JUDGEMENT : G.S. CHAUBE: - This appeal under section 39 of the Arbitration Act, 1940 is directed against the judgment and decree dated 21.2.1986 of the First Additional Subordinate Judge of Chaibasa making an award rule of the court. Under the award impugned in the court below, the appellant had been directed to pay to respondent no.1 a sum of Rs. 15,41,000/- after deducting a sum of Rs. 2,30,000/- awarded against counter claim preferred by the appellant. 2. For execution of the civil and structural work under a scheme for the modification and expansion of one of its iron-ore mines situated at Kiriburu in the district of Chaibasa (West Singhbhum), known as 'Kiriburu Iron-ore Mines', respondent no.2 M/S. National Mineral Development Corporation Limited (N.M.D.C. for short) issued a notice inviting tenders on 5.10.1970. In response thereto, respondent no.1 M/s. Oriental Electric & Engineering Company (O.E.E.C.) of M/s. B.N. Elias & Company (P) Ltd. of Calcutta submitted their tender on 14.10.1970. After some negotiations between N.M.D.C. and O.E.E.C. tender submitted by the latter was accepted by the former on 10.2.1971 and a formal written agreement on mutually accepted terms and conditions was executed by and between the parties. Even though formal agreement was executed much after, a work order for Rs. 1,13,27,867/- only comprising five bills/schedules of quantity was issued to OEEC (hereinafter to be referred to as the contractor) on 7.8.1971 by the Deputy General Manager, Kiriburu under modification/expansion scheme on behalf of the N.M.D.C. The work was to be completed within 18 months with effect from 12.3.1971 , i.e., by 11.9.1972, but some how or the other, it was not completed as per the schedule, for which extensions were granted from time to time and could be completed much thereafter and a completion certificate to this effect was issued by the competent authority on 11.2.1974. After completion of the work, the contractor under their letter dated 05.06.1975 submitted final bill to the N.M.D.C. for scrutiny, and payment thereafter. As there was some dispute respecting some extra claim, the Chief Engineer of the N.M.D.C. asked for mutually agreed resolution of the said dispute. The officials of the N.M.D.C. having failed to persuade the contractor in getting the disputes mutually resolved, the latter invoked the arbitration clause incorporated in the agreement entered into between the parties and served the Chairman, N.M.C. with notice dated 20.8.1975 for referring the dispute to arbitration. The officials of the N.M.D.C. having failed to persuade the contractor in getting the disputes mutually resolved, the latter invoked the arbitration clause incorporated in the agreement entered into between the parties and served the Chairman, N.M.C. with notice dated 20.8.1975 for referring the dispute to arbitration. In terms of the arbitration clause, which shall be re-produced and dealt with at a later stage in this judgment, one Sri K.N. Subbaraman was appointed Sole Arbitrator for resolution of the disputes between the parties. The sole arbitrator so appointed gave notice of the reference to the parties requesting them to submit their respective statement of facts and counter-statement; etc. The parties to the disputes, namely, N.M.D.C. and the contractor appeared and filed their claims and counter-claims and necessary facts in support thereof. The contractor had put forward their total claim for Rs.52,99,050/-, whereas the N.M.D.C. had presented a counter claim to the tune of Rs. 96,17,617.70P. 3. It appears that while invoking the arbitration clause, the contractor had listed 42 items as disputed items for being referred to the Arbitrator. However at the time of appointing the sole Arbitrator, the Managing Director of the N.M.D.C. had referred only 31 items out of those 42 items of disputed claim in view of the fact that, according to him, 11 items of disputes were excluded or excepted matters and, therefore beyond the ambit and scope of the arbitration clause. However, while submitting the statement of facts the contractor purported to submit all the 42 items of disputes projecting their claims on the basis thereof to the extent of Rs.52,99,050/-. 4. When the sole Arbitrator entered into the reference, some controversies regarding exclusion and non-exclusion of certain items from the ambit of arbitration, arose. Ultimately, the parties agreed that all the claims arid counter claims submitted by the parties before the Arbitrator shall be adjudicated by the arbitrator and a joint petition to this effect was presented by the parties before the arbitrator on 26.3.1978. In the meantime, Public Sector Iron & Steel Companies (Restructuring) & Miscellaneous Provisions Act (Act 16 of 1978) (hereinafter to be referred to as the Restructuring Act) was enacted by the Parliament and with effect from 1.5.1978, two units of the National Mineral & Development Corporation LTd. including Kiriburu Iron-Ore Mines stood transferred to the 'integral' company, namely the present appellant under section 5 of the Restricting Act. including Kiriburu Iron-Ore Mines stood transferred to the 'integral' company, namely the present appellant under section 5 of the Restricting Act. As a result, the appellant appeared before the sole Arbitrator through their authorised representative on 3.8.1978 and participated in the sittings held at Madras between 3.8.1978 and 7.8.1978. After appearance of the appellant before the Arbitrator, the N.M.D.C. receded and withdrew from the proceeding. In course of the arbitration proceeding which followed, the appellant took plea that the joint petition dated 26.3.1978 agreeing for an adjudication of all the disputes by the arbitrator was not valid in view of the fact that the person who had signed the petition on behalf of the NMDC, was not a competent authority to do so and that the appointment of the arbitrator itself was illegal not having been made by the Chairman of the NMDC in terms of the arbitration clause. The request by the appellant to the sole Arbitrator to refrain from further proceeding having been declined by the latter, the appellant moved the Additional Dy. Commissioner, Chaibasa for canceling the appointment of the arbitrator. By his order dated 24.2.1981, the Addl. Deputy Commissioner of Chaibasa declined the prayer of the appellant and directed the arbitrator to proceed in the matter and publish his award. Against that order of the Additional Deputy Commissioner, Chaibasa, the appellant approached this Court by filing a writ application on 22.4.1981 for quashing the order made by the Addl. Deputy Commissioner, Chaibasa. That writ application was registered as CWJC No. 372 of 1981 (R) and was finally disposed of by a Division Bench of this Court on 17.3.1984. Even though the order dated 24.2.1981 of the Addl. Deputy Commissioner of Chaibasa was set aside by this Court, in the said writ proceeding, the Bench directed the arbitrator "to give his award within four months from today". The arbitrator was also directed by this Court to give notice to the parties concerned and consider different questions raised before him and pass a severable award in respect of 11 items which, according to the petitioner company, had never been referred to him." 5. The arbitrator was also directed by this Court to give notice to the parties concerned and consider different questions raised before him and pass a severable award in respect of 11 items which, according to the petitioner company, had never been referred to him." 5. It appears that in the writ application filed by the appellant in this Court, the appellant had also taken a plea that in view of the provisions of the Restructuring Act, the entire liability, under the contract, giving rise to the disputes referred to the arbitrator lay on N.M.D.C. and not on the appellant. While disposing of the writ application, the Bench did not give any finding on that question. However, liberty was extended to the appellant to take objections in this regard as and when award was made by the arbitrator and filed in the court of competent jurisdiction for making the same rule of the court. This court also directed the arbitrator to file the award before an ordinary court of civil jurisdiction and not before the Commissioner; and the civil court was required to decide all the objections in the matter of award in accordance with the provisions of the Arbitration Act. After the decision of this court in the writ proceeding, the parties, namely, the appellant and the contractor filed a joint petition dated 1.10.1983 before the arbitrator requiring him to make and publish his award in respect of different disputed questions raised before him under five heads, i.e., (i) the main award, (ii) award on the excepted and excluded matters other than 11 items; (iii) award on 11 items; (iv) award of set off and adjustment; and (v) award on remaining items claimed by the 'respondents' under counter claim. The appellant also submitted before the arbitrator the details of items out of 31 items as were either matters de hors the contract or were excepted matters in terms of the clauses 4, 5, 14, 17 (iv), 18, and 42 of the Contract. 