STATE OF WEST BENGAL v. JADU NATH DAS — 1991 DIGILAW 91 (CAL)

MONORANJAN MALLICK, J. ( 1 ) THE Court : This is an application u/s. 30 read with section 33 of the arbitration Act, 1940 praying for setting aside of the Award made by S. S. Chatterjee, Sole Arbitrator dated 26. 9. 89. An application u/s. 5 of the Limitation Act has also been filed for condoning the delay in moving this application. ( 2 ) FACTS may be briefly stated as follows : pursuant to invitation of tender issued by the applicant, the respondent on or about 4. 1. 83 submitted its tender being Tender No. 8 of 1983-84 for house to house garbage collection, carrying and disposal in Sectors I, II and III, Salt Lake City for the period 1983-84, 1984-85 and 1986-87 at the rates mentioned in para 1 to the petition. The petitioner on 23. 2. 83 accepted the tender and issued the work order in favour of the respondent being Works No. 0648 (E) dated March 14, 1983 through Executive engineer, Bidhannagore Municipal Services Division. A contract in West Bengal Form No. 2911 also containing special. Terms and Conditions and General Specification was executed between the respondent and the applicant through the Administrator, Bidhannagore. On or about August 22, 1984 the petitioner and the respondent entered into another contract in respect of Tender No. 222 of 1983-84 "for removal of garbage from Salt Lake City Sectors I, II and III during 1. 9. 83 and 31. 8. 84 to the dumping ground, which was also extended from time to time till March 1987 on the terms and conditions specified in the para 5 to the petition. ( 3 ) THE respondent submitted its R. A. Bills from time to time and received payment thereon, After 5th December, 1988 when the respondent submitted the log book maintaining terms of the contract between the parties, the Department of the petitioner could pay the final bill of Rs. 16,500/ -. Thus, the total bill. value including for the extended period upto January, 1988 in the sum of Rs. 864,317/- was paid and the security deposit balance of Rs. 20,831/- was collected on 1st week of January, 1989. The respondent had collected 80% of the security deposit earlier before the payment of the final bill as aforesaid. 16,500/ -. Thus, the total bill. value including for the extended period upto January, 1988 in the sum of Rs. 864,317/- was paid and the security deposit balance of Rs. 20,831/- was collected on 1st week of January, 1989. The respondent had collected 80% of the security deposit earlier before the payment of the final bill as aforesaid. On the aforesaid Tender No. 8 of 1983 coming to an end on or about March 31, 1987 the Department of the petitioner by letter dated 1. 1. 87 enquired from the Contractor what his charges would be if he were to continue till 311. 12. 87. On considering the Contractor's offer the Department finally accepted a rate of Rs. 27,000/- over 1986 rate as aforesaid and the contractor continued to work of collecting the garbage till January, 1988 on terms above. The Department by its letter dated 2. 8. 85 enquired of the respondent what rates it would charge to collect till garbage from the big Housing Estates in Salt Lake. The respondent submitted the rate of Rs. 236/- per day. However, no tender was granted to the respondent in respect of the big Housing Estates and those Estates made their own arrangements to remove the garbage on the ground floor and the same is to be removed by the Respondent the Contractor of Tender No. 222 of 1983 as aforesaid from the ground floor of the said big Housing Estate to the dumping ground. ( 4 ) STRANGELY the respondent without doing any extra work wrongfully raised 3 supplementary claims, there being no written direction from the Departmental Officers in regard to any of the heads of claims made in the supplementary claims and there being no acceptance by the Department of any of the three supplementary claims. There is no basis at all for any of the supplementary claims except for being collected from April, 1983 to August, 1983 the garbage on ceremonial occasions such as Sradh, marriage and birth day as per written request by the Departmental Officers for which the claimant was requested to produce the relevant documents. After August, 1983 the Administrator issued directions to its Department to place Dustbins on payment of a fee of Rs. After August, 1983 the Administrator issued directions to its Department to place Dustbins on payment of a fee of Rs. 30/- for such ceremonial occasions and the garbage used to be removed under Tender No. 222 of 1983-84 in terms thereof and the respondent herein has had nothing to do therewith from August, 1983 at all. Each of the alleged aforesaid supplementary claims was submitted after the alleged period of work and therefore apart from they not having performed any alleged extra work