Jaspal Singh ( 1 ) THIS is the second battle of the award. The first was before Sunanda Bhandare J. , who by her order dated April 24, 1989, set aside the finding of the arbitrator on claim No. 7 and remitted the case back for fresh decision on claims No. 1, 2 and 5. This the arbitrator has done but the battle lines are still drawn. ( 2 ) HERE is the background. As per agreement No. 5/pe/agd-IV/ 81-82 the petitioner was awarded tender for providing and fixing door shutters on 201 DU s AGD-IV. Disputes and differences having arisen between the petitioner and the DDA, the same were referred to the sole arbitration of respondent No. 2 who made his award on August 12, 1986. It was this award which led to the order of Sunanda Bhandare, J. , as referred to above. Claim No. 7 which was set aside related to the award of pendente lite interest. As regards claims 1, 2 and 5 the award met its doom as the arbitrator had not given reasons for his conclusions which, under clause 25 of the agreement, he was under an obligation to do. Consequent upon that order the arbitrator has given a fresh award. What, however, is of significance is that it too has failed to win the approval of the Delhi Development Authority. That is why its objections under Sections 30 and 33 of the Arbitration Act leading to the following issues : (1) Whether the award is liable to be set aside on the grounds mentioned in I. A. 9250/88 ? (2) Relief. ( 3 ) DURING arguments the award in general was assailed on the ground that no reasons had again been given for the conclusions arrived at, and that, in any case, reasons, even if taken to have been given, were so "insufficient" and "devoid of reasoning" that they could hardly be accepted as "reasons". Coming to the specifics, and besides the objection in general already referred to in the preceding paragraph, the award on claim No. 1 was assailed on the following grounds : (A) It has gone beyond clause (1) of the agreement in as much as no payment was to be made on account of any deviations at the site. (B) No extra payment for the double-doors could be allowed as there was no such stipulation in the agreement. (B) No extra payment for the double-doors could be allowed as there was no such stipulation in the agreement. (C) As the shutters were to be supplied according to the actual measurements at site, the arbitrator could not have allowed 5% on account of wastage. (D) The tender being known to be for the ASIAD job, the award of 5% as additional expense on account of rush job, could not be allowed. (E) The agreement being only for wax polishing and no rates having been fixed for spirit polishing the award under claim l (e) at the rate of Rs. 19. 69 per sq. meter was not in consonance with the Delhi Schedule of Rates and the enhancement as given in the agreement. It was contended that the award should have been at the rate of Rs. 14. 39 per sq. meter. ( 4 ) WITH regard to claim No. 2, it was contended on behalf of the objector that as the delay of about six months in the completion of the job was attributable to the contractor and as the Senior Project Engineer, in terms of the agreement, had found the contractor to be at fault and had levied 1% compensation amounting to Rs. 7,106. 20 and as the said sum had been deducted from the final bill, and further as the increase in minimum wages was after the period fixed for completion of the work, the contractor could not be allowed any amount under clause 10-C on account of increase in the minimum labour wages, and that, in any case, the arbitrator had travelled beyond his jurisdiction by allowing the claim. The finding on claim No. 5 too came under fire. By it the arbitrator has allowed the refund of Rs. 7,106. 20 to the contractor. This amount was deducted on account of the levy of compensation by the Senior Project Engineer on account of six months delay in the completion of the work. It was argued that in view of the judgment of the Supreme Court in Vishwanath Sood v. Union of India1, the Arbitrator had no jurisdiction to allow the refund. ( 5 ) BEFORE, I come into grip with the objections raised and proceed to examine their nuts and bolts, a brief resume of the scope of Section 30 of the Arbitration Act and the principles underlying it is called for. ( 5 ) BEFORE, I come into grip with the objections raised and proceed to examine their nuts and bolts, a brief resume of the scope of Section 30 of the Arbitration Act and the principles underlying it is called for. However, even before that, and as lot of ammunition was deployed on it, the ambit and scope of the expression "give reason for the award" as contained in clause 25 of the agreement needs to be commented upon. ( 6 ) BEFORE, I do that, one thing is certain and it is that where the