JUDGMENT Surinder Sarup, J —The work LWSS Solan (SH : Providing and laying of 200 mm dia MSERW Pipes in rising main in all the stages)" was alloted to M/s. Aggarwal and Company, hereinafter to be called the Claimant-Contractor’ by the Executive Engineer, Divn. No. 1, I and PH Department, Solan, vide his Office Memo. No. PW-IDS/ELA/Civil-WSS-Solan/87«10344«49-49 dated 92-1987. 2. In pursuance of this allotment of work, agreement No 22 of 1986-87 was entered into between the parties governing the terms and conditions of the work Subsequently, during the pendency of the work, some dispute arose between the parties. Accordingly, the Engineer-in-Chief, I and PH Depaitment, Shimla, vide his Office Memo No. IPH-30-68/M/S Aggarwal/ 9O-CTR-23O2-O4 dated 17-3-1990 appointed Shri R K. Kaura, the then Superintending Engineer, Arbitration, HP PWD, Solan as Arbitrator to decide and make award regarding claims and counter-claims of the both the parties. Shri R. K. Kaura conducted one hearing and thereafter he resigned. 3. Subsequently, Shri D. N, Handa, the then Superintending Engineer, Arbitration, HP PWD, Solan was appointed by the Engineer-in-Chief, IPH Department, Shimla vide his Office Memo. No. IPH3O-6 (Arb.)-92-CTR-602~5 dated 28 5-1992 He conducted two hearings. Thereafter, he also resigned Thereafter, the Engineer-in-Chief, vide his letter of even number dated 4-6 1993 appointed Shri S. S. Juneja Superintending Engineer as Arbitrator to go into the dispute and make his award. 4. The said Arbitrator entered upon the reference on 13-7-1993 and conducted three hearings and concluded the case on 22-1-1994. The time for announcement of the award was extended upto 21-5-1994. The time for announcement of the award having been extended upto 21-5-1994 on the request of both the parties, he made his award on the said date By the said award, while rejecting the counter-claim of the department, the Arbitrator awarded a total sum of Rs, 1,46,667 to the claimant contractor in full and final settlement of all the claims and counter-claims in respect of the said work. 5. Subsequently, by his letter No. SE-Arb-Award-Court/94-1678-81 dated 29-6-l994, he sent the award alongwith the record of the arbitration proceedings, to this Court to be made a rule of the Court. Notices were issued to both the parties of the filing of the award Both of them put in appearance. 5. Subsequently, by his letter No. SE-Arb-Award-Court/94-1678-81 dated 29-6-l994, he sent the award alongwith the record of the arbitration proceedings, to this Court to be made a rule of the Court. Notices were issued to both the parties of the filing of the award Both of them put in appearance. Out of them, the State of H. P., through Executive Engineer, Irrigation and Public Health, Division No 1, Solan, being dis-satisfied with the award of the Arbitrator filed objections, which have been registered as 0. M. P. No. 624 of 1994. 6. In the objections, a preliminary objection has been taken that the Arbitrator has no jurisdiction to look into the claims covered under Clause 3 (a) because under Clause 3 (c) the decision of the Executive Engineer, In-charge is final to which an appeal can lie before the Superintending Engineer and not in the Court or before the Arbitrator On merits, though a large number of objections have been taken, but the main objections on which the learned Assistant Advocate General has stressed are ; that the point regarding allowing of compensation, though rightly held to be not arbitrable yet the same has not been adjusted with the amount awarded to the claimant contractor. Secondly, it has been urged that the forfeiting of security amount was also not arbitrable in view of Clauses 3-A and 3-C of the arbitration agreement. Lastly, it has been urged that there was no delay in making the payment. 7. In the reply filed by the claimant-contractor to the objections, the same have been controverter As regards the said three objections, it has been pleaded that the award is a self-explanatory one and is containing the reasons It has been further pleaded that this Court cannot go into the merits of the disputes which have been rightly considered and adjudicated upon by the Arbitrator. In particular, it has been submitted that only the decision of the Superintending Engineer concerned has been excluded from the purview of arbitration and since the objector could not produce any evidence or decision having been taken by the Superintending Engineer the learned Arbitrator was justified in adjudicating upon the claim and making his award in respect thereof. 8. In particular, it has been submitted that only the decision of the Superintending Engineer concerned has been excluded from the purview of arbitration and since the objector could not produce any evidence or decision having been taken by the Superintending Engineer the learned Arbitrator was justified in adjudicating upon the claim and making his award in respect thereof. 8. In the replication filed to the reply of the claimant contractor though all the assertions in the reply have been controverter and those in the objection petition have been reiterated, there is one second aspect which appears to have been pleaded by mistake. This is to the effect that it has nowhere been stated that decision of the Engineer-in-Charge under Clauses 3 (a) to 3 (c) is final and is not arbitrable. 9. On the pleadings of the parties, the following issues have been framed: "1. Whether the objections have been filed within the period of limitation ? OP Objector. 2. Whether the present objection petition is not legally maintainable, on the grounds mentioned in para(s) 2 and 3 of the preliminary objection(s), raised in the reply ? OP Non-objector 3, Whether the Arbitrator has misconducted himself and the proceedings, as alleged. If so, to what effect ? OP Objector 4. Relief." 10. The learned Counsel for the parties have been heard at length and the impugned award as well as the record of the case has been gone through with their assistance. The findings, issuewise are as under : Issue No. I : 11. This objection was not pressed on behalf of the claimant contractor by his learned Counsel at the time of arguments. Moreover, in Secretary to the Government of Karnataka and another v. Harishbabu, (1996) 5 SCC 400, it was held that limitation for setting aside the award starts from the date of service of notice on the parties by the Court and not from the date of obtaining endorsement received directly by the parties from the Arbitrator. In the present case, admittedly the objections have been filed within limitation from the date of notice of the Court. Consequently, it is held that the objections have been filed within the period of limitation and this issue is decided accordingly. Issue No. 2 : 12. This issue was also not pressed at the time of hearing. In the present case, admittedly the objections have been filed within limitation from the date of notice of the Court. Consequently, it is held that the objections have been filed within the period of limitation and this issue is decided accordingly. Issue No. 2 : 12. This issue was also not pressed at the time of hearing. The same is thus decided in favour of the objector and against the non-objector. Issue No. 3 : 13. This is the main issue, regarding which arguments have been advanced with great persuation and ability by the learned Counsel for both the parties. 