JUDGMENT : This application has been filed under Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter referred to as the Act) for setting aside all award dated 18th September, 1991. The application was filed on 6th January, 1992. 2. The disputes between the petitioner and the respondent No. 1 arose out of a contract under which the respondent No. 1 was to contract a hostel building in the compound of Nizam palace, Calcutta. The contract contained an Arbitration Clause. On 31st October, 1979 the petitioner terminated the contract. On an application filed under Section 2 of the Act by the respondent No. 1, the arbitration agreement was directed to be filed and the disputes between the parties arising out of the contract was referred to Shri N. Krishnamurthi on 30th August, 1980. A statement of claim was filed by the respondent No.1, The respondent No. 1 claimed an award of Rs. 13,65,000/- with further interest at 18 per cent per annum. The break up of the claim is as follows:- "Scheduled items of work completed Rs. 1,00,000/- but not billed for. 2. Non-scheduled items measured but not paid. Rs. 1,90,000/- 3. Refund of security. Rs. 1,00,000/- 4. Withheld amount kept by the department, Rs. 50,000/- 5. Item of Works executed by us, measured Rs. 90,000/- entered in the measurement book but not paid (doors and window shutters). 6. Additional cost due to delay in giving decisions and drawings. and 7. Damage on account of dislocation of staff Rs. 3,00,000/- etc. due to sudden rescinding of contract. and 8. Loss on profit 9. Interest @ 1.8% W. E. F. 1.11.79 till Rs. 8,30,000/- the date of payment 10. Extra cost incurred due to rise in price Rs. 5,35,000/- of labour and materials. TOTAL CLAIMS EXCLUDING INTEREST : Rs. 13,65,000/-" 3. The petitioner filed a counter statement in which the claim of the respondent was disputed and a counter-claim was also raised; The counter-claim of the respondent was for a sum of Rs.8,90,915.34. The heads of claim were as follows :- “1. Claim for non-production of labour Rs. 41,652.00 records before the Labour Officer 2. Non-Payment of labour wages Rs. 48,183.00 3. Use of Electricity Rs. 13,949.98 4. Watch and Ward Rs. 6,981.36 5. Non-removal of machinery Rs. 11,793,00 6. Loss on rent arising out non- Rs.7,66,500.00 completion of building 7. Difference between contract rate Rs. Claim for non-production of labour Rs. 41,652.00 records before the Labour Officer 2. Non-Payment of labour wages Rs. 48,183.00 3. Use of Electricity Rs. 13,949.98 4. Watch and Ward Rs. 6,981.36 5. Non-removal of machinery Rs. 11,793,00 6. Loss on rent arising out non- Rs.7,66,500.00 completion of building 7. Difference between contract rate Rs. (Not quantified) and the rate at which the building was completed 8. Costs of arbitration Rs. 2,000.00" 4. On 20th July, 1983 Shri Krishnamurthi resigned office as arbitrator and on 6th December, 1983 Shri Sarvesh Chandra was appointed sole arbitrator in place and instead of Shri Krishnamurthi. 5. On 10th September, 1986 the petitioner filed another counterclaim before Shri Sarvesh Chandra. This time the petitioner made a counter-claim of Rs. 24,59,404/-. The break up of this claim was as follows :- 1. Recovery on account of excess payment Rs. 54,714.00 2. Recovery of cost of cement Rs. 23,215.58 3. Recovery for excess consumption of cement Rs. 30,288.75 4. Recovery of advance on materials Rs. 4,957.00 5. Recovery of Electric charges Rs. 5,769.85 6. Recovery for non-return of empty cement bags Rs. 2,966.00 7. Main recovery by getting the balance Rs. 14,08,112.00 work executed through other agencies 8. Recoveries on account of non- Rs. 9,11,585.26 implementation of labour regulation ............ labour wages/non-completion 9. Watch and ward Rs. 6,981.36 10. Rent of space occupied Rs. 12,639.00 11. Loss of rent by reason of non- Rs. 76,06,500.00 completion of building 12. Cost of arbitration Rs. 2,000.00 6. The respondent No. 1 filed a rejoinder to the second counterclaim of the petitioner on 10th December, 1986. In such rejoinder the respondent No.1 claimed a sum of Rs. 14,82,748/- together with interest and further interest at 18% per annum. The heads of claim of the respondent No. 1 were as follows:- 1. Value of work done Rs. 4,46,413.00 2. Escalation charges Rs. 5,35,000.00 3. Idle charges Rs. 3,00,000.00 4. Refund of security deposit Rs. 1,00,000.00 5. Cost of lead involving carriage of materials Rs. 5,483.00 issued from the petitioners godown 6. Court cost and cost of arbitration proceedings Rs. 1,09,652.00 7. Interest from 24.6.79 to 30.8.80 Rs. 1,77,686.00 and from 31.1.80 to 12.6.83 Rs. 8,72,343.00 Further interest at 18% per annum from the date of payment of Shri Sarvesh Chandra up to the date of payment (not quantified) . TOTAL :- Rs. 25,32,777.00 7. 