arbitrator is required to give reasons for the award, he need neither proceed to write a detailed judgment nor set out every process of reasoning. But reasons there must be. In Delhi Development Authority v. M/s. Alkaram2 a Division Bench of this court has held that the court is not entitled to examine the "reasonableness of the reasons". I was told during arguments, that in view of this dictum it would not be open tome to look into the "reasons" given and to examine them in any manner and that there was no option for me but to accept them "as they are", without any how or why. I refuse to be on the side of such an interpretation. I find it unpalatable,. abhorrent and unacceptable. There can be no bar, nor there should be any to the search as to whether what is advanced as a reason is in fact an "acceptable reason" or not, I am purposely prefixing "reason" with "acceptable", because a statement offered as a justification may constitute a reason and yet the court may, in certain circumstances, refuse to accept or treat it as a reason. An example taken from no other but Shakespeare would suffice : "i have no other but a woman s reason : I think him so because I think him so". We know of numerous distinctions of different types of reason e. g. discursive, or logical reason, intuitive reason ; speculative reason; theoretical reason ; practical reason and pure reason. But, what about this "woman s reason" ? Would the court be not justified in looking into such a reason and say it is not "reasonable", and as such unacceptable ? We know of numerous distinctions of different types of reason e. g. discursive, or logical reason, intuitive reason ; speculative reason; theoretical reason ; practical reason and pure reason. But, what about this "woman s reason" ? Would the court be not justified in looking into such a reason and say it is not "reasonable", and as such unacceptable ? ( 7 ) WHERE reason is required to be given, it becomes the very life of the award, for when the reason ceases, the award itself ceases. What then, is meant by reason ? The Kantian use of reason (See Vernunft and Verstand) need not be looked into andso also the technical distinctions of reason. For our purposes, it would mean a rational ground or motive. It is any sufficient ground of explanation. Coleridge calls it "rationalized understanding". The emphasis necessarily is thus on the ground or motive or understanding being rational or sufficient. And, if that be so, who will examine the rationality or sufficiency ? The court, of course. And while examining this, the court will insist not on a detailed judgment but "short intelligible indication of the grounds. . . . . . to find out the mind of the arbitrator for his action" (Indian Oil Corporation Limited v. Indian Carbon Limited)3. ( 8 ) TIME to examine a few limitations. There can be no better way to do so than to enumerate them in the very words of the legal luminaries. First, Lord Justice Atkin : "it is no ground for coming to a conclusion on an award that the 2. AIR 1982 Delhi 365. 3. AIR 1988 SC 1340 . facts are wrongly found. The fact have got to be treated as found. . . . . . Nor is it a ground for setting aside an award that there is no evidence on which the facts could be found, because that would be mere error in law, and it is not misconduct to come to a wrong conclusion in law and would be no ground for ruling aside the award unless the error in law appeared on the face of it". (Gillespie Bros. and Company v. Thompson Bros. and Company)4. (Gillespie Bros. and Company v. Thompson Bros. and Company)4. Second, Lord Denning Mr : "the weight of evidence and the inferences from it are essentially matters for the arbitrator, I do not think that the award of arbitrators should be challenged or upset on the ground that there was not sufficient evidence or that it was too tenuous or the like. One of the very reasons for going to arbitration is to get rid of technical rules of evidence and so forth. . . . . . Questions of evidence are essentially matters for the arbitrator and not matters for the court". (G. K. N. Centrax Gears Limited v. Matbro Limited5 ). Arid lastly Lord Dunedin in the celebrated Champsey Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Limited6. "an error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance a 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 then say is erroneous". What do these passages show ? They show that as a general rule when the award is good on its face, the parties cannot object to it either upon the law or the facts, that it is no misconduct on the part of an arbitrator to come to an erroneous decision and that the award cannot be set aside on the ground that the evidence was not sufficient or that it was too tenuous