JUDGMENT Subhro Kamal Mukherjee, J. This is an appeal against the judgment and order dated April 25, 2000 passed by a learned Judge of this Court rejecting an application for setting aside of the award filed under sections 30 and 33 of the Arbitration Act, 1940. (In short "the Act") 2. On or about May 30, 1994 an agreement was entered into by and between the parties appointing the respondent/contractor for construction of 48 flats at premises Nos. 19C and 19D, Golf Club Road, Calcutta. It was stipulated in the agreement that the entire work, contracted for, should be completed and possession of the flats should be delivered within 18(eighteen) months from April 12, 1994. 3. After taking over the site the contractor progressed with the works to some extent, but could not complete the work within the time frame. By a letter dated December 23, 1994, the contractor, inter alia, stated that it was not possible for the contractor to recommence the work and to show minimum progress of the work due to reasons allegedly beyond their control and submitted a re-schedule of the work and asked for permission to restart the work. It was categorically stated in the said letter that opportunities should be given to the contractor to execute the work in accordance with the re-schedule failing which necessary actions, as per provisions of the contract, could be taken against it. It appears, that the authorities concerned accepted the requests of the contractor and although recorded that the work had been kept completely suspended from November 21, 1994 to December 30, 1994, but granted the contractor an opportunity to complete the work by January 31,1995 within which the contractor was requested to complete the work and in case of failure on the part of the contractor to complete the work, the authorities concerned pointed out that there would have no other alternative but to terminate the contract. 4. By a letter, the Deputy Chief Engineer (II) informed the contractor that it had failed to avail itself of the opportunity to complete that work within the time mentioned in the said letter of the contractor and, ultimately, by a letter dated November 13, 1995 the contract was terminated in accordance with clause 15 of the contract. 5. 4. By a letter, the Deputy Chief Engineer (II) informed the contractor that it had failed to avail itself of the opportunity to complete that work within the time mentioned in the said letter of the contractor and, ultimately, by a letter dated November 13, 1995 the contract was terminated in accordance with clause 15 of the contract. 5. There has been a clause in the general conditions for referring all disputes between the parties to contract arising out of or relating to the contract, other than those for which the decision of the engineer is by contract expressly made final, binding and conclusive, to the arbitration. It is provided in clause 15 of the work contract that certificate of the engineer as to the happening of the any of the events referred to in the said clause shall be conclusive proof as between the contractor and the Trust of the statements contained in such certificate. Thus, in certain matters the opinions of the engineers are final between the parties. 6. In terms of the agreement initially the Officer-on-Special Duty of the Calcutta Improvement Trust became the arbitrator, but ultimately Amitava Lala, J., by the order dated November 18, 1997 removed the named arbitrator and appointed the present Arbitrator, a learned Advocate of this court, to act as sole arbitrator. After holding several sittings, the learned Arbitrator published his award on September 30, 1999 awarding the contractor a sum of Rs. 24,80,000/- in full and final settlement of the contractor's alleged calim. The learned Arbitrator granted simple interest at the rate of 11% per annum with effect from November 23, 1995 to February 23, 1998 on the said sum and, further, interest at the rate of 18% per annum on the said sum with effect from February 24, 1998 till the date of full payment or decree of the Court. The claimant was awarded a sum of Rs. 1,00,000/- only towards cost of arbitration to be recovered from the Trust. 7. The appellant herein, the Calcutta Improvement Trust, filed an application under sections 30 and 33 of the said Act, inter alia, praying for setting aside of the said award. Such prayer of the appellant was contested by the contractor and, ultimately, by the order impugned the learned Judge rejected the said application under sections 30 and 33 of the said Act. 8. Such prayer of the appellant was contested by the contractor and, ultimately, by the order impugned the learned Judge rejected the said application under sections 30 and 33 of the said Act. 8. The learned Advocate appearing in support of the appeal contended, inter alia, that the learned Arbitrator went beyond the terms of contract inasmuch as under clause 1.9 contained in the instructions to the tenderers along with clause 15 of the agreement, the decision of the engineer was made final and binding between the parties and in view thereof, the decision of the engineer in respect of termination of the contract was final, binding and not a matter for arbitration at all. As per the terms of the contract, no interest is payable on the earnest money/security deposit, but the learned Arbitrator entertained even such claims of the contractor. It was, further, submitted that the value of the entire work entrusted was fixed at Rs. 1,46,06,775.80 paise out of which the contractor executed only about 33% of the work and from time to time the contractor received payments amounting to Rs. 34,00,000/-. After the termination of the contract, the work