5,483.00 issued from the petitioners godown 6. Court cost and cost of arbitration proceedings Rs. 1,09,652.00 7. Interest from 24.6.79 to 30.8.80 Rs. 1,77,686.00 and from 31.1.80 to 12.6.83 Rs. 8,72,343.00 Further interest at 18% per annum from the date of payment of Shri Sarvesh Chandra up to the date of payment (not quantified) . TOTAL :- Rs. 25,32,777.00 7. On 30th December, 1987 Shri Sarvesh Chandra resigned as arbitrator. The respondent No. 1 thereafter made an application for appointment of an arbitrator in place of Shri Sarvesh Chandra. By an order dated 25th March, 1988 Shri A. C. Maitra the respondent No.2 was appointed as a sole arbitrator. It is not disputed that by the order dated 25th March, 1988 the arbitrator was to proceed on the basis of statement of claims and counter-claims already filed by the parties. 8. The arbitrator has passed an award in favour of the respondent No. 1 for a sum of Rs. 7,57,813/- inclusive of all costs together with interest thereon at 9% per annum from 1.11.79 to 30.8.80. The award further provides that the payment should be made by the petitioner to the respondent No. 1 within 90 days from the date of the award in default of which the respondent No. 1 would be entitled to interest at 15% per annum on the awarded amount after the expiry of 90 days up to the actual payment or decree whichever is earlier. 9. The notice under Section 14(2) of the Act was served on the petitioner on 8th November, 1991. The period for making an application under Section 30 expired within the vacation of the High Court. The High Court reopened on 6th January, 1992 on which date the application was made. 10. The petitioner has challenged the award basically on two grounds: Firstly, that the arbitrator wrongly failed to consider the counter-claims raised by the petitioner before S. Chandra. It is submitted that the award must be set aside in toto and the matter be remanded to the arbitrator for a decision under Section 16(1) (a) (c). Reliance has been placed on the following decisions in this connection:- (1) Ganes Narayan Singh & Ors. v. Malida Koer & Ors. reported in 13 CLJ 399 ; (2) Randall v. Randall reported in 103 ER 32 ; (3) Administrator, H. C. Employees Co-operative M. S. Ltd. & Anr. Reliance has been placed on the following decisions in this connection:- (1) Ganes Narayan Singh & Ors. v. Malida Koer & Ors. reported in 13 CLJ 399 ; (2) Randall v. Randall reported in 103 ER 32 ; (3) Administrator, H. C. Employees Co-operative M. S. Ltd. & Anr. v. J. K. S. Das Chowdhury & Ors. reported in AIR 1968 Cal 146 ; (4) Rabindra Krishna Deb v. Bani Sarkar reported in 54 CWN 796. 11. The second ground of attack is that the arbitrator's findings were inconsistent. It is submitted that the arbitrator had come to a definite conclusion that the petitioner was not responsible for breach of the contract and yet the arbitrator had made the petitioner liable for damages. The petitioner bas relied upon the following decisions in this connection :- (5) K. P. Poulose v. State of Kerala & Anr. reported in AIR 1975 SC 1259 ; (6) Ames & Ors. v. Milward reported in 129 ER 532 ; (7) Bijoy Singh v, Bilas Ray reported in AIR 1952 Cal 440 ; (8) M. A. Bongane v. A. P. More reported in AIR 1947 Bombay 400 ; (9) Coimbatore District P. T. Sangam v. Balasubrania Foundry reported in AIR 1987 SC 2045 . 12. On behalf of the respondent No. 1 it has been contended that the arbitrator had in fact, considered the counter-claims raised by the petitioner and an issue had been specifically raised relating to the petitioners counter-claim. It is further submitted that even though there may have been no specific mention of all the counter-claims of the petitioner's it must be taken that there was an implied rejection of those counter-claims not allowed. Reliance has been placed on :- (10) K. V. George v. The Secretary to Govt. Water & Power Dept., Trivandrum & Anr. reported in AIR 1990 SC 53 ; (11) Smt. Santa Sila Devi & Anr. v. Dhirendra Nath Sen & ars. reported in AIR 1963 SC 1677 . 