6. On 1.3.1984, the arbitrator made the award and published the same. The award was filed by the contractor in the court of Subordinate Judge at Chaibasa, on behalf of the arbitrator on 26.3.1984. Notice of filing of the award was given to the parties. 6. On 1.3.1984, the arbitrator made the award and published the same. The award was filed by the contractor in the court of Subordinate Judge at Chaibasa, on behalf of the arbitrator on 26.3.1984. Notice of filing of the award was given to the parties. The appellant appeared and filed their objections under section 30 of the Arbitration Act on 4.5.1984 challenging the award and making prayer for setting aside the same. The contractor also appeared and filed rejoinder to the objection petition of the appellant and made a prayer to make the same rule of the court. 7. The appellant challenged the award, broadly, on the following grounds. According to them, (i) the arbitrator had no jurisdiction to enter into reference and make award in view of the fact that his very appointment was illegal not having been made by the Chairman in terms of the arbitration clause; (ii) no liability could be fastened on them (appellant) under the contract entered into between the N.M.D.C. and the contractor in view of the provisions of the Restructuring Act; (iii) the Arbitrator is guilty of misconduct ting the proceeding inasmuch as, he decided the questions of his own jurisdiction and made the award in respect of excluded/excepted matters without specifically adverting to the relevant/specific clauses of the agreement vis-a-vis the statements of fact submitted by the contractor in respect of the claims. 8. After hearing the parties, the learned Subordinate Judge held that apart from the fact that there was no illegality or infirmity in the appointment of the arbitrator in terms of the arbitration clause, the appellant was stopped from challenging the appointment and jurisdiction of the arbitrator having themselves participated in the arbitration proceeding. He also held that the appellant is liable to pay the claim of the contractor on the basis of the award made in view of the provisions of sections 3 and 23 (2) of the Restructuring Act. As regards the charge of misconduct, the learned Subordinate Judge did not find any error apparent on the face of the award. Therefore, he held that the arbitrator is not guilty of any illegality or judicial misconduct. Therefore, he declined to set aside the award as prayed by the appellant and by his judgment dated 21.2.1986 made the award rule of the court, and dismissed the objection without cost. Therefore, he held that the arbitrator is not guilty of any illegality or judicial misconduct. Therefore, he declined to set aside the award as prayed by the appellant and by his judgment dated 21.2.1986 made the award rule of the court, and dismissed the objection without cost. No interest was awarded to the contractor on the awarded sum pendent lite or future. 8(a) Aggrieved by the order of the learned Sub-ordinate Judge declining to set aside the award and making the same rule of the court, the present appeal has been filed by the appellant, 'integral' company. A cross objection has also been filed by the contractor under Order 41, rule 22 of the Code of Civil Procedure on being aggrieved of refusal by the court below to allow interest pendent lite and future on the principal sum adjudged by the arbitrator. 9. At the time of hearing, Mr. M.M. Banerjee, learned counsel appearing for the appellant canvassed the same three grounds for setting aside the impugned judgment of the court below as well as the award dated 1.3.1984, which has been made rule of the court. According to him, under the arbitration clause, the arbitrator was required to be appointed by the Chairman of the company (NMDC), but instead he was appointed by the Managing Director thereof. Therefore, the appointment of the arbitrator having been made by the incompetent authority, the arbitrator lacked jurisdiction to enter into reference and make award. He further submitted that since the NMDC was not a 'dissolved company' within the meaning of section 2(d) of the Restructuring Act, the arbitration proceeding commenced before the appointed day in respect of a unit of the said company is not covered by section 24 of the said Act. Therefore, the appellant is not liable under the contract which had come to an end. According to him, the liability under the agreement was of the N.M.D.C. Therefore, the said company was liable to make payment of the amount awarded to the contractor, and not the appellant. Mr. Banerjee further submitted that the arbitrator is guilty of misconduct in not making the award in terms of the joint petition filed by the parties on 1.10.1983 requiring him to make the award under the five specific heads including the award on excepted and excluded matters other than 11 items. Mr. Banerjee further submitted that the arbitrator is guilty of misconduct in not making the award in terms of the joint petition filed by the parties on 1.10.1983 requiring him to make the award under the five specific heads including the award on excepted and excluded matters other than 11 items. The arbitrator not only failed to make a separate or severable award in respect of excepted and excluded matters as directed by the parties. He went to the extent of observing that as a matter of fact, there is not in the contract any provision for treating any item as unarbitrable. In making such a bald observation, the arbitrator has overlooked the specific provisions of the agreement between the parties, particularly clauses 4, 5, 17 and 18 of the agreement. 10. Clause 42 of the agreement provides for arbitration. According to this clause, "disputes or differences whatsoever which shall at any time arise between the parties thereto touching or concerning the works or execution or maintenance thereof by this contract or construction, meaning, operation, or effect thereof or to the rights or liabilities of parties or arising out of, or in relation thereto, whether during or after completion of the contract, or whether before or after determination, foreclosure or project of the contract, (other than those in respect of which the decision of any person is by the contract expressed to be final and binding) shall after written notice by either party to the contract to the either of them and to the chairman of the corporation (which will be the competent authority) be referred to for adjudication to a sole arbitrator to be appointed as hereinafter provided : "The appointing authority will send within 30 days of the receipt of the notice a panel of three names of persons not directly connected with the work, to the contractor who will select anyone of the persons named, to be appointed as sole arbitrator within 30 days of the receipt of the names. If the appointing authority fails to send to the contractor a panel of three names as aforesaid within the period specified, the contractor shall send to the competent authority a panel of three names of persons who shall all be unconnected with the organisation by which the work is executed. If the appointing authority fails to send to the contractor a panel of three names as aforesaid within the period specified, the contractor shall send to the competent authority a panel of three names of persons who shall all be unconnected with the organisation by which the work is executed. The appointing authority shall on receipt of the names as aforesaid select anyone of the persons named and appoint him as sole arbitrator. If the appointing authority fails to select a person and appoint him as the sole arbitrator within 30 days of receipt of the panel and inform the contractor accordingly, the contractor shall be entitled to invoke the provisions of the Indian Arbitration Act, 1940, and any statutory modification thereof." 11. Thus, from the arbitration clause, it becomes manifest that it was the chairman of the Corporation (NMDC) who was the appointing authority in the matter of appointment of the arbitrator. According to the procedure prescribed, whenever any dispute between the parties was to arise and notice for invoking the arbitration Clause served by one party on the other, the appointing authority, namely, the chairman was to send to the contractor a panel of three names within thirty days of receipt of notice and the contractor was required to select anyone out of three named persons who were required to be unconnected with the work to be executed and that selected person was to be appointed the sole arbitrator within 30 days of the communication by the contractor. If, however, the chairman failed to send the panel of three names to the contractor within the specified time, the latter was empowered to send the appointing authority a panel of three names quite unconnected with his organisation and the appointing authority was required to select one of them and appoint him as sole arbitrator. If the appointing authority failed to select and appoint the arbitrator from among the panel of three persons submitted by the contractor within 30 days of receipt of the panel, the contractor was at liberty to invoke the provisions of the Indian Arbitration Act and approach a court of law for enforcing the arbitration clause. 