which could be prevented the alleged claims being submitted after expiry of alleged period which the alleged claims relate to the question of preventing the Contractor from executing the work or availing the benefit thereunder did not and cannot arise. The petitioner has challenged each and every item of the supplementary claims and has contended that even if there is no basis for such claims the said claims not having been authorised by a written order could not have been basis for any claim to be made before the Arbitrator. But the Ld. Arbitrator even though no part of claim was proved at all by leading the evidence and the each of the claim was barred by limitation allowed the said supplementary claims and made and published as award to the extent of Rs. 5,67,795/ -and also directed that if the award money is not paid before 31st December, 1989 the petitioner shall have to pay interest @ % per annum till the full payment is made. The petitioner being aggrieved has filed this application for setting aside the award and as some delay was made in filling those application, an application for condoning the delay has so been made. ( 5 ) THE Award of the Arbitrator has been challenged on the main following grounds :-1. The Arbitrator committed a misconduct by not deciding the question of limitation and was under an obligation to hold categorically that the claims made by the Respondent-Contractor are not barred by limitation and in not holding as such the Arbitrator is guilty of legal misconduct and the Award is liable to be set a-side. 2. The Ld. The Arbitrator committed a misconduct by not deciding the question of limitation and was under an obligation to hold categorically that the claims made by the Respondent-Contractor are not barred by limitation and in not holding as such the Arbitrator is guilty of legal misconduct and the Award is liable to be set a-side. 2. The Ld. Arbitrator in his Award referred to imaginary counter-claim made by the State when in fact no such claim or counter-claim was or were and/or filed by the State of West Bengal and consequently the Arbitrator is guilty of total non-application of mind and as such Award is liable to be set aside. 3. Disputes referred to Arbitrator are out of Tender no. 8 of 1983-84 but strangely the Contractor made supplementary claims for doing extra works for another tender being Tender No. 222 of 1983-84 and as such, supplementary claims were beyond the scope of reference and contrary to the terms and conditions of the agreement. 4. The supplementary claims made by the Contractor were based; on no evidence or material. 5. In the Sixteenth sitting of the Arbitrator it was directed by the Arbitrator that the Respondent-Contractor by letter would disclose some documents and the petitioner State would furnish their comments and thereafter the Arbitrator would make his Award. But without wanting for submission of aforesaid documents by the Contractor and comments by the State, the Arbitrator made and published his Award and no notice was given to the parties intimating them that due to default of the parties the Arbitrator would make and publish his Award. Hence, the Arbitrator is guilty of misconduct as he has acted contrary to the principles of natural justice. 6. Some interim payments have peen made by the petitioner as per direction of the Arbitrator. But while passing the Award, the Arbitrator has not taken into consideration such payment's by the petitioner-State inasmuch as the Arbitrator has stated that "i do hereby make and publish my first and final Award". The Arbitrator is, therefore, guilty of total non-application of mind and his Award is liable to be set aside. ( 6 ) THE respondent has filed an Affidavit-in-Opposition contesting the petition. The Arbitrator is, therefore, guilty of total non-application of mind and his Award is liable to be set aside. ( 6 ) THE respondent has filed an Affidavit-in-Opposition contesting the petition. It is submitted that the Arbitrator has the jurisdiction to decide as to whether the claim or any part thereof is barred by limitation or not and when the Arbitrator in his award came to the positive finding that the claim was not barred by limitation, he entered into the merits of the claim and passed a lump sum non-speaking Award and, therefore, the contention of the petitioner that the Arbitrator did not consider the point of limitation is not correct. It is also contended that even on the fact of the allegations made in the petition the respondent's claim cannot be barred by limitation, that the reference was sought for on 8th April, 1988 whereas the respondent's claim under the first supplementary tender was rejected on 28th May, 1985, second supplementary tender on 7th March, 1988 and third supplementary tender was submitted on 10th March, 1988 and had