13. Secondly it has been contended that there is no inconsistency between the arbitrator's findings and conclusions. The arbitrator had found that neither party was to be blamed for the ultimate recession of the contract. The damages which had been allowed to the petitioner related to breaches during the contract. The court's attention has been drawn to section 75 of the Indian Contract Act, 1972. The arbitrator had found that neither party was to be blamed for the ultimate recession of the contract. The damages which had been allowed to the petitioner related to breaches during the contract. The court's attention has been drawn to section 75 of the Indian Contract Act, 1972. In any event, it is submitted that the mistake, if any, was a mistake of law which did not warrant the setting aside of the award. Finally, it is submitted that the issue relating to the counter-claim was severable and did not vitiate the award as a whole. 14. In this background of the facts, the law on the subject may be considered. The decisions cited by the petitioner certainly seem to support the view that the failure of the arbitrator to decide all the matters in dispute would vitiate the award. Brief extracts from the relevant judgments are noted. 15. In Randall v. Randall reported in 103 ER 32 it was held:- "The contract of the parties is in effect this; one says that he will submit to the arbitrators to ascertain what he is to pay for the hope-poles, & c. upon condition that it shall also be referred to them to decide what rent is to be paid for certain land. And he may fairly have said that unless both those matters of difference were referred, he would not refer either of them singly. If then the arbitrators omit to decide one of them, the condition fails on which the reference was agreed to." 16. In other words the failure to determine all the controversies is seen as negativing the agreement to refer and thereby the reference itself. 17. This decision was followed by this Court in the Bench decision given in the case of Ganes Narayan Singh & Ors. v. Malida Koer & Ors. reported in 13 CLJ 399 at 403, Mukherjee, J. (as His Lordship then was) after a consideration of a gamut of precedent on the subject held :- "It is well settled that an arbitrator must be careful to see han his award is a final decision on all matters requiring his determination. The obligation so to decide depends upon the question whether the submission requires that all or only some of the matters in dispute are to be determined by him." 18. More recently this Court has reiterated these principles. The obligation so to decide depends upon the question whether the submission requires that all or only some of the matters in dispute are to be determined by him." 18. More recently this Court has reiterated these principles. In Rabindra Krishna Deb v. Bani Sankar Sarkar & Another reported in 54 CWN 796 at 800 it was held :- "It is well-settled that the award must be a final decision on all matters requiring his determination and that is the duty of the Arbitrator to decide all the matters referred to him if he does not decide all the disputes, he commits a breach of duty." 19. Again in (12) Administrator, Hindusthan Cables Employees Co-operative Multipurpose Society Ltd. & Another v. Jatindra Kumar Das Choudhury & Others reported in AIR 1968 Cal 146 at 151, the principle in Randall v. Randall was endorsed :- "The underlined (underlying?) principle has been stated by the Privy Council in (13) Makund Ran v. Salip Ram, 1894 ILR 21 Cal 590 (PC) where Sir Richard Couch said as follows: "The ground upon which an award which does not dispose of all the matters referred has been held to be invalid appears to be that there is an implied condition that it shall do so." 20. Therefore the conclusion is inescapable. An incomplete award vitiates it because: (a) it is contrary to the agreement to refer (b) it is a breach of duty on the part of the arbitrator. 21. The question therefore is whether in the case before me this award is incomplete. In my view it is. The Arbitrator has patently Failed to consider the counter-claims raised by the petitioner before Shri Sarvesh Chandra. As already noted the Second set of counterclaims of the petitioner covered 12 heads totalling to an amount of Rs. 24,59,4040/-. It is true that an issue was raised before the arbitrator in this regard being issue No.4 which reads:- "4. Are M/s. Jain & Associates entitled to a sum of Rs. 49,43,515/-(it should be Rs. 48,43,515/-)? If not to what extent, as against the claim of Rs. 24,59,4040/- of any part thereof as made by the Union of India as against the original claims made by the parties?" 