executed by the contractor was measured and recorded in the measurement book which was duly signed by the contractor's representative and as such the claim of the contractor was highly exaggerated and the learned Arbitrator mechanically granted the contractor a huge sum of money in the award without any justifiable reason. The learned Advocate, further, submitted that the claim for the loss 'of anticipatory profit is completely illusory inasmuch as the claimant in its letter dated December 7, 1995 stated, inter alia, that it has accepted the termination of contract and it is an admitted position that the claimant was not in a position to complete the work contracted for even within the time frame submitted by it subsequently. Finally, the learned Advocate submitted that there is no whisper whatsoever in the award as to whether the learned Arbitrator has at all considered the counter claim submitted by the appellant herein. The learned Advocate, therefore, prayed for setting aside of the award upon setting aside of the 'order passed by the learned Trial Judge. 9. Finally, the learned Advocate submitted that there is no whisper whatsoever in the award as to whether the learned Arbitrator has at all considered the counter claim submitted by the appellant herein. The learned Advocate, therefore, prayed for setting aside of the award upon setting aside of the 'order passed by the learned Trial Judge. 9. Learned Advocate for the respondent/claimant interpreted that clauses of the contract in support of the order impugned and submitted that the issue as to termination of the contract was not an excepted matter and in view of the settled position in law that the exclusion clause can be waived and as it appears from the conduct of the parties that such exclusion clause, if there by any, was never raised before the learned Arbitrator, the appellant has consciously relinquished their purported right and, thus, is not entitled to raise the same in connection with the application under sections 30 and 33 of the said Act. 10. Mr. Dipak Basu, learned Advocate for the appellant cited the case of Urban Improvement Trust, Jodhpur vs. Oohul Narain and Anr., reported in AIR 1996 Supreme Court 1819, in support of his contention that award granted by the Arbitrator having no jurisdiction to entertain claim is nullity and the learned Trial Judge ought to have set aside the award. The said learned Advocate, further, cited the case of Vishwanath Sood vs. Union of India and Anr., reported in AIR 1989 Supreme 952, in order to bring home his point that when-the decisions of the engineers on certain matters were made final under the clauses of contract, passing an award ignoring such excepted clauses has made the award a nullity and contended that the Arbitrator cannot exceed his jurisdiction or go beyond the terms of the agreement and when he did so, he commits jurisdictional error and the award passed by him would be without jurisdiction. The learned Advocate for the appellant cites the cases of Steel Authority of India Limited vs. J. C. Budha Raja, reported in 1999(8) SCC 122 and Rajasthan State Mines and Minerals Limited vs. Eastern Engineering Enterprises and Anr., reported in 1999(9) SCC 283 , where it has been held that when fundamental terms of agreement between the parties are ignored by the Arbitrator, such Arbitrator exceeds his jurisdiction even if the jurisdiction clause itself is widely worded and such departure from the contract amounts not only to manifest disregard of the authority or misconduct, but may tantamount to mala fide action. The case of Grid Corporation of Orissa Limited and Anr. vs. Balasore Technical School, reported in AIR 1999 Supreme Court 2262, was cited by the learned Advocate and, on the basis thereof, he submitted that the Arbitrator deciding question otherwise than in accordance with the contract commits jurisdictional error and as such the court is competent to interfere with the award in the exercise of the court's power under sections 30 and 33 of the said Act. The learned Advocate on the strength of the aforesaid decisions submitted that in a proceedings under sections 30'and 33 of the said Act court is required to examine whether the Arbitrator has exceeded his jurisdiction and the decision of the learned Trial Judge on that account was erroneous. The learned Advocate, further, cited the case of Dandasi Sahu vs. State of Orissa, reported in AIR 1990 Supreme Court 1128, in order to substantiate his argument that in the event it is found that the claim of the contractor is highly exaggerated and that the learned Arbitrator has accepted such claim mechanically, the award suffers from non-application of mind by the Arbitrator and the award is liable to be set aside. 11. Mr. 11. Mr. P. K. Roy, learned Advocate for the respondent apart from distinguishing the cases cited by the learned Advocate for the appellant cited the cases of Prasun Roy vs. Calcutta Metropolitan Development Authority and Anr., reported in AIR 1998 Supreme Court 205, Himachal Pradesh State Electricity Board vs. R. J. Shah and Company, reported in J. T. 1999 (3) SC 151 and, contended that the present award being a non-speaking award and that the learned Arbitrator construed the contract and gave award and the appellant having acquiesced to arbitration proceeding by participating in it for long time, the appellant is not entitled to challenge the award as the' learned Arbitrator was within his jurisdiction to pass the award. The learned Advocate, also, cited the case of Union of India vs. Abhay Sarkar, reported in AIR 1992 Calcutta 242, in order to substantiate his contention that the learned Arbitrator has jurisdiction to interpret the clauses