not yet been disputed or challenged prior to the date on which the reference was sought. It is, therefore, submitted that none of the claims under the supplementary tender or claim, as the case may be, is barred by limitation. ( 7 ) IT is also denied that the respondent's supplementary claims arose out of the Tender No. 222 of 1983-84 but it is contended that those are the supplementary tenders arising in connection with Tender No. 8 for which works under the claim were done under the orders of the respondent authority and the respondent authority after getting those works done could not refused to make payment therefor, when admittedly the contractor- Respondent could not have done it gratitiously. ( 8 ) IT is also disputed that the Arbitrator was guilty of non-application of mind or that the Arbitrator has passed the Award even though there is no evidence in support of the claims. ( 8 ) IT is also disputed that the Arbitrator was guilty of non-application of mind or that the Arbitrator has passed the Award even though there is no evidence in support of the claims. It is contended that the respondent produced all the relevant documents before the Arbitrator and the petitioner also produced necessary documents and the Arbitrator on considering those documentary evidence produced by the parties and on hearing the arguments made by the parties and their counsel made and published the Award and it being non-speaking Award and there being no error apparent on the fact of the Award the same cannot be challenged as illegal. The respondent concedes that the Arbitrator gave the respondent liberty to produce documents but he could not produce any document before the Arbitrator and therefore, no question arose for the Arbitrator to give any opportunity to the present petitioner to give their comments and the Arbitrator having made the Award on the materials already before him cannot be held guilty of misconduct as he has not violated the principle of natural justice. It is also submitted that the petitioner seeks to make out new ground at the time of the hearing for which there is no foundation in the petitioner filed u/s. 30 read with section 33 of the Arbitration Act. ( 9 ) THE petitioner-State of West Bengal filed the Affidavit in Reply contesting all the submissions made by the respondent and has reiterated the contentions raised in the main petition and has annexed some documents in such Affidavit-in-Reply. ( 10 ) BEFORE entering into the merits of the application I would first dispose of the petitioner's application u/s. 5 of the Limitation Act. The petitioner in his application u/s. 5 has explained sufficiently the delay made by the petitioner in filing the application and has explained as to why the petitioner could not present this application within 30 days from the service of notice u/s. 14 (2) of the Arbitration Act. ( 11 ) THE Ld. Advocate for the respondent has not also seriously contested those allegations made in the petition explaining the delay. In the circumstances, I am satisfied that there was sufficient cause for the petitioner in making delay in filing those applications and such delay is condoned u/s. 5 of the Limitation Act and the application is consequently taken up for hearing on merits. In the circumstances, I am satisfied that there was sufficient cause for the petitioner in making delay in filing those applications and such delay is condoned u/s. 5 of the Limitation Act and the application is consequently taken up for hearing on merits. ( 12 ) THE first ground which the petitioner has taken in challenging the Award is that the Ld. Arbitrator committed a grave misconduct in not examining as to whether the claims of the respondent- Contractor are barred by law of limitation or not when before the Ld. Arbitrator such a plea was specifically taken. A Division Bench Decision of Calcutta High Court reported in AIR 1985, Cal. Page 12 (State of West Bengal v. M/s. A. Mondal) has been cited where the Arbitrator without deciding the plea of the respondent that the claim of the claimant was barred by limitation and Arbitrator implied that appellant's plea that the respondent's claim was barred by limitation was turned down by Court when the matter was referred to Arbitration the Division Bench held that the arbitrator was guilty of misconduct in not deciding the said contention of the appellant that the claim of the respondent- Contractor was barred by limitation. ( 13 ) ON behalf of the respondent it is submitted that it is not disputed by the respondent that before deciding claim on merits the Arbitrator had to decide the plea of the State of West Bengal as to whether the claim was barred by limitation or not. But the respondent has drawn my attention to the Award made by the Arbitrator in which the Arbitrator has specifically held that