22. Nevertheless the Arbitrator only considered the first set of counter-claims raised by the petitioner. The original counter-claim of the petitioner was for Rs. 8,90,915.34. 48,43,515/-)? If not to what extent, as against the claim of Rs. 24,59,4040/- of any part thereof as made by the Union of India as against the original claims made by the parties?" 22. Nevertheless the Arbitrator only considered the first set of counter-claims raised by the petitioner. The original counter-claim of the petitioner was for Rs. 8,90,915.34. That this was the only counterclaim considered is apparent from the body of the award. (1) The Arbitrator has specifically set out the heads of the claims of the respondent No. 1 both before Shri Krishnamurthy and Shri Sarvesh Chandra. But has specifically set out the petitioners counter-claim only before Shri Krishnamurthy. (2) In page 14 of the award the Arbitrator has stated :- "Thus, after deducting Rs. 7,66,500/- and Rs. 2000/- i. e. Rs. 7,68,500/-, the total counter-claim of the respondent comes to Rs. 1.22,915.34, (i. e. Rs. 8,90,915.34 minus Rs. 7,68,500/-)." (3) In page 16 of the award the Arbitrator has stated:- "The respondent, however, states that it would get additional amount of Rs. 54,714/- from the claimant, but this claim had not been made before Sarvesh Chandra." 23. Accordingly the Arbitrator expressly refused to consider this claim. The Arbitrator was entirely wrong. The claim for Rs. 54,714/- had been made by the petitioner before Sarvesh Candra and was in fact the first head of claim. This is another indication that the Arbitrator had completely over-looked the second set of counter-claims of the petitioner. (4) Again in page 16 of the Award the Arbitrator has referred to the "first two claims" of the petitioner of Rs. 41,652/- and Rs. 48,183/-. In fact, these were the first two claims in the first set of counter-claims of the petitioner and do not feature at all in that manner in the second set of counter-claims. (5) Finally the Arbitrator has taken the trouble of going into the claims and, what he 'considered to be, the counter-claims specifically. The second set of counter-claims contained many heads which did not overlap with the first set and which have not even been referred to at all by the arbitrator. 24. I do not think that in the facts of this case it can be taken that the Arbitrator had impliedly rejected those claims. Had the Arbitrator given a non-speaking award for a consolidated amount this might have been presumed. 24. I do not think that in the facts of this case it can be taken that the Arbitrator had impliedly rejected those claims. Had the Arbitrator given a non-speaking award for a consolidated amount this might have been presumed. This appears to be the ratio in Smt. Santa Sila Devi v. Dhirendra Nath Sen (supra) relied upon by the respondent No.1. In that case the Supreme Court held :- "Unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each claim or matter seperately, but can deliver a consolidated award. The legal position is clear that unless so specifically required an award need not formally expressly the decision of the arbitrator on each matter of difference." 25. In the case before me however the arbitrator has chosen to give an elaborately reasoned award and has dealt with the items separately. There can be no manner of doubt that the Arbitrator has over looked the second set of counter-claims (except to the extent that they incidentally overlap with the first set) entirely. 26. The decision in K. V. George v. The Secretary to Government Water and Power Deptt. Trivandrum ( AIR 1990 SC 53 ) relied on by the respondent No.1 in this connection in fact supports the contention of the petitioner. In that case the Arbitrator had made two awards. The first award did not deal with the counter-claims. A second suit was filed for reference of the disputes under the same contract to the same arbitrator. A second reference was made and the arbitrator passed a second award. The second award dealt with the counter-claims which had not been considered at the time of the first award. The Supreme Court held that the failure of the arbitrator to consider the counterclaims vitiated the first award. The second award was held to be bad on the ground that the suit for reference was barred by res-judicata. The Supreme Court held :- "It is the duty of the Arbitrator while considering the claims of the