12. If the appointing authority failed to select and appoint the arbitrator from among the panel of three persons submitted by the contractor within 30 days of receipt of the panel, the contractor was at liberty to invoke the provisions of the Indian Arbitration Act and approach a court of law for enforcing the arbitration clause. 12. It is an admitted position in the present case that the panel of three names was communicated to the contractor by the Chief Engineer of the Corporation, (NMDC) and after the contractor selected Sri K.N. Subbaraman for his appointment as arbitrator and communicated his intention to the chairman, it was the M.D. of the Corporation, and not the chairman, who made the appointment and referred the disputes to him. 13. A plain reading of the arbitration clause as contained in clause 42 of the General Conditions of the Contract shows that the panel of three names was submitted by the Chairman of the N.M.D.C. and after the contractor selected one out of the three names in the panel for appointment as the sole arbitrator, was the Chairman of the N.M.D.C. who was to make appointment. Instead, in the present case, the panel of three names including that of Sri K.N. Subbaraman was sent to the contractor by the Chief Engineer of N.M.D.C. and after Sri K.N. Subbaraman was selected by the contractor, it was the Managing Director of the N.M.D.C., who made the appointment On this ground it has been contended on behalf of the appellant that the arbitrator not having been appointed by the designated appointing authority, the appointment of the sole arbitrator was invalid and he had no jurisdiction to adjudicate upon the dispute (s) even if referred to him by the parties. However, it has been submitted on behalf of the contractor, and not disputed by the counsel for the appellant, that when the panel of three names including that of K.N. Subbaraman was communicated to the contractor by the Chief Engineer of N.M.D.C., the contractor had written a letter to the Secretary of the Corporation as to why the names were sent to them by the Chief Engineer instead of the Chairman. In response to the query made by the contractor, the latter was informed by and on behalf of the corporation that the selection of the panel of three names had been in fact, made by the Chairman of the corporation and what the Chief Engineer had done was that he merely communicated the decision of the chairman. On being satisfied of such reply, the contractor selected the name of Sri K.N. Subbaraman and made a request to the Chairman to appoint him as the sole arbitrator. Consequently, the said Sri K.N. Subbaraman was appointed sole arbitrator by the Managing Director in view of the fact that at the relevant time there was no Chairman functioning and the Managing Director was looking after the work, of the Chairman and in that capacity he made the appointment of the arbitrator and referred the disputes to him. 14. In para 17 of the memo of appeal as well as the objection petition filed by the appellant under section 30 of the Arbitration Act, it has been specifically mentioned that even though "under clause 42 of the agreement, the Chairman, N.M.D.C. Ltd. had been designated as the appointing authority for a sole arbitrator", the Managing Director of the N.M.D.C. 'with the consent" of the contractor had made the appointment of the sole arbitrator and referred 31 items of disputes to him. Therefore, it is manifest that apart from the fact that at the relevant time when the appointment of the sole arbitrator was made, there was no Chairman of the corporation (M.M.D.C.) and the Managing Director who made appointment, was also functioning as the Chairman and performing the works of the Chairman. The appointment of the sole arbitrator was made with the consent of the parties. Therefore, at the subsequent stage, no fault can be found with in the matter of the appointment of the sole arbitrator in the peculiar facts and circumstances of the case. In my opinion, under the arbitration clause the crux of the matter was the selection of panel of three names by the Chairman and it was, admittedly, done by him even though his decision in this regard was communicated to the contractor through the Chief Engineer of the Corporation. In my opinion, under the arbitration clause the crux of the matter was the selection of panel of three names by the Chairman and it was, admittedly, done by him even though his decision in this regard was communicated to the contractor through the Chief Engineer of the Corporation. Once the contractor selected one out of the panel of three names for being appointed as the sole arbitrator, the rest of the job, namely, appointment on the basis thereof was a mere formality. In the peculiar facts and circumstances of the case stated above, there appears to be substantial compliance with the requirement of the arbitration clause respecting the appointment of the sole arbitrator. Therefore, on the ground that the sole arbitrator to whom the dispute was referred for adjudication, was formally appointed by the Managing Director, that too performing of the functions of the Chairman, and not by the Chairman himself, cannot be taken to invalidate the appointment so that the award made by the sole arbitrator so appointed becomes invalid and liable to be set aside. 15. In this case, it may be mentioned that after the sole arbitrator was appointed by the Managing Director and the disputes referred to him, the N.M.D.C. appeared before the arbitrator and participated in the arbitration by filing their statement of claim/counter claims for adjudication. Even after the unit of the said Corporation, namely, Kiriburu Iron Ore Mines stood transferred to, and vested in, the appellant by virtue of the Restructuring Act, the appellant appeared before the arbitrator and took part in the tenth sitting thereof between 3.8.1978 and 7.8.1978. In para 26 of the objection petition filed in the court below as well as in the memo of appeal, it has been stated by the appellant that their representative, namely, Bokaro Steel Plant (whose captive unit the said unit of the N.M.D.C. had been subsequently made) had appeared before the sole arbitrator on 27.1.1979 in course of the 12th hearing and took part therein from 27.1.1979 to 30.1.1979. It was much thereafter that on 25.12.1979, a formal petition had been filed on behalf of the appellant before the sole arbitrator challenging his jurisdiction to adjudicate upon the disputes referred to him in consequence of his appointment having been made by an incompetent authority. It was much thereafter that on 25.12.1979, a formal petition had been filed on behalf of the appellant before the sole arbitrator challenging his jurisdiction to adjudicate upon the disputes referred to him in consequence of his appointment having been made by an incompetent authority. Law is well settled that if a party to the dispute appears before the arbitrator and takes part in the arbitration, at a later stage, it cannot be permitted to say that the arbitrator had no jurisdiction to adjudicate upon the dispute in consequence of his invalid appointment. In AIR 1988 SC 2045 , the apex court has held that if the parties to the reference either agree before him to the method of appointment or afterwards acquiesce in the appointment made, with full knowledge of• all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceeding with full knowledge of the relevant facts will amount to such acquiescence. Therefore, in view of what I have stated above, I find that the learned Subordinate Judge has rightly held that apart from the fact that the appellant is stopped from challenging the appointment of the sole arbitrator in view of participation before him by the appellant and at the initial stage and also by the company whose undertaking stood transferred to, and vested in, the appellant under the Restructuring Act, the appointment itself cannot be found fault with simply because in the absence of regular Chairman of the corporation (NMDC) its Managing Director performing the functions of the Chairman had made the formal appointment. 