), (j) and (k) relate to the claim based on escalation of the market rate. Under ground (h) it is stated that this claim based on escalation was untenable as it was based only on the alleged promises made by Prof. A.K. De. Under grounds (i) and (j) it is stated that no legal obligation arises on the petitioners to make any payment on such promises. Under ground (k) it is stated that the Arbitrators had failed to appreciate that the respondents were not entitled to claim any increase in the rates in view of the express provision in the contract. A.K. De. Under grounds (i) and (j) it is stated that no legal obligation arises on the petitioners to make any payment on such promises. Under ground (k) it is stated that the Arbitrators had failed to appreciate that the respondents were not entitled to claim any increase in the rates in view of the express provision in the contract. Ground (I) is that the claim of the respondents was contrary to the provisions of Clause 37 of the Articles of Agreement between the parties. Ground (m) is that the Arbitrators failed to appreciate that the respondents' claim was wholly outside the scope of the Agreement between the parties and thereby the Arbitrators had misconducted themselves with reference to the arbitration proceedings. Grounds (n) to (mm) are made in general terms and the specific terms are those which are made in grounds (a) to (I). 6. The respondents have filed their reply denying the various grounds. 7. I will first deal, with the ground which imputes bias against the Arbitrator S.G.Ranadive. This allegation is that S.G. Ranadive had made an application during the pendency of the arbitration proceedings to the petitioners to include his name in the panel of Architects and that his application having been rejected, he held a bias against the petitioners. Now this was during the pendency of the arbitration proceedings. The petitioners ought not to have proceeded in the arbitration proceedings when they knew the above said objected conduct of S.G. Ranadive. After going through the arbitration proceedings without protest and after the Arbitrators having given their Award, it is now too late for the petitioners to say that the Award should be set aside on the ground that S.G. Ranadive held a bias against the petitioners. This, therefore, answers grounds (a), (b) and (c) of Para-6 of the petition. 8. I will now deal with the ground of bias shown by the Arbitrators by disallowing valid and vital questions which the petitioners wanted to put to Ratan Surveyor. In the Minutes of the arbitration proceedings of 28th January, 1989, Questions -15 reads as follows: "Q.15---In your Income - tax returns have you shown loss on account of this contract? 8. I will now deal with the ground of bias shown by the Arbitrators by disallowing valid and vital questions which the petitioners wanted to put to Ratan Surveyor. In the Minutes of the arbitration proceedings of 28th January, 1989, Questions -15 reads as follows: "Q.15---In your Income - tax returns have you shown loss on account of this contract? The Lawyer for the claimant objected to this question stating that my client's Income Tax returns are privileged and accounts are not required to the shown to claim compensation supported by statements." The objection was sustained by the Arbitrators. Then in the Minutes of 11th February, 1989, a question was put: "In your claim you have referred to loans taken and interest paid. What is the amount of loan taken and interest given? This question was overruled by the Arbitrators. It is urged that this refusal on the part of the Arbitrators to allow the above question to be put to the witness shows the bias of the Arbitrators. Now, it must be noted that the accounts of the respondents were not in issue. What was in issue was the increase in the market rate. That could be established by evidence from the market and not necessarily from the respondents' Account Book. At what rate the respondents purchased the various materials required and how much profit they gained or loss is not the point in issue while determining the inflationary rates or the escalation of prices. If the Arbitrators had come to the conclusion that it would be irrelevant to probe into the accounts of the respondents that would not be a matter from which I can draw a conclusion that they were biased against the petitioners and, therefore, they had misconducted themselves in disallowing this question. 9. Grounds (f) and (g) : There are un-revised notes as well as revised notes of the minutes of the proceedings before the Arbitrators held on 20th September 1988. The unrevised minutes show that Professor De had given a categorical "yes" to a question put to him. The petitioners objected to this record and subsequently revised notes of minutes were made and though "yes" answer is still there, there is an addition made and this, according to the petitioners, was the correct thing to have been recorded. The unrevised minutes show that Professor De had given a categorical "yes" to a question put to him. The petitioners objected to this record and subsequently revised notes of minutes were made and though "yes" answer is still there, there is an addition made and this, according to the petitioners, was the correct thing to have been recorded. Now from this alone one cannot say that there is deliberate "distortion" in recording evidence so that bias or misconduct on the part of the Arbitrators can be inferred. Secondly, there was a subsequent meeting on 22nd October, 1988 and there it is recorded : " Since the Joint Arbitrators decided to revise the minutes dated 20th September, 1988, IIT agreed to continue without protest." Thereafter the petitioners have proceeded to go through the entire arbitration proceedings and now after the Arbitrators have given an Award the petitioners cannot be allowed to rely upon this for setting aside the Award. 