appellant to consider also the counter-claims made on behalf of the respondents and to make the award after considering both the claims and counter-claims. This has not been done and the Arbitrator did not at all consider the counter-claims of the respondents in making the a ward. This has not been done and the Arbitrator did not at all consider the counter-claims of the respondents in making the a ward. As such the first award dated January 22, 1981 made by the Arbitrator in Arbitration Case No. 132 of 1980 is wholly illegal and unwarranted and the High Court was right in holding that the Arbitrator mis-conducted himself and the proceedings in making such an award and in setting aside the same and directing the Arbitrator to dispose of the reference in accordance with law considering the claim of the contractor and the counterclaim of the respondents." 27. The award is on the authorities cited liable to be set aside on this ground alone. The determination of the counter-claims cannot be separated from the claims of the respondent No. 1 and would, of necessity affect the ultimate outcome. However as elaborate arguments have been addressed to me relating to the second contention of the petitioner that is also dealt with. 28. As far as the second ground of attack of the petitioner is concerned, it appears to be well established by authority that an award which contains a conclusion contrary to an express finding is liable to be set aside. 29. In Maruti Aba Bongane v. Akaram Pandu More & Ors. reported in AIR (34) 1947 Bombay 400 at 402, a Learned Judge held :- “it is true that a Court cannot go into the question as to whether the award is reasonable or not, but the Court can certainly see whether the award is illegal on the face of it, and if the award passed by the arbitrator is in direct contravention of the findings arrived at an definitely recorded by him, then the award must be held illegal on the face of it." 30. Again in K. P. Poulose v. State of Kerala & Another reported in AIR 1975 SC 1259 at 1261, it was held:- “Misconduct under Section 30 (a) has not a connotation of moral lapse. it comprises legal misconduct which is complete if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding.” 31. The two conclusions alleged to be inconsistent with the findings relate to the award of damages on account of idle charges and on account of cost. 32. The claim for idle charges was Rs. 3 lakhs. The two conclusions alleged to be inconsistent with the findings relate to the award of damages on account of idle charges and on account of cost. 32. The claim for idle charges was Rs. 3 lakhs. In the body of the claim of the respondent No. 1 before Shri Sarvesh Chandra it has been stated :- “Your claimant had to occasionally suspend and/or slow down the work for shortage of Government materials, electric power and lack or drawing and decision. The loss occasioned by such forced idle expenses of labour is to be restituted to the claimant. The claimants also had to wind up the site, all of a sudden as stated above before completing the work undertaken in the contract, due to unlawful rescission of the contract in October, 1979. Your claimant had to incur additional expenses in payment of retirement benefit to workmen and bear infractious expenses incidental to premature, sudden winding of the site. Your claimant claims for compensation to the extent to Rs, 3 lakhs in this account.” 33. It will thus, be seen that the claim of Rs, 3 lakhs was not only on account of idle expenses but also on account of damages arising out the termination of the contract. 34. The arbitrator in his award has stated:- “In view of what has been stated above there is no warrant for claiming damages and/or compensation by any of the parties because of laches and lapses by both the parties on the rescission of the contract.” 35. In other words the Arbitrator expressly found that neither party should be awarded damages on account of termination. But, in considering the claim the arbitrator has concluded:- “Having regard to the facts and circumstances of the case and pleadings and evidence on record, damage due to idle charges is worked out to Rs, 1,50, 000/- and not Rs. 3 lakhs as claimed by the claimant.” 36. It is not clear whether the arbitrator had addressed his mind to the fact that the Rs. 3 lakhs included the claim arising out of rescission of the contract if he had, he should have disallowed the claim relating to damages arising out of rescission. 