JUDGMENT D. P. Sood, J — "In case a dispute of a particular nature is arbitrable under a special clause other than the arbitration clause pertaining to the settlement of all questions and disputes arising out of a contract by arbitration and such dispute remains undetermined whether such dispute can be referred by the parties or either of the party to the sole arbitration of the person under the latter arbitration clause of the Arbitration agreement entered into between the- parties inter se ?" is the sole question required to be determined by this Court. 2. As a common question of law indicated above has arisen in both the Civil Suits No. 31 and 32 of 1990, as such I proceed to decide the same by a common judgment. 3. Defendant M/s. Constructor (India) Company Ltd entered into an agreement with the State of Himachal Pradesh through the Executive Engineer, Kullu Division No. 1, H P. PWD, Kullu, undertaking to construct the Steel truss single span bridge with open foundation on Aut Banjar Road in Kullu District (Manglore bridge 80 span deck-type) (Agreement No. 8 of 1968-69, in Civil Suit No. 31 of 90) and to construct Steel truss single span bridge with open foundation on Aut Banjar Road in Kullu District (Phagu bridge 140 span deck type), (agreement No 6 of 1968-69 in Civil Suit No. 32 of 90). 4. A dispute arose in between the parties which was referred for the decision of the sole arbitrator Sh. J. R. Kainth, Superintending Engineer (Arbitration) H. P. PWD., Solan, duly appointed by the Chief Engineer, Himachal Pradesh, under clause 29 of the agreement who made an award on the claims duly referred to by both the parties. 5. The parties had submitted the claim and counter-claim in the two suits which the Arbitrator made the award item-wise as under :— AWARD IN FAVOUR OF THE EXECUTIVE ENGINEER KULLU DIVISION NO. 1 H. P. PWD KULLU (PLAINTIFF) (Agr. No. 8 of 1968-69-CS No. 31/90) Item No. Particulars of claim Amount claimed Amount awarded 1 2 3 4 1. Compensation for delay Rs. 30,400.00 -nit 2. Expenditure incurred in excess to complete the balance work. Rs. 1,48,683.60 revised to Rs. 1,57,083.60 -nil- 3. On account of excess material issued at penal rate, Rs. 8.825.00 Rs. 8,825.00 4. Cost of trial boring Rs. 3,000.00 Rs. 3,000.00 Rs. Compensation for delay Rs. 30,400.00 -nit 2. Expenditure incurred in excess to complete the balance work. Rs. 1,48,683.60 revised to Rs. 1,57,083.60 -nil- 3. On account of excess material issued at penal rate, Rs. 8.825.00 Rs. 8,825.00 4. Cost of trial boring Rs. 3,000.00 Rs. 3,000.00 Rs. 11,825.00 AWARD IN FAVOUR OF M/S. CONSTRUCTOR (INDIA) CO.. 32 GANESH CHANDRA AVENUE (3RD FLOOR CALCUTTA (RESPONDENT) 1. Damages for loss of profit Rs. 60,800.00 nil 2. Quantum meruit value of the work done Rs. 63,933.00 nil 3. Price difference of material, labour and fuel. Rs. 25,110.00 nil 4. Cost of removal of boulders. Rs. 10,000 00 nil 5. Payment of the final bill. Amt. not state nil 6. Return of earnest money and security deposit. Rs. 19,000.00 Rs. 8,761.00 (being the amt. lying with the department) 7. Cost incurred due to acts of H. P. State in dragging suit, appeal and arb. proceeding. Rs. 54,160.00 nil AWARD IN FAVOUR OF THE EXECUTIVE ENGINEER KULLU DIVISION NO. 1 H. P. PWD KULLU (PLAINTIFF) (Agr. No. 6 of 1968-69-CS No. 32/91) 1. Compensation for delay. Rs. 29.900.00 nil 2, Cost of work left incomplete and completed at the risk and cost of the firm Rs. 2,59,873.10 (revised to Rs. 26,723.10) nil 3. On account of cost of materials issued in express to the theoretical requirement (Penal rate). Rs. 3,712.70 Rs. 3,712.70 Rs. 3,712.70 AWARD IN FAVOUR OF M/S. CONSTRUCTORS (INDIA) CO. 32, GANESH CHANDRA AVENUE (3RD FLOOR) CALCUTTA (RESPONDENT) 1. Damage for loss of profit. Rs. 59,800.00 nil 2. Quantum meruit value of the work done. Rs. 63,933.00 nil 3. Price difference of material, labour and fuel. Rs, 25,427.00 nil 4. Payment of the final bill Amt. not stated nil 5. Return of the earnest money and security deposit Rs. 20,636.00 Rs. 10,500.00 (being the amt. lying with the department), 6. Cost incurred due to the acts of the State of H. P. in dragging the contractor to suit, appeal and arbitration proceedings. Rs. 43,660.00 nil Rs. 10,500.00 6. By an award dated 31st December, 1987 the arbitrator awarded an amount of Rs. 3,06100 to the plaintiff in C S. No. 31 of 91 and an amount of Rs. 6/87.30 in favour of M/s. Constructors/defendant in C. S. No. 32 of 91 respectively. The award was filed for making it a rule of the Court. 10,500.00 6. By an award dated 31st December, 1987 the arbitrator awarded an amount of Rs. 3,06100 to the plaintiff in C S. No. 31 of 91 and an amount of Rs. 6/87.30 in favour of M/s. Constructors/defendant in C. S. No. 32 of 91 respectively. The award was filed for making it a rule of the Court. The plaintiff in both the suits raised objections under sections 30 and 33 of the Arbitration Act on the ground that the Arbitrator had no jurisdiction to entertain or decide their claim No. 1 pertaining to the compensation for delay and as the claim is separable from the whole award, the remaining award can be made the Rule of the Court. 