none of the claim of the respondent is barred by limitation and after coming to the said finding, the Ld. Arbitrator decided to consider the respondent's claim on merits and then passed the Award which is challenged before this Court, It is, therefore, submitted that it is not a case in which the Arbitrator refused to exercise his jurisdiction to consider the petitioner's plea that the claims of the respondent was barred by limitation and the Award of the Arbitrator cannot be vitiated on that ground. It is submitted that from the papers produced before the Arbitrator he had sufficient ground to come to the finding that the claim was not barred by limitation and the said finding cannot be held to be a perversed finding. It is submitted that from the papers produced before the Arbitrator he had sufficient ground to come to the finding that the claim was not barred by limitation and the said finding cannot be held to be a perversed finding. ( 14 ) ON perusal of. the Award I am satisfied that the Arbitrator has given a positive finding that the claims of the respondent-Claimant were not barred by limitation. Therefore, it is not a case in which the Arbitrator refused to exercise his jurisdiction to consider the petitioner's plea of limitation. ( 15 ) ON behalf of the respondent it is pointed out that three supplementary tenders submitted by the respondent under Tender No. 8 of 1983-84 were the subject matter of Arbitration. That the first supplementary claim was rejected by the respondent on 28th May, 1985, second supplementary tender was rejected on 7th March, 1988 and the third supplementary tender was submitted by the respondent on 10th March, 1988 and when the reference was sought for on 8th April, 1988 the said supplementary tender was still pending and had not yet been rejected or disputed when the respondent asked for arbitration. ( 16 ) IT is, therefore, submitted that when the reference was sought for within three year's of the refusal of the first supplementary tender then there was sufficient material before the Ld. Arbitrator to come to the finding that the claim was not barred by limitation. The learned Advocate for the petitioner has referred to lnder Singh Rekhi v. DDA, AIR 1988 SC 1007 and has submitted that the first supplementary claim was submitted in January 24, 1984 for the period of work from April 4, 1983 to January 21, 1984 and the cause of action of such claim according to above Supreme Court decision would arise on January 24, 1984. So the said claim is not barred by limitation. ( 17 ) A dispute for Arbitration arises when there is a claim and the denial and repudiation of the claim. So the said claim is not barred by limitation. ( 17 ) A dispute for Arbitration arises when there is a claim and the denial and repudiation of the claim. Admittedly, in this case three supplementary claims were submitted, So far as the second and third supplementary claims are concerned those were submitted within a few days prior to the date when the Arbitration was sought for in April, 1988, As regards the first supplementary claim the same was submitted prior to three years of the date on which the reference was sought for no doubt but the claim was denied and refused only on 25th May, 1985. Therefore, the cause of action would definitely arise when the claim was repudiated. In view of the above, the Ld. Arbitrator rightly came to the finding that none of the claims was barred by limitation. I am unable to hold that he committed any misconduct in taking that view. ( 18 ) THE Ld, Advocate for the petitioner has also challenged the Award of the Arbitrator on the ground that the Arbitrator was guilty of complete non-application of mind inasmuch as even though there was no such counter-claim made by the respondent, he seems to have passed the Award on the said imaginary counter-claim also and the Award is, therefore, vitiated. It is also pointed out that some interim payments were made by the petitioner-State of West Bengal as per direction of the Arbitrator and such payments have been confirmed by the Arbitrator himself in the minutes of the 15th sitting annexed to the Affidavit-in-Reply by Anadi Nath Baishistha in June, 1990 but while making the final Award the Ld. Arbitrator has not taken into consideration such payment made by the State of West Bengal inasmuch as the Arbitrator has stated that "i do hereby make and publish my first and final Award". So, it is contended that the Arbitrator is guilty of complete non-application of mind. ( 19 ) ON behalf of the respondent it is contended that this is a new plea which the petitioner's Ld. Advocate has sought to take at the time of the hearing. So, it is contended that the Arbitrator is guilty of complete non-application of mind. ( 19 ) ON behalf of the respondent it is contended that this is a new