3 lakhs as claimed by the claimant.” 36. It is not clear whether the arbitrator had addressed his mind to the fact that the Rs. 3 lakhs included the claim arising out of rescission of the contract if he had, he should have disallowed the claim relating to damages arising out of rescission. The claim has not been apportioned, Although the head of claim has been mentioned in the award as damage for idle labour the claim itself included a claim for damages arising out of the termination of the contract. Therefore, in granting the respondent an award of Rs, 1,50,000/- the arbitrator should have taken into account how much of the claimant, claim under that head related to damages arising out of the termination of the contract and how much to the damages arising during the currency or the contract. The arbitrator should have then disallowed the first an the basis of his finding and determined the second. This exercise not having been done the conclusion of the arbitrator of merely awarding damages under this head without more appears to be inconsistent with the findings already quoted. 37. The second head relates to costs. After the filing of the Special Suit the respondent No. 1 filed an application under Section 41 of the Arbitration Act before the Court for payment of a sum of money to the respondent No. 1 by way of interim payment. This application was allowed and the petitioner directed to pay a sum of Rs. 5 lakhs to the respondent No. 1 by the High Court. The petitioner preferred an appeal to the Supreme Court of India. The Supreme Court allowed the appeal of the petitioner and held that the order directing payment was without jurisdiction, 38. In the statement of claim filed before Shri Sarvesh Chandra the respondent No.1 claimed costs of Rs. 1,09,652/- on the basis of the following averment. “The claimant had to persue (sic) litigation upto the Hon'ble Supreme Court of India and spend Rs. 84,652/-. The Hon'ble Court Directed the respondent to disclose the arbitration proceedings expeditiously. The Respondent however, failed to do so. In the circumstances your claimant is entitled to cost of Rs. 84,652/- for Court cases and a further sum of Rs. 25,000/- for the present proceedings before the Learned Arbitrator.” 39. 84,652/-. The Hon'ble Court Directed the respondent to disclose the arbitration proceedings expeditiously. The Respondent however, failed to do so. In the circumstances your claimant is entitled to cost of Rs. 84,652/- for Court cases and a further sum of Rs. 25,000/- for the present proceedings before the Learned Arbitrator.” 39. In his award the arbitrator has held that the petitioner could not be made liable for the costs incurred by the respondent No. 1 in so far as it related to the litigation expenses before the Supreme Court. The arbitrator held that the respondent No. 1 had taken the dispute to a wrong forum and that if the claimant had to go to the Supreme Court "that is no fault" of the petitioner. Nevertheless, as respondent No.1 had partially succeeded in the arbitration proceedings, the arbitrator awarded litigation expenses of Rs. 40,000/-. It apparant from the statement of claim of the respondent No.1 that the claim for Rs. 25,000/- was for costs before the arbitrator and the balance amount of costs before the Supreme Court. Having exonerated the petitioner from liability as far as the costs incurred before Supreme Court the arbitrator could only, consistently with his finding make the petitioner liable for costs of Rs. 25,000/-. Otherwise as has been held in the case of Ames & Ors. v. Milward (129 ER 534) “the conclusion to which the arbitrator has come in this case, is quite absurd. He says-I think he is innocent and then awards against him”. 40. To this extent also therefore the arbitrator is guilty of misconduct. 41. The misconduct alleged is "judicial misconduct" or "technical misconduct". There is no allegation of bias or dishonesty or ill-will against the arbitrator. There is, therefore no reason. why the Court should not set aside the award and direct the Arbitrator to reconsider the claims and counter-claims of the petitioner and the Respondent No. 1, This course has been approved by the Supreme Court in the case of K. V. George (Supra). Accordingly I set aside the award dated 18th September, 1991. The arbitrator is directed to determine the claims and counter claims within a period of 4 months from date, In the facts of the case there will be no order as to costs.