7. The contractor/defendant resisted the above said objection by contending that though the dispute was arbitrable by the Superintending Engineer and his award being final was binding upon the parties yet in the instant case the compensation for delay in the form of penalty has been imposed by the Executive Engineer duly and has not finally been decided by the Arbitrator. As such the dispute continued to remain undecided in between the parties, which can be referred alongwith other disputes under clause 29 of the Arbitration agreement. In the alternative it is contended that the plaintiff has suo motu referred this item of dispute alongwith other disputes to the Arbitrator to which no objection had been raised by them. The special arbitration clause pertaining to the settlement of compensation for delay that is clause 16 of the agreement is to be deemed to have been substituted by the consent of the parties and as such it became arbitrable under clause 29 referred to above. 8. On the pleadings of the parties the following similar issues were framed in both the suits ; 1. Whether the award is nullity being without jurisdiction, as alleged by the objectors ? OPO. 2. Whether the Arbitrator has misconducted himself and also the proceedings by ignoring important documents and other material evidence, as alleged ? OPO. 3. Whether there is an error apparent on the face of the award which is sufficient to nullify the same, as alleged ? OPO. 4. Relief. Parties have produced their evidence by exchanging affidavits. 9. OPO. 2. Whether the Arbitrator has misconducted himself and also the proceedings by ignoring important documents and other material evidence, as alleged ? OPO. 3. Whether there is an error apparent on the face of the award which is sufficient to nullify the same, as alleged ? OPO. 4. Relief. Parties have produced their evidence by exchanging affidavits. 9. I have heard the learned Counsel for the parties and I have also carefully gone through the record of both the Civil Suits as well as the record of the Arbitrator. 10. Item No I of the claim of the plaintiff through the Executive Engineer pertains to the compensation for delay and the amount claimed in Civil Suit Nos. 31 and 32 of 90 are Rs. 30,400 00 and Rs. 29.900.00 respectively. There is no controversy in between the parties that clause 16 of the agreement pertains to the settlement of compensation for delay. It is also not disputed that under the contract time was the essence of the contract on the part of the contractor and the work having not been executed by him within the stipulated period, the Executive Engineer had levied the above said amount as compensation/penalty which gave rise to the dispute in between the parties as item No. 1 which had been referred to the Arbitrator under Clause 29 of the agreement. 11. In order to appreciate the rival arguments of the learned Counsel for the parties, it will be useful to set out clauses 16 and 29 of the conditions of contract as under :— Clause 16. "The work comprised in this tender are to be commenced after fifteen days on receipt of written order from the Divisional Officer to commence work. 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 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 orders 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 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. 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 % 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 ten per cent, on the estimated cost of the work as shown in the tender." "29. Settlement of disputes by arbitration.—Except where otherwise provided in the contract, all questions, and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instruction, order, 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 Chief Engineer, Himachal Pradesh Public Works Department......° 12. It will be seen from the narration above that so far as this item was concerned, both parties proceeded on the footing that the claim of the government was a claim under clause 16 and that the arbitrator had awarded the sum only in terms of Clause 16. This is also borne out by the fact that the claim of the Department was based on a percentage of the total cost of the work and the restriction of the claim to 10 per cent also appears to have been the result of the proviso to Clause 16. The award, therefore, on a fair reading of ii has negatived the compensation to the Government in terms of Clause 16. It is thus open to the parties to urge before this Court on a proper construction of clauses 16 and 29, that this award was not justified to this extent. 13. On careful reading of the terms of Clause 16 shows that it envisages that the determination of the amount of compensation for the delay in the execution of the work only by the Superintending Engineer and specifically mentions that the decision of the Superintending Engineer in writing shall be final, in terms of the agreement who had jurisdiction to entertain and decide the said item. 14. The same situation had arisen in the case of Vishwanath Sood v. Union of India, (1989) 1 SCC 657, in which the clauses of arbitration agreement which are parimateria to the clauses of the instant agreement were interpreted. 