or the like. And lastly, while determining the question as to whether the award can be set aside for error which is on its face, the court cannot go into a document which is not actually incorporated thereto. A mere reference to the document may not suffice. The Supreme Court tells us: "the question whether a contract or a clause of,, it is incorporated in the award is a question of construction of the award. The test is, does the arbitrator come to a finding on the wording of the contract. If he does, he can be said to have impliedly incorporated the contract or a clause in it whichever be the case. But a mere general reference to the contract in the award is not to be held as incorporating it. The test is, does the arbitrator come to a finding on the wording of the contract. If he does, he can be said to have impliedly incorporated the contract or a clause in it whichever be the case. But a mere general reference to the contract in the award is not to be held as incorporating it. The rule thus is that as the parties choose their own arbitrator to be the Judge in the dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon the law or the facts. Therefore, even when an arbitrator commits a mistake either in law or in fact in determining the matters referred to him, but such mistake does not appear on the face of the award or in a document appended to or incorporated in it so as to form part of it, the award will neither be remitted nor set aside notwithstanding the mistake". M/s. Allen Berry and Co. v. Union of India7 ( 9 ) WITH the law, as noticed above, time now to come into grip with the objections raised, and the first question calling for determination is, is it a reasoned award ? One need not peep deep into these findings nor cause and ponder. A bare reading will show that mere conclusions and verdicts are given. True reason varies in its conclusion according to the idiosyncrasy of the individual, but here even such an idiosyncrasy is not discernible. I am conscious of the observations made by Lord Goddard, CJ that the modern tendency more especially in commercial arbitrations is to "endeavour to uphold awards of the skilled persons that the parties themselves have selected to decide the questions at issue between them". But then, lest we forget, he further laid down that such an endeavour shall be subject to the condition that the "arbitrator has acted within the terms of his submission. . . . " (See Medditerranean and Eastern Export Company Limited v. Fortress Fabrics Limited 8. In the present case, it was required of the arbitrator to give reasons which can be considered "cognet" (See Delhi Municipal Corporation v. M/s. Jagan Nath Ashok Kumar9. He has not given us any reason, neither cogent or convoluted. . . . " (See Medditerranean and Eastern Export Company Limited v. Fortress Fabrics Limited 8. In the present case, it was required of the arbitrator to give reasons which can be considered "cognet" (See Delhi Municipal Corporation v. M/s. Jagan Nath Ashok Kumar9. He has not given us any reason, neither cogent or convoluted. He has thus not only misconducted the arbitration proceedings but has also exceeded the terms of reference under which he was required to give reasons for his findings. Let me substantiate. Under claim l (a) the arbitrator mentions that there were small differences in the size of steel Chowkhats and that he "assessed the claim for discrepancies in measurements justified for (Rs. 2958+798+1740. 20+1903. 20+1756. 10)= Rs. 9,156". The first part is a statement of fact. A mere recitation of the evidence. The second is merely a finding, a conclusion. There is no reason as to why and on what basis the award of Rs. 9,516 was found "justified". In claim l (b) relating to floor locks the arbitrator mentions that it had been accepted by the respondents that "46 locks have been paid less. I had decided for 46 locks Rs. 4,600. should be further paid. " That less payment for 46 locks has been made is a statement of fact. The arbitrator gives no basis on which the figure of Rs. 4,600 was arrived at. Reasons being the links on the material adduced before the arbitrator on which certain inferences are drawn and conclusions are made there has to be some rational nexus to indicate in the award. It is this which is lacking here. ( 10 ) IN claim l (c) the award of Rs. 5,275 has been held to be justified but again no reason for awarding the amount is given. Of course, in the preceding sentence the arbitrator has noticed that : "original voucher put up by the claimant has shown that mortice latches and locks for double door were costlier than for single doors" but this is the recitation of the evidence led. It is not the reason for the conclusion arrived at (See : College of Vocational