14. As regards the first objection, i. e,, though the Arbitrator has rightly held that levy of penalty /compensation was not arbitrable in view of Clause 2 of the Agreement between the parties, and as per the law laid down by the apex Court in Vishwanath Sood v Union of India and another, AIR »989 SC 952, yet the Arbitrator has committed an error of law in not adjusting this amount of compensation/penalty with the amount which has been awarded. It has been submitted by Shri JL S. Bhogal, learned Counsel for the claimant objector that it would be open to the objector so file a suit for recovery of the amount of compensation/penalty. However, this precise plea has not been taken in the reply filed to the objection petition. Moreover, in view of the settled law of the apex Court, the award of the Arbitrator is not complete on this aspect as he ought to have considered the feasibility of adjusting the amount of penalty /compensation with the amount awarded to the claimant contractor. This aspect needs to be examined afresh by the Arbitrator in the light of the observations made hereinbefore. 15. As regards the refund of security which was forfeited, it has been forcibly pleaded by the learned Assistant Advocate General that in view of Clauses 3-a and 3-c read with Clause 25 of the arbitration agreement which provide for arbitration, this claim regarding refund of security was not arbitrable and it has been wrongly allowed by the Arbitrator, For this point also, he has placed reliance on the case of Vishwa Nath Sood (supra). 16. 16. In order to meet this objection, Shri J. S. Bhogal learned Counsel for the claimant-contractor has submitted that the requirement of service of notice has not been provided under Clause 3-a of the agreement between the parties, It is being contended by the objector that the claim regarding refund of security was not arbitrable and reliance is being placed on the terms and conditions of the contract agreement On the other hand, Shri J. S. Bhogal, learned Counsel for the claimant contractor submits that no clause, whether Clauses 2-a and 3-a or any other clause in the said agreement provides that if justified, the security which has been forfeited cannot be refunded. In other words, his precise argument is that this claim was definitely within the purview and jurisdiction of the Arbitrator, in the absence of any specific bar in any clause of the contract agreement Since this case is to be sent back for fresh decision by the Arbitrator as regards the point of compensation/penalty, as observed above, it will be open to the parties to urge their respective contentions before the Arbitrator. It will be incumbent upon him to give a definite finding in the light of the terms and conditions of the contract agreement and the Saw laid down by the apex Court in Vishwa Nath Soods case (supra), 17. The last argument of the learned Assistant Advocate General is that awarding of damages due to alleged delayed payment is illegal. As a corollary to this submission, he has also submitted that material documents have been ignored while dealing with this aspect of the case. However, as per the settled law, this Court cannot go into the merits of the case regarding which the Arbitrator is the sole judge. Moreso, the impugned award is amply supported by reasons, which cannot be called in question, in these proceedings. For facility of reference, attention is invited to the decision of the apex Court in Trustees of the Port of Madras v Engineering Construction Corporation Ltd t AIR 1993 SC 242J. Moreso, the impugned award is amply supported by reasons, which cannot be called in question, in these proceedings. For facility of reference, attention is invited to the decision of the apex Court in Trustees of the Port of Madras v Engineering Construction Corporation Ltd t AIR 1993 SC 242J. It has been laid down therein that the Court cannot set aside a finding of fact and cannot re-appraise the evidence/material before the umpire and come to a different finding of fact and award not shown to be vitiated by error of law apparent on the face of it nor umpire was found guilty of misconduct and the order setting aside the award was found illegal In this case, the decision of the Madras High Court, going into the merits of the award of the Arbitrator was reversed by the apex Court. This decision applies with full force to the present case as regards the objection relating to awarding of damages for delayed payments by the Arbitrator is concerned. Therefore, this third ground/ objection of attack against the award is repelled. 18. In view of the conclusions arrived at; above, it is held that the Arbitrator has neither misconducted himself nor the proceedings as alleged. However, he has to adjudicate on the first two objections in the light of the observations made hereinabove. To that extent, his award is held to be vitiated. This issue is decided accordingly. Relief: 19. For the reasons recorded above, this objection petition is partially allowed. The impugned award of the Arbitrator is set aside and the case is remanded back to him for a fresh decision in accordance with law in the light of the observations contained hereinbefore. The Arbitrator will give a fresh reasoned award in accordance with the contract agreement between the parties (Clause 25) on the following points : (a) Whether compensation/penalty, though rightly held not arbitrable, in view of Clause 2 of the agreement it was liable to be adjusted with the amount awarded in the impugned award ; and (b) The contention of the parties regarding whether there is a bar under the contract agreement which makes the question of refund of forfeited security not arbitrable, be examined in the light of the contract agreement. The Arbitrator shall confine himself to the above two points only and shall not interfere with his findings as regards the other claims. The Arbitrator shall confine himself to the above two points only and shall not interfere with his findings as regards the other claims. He shall also not permit the parties to lead any additional evidence. However, he shall give sufficient opportunity of hearing and submitting written arguments, if so desired. In the circumstances, there will be no order as to costs. Petition partly allowed.