16. Indeed, at the time of hearing, Mr. Banerjee appearing for the appellant did not raise the bogey, and rightly so, that the arbitrator committed an error in deciding the question of his own jurisdiction when he stated in the award impugned that he had jurisdiction over the points referred to for arbitration on the ground that the question of appointment by the Managing Director instead of the Chairman was merely technical. Suffice it to say that when the question of the jurisdiction of the arbitrator was raised before him by, and on behalf of the appellant, the arbitrator had to give a finding on that question. Suffice it to say that when the question of the jurisdiction of the arbitrator was raised before him by, and on behalf of the appellant, the arbitrator had to give a finding on that question. More so, when a Bench of this Court while disposing of CWJC No. 372 of 1981 (R) had observed that the question regarding reference to the arbitrator "shall be considered afresh by the arbitrator or by the court when the award is filed." 17. It is admitted that the contract giving rise to the dispute which led to arbitration and the resultant award by the sole arbitrator appointed in terms of clause 42 of the contract, was in respect of civil and structural works relating to modification and Expansion scheme for Kiriburu Iron Ore Mines, a unit of the N.M.D.C. By virtue of the Restructuring Act, the said Unit stood transferred to, and vested in, the 'integral' company, namely, the present appellant. Section 5 of the said Act provided that on the appointed day, i.e., 1.5.1978, the undertaking of the following units shall stand transferred to and vested in the integral company, namely, (a) Kiriburu Iron Ore Mines, a unit of the National Mineral Development Corporation Limited and (b) Meghahatuburu Iron Ore Project, a unit of the National Mineral Development Corporation Limited" 17 (a). Section 3 of the said Act defines 'undertaking'. Section 23 provides for savings of the contract, etc., of the dissolved company as also the transferred units and section 24 is respecting the savings of legal proceedings by and against a dissolved company. Section 3 of the said Act defines 'undertaking'. Section 23 provides for savings of the contract, etc., of the dissolved company as also the transferred units and section 24 is respecting the savings of legal proceedings by and against a dissolved company. According to section 24, if on the appointed day, there is pending any suit, arbitration, appeal or other legal proceeding of whatever nature by or against a dissolved company, the same shall not abate, be discontinued, or be in any way prejudicially affecting by reason of the transfer under the provisions of this Act to the integral company or in other transferee company, as the case may be, of the undertaking of the dissolved company, or of anything contained in this Act, but the suit, arbitration appeal or other proceeding may be continued, prosecuted and enforced by or against the integral company or other transferee company, as the case may be, in the same manner, and to the same extent, as it would or might have been continued, prosecuted and enforced by or against the dissolved company, if this Act had not been passed in other word if any suit, arbitration, appeal or other legal proceeding by or on behalf of a dissolved company whose undertaking stood transferred to, and vested in, the integral company by virtue of the provisions of section 4 of the Restructuring Act, was pending on the appointed day, i.e. 1.5.1978, the same was to continue by or against the integral company, in view of the provision of section 24 of the said Act. According to section 2(d) of the Restructuring Act 'dissolved company' means a company specified in the first schedule. Mr. Banerjee has pointed out that N.M.D.C. whose unit stood transferred to, and vested in, the integral company, does not figure in the first schedule of the Restructuring Act. Therefore, section 24 of the said Act cannot save the arbitration proceeding pending on the appointed day between the N.M.D.C. and the contractor so as to be continued against the appellant. 18. The argument appears to be misplaced. As indicated earlier, the unit of Kiriburu Iron Ore Mines of the N.M.D.C. stood transferred to and vested in the appellant under section 5 of the Restructuring Act, and not under section 4, according to which all the 'undertakings' of the dissolved company stood transferred to and vested in the integral company. 18. The argument appears to be misplaced. As indicated earlier, the unit of Kiriburu Iron Ore Mines of the N.M.D.C. stood transferred to and vested in the appellant under section 5 of the Restructuring Act, and not under section 4, according to which all the 'undertakings' of the dissolved company stood transferred to and vested in the integral company. According to section 3 of the Restructuring Act, for the purposes of the said Act, the 'undertaking' of a dissolved company or of a transferred unit shall be deemed to include all assets, rights, leasehold (including mining lease, if any), industrial or other licenses, powers, authority, privileges and all properties, movable and immovable, including the land, building work, mines, workshop, projects, smelter, stores, instrument, machinery, automobiles and other vehicles, cash or bank balance, cash in hand, investment and book debts and all other rights and interest in or arising out of such property as were immediately before appointed day in the ownership, power or the control of the dissolved company or the transferred unit, as the case may be, (whether within or without India) and all books of accounts, registers, maps, drawings, record or survey and all other documents of whatever nature relating thereto, and shall also be deemed to include all borrowings, liabilities and obligations of whatever kind of the dissolved company, or the transferred unit. According to the Explanation appended to the section, reference therein to an undertaking of a transferred unit shall be deemed to be a reference to so much of the undertaking of the company of which that forms a unit as is relatable to it as if it were a separate company. Therefore, it is manifest that the 'undertaking' as defined under section 3 of the Restructuring Act included not only assets and rights, etc., of the transferred unit of the company concerned, but also its liabilities and obligations of whatever kind. In other words, any liability or obligation of the N.M.D.C. in respect of its unit, Kiriburu Iron Ore Mines arising out of the disputes pertaining to the agreement .for execution of civil and structural work in connection with the modification and expansion of such unit shall become the liability and obligation of the integral company, namely, the present appellant with effect from the date of the transfer and vesting therein of the said unit. 19. 19. Sub-section (2) of section 23 of the Restructuring Act lays down that all contracts, deeds, bonds, agreements and other instruments of whatever nature to which the company in respect of a transferred unit is a party, if and in so far as it relates to the matters pertaining to the undertakings of the transferred unit, subsisting or having effect immediately before the appointed day, shall as from that day, be of full force and effect against, or in favour of the integral company or other transferee company, as the case may be, and may be enforced as fully and effectually, as if instead of such company, integral company or other transferee company had been a party thereto. There is no dispute that the disputes giving rise to the arbitration proceeding resulting in the award in question, had arisen out of contract between the contractor on the one hand and N.M.D.C. on the other in respect of one of its transferred unit namely, Kiriburu Iron-ore Mines, now a captive unit of the Bokaro Steel Plant, an unit of the appellant. Therefore, the said contract, if subsisting or having effect immediately before the appointed day, i.e., 1.5.1978, shall be of full force and effect against the appellant; and consequently, it can be enforced as fully and effectually against the appellant, instead of N.M.D.C. as if the former had been a party to such contract. Mr. Banerjee, however, pointed out that since the admitted position in the present case is that the contract in question came to an end as far back as in 1974 by virtue of completion of the contractual work assigned to the contractor, the said contract cannot be deemed to be subsisting or having effect immediately before the appointed day within the meaning of sub-section (2) of section 23 of the Restructuring Act. According to him, it would have been altogether a different matter if the contract work had been completed by the contractor only shortly before the appointed day. Since according to him, more than four years time had elapsed between the completion of the contract and thereby coming to an end thereof, on the appointed day, the contract giving rise to the arbitration proceeding cannot be deemed to be subsisting or having effect so as to fasten the liability arising there under on the appellant. Since according to him, more than four years time had elapsed between the completion of the contract and thereby