10. As regards grounds (h), (i), (j), and (k), they relate to escalation. It is urged that only the promises of Professor De have been relied upon by the respondents and this cannot form an agreement or contract and, therefore, the respondents cannot get the compensation which they have asked for under 'C' of their claim mentioned above. It is further urged that the respondents have shifted their claim in this regard from a claim under agreement to a claim of torts or damages and that such a claim would not fall under contract and, therefore, would not be arbitrable. How in the first place, it must be noted that the work done beyond the period of the contract was the same work which was included as part of the contract. It is clear from the manner of payment, submitting bills, issuing of certificates by the Architects etc. that all the terms of the original contract were being adhered to. It is only that this work was done beyond the period fixed in the original contract. This is similar to carrying out certain minor additions or extra work. These are minor changes of the main contract. Other terms of the contract would remain applicable. It would not be a de novo or a fresh or a new contract altogether. Nobody treated this as a new contract or a fresh contract. Under these circumstances, the term regarding arbitration would apply. These are minor changes of the main contract. Other terms of the contract would remain applicable. It would not be a de novo or a fresh or a new contract altogether. Nobody treated this as a new contract or a fresh contract. Under these circumstances, the term regarding arbitration would apply. Moreover, the arbitration clause itself states : "All disputes and differences of any kind whatever arising out of or in connection with the contract or the carrying out of the works (whether during the progress of the works or after completion, and whether before or after the determination, abandonment or breach of the contract) shall be referred to and settled by the Architect.... But if either the Employer or the Contractor be dissatisfied with the decision of the Architect.... then and in any such case either party (the Employer or the Contractor) may with twenty eight days after receiving notice of such decision give a written notice to the other party through the Architects requiring that such matters in dispute be arbitrated upon". The claim, therefore, arising in respect of the work carried out after the period as originally provided in the Agreement can properly be referred to arbitration under this clause. 11. It was urged that since the rates were fixed under the contract, the respondents could not claim any amount due to escalation in the prices of material or labour charges. Reliance is placed by Mr. Shetty on A.I.R 1960 S.C. 588 (M/s. Alopi Parshad v. Union of India)1. Now it is true that the respondents would not, under the Agreement in question, be able to claim any amount by way of damages or otherwise arising out of increase of the prices of material or labour charges during the period of the Agreement. However, the period under the Agreement had elapsed and it is in respect of the subsequent period that claim on account of enhancement of prices is sought. This is not covered by the decision in M/s. Alopi Parshad's case. As pointed out above, there was a certain change in the terms of the Agreement viz. However, the period under the Agreement had elapsed and it is in respect of the subsequent period that claim on account of enhancement of prices is sought. This is not covered by the decision in M/s. Alopi Parshad's case. As pointed out above, there was a certain change in the terms of the Agreement viz. the work proceeded beyond the period as originally agreed and the petitioners do not dispute that they would have to pay for the work done beyond the period of the original Agreement but it is their case that they would not be bound to pay any amount beyond the amount to be paid at the "agreed rate". Now there is no "agreed" rate in respect of the work done beyond the "agreed" period. It is not a case where the petitioners were un-aware that pricess had increased and respondents would be making a claim for higher amount than the amount agreed in the Agreement. They have taken the benefit of the contract work done by the respondents. If a proper contract cannot be spelt out only because of certain technicalities raised on behalf of the petitioners as to want of signatures of the proper authorities of the petitioners or non-agreement as to the rates, they would, in any case, have to pay on the basis of quantum merit. They cannot take benefit or advantage of work done, and then contend that there was no agreement to pay. On the basis of no agreement to pay, they could as well refuse to pay at all but what they want to do is to pay at a lower rate and not on the basis of quantum merit. I would, therefore, hold that the petitioners do not succeed on this argument also. 12. It is urged that the claim arising of Rs. 1,55,807.70 was an admitted amount and could not be arbitrated upon and, therefore, the arbitration proceedings in respect of that amount are null and void. Now, in the first place, no purpose would be served at this stage after the entire gamut of arbitration proceedings have been gone through and come to an end, to set at naught the proceedings granting a claim which even otherwise is admitted and I do not see any justification for setting, aside the Award in respect of a properly due sum. Secondly, from the record it cannot be said that there was totally no dispute. It is urged that the claim in respect of Rs. 1,55,807.70 was barred by limitation. The question of limitation depends upon various facts of the claim, refusal, payments, part payments, etc. The interim bills and payments, are subject to adjustment in the final certificate and payment. The final certificate is dated 8th October, 1984. The reference to arbitration was made on 5th August 1987. The Arbitrators Award is without reasons. On the face of the Award, it is not shown to be illegal or otherwise null and void. Hence, I cannot set aside the Award on this ground urged on behalf of the petitioners. 13. Under the circumstances, the petition is dismissed. There will be a decree in terms of the Award. There will be further interest at the rate of 10% per annum from the date of the Award till payment on two principal sums minus Rs. 70,000/- On Mr. Shetty's application, decree is stayed for six weeks from today. Issue of certified copy is expedited. Petition dismissed. -----