of contract and when on such interpretation awarded compensation in favour of the contractor, it cannot be said that the learned Arbitrator has committed any misconduct enabling the court to invoke its jurisdiction under sections 30 and 33 of the said Act. 12. In order to appreciate the rival contentions of the parties it is necessary to take note of the relevant clauses of the contract and the instructions to tenderers. Under clause 1.9 of the instructions to tenderers the dispute between the parties to the contract shall be referable to an arbitrator, other than those for which the decision of the engineer is by contract expressed to be final, binding and conclusive. Under clause 15 of the contract it was expressly provided that the certificate of the engineer as to the happening of any of the events referred to in the said clause 15 shall be conclusive proof as between the contractor and the Trust of the Statements contained in such certificate. The certificate of the engineers is available at page 120 of the paper book where from it clearly appears that the progress of the work by the contractor was wholly unsatisfactory all along inspite of repeated demands from the Trust to achieve satisfactory progress and that not even 33% of the work could be completed by the contractor within the stipulated time. It was certified that the contractor had miserably failed to complete the work. It was certified that the contractor had miserably failed to complete the work. It is an admitted fact that the work was a time bound Government project and that time was essence of the contract. Work order was issued on April 12, 1994 and the claimant was to complete the 48(forty eight) flats within 18(eighteen) months and as the claimant has failed to comply with the terms of the contract even within the extended period, there was no option for the Trust but to terminate the contract. It appears from the materials placed before us that at one stage the contractor expressed their helplessness and admitted that the work was completely abandoned for a considerable period. The contractor, therefore, prayed before the Trust for extension of time and submitted a detail re-schedule of work, but ultimately failed to achieve the progress. The contractor has hardly executed about 33% of the work and the contractor had been paid its running account bill. After all adjustments the contractor's due was assessed and the contractor was paid. Neither in course of the arbitration proceedings nor before the court it appears that the Trust had given up its objection that some excepted matters had been referred to the arbitration and that those were not matters for arbitration. The learned Trial Judge proceeded erroneously on the basis that the Trust did not take such objections before the Arbitrator regarding the excepted matters. In the counter statement such points were taken and it does not appear to us that the Trust had relinquished their aforesaid right. It does not appear to us there is, as a matter of fact, a positive relinquishment or abandonment of a right so far as adjudication of the excepted matters are concerned by the Calcutta Improvement Trust since the Trust has taken the said point in the first possible opportunity, that is, in their counter statement of facts before the learned Arbitrator. The subsequent conduct of the Trust in agreeing to the appointment of the learned Arbitrator does not amount to non-perusing of their objection with regard to the excepted matters. It cannot be said that the Calcutta Improvement Trust has acquiesced in the appointment of Arbitrator and the proceedings for settlement of dispute by arbitration even in respect of excepted matters. The subsequent conduct of the Trust in agreeing to the appointment of the learned Arbitrator does not amount to non-perusing of their objection with regard to the excepted matters. It cannot be said that the Calcutta Improvement Trust has acquiesced in the appointment of Arbitrator and the proceedings for settlement of dispute by arbitration even in respect of excepted matters. We have indicated hereinabove that in the first possible opportunity the objection as to the excepted matters was taken and it does not appear from the materials on record that such objection was abandoned at any stage of the proceeding. Where the fundamental terms of agreement between the parties prohibited arbitration of certain excepted matters and where the said fundamental terms of agreement between the parties had been ignored by the learned Arbitrator, even where the arbitration clause it self is widely worded, the learned Arbitrator exceeded his jurisdiction and such departure from the contract amounted to manifest disregard of the authority giving rise to jurisdictional error which could only be corrected by the court and the court is, while considering an application under sections 30 and 33 of the said Act, is required to consider the agreement between the parties and to find out if the agreement specifically bars certain claims from being raised and yet an award has been made. The decision cited by the learned Advocate for the respondent in the case of Prasun Ray (supra) has no manner of application as in this case the Trust at the first possible opportunity took objection about the Arbitrability of the dispute by the arbitrator with regard to excepted matters and participated in the arbitration proceeding with such specific objection. It cannot be said that the Trust had consciously abandoned the right and participated in the proceeding so as to prevent the Trust to challenge the award as without jurisdiction on that account. In a situation where an award has been passed disregarding