Studies v. ,s. S. Jaitley10. I am, however, still not finished with it. I shall have an occasion to deal with it again at a later stage. It is not the reason for the conclusion arrived at (See : College of Vocational Studies v. ,s. S. Jaitley10. I am, however, still not finished with it. I shall have an occasion to deal with it again at a later stage. ( 11 ) WITH regard to claims l (d) the arbitrator refers to the undertaking of the claimants that analysis of rates of panelled doors and flush door would be based on the prevailing market rates and any profit/loss due to this substitution would be deducted or added to the market rate of flush door shutters to be substituted. He notes that the analysis of panelled and flush door shutters had been worked out at the market rates on the basis of the above mentioned undertaking. However, besides those rates, he has held that 5% wastage should have been allowed as the shutters were to be fixed in steel chowkhats which had dimensional difference on top and bottom and that at least 5% additional expense should have been allowed as it was a "rush job for the ASIAD". Why 5%// only ? Why not less or more ? Similarly, the award of additional expense "atleast 5%11 is also devoid of any basis. In both the cases, I feel, the arbitrator was required to give reasons as to why he was assessing wastage or additional expenses at 5%. In any case he claims to have worked out the justified rates for flush doors as per appendix I. It makes an interesting reading. It refers to 7 types of flush doors. In the first the rate in the pre-final bill was given as Rs. 317. 87 per sq. meter and in the final bill at Rs. 263. 58 per sq. meter. He determined the rate at Rs. 327. 29 per sq. meter. In the second, the rate in the pre-final bill was Rs. 317. 87 per sq meter and in the final bill Rs. 352. 29 per sq. meter but he determined the rate at Rs 337. 29 per sq. meter. In the case of the third, though the rate in the pre-final bill was Rs. 282. 67 per sq. meter and in the final bill Rs. 225. 99, he determined at Rs. 285. 4. In the fourth, the rate in the pre-final bill was shown as Rs. 378. 18 per sq. meter while in the final bill at Rs. meter. In the case of the third, though the rate in the pre-final bill was Rs. 282. 67 per sq. meter and in the final bill Rs. 225. 99, he determined at Rs. 285. 4. In the fourth, the rate in the pre-final bill was shown as Rs. 378. 18 per sq. meter while in the final bill at Rs. 278. 79. He determind the rate at Rs. 351. 5. In the fifth, the rate in the pre-final bill was Rs. 378. 18 per sq. meter while in the final bill Rs. 265. 23. The arbitrator determined it at Rs. 361. 5 per sq. meter. In the sixth, whereas the rate in the pre-final bill was Rs. 239. 88 per sq. meter and in the final bill Rs. 184. 02, the arbitrator determined it at Rs. 228. 10 per sq. meter. And, in the last, in the pre final bill the rate was Rs. 239. 88 per sq. meter and in the final bill Rs. 190. 33 per sq. meter. The arbitrator determined it at Rs. 238. 10. One finds here also absolutely no reason for determining rates which are at variance with the rates as mentioned in the pre-final bill or in te final bill. We are kept in the dark as to why and how totally different rates have been determined. To say : "i have worked out the justified rates for flush doors as per Appendix I" to my mind amounts to no reason at all. ( 12 ) UNDER claim 1 (3) the arbitrator has also restored the reduction of Rs. 26,188. 3 with regard to the 2nd class Teak wood on the ground that the reduction "was not justified". Why was it not justified ? The arbitrator is silent over it and thus here again given us his finding sans any reason. ( 13 ) COMING to claim No. 2 which relates to claim towards enhancement of minimum labour wages as increased by the Delhi Administration, the arbitrator first refers to statements submitted by the claimants and then proceeds to say "i assess the claim was justified and the amount of Rs. 17,334,28 was awarded". The first part which precedes the finding only relates to the contention raised by the parties before the arbitrator and as such cannot be termed as reason. 