coming to an end thereof, on the appointed day, the contract giving rise to the arbitration proceeding cannot be deemed to be subsisting or having effect so as to fasten the liability arising there under on the appellant. I find myself unable to agree with the contention of the learned counsel. Law is well settled that even if a contract comes to an end by virtue of competition and performances of the contract, repudiation, frustration or breach thereof, it still remains in existence for certain purposes in respect of disputes arising there under. In the present case, the contractual work purported to be completed or performed by the contractor, at least, in early part of 1974 when a certificate in this behalf was issued by the corporation (NMDC) on 11.2.1974. But soon thereafter dispute arose between the parties when bills respecting the work done by the contractor was submitted for scrutiny and payment. Result was that the contractor invoked the arbitration clause and on notice in that regard having been served by him on the corporation, the sole arbitrator was appointed and the disputes referred to him for adjudication/arbitration. Therefore, for all practical purposes, the contract in question was, at least, having its effect immediately before the appointed day. In this connection, it may be mentioned that the contract was in respect of a unit of the N.M.D.C., which stood transferred to the appellant. Before final payment under the contract could be made to the contractor by the said corporation disputes having arisen respecting such payment the matter was referred for adjudication to the sole arbitrator. Before the dispute could be resolved and final payment made to the contractor in respect of the work done under the contract in question, the unit respecting which the contract had been entered into, stood transferred to the appellant. Therefore, in view of the pendency of the arbitration proceeding arising out of such contract or agreement, for all practical purposes, the contract or agreement was still having effect when the unit in question stood transferred to, and vested in, the appellant. 20. In M/s. Indian Drugs & Pharmaceuticals Ltd. Vs. M/s. Indo Swiss Synthetics Gems Manufacturing Co. Ltd and ors. 20. In M/s. Indian Drugs & Pharmaceuticals Ltd. Vs. M/s. Indo Swiss Synthetics Gems Manufacturing Co. Ltd and ors. ( AIR 1996 SC 543 ), a question arose whether an arbitration clause in agreement would subsist or not in view of the termination of the agreement itself. Relying on the decision of a 3-Judge Bench of the Supreme Court in the case of Union of India Vs. Kishori Lal Gupta & Bros. ( AIR 1959 SC. 1362 ), the apex court observed, inter alia- "(6) between the two fall many categories of disputes in connection with a contract, such as, question of repudiation, frustration, breach, etc. In these cases, it is performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsist for certain purposes, arbitration clause operates in respect of these purposes." The court further observed that "under point no.6, however, it has been stated that when a question of breach of contract inter alia; is raised after the termination of the contract, it the performance of the contract that comes to an end on termination of the contract, but the same remains in existence for certain purposes in respect of the dispute arising under it or in connection with it. It was, therefore, stated under this point that as the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes." 21. The ratio of the above decision of the apex court is that even if a contract comes to an end by virtue of the performance thereof, if there is any dispute arising out of the contract, the contract remains enforced so long as the dispute arising out of such contract is not finally resolved either in terms of the arbitration clause or otherwise. In the present case, even if the contract between the contractor and the N.M.D.C had come to an end by virtue of completion of the work there under, a dispute having arisen respecting payment for the work done under the said contract, the matter was referred to arbitration in terms of the arbitration clause and during the pendency of the arbitration proceeding in respect of the said contractual disputes, the concerned unit of the N.M.D.C. stood transferred to, and vested in, the appellant. Therefore, the contract in question was subsisting or was, at least, having effect in so far as it concerned the resolution of the dispute between the parties when the Kiriburu Iron Ore Mines of the N.M.D.C. stood transferred to, and vested in, the appellant. Therefore, in view of sub-section (2) of section 23 read with section 3 of the Restructuring Act, the appellant cannot escape their liability under the agreement which has culminated in the award by the arbitrator, if the same is otherwise found sustainable. 22. In this connection it may be mentioned that it were the appellant themselves who chose to appear before the arbitrator and participated in the arbitration proceeding after the unit of Kiriburu Iron-ore Mines of N.M.D.C. vested in them. This shows that somewhere in the mind of the appellant it was lurking that by virtue of that transfer and vesting of the unit in them, the liability which might eventually be fixed in the arbitration proceeding in respect of the disputes arising out of the contract shall be theirs instead of N.M.D.C. That it was so becomes manifest from paragraph 3 of the written application presented by and on behalf of the appellant before the arbitrator in course of 12th hearing at Madras which has been annexed as Annexure-A to the objection petition filed in the court below. In that paragraph, it has specifically been mentioned that by virtue of the provisions of section 23(2) of the Restructuring Act, all contracts, agreements, deeds in respect of the two transferred units where N.M.D.C. was a party, the S.A.I.L. will be deemed to be substituted in place of N.M.D.C. 23. At the time of hearing, a faint attempt was made on behalf of the appellant that since the question of liability of the appellant vis-a-vis the N.M.D.C. was to be determined, it was essential that such decision was made in presence of the latter. Therefore, it was submitted that the N.M.D.C was a necessary party to the proceeding in the court below and the learned Subordinate Judge committed an error in not summoning the N.M.D.C even on prayer made by and on behalf of the appellant. Such submission appears to have been made in consequence of overlooking of certain material facts on record of the court below. N.M.D.C. were a party to the arbitration proceeding. Such submission appears to have been made in consequence of overlooking of certain material facts on record of the court below. N.M.D.C. were a party to the arbitration proceeding. They took part in the proceeding before the arbitrator until appearance of the appellant; the moment the appellant appeared before the arbitrator and took part in the proceeding, N.M.D.C. receded in the background and finally disappeared. Thereafter, the proceeding was contested by the appellant alone. When the award was made and presented by the contractor on behalf of the arbitrator in the civil court, besides the appellant, N.M.D.C. was also arrayed as one of the respondents. The record of the court below shows that, as a matter of fact, notice of filing of the award was served on the N.M.D.C. as well. Even after valid service of the notice sent by the court below, N.M.D.C. did not choose to appear before it. It was thereafter that a prayer was made by the appellant for issuing notice to N.M.D.C. so that the question of liability of the appellant, vis-a-vis the N.M.D.C. was decided in their presence. However, the plea of the appellant did not find favour with the learned Subordinate Judge who rejected the prayer by his order dated 14.5.1985 (as per annexure-2). In the said order, the learned Sub-ordinate Judge found that in view of the provisions of section 23(2) of the Restructuring Act, the appellant alone was liable under the award. The same view appears to have been reiterated by the court below in the impugned judgment making the award rule of the court. The fact however, remains that N.M.D.C. was a party defendant respondent in the proceeding before the learned Subordinate Judge and failed to appear to raise any objection when notice of filling of the award was served on them. Therefore, it cannot be said that even though N.M.D.C. were a necessary party, the question of liability under the award was decided in their absence. In fact, the liability of the appellant under the Award has been decided by the court below in presence of the N.M.D.C. Therefore, no fault can be found in the judgment of the learned Subordinate Judge on this score. A third and, to some extent, formidable ground of challenging the award is that the arbitrator is guilty of misconduct in making the award. A third and, to some extent, formidable