plea which the petitioner's Ld. Advocate has sought to take at the time of the hearing. No such plea was taken in any of the grounds of the petition and as no new plea could be taken at the time of the argument not taken in :he petition, same being barred by limitation, this new plea cannot be entertained at the time of the hearing. ( 20 ) I am of the view that the petitioner has not taken the plea that he Award is vitiated by non-application of mind and it is not open to the petitioner to take that plea at the time of the hearing. No new ground can be taken by the petitioner challenging the Award not taken in the original petition and there are sufficient judicial decisions of the Supreme Court and our High Court on this point and the Ld. Advocate for the respondent has preferred to me the Supreme Court decisions reported in AIR 1990 SC 1340 , AIR 1959 SC 13157 and the Calcutta High Court Decision of AIR 1987 Cal. 126 and 1980 (1) Calcutta Law Journal 138. He also draws my attention to Page 509 of Russel on Arbitration 19th Edition where the Ld. Author has also observed that unless the attention of the opposing party to the defect is pointed out or objections are specifically stated with particulars, the rules must be discharged. ( 21 ) IT is true that the petitioner has not taken the plea in the petition u/s. 30 of this Act that the Award is vitiated for non-application of mind. Therefore, such new ground cannot be permitted to be taken at the stage of hearing. Moreover, so far as the question of any payment being made during Arbitration is concerned there is nothing to show that the Arbitrator has made any interim Award for making such payment. If during Arbitration some payments are made and the same is recorded by the Arbitrator in the minutes it cannot be held that the Arbitrator made any interim award. So, I do not find any illegality of the Arbitrator holding that the Award which he has passed in this first and final order. If during Arbitration some payments are made and the same is recorded by the Arbitrator in the minutes it cannot be held that the Arbitrator made any interim award. So, I do not find any illegality of the Arbitrator holding that the Award which he has passed in this first and final order. ( 22 ) IN AIR 1987, Cal. 126 Mrs. Pratibha Bonnerjea, J. has observed that when there was in fact no counter-claim but the Arbitrator erroneously took into consideration such imaginary counter-claim and passed an Award thereof, the Award is vitiated by non-application of mind. I have carefully considered the Award made in this particular case. In the earlier portion of the Award the Arbitrator clearly indicated that he was only taking into consideration the statement of claims and counter-claims of the parties. In the latter portion of the Award he has, however, observed that he was making the Award in full and final settlement of all the claims and counter-claims of the parties that has been referred to him. But on considering the whole Award I am of the view that it was merely a mis-statement and does not indicate that the Arbitrator had made the award in complete non-application of mind. I am satisfied that he applied his mind to the matters in dispute and passed the award. So, this contention of the petitioner is rejected first on the ground that no such ground was taken in the petition and secondly also on the ground that the same is not sustainable even on merits. ( 23 ) ON behalf of the petitioner my attention has been drawn to the minutes of the meeting of the 16th meeting before the Arbitrator and it is pointed out that in that meeting the Ld. Arbitrator directed the respondent-contractor to produce certain slips and requisitions in terms of the Annexure 'a' submitted by the respondent before the Arbitrator. It was also decided by both the parties that the copy of the said requisition would be furnished to the present petitioner for their comment, if any, by letter to be submitted to the Ld. Arbitrator whereupon the Arbitrator would frame his decisions. It was also decided by both the parties that the copy of the said requisition would be furnished to the present petitioner for their comment, if any, by letter to be submitted to the Ld. Arbitrator whereupon the Arbitrator would frame his decisions. The petitioner further points out that the Annexure 'a' produced by the respondent before the Arbitrator relates to various residents who were provided with bins for collection of garbage on ceremonial occasions on payment of a fee of Rs. 50/- to the Department subsequent to August, 1983. In respect of that Annexure 'a', according to the petitioner, the claimant has made three several supplementaries being Item No. 5 of the first supplementary amounting to Rs. 25,687. 31; Item No. 7 of the second supplementary for Rs. 94,369. 