17,334,28 was awarded". The first part which precedes the finding only relates to the contention raised by the parties before the arbitrator and as such cannot be termed as reason. And in support I seek to draw force from College of Vocational Studies v. S. S. Jaitley. Reference particularly may be made to paragraphs 21 and 22 of the report. It was argued on behalf of the claimant that the objector had admitted the claim for Rs. 10,707 and in this connection my attention was drawn to the sentence : "this was checked by respondents also" as appearing in the award. I fear this sentence does not lead to the conclusion that there was an admission. In any case this finding appears to be perverse as it ignores the report of the Chief Project Engineer which says that the delay was on account of the claimants. I am referring to this document as it is specifically referred to in the award itself. Besides what has been noticed above, the objection that the arbitrator acted beyond jurisdiction still remains to be noticed and discussed. The objection was raised specifically with regard to findings under claims l (a), l (c), l (d) (3) and claims 2 and 5. As regards claims l (a), l (c) and l (d) (3) my attention was drawn to Special Condition No. 1 as contained in the agreement which runs as follows : 1. The sizes given in the schedule of shutters on page 19 are tentative meant only for the guidance of the tenderers. The shutters shall however be manufactured as per actual shutter sizes as per-pressed steel door frames (already fixed at site) to be individually measured by the tenderers. Cutting to width of styles and rails shall not be allowed. No dimensions of width of rails and styles shall be per drawing but within tolerance limits as per CPWD specifications. No claim whatsoever shall be entertained by the Department in respect of deviations in actual sizes of shutters as per site conditions and those given in schedule of shutters on page 7". (emphasis supplied ). It was argued that as it had specifically been agreed that no claim whatsoever shall be entertained by the department "in respect of deviations in actual sizes of shutters as per site conditions and those given in schedule of shutters," therefore, award of Rs. (emphasis supplied ). It was argued that as it had specifically been agreed that no claim whatsoever shall be entertained by the department "in respect of deviations in actual sizes of shutters as per site conditions and those given in schedule of shutters," therefore, award of Rs. 9,156 on account of "small differences in the size of steel chowkhats" under claim l (a) or the award of 5% wastage on account of "dimensional differences at top and bottom" in the steel chowkhats under claim l (d) (3) would be beyond jurisdiction. ( 14 ) AS regards claim l (c) which relates the provision of 501 mortice latches and locks for double doors, the claim for Rs, 5,275 has been allowed in the award because mortice latches and locks for double doors had been shown to be "costlier than for single doors". It was argued that there being no stipulation in the agreement for extra payment for double doors, the arbitrator exceeded his jurisdiction in this respect also. ( 15 ) AS regards claims Nos. 2 and 5, the first relates to the claim towards increase in minimum wages of labour and the second to the levy of compensation by the Chief Project Engineer on account of delay in execution of work. It may be noted that increase in minimum wages had become operative after the lapse of the period fixed for execution of the work. It was argued that as the Senior Project Engineer had given a finding that the claimant was guilty of delay and as his decision was final, the arbitrator had no authority or jurisdiction under the contract to go into the matter and adjudicate. ( 16 ) THE claimant, however, took the stand that as the contract had not been specifically referred to in the award, it would not be open to me to look into the same, or for that matter, into the special conditions. Truly, it has been held in number of judgments that unless the documents are incorporated in the award, the court cannot look into them. However, a closer look into them would reveal that they relate to disputes within the award. And, it is this which distinguishes such disputes from a dispute as to the jurisdiction of the arbitrator. Truly, it has been held in number of judgments that unless the documents are incorporated in the award, the court cannot look into them. However, a closer look into them would reveal that they relate to disputes within the award. And, it is this which distinguishes such disputes from a dispute as to the jurisdiction of the arbitrator. It need hardly be mentioned that an arbitrator cannot, nor can he be allowed to, arrograte to himself jurisdiction over a question otherwise than in accordance with the contract. He must act within the parameters of the contract and once he transgresses that limit, he becomes guilty of exceeding his jurisdiction and its natural fall-out would be the setting aside of the award. To say, in such a case, that the court cannot go into the contract or other documents not referred to specifically in the award, would tentamount to encouraging the arbitrator to wander far outside the assigned territory, outstep the confines of the contract and deal with matters totally