ground of challenging the award is that the arbitrator is guilty of misconduct in making the award. The term 'misconduct' used in the context of arbitration proceedings does not necessarily imply moral turpitude or lapse on the part of a arbitrator or umpire, as the case may be. It only means and includes any mishandling of the arbitration proceeding or any breach or neglect of duty on the part of the arbitrator or umpire likely to result in miscarriage of justice. Such misconduct is known in legal parlance as judicial or legal misconduct. It becomes complete if the arbitrator arrives at a conclusion ignoring some material documents' including the document of the contract or if the award is made against the direction of the parties to the dispute or arbitration proceeding. In the present case, the grievance of the appellant is that even though in terms of the arbitration clause 42 of the agreement, matters in respect of which decision of 'any person' was by the contract expressed to be final and binding were beyond the scope and ambit of the arbitration proceeding, the contract or did refer certain disputes of that category and the arbitrator made thereon an award. It has been contended that matters specifically referred to in clauses 4, 5, 14, 17 and 18 of the agreement were matters in respect of which the decision of either the Corporation or the Engineer-in-charge had been specifically made final and binding. Disputes respecting the same were referred to the arbitrator and award made thereon. The grievance is that when the contractor raised disputes respecting 42 items, the Managing Director of the N.M.D.C. referred to the arbitrator only 31 items and declined to refer the remaining 11 items on the ground that they fell in the category of excepted nod excluded matters. However, when the contractor submitted his statement of fact/claim, he mentioned therein all the 42 items. However, when the contractor submitted his statement of fact/claim, he mentioned therein all the 42 items. It has been further submitted on behalf of the appellant that even, after disposal of the writ application filed by the appellant in this court and the direction to the arbitrator to make a severable award respecting the 11 items which were not originally referred to him for adjudication, at a later stage, the parties to the proceeding mutually agreed and filed an application to the effect that the arbitrator shall submit his award under five heads. Under that agreement, the arbitrator was required to make separate award in respect of the excepted and excluded matters, other than 11 items which were not originally referred to him. It is stated that a list of those items was submitted to the arbitrator by and on behalf of the appellant, but ignoring such direction jointly made by the parties to him, the arbitrator did not make a separate award respecting those items on the ground that in the contract between the parties, there was no provision for treating any item as unarbitrable. Therefore, according to the learned counsel for the appellant, the arbitrator is guilty of misconduct and the learned court below ignored this aspect of the matter while making the award rule of the court. It is submitted that on this ground alone the award was liable to be set aside. 24. It is not disputed that when the contractor invoked the arbitration clause by serving the Chairman of the N.M.D.C. with notice dated 20.8.1975, he had mentioned therein 42 items of their claim for reference to arbitration. It is equally undisputed that when the sole arbitrator was appointed, the Managing Director referred to arbitration only 31 items and did not refer 11 items against serial nos. 22, 23, 25, 34, 36 to 42. It appears that when the arbitrator entered into reference, the contractor submitted their statement of claim in respect of 42 items of their claim, i.e. including those 11 items which had not been referred to by the Managing Director. On their part, the N.M.D.C. also submitted their statement of counter claim they also took objection to the contractor purporting to refer even matters of the nature of excepted/excluded matters. However, they joined the proceeding without prejudice to their objection that excepted/excluded matters even though referred to arbitration, were not abatable. On their part, the N.M.D.C. also submitted their statement of counter claim they also took objection to the contractor purporting to refer even matters of the nature of excepted/excluded matters. However, they joined the proceeding without prejudice to their objection that excepted/excluded matters even though referred to arbitration, were not abatable. From the record, it further appears that by their joint petition dated 26.3.1978, the parties, namely, N.M.D.C. and the contractor agreed for adjudication by the arbitrator on all matters of dispute arising out of and/or relating to the contract under reference which were already referred to him by the parties. Soon thereafter, the appellant appeared before the arbitrator through their unit Bokaro Steel Plant and part carpeted in the hearing. At a later stage, they challenged the jurisdiction of the arbitrator and the matter reached this court by way of C.W.J.C. No. 372 of 1981 (R) which stood disposed of on 17.3.1984. While disposing of the writ application, the Division Bench of this court directed the arbitrator, inter alia, to make a severable award in respect of 11 items not originally referred to him. The obvious reason for such direction was that even if the award is made in respect of those 11 items, if at the time of hearing objection, if any, respecting thereto, the court of competent jurisdiction finds that those matters were not arbitrable in consequence of being excepted or excluded matters, only that part of the award is set aside and the award respecting other items of disputes remains unaffected. 25. Paragraph 53 of the memo of appeal as also the objection petition filed on behalf of the appellant in the court below, bears out the contention advanced on behalf of the appellant that when the arbitration proceeding re-commenced after disposal of the writ application by this court, the parties to the proceeding, namely, the appellant and the contractor mutually agreed that the arbitrator may give his award under five heads. As a matter of fact, a petition to this effect was also filed on behalf of the appellant on 1.10.1983 in course of 21st sitting. As a matter of fact, a petition to this effect was also filed on behalf of the appellant on 1.10.1983 in course of 21st sitting. Those five heads under which the arbitrator was to make and publish his award were the main award, award on excepted and excluded matters other than 11 items; award on 11 items; award on set off and adjustment; and award on the remaining items claimed by the respondent (the present appellant) under counter-claim. The correctness of this fact was not disputed by the contractor in court below in their rejoinder to the objection petition of the appellant, nor have they disputed it in course of hearing of this appeal. Annexure-C to the objection petition filed by the appellant in the court below also bears out this fact. As a matter of fact, the arbitrator did agree in course of 22nd hearing to make the award under five heads referred to above, it is submitted. 26. Annexure-D to the objection petition shows that the appellants who were respondent in the arbitration proceeding, had specifically mentioned item no. 28, 16, 17, 18,19 and 26, 5, 8, and 12 which, according to them, were of the nature of excepted/excluded matters in view of the specific provisions contained in clauses 17 (iv) and 18 of the agreement. They also relied on clauses 4 and 5 of the General Conditions of the contract in support of their contention that certain items de hors contract were not arbitrable. However, when it came for making and publishing of the award, the arbitrator made a separate award in respect of 11 items not originally referred to him. Nothing was awarded by him on these items. He made a lumpsum and unreasoned award of Rs.17,71,000/- only in respect of the remaining 31 items referred to him as per the original list attached to the letter of his appointment; and directed the appellant to pay the same to the claimant/contractor in full and final settlement of the claimant. He also made a separate award of Rs. 2, 30, 000/- only in respect of set-off in favour of the appellant. Other counter claims submitted by the appellant were rejected. Under head on excepted/excluded matters other than 11 items, the learned arbitrator observed that there is no provision in the contract for treating any item as unarbitrable. He also made a separate award of Rs. 2, 30, 000/- only in respect of set-off in favour of the appellant. Other counter claims submitted by the appellant were rejected. Under head on excepted/excluded matters other than 11 items, the learned arbitrator observed that there is no provision in the contract for treating any item as unarbitrable. In other words, he did not make a separate and severable award respecting the items mentioned in Annexure-D as per the direction of the parties to him. Therefore, in order to find out if the arbitrator is guilty of misconduct, it is necessary to see whether or not in the contract in question there are provisions according to which the decision of one person the other has expressly been made final and binding on the parties, so that the dispute respecting those matters remained outside the scope and ambit of arbitration proceeding. According to clause 42 of the contract, matters in respect of which "the decision of any person was by contract expressed to be final and binding" were the excepted matters and beyond the scope and ambit of the arbitration clause. 