14. The same situation had arisen in the case of Vishwanath Sood v. Union of India, (1989) 1 SCC 657, in which the clauses of arbitration agreement which are parimateria to the clauses of the instant agreement were interpreted. With respect to the special—Clause 2 which is parimateria to clause 16 of the agreement, it was held that; "Clause 2 contains a complete machinery for determination of the compensation which can be claimed by the government on the ground of delay on the part of the contractor in completing the contract as per the time schedule agreed to between the parties. The decision of the Superintending Engineer, it seems to us, is in the nature of a considered decision which he has to arrive at after considering the various mitigating circumstances that may be pleaded by the contractor or his plea that he is not liable to pay compensation at all under this clause. In our opinion the question regarding the amount of compensation leviable under Clause 2 has to be decided only by the Superintending Engineer and no one else." 15. Viewing the facts and circumstances of the instant case, [am unable to agree with the arguments advanced by the learned Counsel for the contractor/defendant The facts that dispute regarding the compensation for delay has not been determined by the Superintending Engineer as envisaged under Clause 16 of the agreement, will not in any way take away his jurisdiction to adjudicate upon the same. In view of the law laid down by the Supreme Court in the case of Vishwanath Sood (supra) it is clear that arbitrator had no jurisdiction to consider the claim of the plaintiff in respect of the compensation for delay. 16. Even otherwise it is to be seen that the validity of the agreement entered into between the respondent/contractor and that of the Union of India vide Article 299 of the Constitution of India has not been disputed. The arbitration clauses in the agreement are contained in the said contract pursuant to the said agreement. The reference to the arbitrator has been forwarded pursuant to the arbitration clause by the officer representing the State of Himachal Pradesh Public Works Department and not that of the Union of India. The arbitration clauses in the agreement are contained in the said contract pursuant to the said agreement. The reference to the arbitrator has been forwarded pursuant to the arbitration clause by the officer representing the State of Himachal Pradesh Public Works Department and not that of the Union of India. It is another thing that the person empowered to enter into contract for and on behalf of the Union of India and also referring the matter to the arbitrator on behalf of the department of the plaintiff may be the same and thus in that view of the matter he may hold a dual capacity. There appears to be force in the arguments of the learned Asstt Advocate Genl. that mere reference made to the arbitrator in pursuance of Cl. 29 of the agreement to the arbitrator that is, a person appointed by the Chief Engineer of the department of the plaintiff, in view of the above will not tantamount to substitution of the arbitration Clause No. 16 of the arbitration agreement referred to above. Admittedly, the agreement entered into by the contractor/respondent is with the Union of India and not with the State of Himachal Pradesh (plaintiff). As such mere reference of dispute qua Item No. I to the arbitrator pursuant to Clause 29 by the plaintiff/department cannot be said to have substituted Clause 16 of the agreement in question. Thus the arguments of the learned Counsel for the contractor to this extent has no force and is rejected. 17. Therefore, it is now to be considered whether this makes the whole award bad or his consideration for this item is separable in such a way that the remaining award can be made the rule of the Court. Admittedly, the award is a speaking one and it is clear from its operative portion that the Arbitrator has awarded separate amount for each item. Therefore, I have no hesitation to hold that item No. 1 in respect of the claim of the department is severable from the award. In that view of the matter, the remaining award is made a rule of the Court. Therefore, I have no hesitation to hold that item No. 1 in respect of the claim of the department is severable from the award. In that view of the matter, the remaining award is made a rule of the Court. In taking this view, 1 am supported by the law laid down in State of Orissa v. Dhandasi Sahu, AIR 1988 SC 1791, wherein the award, in respect of the interest pendente lite regarding which it was found that the Arbitrator had no jurisdiction, was separated and the remaining award was made the rule of the Court, 18. In the result the award qua other than item No. 1 in both the Civil Suits referred to above is upheld and made the rule of the Court. Let a copy of this judgment be placed in the file of the connected Civil Suit No. 32 of 90. 19. In the circumstances of the instant case, the parties are left to bear their own costs. Order accordingly.