forbidden or not allotted to him. This cannot and must not be permitted. It must, thus, remain open to the court while looking into the question as to what the jurisdiction of the arbitrator is, to have recourse to outside sources which obviously, would include the contract as well. ( 17 ) THE doors being wide open to me to peep into the provisions of the contract, what does clause 1 of the Special Conditions show ? The clause already stands reproduced above and it shows clearly and unmistakenly that the sizes given in the Schedule of shutters were merely tentative meant only "for the guidance" of the tenderers, that shutters were required to be manufactured "as per actual shutter sizes. . . . . . to be individually measured by the tenderers and that : "no claim whatsoever shall be entertained by the Department in respect of deviations in actual sizes of shutters. . . . . ". This being the position how could the arbitrator award Rs. 9,156 under claim l (a) on account of "small differences in the size of steel chowkhats" or 5% wastage under claim l (d) (3) on account of "dimensional differences at top and bottom" in the steel chowkhats ? . . . . ". This being the position how could the arbitrator award Rs. 9,156 under claim l (a) on account of "small differences in the size of steel chowkhats" or 5% wastage under claim l (d) (3) on account of "dimensional differences at top and bottom" in the steel chowkhats ? The vice of jurisdiction hits the grant of additional expense at 5% under l (d) (5) also, there being no such stipulation in the contract. Coming to claim l (e), the contract or the Special Conditions incorporated therein nowhere stipulate extra payment for double door mortice latches and locks. Neither clause 10 which relates to "aluminium fittings" nor clause II which deals with "mortice latches and lock and mortice latch" authorises any such additional payment. It was argued on behalf of the claimant that as the Delhi Development Authority had not challenged the claim in their own letter dated July 17, 1989, addressed to the arbitrator and as from the proceedings dated October 10, 1985, it was clearly borne out that the difference of price was Rs. 7. 50 per lock, therefore, the arbitrator was fully justified in allowing the claim. I, however, find myself unable to subscribe to this view. The letter in question was in response to the direction of the arbitrator. This is borne out from the very first sentence of the letter: "as directed by the arbitrator during hearing on 3. 7. 1989 . The direction was to furnish details of the double leaf shutters and the arbitrator was informed that there were 501 double leaf door shutters. Where was thus the occasion to raise any challenge ? Of course, it does appear from the proceedings that mortice latches and locks for double doors are costlier. In the proceedings of October 10, 1985 it was claimed that they were costlier by "about Rs. 7. 50 per lock". However, the vouchers were shown in proceedings of May 7, 1986 and as per them such locks were costlier only by 4. 90 per piece. Calculated at the rate of Rs. 7. 50 per lock, the additional amount for 501 locks comes to Rs. 3,757. 50 only while at Rs. 4. 90 per lock it comes to Rs. 2,454. 90. The arbitrator has allowed Rs. 5,275. On what basis ? We are not informed as no reason is given. 90 per piece. Calculated at the rate of Rs. 7. 50 per lock, the additional amount for 501 locks comes to Rs. 3,757. 50 only while at Rs. 4. 90 per lock it comes to Rs. 2,454. 90. The arbitrator has allowed Rs. 5,275. On what basis ? We are not informed as no reason is given. It is because of all this that I mentioned earlier that I was not inclined to subscribe to the argument advanced by the learned counsel for the claimant. I strongly feel that here again the arbitrator has acted independently of the contract in as much as the contract does not postulate payment of any escalation or additional amount. ( 18 ) TIME now to come into grip with Claims No. 2 and 5. Claim No. 2 is under clause 10-C of the Contract which entitles the contractor to claim in the increase in wages of labour as a direct result of coming into force of any fresh law "during the progress of the works provided always that any increase so payable is not, in the opinion of the Senior Project Engineer (whose decision shall be final and binding) attributable to delay in the execution of the contract within the control of contractor". The clause further requires : "the contractor shall, within a reasonable time of his becoming aware of any alteration in the prices of any such materials and/or wages of labour give notice thereof to the Engineer-in-charge stating that the same is given in pursuant to this condition together with all informations relating