such specific bar, the court must not uphold such award. The case of Himachal Pradesh State Electricity Board (supra) cited by the learned Advocate for the respondent, also, has no manner of application in the case in hand. In a situation where an award has been passed disregarding such specific bar, the court must not uphold such award. The case of Himachal Pradesh State Electricity Board (supra) cited by the learned Advocate for the respondent, also, has no manner of application in the case in hand. It was provided in clause 15 of the work contract that the certificate of the engineer as to the happening of any of the events referred to in the said clause shall be conclusive proof as between the contractor and the Trust of the statements contained in such certificates. The Trust objected before the Arbitrator about the Arbitrability of the dispute contending that the decision of the engineer in respect of termination of the contract was final, binding and not a matter for arbitration at all. A careful perusal of the materials reveals that the Arbitrator acted in excess of jurisdiction by permiting the claimant to raise a particular dispute or claim before him when under the agreement such dispute is not referable to arbitration. Therefore, the award of the learned Arbitrator that the contract was wrongfully terminated by the Trust is without jurisdiction being an excepted matter. 13. Under para 18.2. the contractor claimed for refund of initial security deposit alongwith earnest money and the refund of retention money. As per the terms of the contract no interest is payable on the earnest money/security money. The learned Arbitrator has not only entertained such claim of the contractor but has, also, awarded interest on the lump sum award. The contractor put forward several claims before the learned Arbitrator and the said claims are sub-divided in various heads, but the learned Arbitrator passed a lump sum award for Rs. 24,80,000/- and the court in the given situation is not in a position to appreciate what is item wise calculation of the learned Arbitrator. Such awarding of interest by the learned Arbitrator was without jurisdiction. The decision in the case of Union of India vs. Abhay Sarkar (supra) is, also of no help to the claimant. The parties and the Arbitrator are admittedly governed by the agreement. The agreement curved out certain excepted matters. Such awarding of interest by the learned Arbitrator was without jurisdiction. The decision in the case of Union of India vs. Abhay Sarkar (supra) is, also of no help to the claimant. The parties and the Arbitrator are admittedly governed by the agreement. The agreement curved out certain excepted matters. In view of the clear and unambigous language of the agreement, there was no scope for the interpretation by the Arbitrator and the Arbitrator exceeded his jurisdiction in coming to the conclusion that the disputes and/or claims raised before him by the claimants are required to be decided by him under the agreement. 14. That the contractor claimed certain amount on account of alleged infructuous expenses including site establishment expenses, on account of loss of hire charges of machinery and loss for anticipatory profit on the value of work which remains unexecuted within the stipulated period of completion. When practically no substantial work was done by the claimant and when the claimant was lagging far behind the schedule even after 13(thirteen) months out of the 18(eighteen) months fixed for completion of the work and when the contractor itself prayed for extension of time for completion of the work and expressly stated in the event of its failure to complete the work during the reschedule period, i~ would be open for the Trust to terminate the contract, the claims of the contractor on those accounts appear to us to be exaggerated. Although the contractor claimed for a sum of Rs. 12,00,000/- on account of the balance amount due for execution of the works, ultimately in course of arbitration had to revise its claim to Rs. 1,97,990.09 paise on that account. When the contractor failed to adhere to the time schedule submitted by it to the Trust, the claim for the loss of anticipatory profit on the value of the work claimed at Rs. 14, 43, 004.44 paise appears to us to be illusory and exaggerated. It is pertinent to take note of the fact that by its letter dated December 7, 1995 the contractor has accepted the termination of the contract and it is an admitted position that the contractor was unable to complete the work contracted for. 15. 14, 43, 004.44 paise appears to us to be illusory and exaggerated. It is pertinent to take note of the fact that by its letter dated December 7, 1995 the contractor has accepted the termination of the contract and it is an admitted position that the contractor was unable to complete the work contracted for. 15. It does not appear from the award itself as to whether the learned Arbitrator has at all considered the counter claim of the Trust and one has to proceed that in view of the award passed presumably the learned Arbitrator has rejected the counter claim by the Trust. Upon careful scrutiny of the award it does not appear to us that the learned Arbitrator has at all considered the counter claim of the Trust and thereby he had failed to exercise the jurisdiction vested in him by law. 16. In such view of the matter, we are unable to maintain the award. We, therefore, set aside the order impugned and allow the application under sections 30 and 33 of the said Act filed by the Calcutta Improvement Trust. 17. The appeal is, thus, allowed. 18. There will be no order as to costs. Tarun Chatterjee, J. : I agree. Appeal allowed.