91 and Item No. 7 of third supplementary amounting to Rs. 2,717. 77 totalling Rs. 1,23,374. . 99. ( 24 ) IT is submitted by the petitioner that the Ld. Arbitrator without giving the petitioner any opportunity to submit their written comments thereon as directed in the minutes of the 16th sitting of the Ld. Arbitrator passed the Award in favour of the claimant without even disallowing the Items of the claims in those three supplementaries. It has, therefore, been contended that the Arbitrator has misconducted the proceeding by not giving the petitioner's reasonable opportunity to make their defence against those supplementaries and has violated the principles of natural justice. On behalf of the respondent it is submitted that it is a fact that the respondent- contractor did not produce before the Arbitrator any slip or requisition in support of Annexure 'a' filed by the respondent and no copy of such slip or requisition was also handed over to the petitioner's representative and there is no question of the Arbitrator failing to follow the principle of natural justice. It is submitted that it being a non-speaking award and the claim of the petitioner being much more than that awarded and there being nothing to show that those claims in the supplementaries amounting to Rs. 1,23,374. 99 were awarded by the Arbitrator then there is nothing to show that the Arbitrator mis-conducted the proceeding. It is submitted that it being a non-speaking award and the claim of the petitioner being much more than that awarded and there being nothing to show that those claims in the supplementaries amounting to Rs. 1,23,374. 99 were awarded by the Arbitrator then there is nothing to show that the Arbitrator mis-conducted the proceeding. I am of the view that the petitioner has nothing to show that any slip or vouchers in terms of the directions made on the 16th sitting were produced by the petitioner without giving any copies thereof to the representative of the State of West Bengal. As no such slips and requisitions were filed before the Arbitrator as per direction contained in the 16th sitting of the Arbitrator, Arbitrator naturally could not get any supporting evidence as regards those supplementary claims. But there is nothing to show that the Arbitrator in his non-speaking Award included those claims for which the respondent produced no slips and vouchers. When the total claim of the three supplementaries amounted to Rs. 9,19,558. 62 and when the Arbitrator awarded Rs. 5,65,795/- then he could have made that award even if those supplementary claims were disallowed. Therefore, on the fact of the award there is nothing to show that the Arbitrator mis-conducted himself because there is nothing to indicate that he made this award in respect of the supplementary demands for which the respondent did not furnish the necessary slips and requisitions. ( 25 ) IN that view of the matter there is no question of the Arbitrator violating the principles of natural justice. The petitioner's Ld. Advocate has referred to me the decision of Supreme Court in Food Corporation of India v. Jogindar Paul, Mohindar Paul and Anr. reported in AIR 1989 SC 1263 wherein the Division Bench of Supreme Court has observed as follows :-"in proceedings of arbitration, there must be adherence to justice, equity, law and fair play in actions. However, the proceedings of arbitration must adhere to the principles of natural justice and must be in consonance with such practice and procedure which will lean to a proper resolution of dispute and create confidence of the people for whose benefit these processes are resorted to. It is, therefore, the functions of Courts of law to oversee that the arbitrators act within the norms of justice". It is, therefore, the functions of Courts of law to oversee that the arbitrators act within the norms of justice". ( 26 ) ON behalf of the respondent it is submitted that the proposition laid down by the Supreme Court in the above decision is a very well-known proposition of law and there is no doubt that the Arbitrator must adhere to the principle of natural justice and in conducting the Arbitration the Arbitrator must also adhere to fair play and create confidence of the people for whose benefit the Arbitration is resorted to and the Court is also to oversee that the arbitrators act within the norms of justice. But he points out that the petitioner has not been able to show that the Arbitrator has violated any principle of natural justice or that he has detracted from the norms of justice and fair play. I am convinced that the Arbitrator in this case cannot be held guilty of violating the principle of natural justice. As no slips and requisitions were actually produced by the respondent before the Arbitrator submitting copies thereof to the State of West Bengal did not arise