thereto which he may be in a position to supply. "coming to clause No. 5, as arguments centered round clause No. 2 and the relevant portion of clause 25 of the contract, I feel tempted to reproduce the same. They run as follows : "clause 2 The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be deemed to be of the essence of the contract on the part of the contractor and shall be reckoned from the tenth day after the date on which the order to commence the work is issued to contractor. The work shall throughout the stipulated period of the contract be proceeded with all due diligence and th e contractor shall pay as compensation in amount equal to one per cent, or such smaller amount as the Senior Project Engineer, Delhi Development Authority (whose decision an writing shall be final) may decide on the amount of the estimated cost of the whole work as shown in the tender, for every day that the work remains uncommenced or unfinished, after the proper dates. And further, to ensure good progress during the execution of the work, the contractor shall be bound in all cases in which the time allowed for any work exceeds, one month (save for special jobs) to complete one eighth of the whole of the work before one-forth of the whole time allowed under the contract has elapse ; three-eighth of the work, before one half of such time has elapsed and three-fourth of the work, before three-fourth of such time has elapsed. However, for special jobs if a time schedule has been submitted by the Contractor and the same has been accepted by the Engineer-in-charge, theontractor shall comply with the said time schedule. In the event of the contractor failing to comply with this condition, he shall be liable to pay as compensation, an amount equal to one per cent or such smaller amount as the Senior Project Engineer, Delhi Development Authority (whose decision in writing shall be final) may decide on the said estimated cost of the whole work for every day that the due quantity of work remains incomplete ; provided always that the entire amount of compensation to be paid under the provisions of this clause shall not exceed ten per cent on the estimated cost of the work as shown in the under". "clause 25 Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instruction herein before mentioned and as to the quality on workmanship or materials under on the work or as to any other questions, claim, right matter or thing whatsoever, in any way arising out of or relating to the contract designs drawings, specifications, estimates, instruction, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Engineer Member Delhi Development Authority at the time of dispute. It will be no objection to any such appointment that the arbitrator so appointed is a Delhi Development Authority employee that he had to deal with the matters to which the contract relates and that in the course of his duties as Delhi Development Authority employee he had expressed view on all or any of the matters in dispute or difference. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Engineer Member Delhi Development Authority as aforesaid at the time of such transfer, vacation of office or inability to act shall appoint another person to act as arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed by such Engineer Member, Delhi Development Authority as aforesaid should act as arbitrator and, if for any reason, that is not possible, the matter is not to be referred to arbitration at all. In all cases, where the amount of the claim in dispute is Rs. 50,000 (Rupees fifty thousand) and above the arbitrator will give reason for the award. ( 19 ) IT was argued on behalf of the objector authority that as the Senior Project Engineer had found the claimant guilty of six months delay in the execution of the work and had, consequently, levied compensation amounting to Rs. 7,106. 50,000 (Rupees fifty thousand) and above the arbitrator will give reason for the award. ( 19 ) IT was argued on behalf of the objector authority that as the Senior Project Engineer had found the claimant guilty of six months delay in the execution of the work and had, consequently, levied compensation amounting to Rs. 7,106. 