27. Clause 4 of the General Conditions of contract states that failure or delay by the Corporation to handing over to the contractor possession of land necessary for execution of the work, etc. shall in no way affect or vitiate the contract or alter the character thereof or entitle the contractor to damages or compensation there for provided that the Corporation may extend the time for completion of the work by such period as it may consider necessary or proper. According to clause 5 thereof, the decision of the Corporation for grant of extension of item to the contractor shall be final and shall not be called in question. Therefore, it is manifest that only on the question whether the extension of time should be allowed or not, and if allowed, to what extent, the decision of the Corporation was treated to be final and binding on the contractor. In other words, any claim of the contractor for damages on ground of delay, etc., was not covered by these clauses to become unarbitrable. 27(a). Sub-clause (i) of Clause (14) of the contract provided for suspension of the work or any part thereof by the direction of the Engineer-in-charge in writing. In other words, any claim of the contractor for damages on ground of delay, etc., was not covered by these clauses to become unarbitrable. 27(a). Sub-clause (i) of Clause (14) of the contract provided for suspension of the work or any part thereof by the direction of the Engineer-in-charge in writing. It also provided for extension of time for completion of the work or part thereof within a reasonable time in consequence of any suspension of work under direction of the engineering-in-charge. According to this clause, the decision of the Corporation on the question as to what period shall be reasonable for completion of a suspended work or part thereof shall be final. 28. Clause 17 of the contract had made provisions of inspection by the Engineer-in-Charge respecting the quality of work to be performed. The Engineer had been given right to reject defective materials and the contractor was duty bound to correct the rejected work and replace the rejected materials with proper materials at his own cost to the full satisfaction of the Engineer. The contractor was also to promptly segregate and remove the rejected materials from the premises. If the contractor failed to proceed at once with the replacement of the rejected materials or correction of defective work, the corporation has a right to get the materials replaced or work corrected through any other contractor at the cost of the contractor. According to sub-clause (iv) of clause 17, the decision of the Engineer in regard to quality of work and materials and conformity to the specifications and drawing 'shall be final'. 29. Clause 10 provided for measurement of work and determination of quantity for payment. According to sub-clause (i) thereof, the measurement of work done by the contractor were to be recorded by the engineer after notice to the contractor and the contractor or his agent, if present, were required to sign measurement books in token of acceptance of the measurements as recorded therein. If the contractor or his agents were not present at the time of measurement in spite of notice, measurements were to be recorded by the engineer in their absence and such record was to be treated as final and binding on the contractor. If the contractor or his agents were not present at the time of measurement in spite of notice, measurements were to be recorded by the engineer in their absence and such record was to be treated as final and binding on the contractor. In the event of objection by the contractor, the work was required to be measured again by the contractor after notice to him and such measurement was also to be treated as final and binding on the contractor. 30. Clause 35 of the Contract had made provision for use by the Corporation of completed work, or part thereof, if, in their opinion such completed work or part thereof was found suitable for use and in best interest of the corporation. Paragraph 3 of clause 35 provided that the use by the corporation of the work, or part thereof, as contemplated in this clause shall in no case be construed as constituting acceptance of the work, or part thereof. Such use shall neither relieve the contractor of any of his responsibilities under the contract, nor act as a waiver by the corporation of any of the condition. However, if, in the opinion of the-corporation, the use of the work or part thereof delayed the completion of the remainder of the work, the corporation might grant such extension of time as it might consider reasonable; the decision of the corporation in this regard was to be final and the contractor shall not be entitled to claim any compensation on account of such use by the Corporation. 31. Clause 34 of the regulation attached with the contract to be found at page 86 thereof, contained stipulations to the effect that the contractor shall carry out the contract; work in such a manner as to cause minimum obstruction to the production. In the areas where the work involved inevitable obstruction to the current production, partly or wholly, such period of obstruction was to be minimized by resorting to multi-shift work by the contractor and the contractor was required to do the work in accordance with the phased programmed determined by the consultant. The clause specifically provided that the extent to which such interruption was considered necessary and the period for which the loss in current production seemed inevitable, the decision thereon of the engineer was to be final and binding on the contractor. 32. The clause specifically provided that the extent to which such interruption was considered necessary and the period for which the loss in current production seemed inevitable, the decision thereon of the engineer was to be final and binding on the contractor. 32. According to clause 24 of the tenders, the successful tendered (contractor) was not to have any claim whatever against the corporation, if the work, or part thereof, covered by the tender documents was postponed to any later date or pending in the overall interest of the corporation for any other reason and the corporation's decision in the matter was to be final and binding on the contractor. Lastly, according to item no.7 of the specification no. 301 respecting modification work of demolition work, length, breadth, heights of items under consideration was to be measured as far as practicable with the proper approval of the Engineer prior to the start of the demolition work and the measurement of the demolition work was to be payable to the contractor as set forth in the bills of quantity. In case of ambiguity of the dimensions arising out of such measurement, the dimensions in existing plant drawings may be indicative approach but the decision of the engineer in that regard was to be final and binding on the contractor. 