and the State of West Bengal had nothing to comment in respect of those slips and vouchers not produced before the Arbitrator and there is no occasion for the Arbitrator to consider any comment to be made by the State of West Bengal as regards the vouchers and requisitions not produced. Therefore, this contention of the petitioner also failed. ( 27 ) AT the time of the hearing it is strenuously urged on behalf of the petitioner that the supplementary tenders or claims submitted by the present respondent before the Authorities had nothing to do with the Tender No. 8 of 1983-84 and it related to Tender No. 222 of 1983-84 and that as those supplementary tenders or claims did not arise out of the Tender No. 8 of 1983-84, it was not within the jurisdiction of the Arbitrator to consider those claims and it was beyond his reference and the Arbitrator misconducted himself in considering and in allowing those claims. On behalf of the respondent it is submitted that these three supplementary claims or tenders arise out of the Tender No. 8 of 1983-84 as the respondent-Contractor was asked to do those extra jobs which was not strictly within the purview of the Tender No. 8, that in the counter-statement of facts before the Ld. Arbitrator the jurisdiction of the Arbitrator was never disputed and those supplementary tenders or claims were disputed on its merits, that in the petition filed before this Court also the State of West Bengal contested those supplementary tenders or claims on merits, that it was within the jurisdiction of the Arbitrator to decide as to whether the respondent had actually undertaken those works or not and when on being satisfied the Arbitrator partially allowed the said claims and it being a non-speaking award there is nothing to show that there is any error apparent on the fact of the award and the State of West Bengal after contesting those supplementary claims on merits before the Arbitrator cannot now turn round and challenge the jurisdiction of the Arbitrator in deciding those claims. ( 28 ) ON considering the contentions raised in the petition I find that those supplementary tenders or claims were submitted by the respondent because the Contractor was forced to undertake those supplementary works in connection with the Tender No. 8 of 1983-84. Even in the petition the petitioner states in paragraph 10 that the petitioner did not dispute the collection of garbage on ceremonial occasions between April, 1983 to August, 1983 for which the claimant was requested to produce relevant documents. Other claims were disputed on the ground that the Contractor did not perform any of the alleged extra work. ( 29 ) BUT whether the Contractor performed those extra works for which those supplementary tenders were submitted are actually the questions of fact. The present petitioner no doubt disputed the merit of each and every claim and the Arbitrator had the jurisdiction to decide claims on merits and it is not within the jurisdiction of this Court to interfere with this award if the Arbitrator on the basis of the materials before it could be satisfied as regards the merits of the claim to the extent awarded by him. ( 30 ) IT is true that in the petition a contention has been raised that the award was passed without any evidence whatsoever. But the Award of the Arbitrator clearly negatives such a plea. The Arbitrator in his award has clearly stated that he has considered and weighed the several statements, tender documents and other papers which were submitted before him by the parties and have also heard the parties and their Counsel and have duly considered and weighed the submission and argument made by the parties and their Counsel before him. Therefore, it is clear that even though no oral evidence was produced documentary evidence were produced before the Arbitrator to consider the claims on merits and when on the basis of those documentary evidence out of the total claim of nine lacs and odd rupees the Arbitrator made an award for Rs. 5,65,797/-, I am unable to hold that there is any error apparent on the face of the award to tender the said award invalid in any way. In the result none of the contentions raised by the petitioner can be upheld. However, as regards the award of the interest from 1st January, 1990 the same is set aside. But I give liberty to the respondent to press for interest on the award from the date of the award till the date of the full payment before the Court when the Court passes the judgment and decree on the award after this application is dismissed. Subject to the modification made in the above the award stands. The application is dismissed. No order for cost is, however, passed. ( 31 ) STAY asked for is refused. All parties are to act on a signed copy of the operative part of this judgment. Application rejected.