20, the arbitrator had no jurisdiction to go into it and make an award under claims 2 and 5. As already noticed, reliance was placed on the judgment of the Supreme Court in Vishwanath Sood s case. However, on the other hand it was contended that the judgment in Vishwanath Sood s case was clearly distinguishable as Clause 2 of the contract is different in material particulars from the condition in the said case. The clause before the Supreme Court was as follows : Compensation for delay : The time allowed for carryingout the work as entered in the tender shall be strictly observed by the contractor and shall be deemed to be the essence of the contract on the part of the contractor and shall be reckoned from the fifteenth day after the date on which the order to commence the work is issued to the contractor. The work shall throughout the stipulated period of the contract be proceeded with all due diligence and the contractor shall pay as compensation an amount equal to one per cent, or such smaller amount as the Superintending Engineer (whose decision in writing shall be final) may decide on the amount of the estimated cost of the whole work as shown in the tender for every day that the work remains uncommenced or unfinished, after proper dates. And further, to ensure good progress during the execution of the work, the contractor shall be bound in all cases in which the time allowed for any work exceeds, one month (save for special jobs to complete one eighth of the whole of the work before one-fourth of the whole time allowed under the contract has elapsed; three-eighth of the work, before one-half of such time has elapsed, and three-fourth of the work, before three-fourth of such time has elapsed. However, for special jobs if a time schedule has been submitted by the contractor and the same has been accepted by the Engineer-in-charge, the contractor shall comply with the said time schedule. However, for special jobs if a time schedule has been submitted by the contractor and the same has been accepted by the Engineer-in-charge, the contractor shall comply with the said time schedule. In the event of the contractor failing to comply with this condition, he shall be liable to pay as compensation and amount equal to one per cent or such smaller amount as the Superintending Engineer (whose decision in writing shall be final) may decide on the said estimated cost of the whole work for every day that the due quantity of work remains incomplete ; provided always that the entire amount of compensation to be paid under the provisions of this clause shall not exceed 10 percent, on the estimated cost of the work as shown in the tender. " I see hardly any difference between the two clauses which may be termed as "material". The clause relating to arbitration is also not materially different in both the cases. I, therefore, find no reason to disassociate myself from the judgment in Vishwanath Sood s case. The principal question is whether the Arbitrator could sit over the finding of the Engineer concerned, ignore and override it and despite it, make the award. I feel that this he could not do. By doing so, he not only set over the finding of the senior Project Engineer which was "final" and thus excluded the jurisdiction of the arbitrator, but also reduced to meaninglessness the expression : "except where otherwise provided in the contract" as contained in clause 25 of the contract. ( 20 ) BEFORE bringing down the curtain, a word, or two with regard to claim l (c) also. With regard to it, it was contended that the award ought to have been at the rate of Rs. 14. 39 per sq. meter instead of Rs. 19. 69 and in support reliance principally was placed on the Delhi schedule of rates but I find the contention devoid of force for two reasons. First that as the quotation for wax polish itself was accepted at Rs, 12 per sq. meter which was much above the Schedule of Rates, the said schedule loses its sanctity on this score alone. Secondly, appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. First that as the quotation for wax polish itself was accepted at Rs, 12 per sq. meter which was much above the Schedule of Rates, the said schedule loses its sanctity on this score alone. Secondly, appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It will not be open to this court to take upon itself the task of being a Judge of the evidence before the arbitrator. May be he reached wrong conclusions May be he has failed to appreciate facts. It is not within the domain of this court to sit judgment over it. ( 21 ) WHAT then is the ultimate result ? Under Claim No. 1, the award under sub-claims l (a), l (b), l (c), l (d) and l (f), (3) are set aside for want of "reasons". The award under sub-claims l (a), l (d) (3) and 1 (d) (5) under Claim No. 1 is also set aside on the point of jurisdiction. The award under claims 2 and 5 also stands set aside on the point of jurisdiction. Thus the award as far as it relates to claims l (e), l (f) (l), l (f) (2), l (f) (4), l (f) (5) and 1 (0)6) is made the rule of the court and decree is passed in terms thereof. The case as far as it relates to claims l (b), l (c), l (d) [barring l (d) (3), l (d) (5)] and l (f) (3) is remitted back to the arbitrator who shall give a fresh reasoned decision on them within four months from today. No costs.