33. Reference to the above mentioned provisions of contract entered into between the N.M.D.C. and the contractor, out of which the disputes referred to the sole arbitrator had arisen, make it abundantly clear that there are provisions in the contract in which the decision of either the corporation or the Engineer-in-Charge was to be treated as final and binding on the contractor. Any dispute in respect of those materials was, certainly, beyond the scope and ambit of arbitration in view of specific provision contained in clause 42 of the contract. Still, while making the award the learned arbitrator held that there was no provision in the contract for treating any item of dispute as unarbitrable or excluded from the ambit and scope of arbitration. Still, while making the award the learned arbitrator held that there was no provision in the contract for treating any item of dispute as unarbitrable or excluded from the ambit and scope of arbitration. it will be useful to re-produce paragraph 7 of the award at page 2 which runs as follows:- "There is not in this contract any provision for treating any item as unarbitrable as the same has been left finally for the decision of some other party like the Engineer-in-Charge as found in the conditions of certain other organizations like Railway, Hindustan Steel, etc." This shows that the learned arbitrator did not care to go through the terms and conditions of the contract for satisfying himself before adjudicating upon the items referred to in Annexure-D to the objection petition whether or not any of those items were covered by one or the other provision of the contract in respect of which the decision of either the corporation or the Engineer of the corporation was to be treated as final and binding on the contractor. The parties before the arbitrator mutually agreed that he should make and publish a severable award on those items which, according to the appellant, were unarbitrable by virtue of being excepted or excluded matters and a joint request had been made to him in this regard. Still the learned arbitrator ignored the joint request of the parties and failed to make a separate or severable award in respect of those items on the sole ground that according to him, the contract contained no provision therein for treating one or the other of those items in respect of which the decision of the one authority or the other was to become final and binding. He even went to the extent of observing that the appellants were claiming those items as unarbitrable not on the basis of the specific provisions contained in the contract, but on the analogy of the conditions contained in the contract of certain other organizations like Railways, Hindustan Steel, etc. Annexure-D to the objection petition which is a copy of submissions made before the arbitrator on behalf of the appellant, shows that, at least, in respect of item no. 16 they had specifically stated that inspire of a decision of the engineer that the contractor had done work to the tune of Rs. 3,923.13P, the contractor had claimed Rs. Annexure-D to the objection petition which is a copy of submissions made before the arbitrator on behalf of the appellant, shows that, at least, in respect of item no. 16 they had specifically stated that inspire of a decision of the engineer that the contractor had done work to the tune of Rs. 3,923.13P, the contractor had claimed Rs. 53,924.68P and raised a dispute which had been referred to arbitration; and the learned arbitrator included that item in his lump-sum award. 34. In the case of Food Corporation of India Vs. Srikanth Transport: (1999) 4 SCC 491 , it has been held that 'excepted matters' obviously, as the parties agreed, do not require any further adjudication since the agreement itself provides a named adjudicator-concurrence to the same obviously is presumed by reason of the unequivocal acceptance of the terms of the contract by the parties and this is where the courts have been found lacking in their jurisdiction to entertain an application for reference to arbitration as regards the disputes arising there from and it has been the consistent view that in the event of claims arising within the ambit of excepted matters, the question of assumption of jurisdiction of any arbitrator, either with or without the intervention of the court, would not arise. The parties themselves have decided to have the same adjudicated by an officer in regard to these matters, what these exceptions are, however, are questions of fact and usually mentioned in the contract documents and form part of the agreement and as such there is no ambiguity in the matter of adjudication of these specialized matters and being termed in the agreement as excepted matters," 35. In the case before the apex court, even the matters which were otherwise of the nature of excepted matters in terms of the arbitration clause were allowed to be referred to arbitration on the ground that the Food Corporation of India had chosen to institute a suit in court in respect of such excepted matters and thus abandoned its right to get the matters decided by the named officer. In the present case, even though the matters which according to the appellant were of the category of excluded matters, were referred to arbitration by the Managing Director, at a subsequent stage, direction thereto was taken and, finally, both the parties had mutually agreed to give a direction to the arbitrator that in respect of items which, according to the appellant, were of the nature of excepted or excluded matters, a separate and severable award be made. The learned arbitrator by ignoring such specific direction mis-directed himself in making lump-sum award in respect of 31 items including those which, according to the appellant were not arbitrable. The result is that the portion of the award in respect of which the arbitrator is guilty of misconduct cannot be separated or severed from the rest of the award made in favour of the contractor. Therefore, the whole of the award made in respect of 31 items has to be set aside. 36. Now coming to the cross-objection preferred by the respondent contractor against the decision of the learned court below in declining to allow interest on the awarded amount from the date f the award till payment, it is not necessary to give any finding in view of the fact that the award made in favour of the respondent contractor is being set aside, the cross-objection naturally fails. If the sum of which interest is sought set at naught, there is no question of getting interest thereon. Suffice to say that when the award was filed in the court below and there was a prayer by the contractor for making the same rule of the court, there was no plea for interest pendent lite or future, even though there was specific averment for granting relief of 50% of the cost, which the arbitrator had directed the parties to share equally. If the contractor did not make prayer before the court below for interest, there was no occasion for the said court to allow interest. 37. In the result, the appeal is allowed and the judgment and decree of the court below making the award rule of the court is hereby set aside. While the award made and published by the arbitrator on 11 items not originally referred, and in respect of set off amounting to Rs. 2,30,000/- only, requires no interference, that for Rs. 37. In the result, the appeal is allowed and the judgment and decree of the court below making the award rule of the court is hereby set aside. While the award made and published by the arbitrator on 11 items not originally referred, and in respect of set off amounting to Rs. 2,30,000/- only, requires no interference, that for Rs. 17,71,000/-respecting the, remaining 31 items of dispute is set aside. The dispute in respect of the said 31 items is remitted to the sole arbitrator to make a fresh award on these 31 items in accordance with the direction of the parties as contained in the petition dated 1.10.1983 in the light of the observations made in this judgment. The sole arbitrator is directed to make and publish a fresh award on 31 items under two separate and severable heads, one in respect of items as are claimed by the appellant as excluded/excepted matters and mentioned in their written submissions dated 7.10.1983, and another in respect of the remaining items. In making the award on items claimed to be excluded/excepted matters the arbitrator shall consider each of the said items individually and make the award accordingly stating as briefly as possible whether or not that particular item attracts the stipulation of finality of the decision the person (s) mentioned in different clauses of the agreement referred to in paragraphs 27 to 32 of this judgment. The arbitrator shall make fresh award in terms of the direction given above within four months and file the same in the civil court of competent jurisdiction. The parties are hereby directed to appear before the sole arbitrator within a month hereafter, if possible, on a mutually agreed date; and make their brief submissions either, orally, or in writing, and thereafter the sole arbitrator shall proceed to make and publish his award in, accordance with law. No fresh evidence shall be permissible. The cross-objection filed by the respondent no.1 is dismissed. Parties to bear their cost of this appeal. 38. The Registrar of this Bench is directed to ensure that this order is communicated to the arbitrator and the court below forthwith and entire record together with copy of the agreement received from the District & Sessions Judge, Singhbhum West under his letter no. 132 dated 12.10.1999 is transmitted immediately. Parties to bear their cost of this appeal. 38. The Registrar of this Bench is directed to ensure that this order is communicated to the arbitrator and the court below forthwith and entire record together with copy of the agreement received from the District & Sessions Judge, Singhbhum West under his letter no. 132 dated 12.10.1999 is transmitted immediately. The court below shall immediately make available to the sole arbitrator the entire record of the arbitration proceeding, including the copy of the agreement.