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2002 DIGILAW 207 (KER)

Union of India v. Asian Techs Ltd.

2002-03-21

K.A.MOHAMMED SHAFI, K.S.RADHAKRISHNAN

body2002
Judgment :- Radhakrishnan, J. This appeal and the revision are directed against the common judgment in Arbitration O.P. No. 18 and 4 of 1994 respectively of the Third Additional Sub Court, Ernakulam. 2. M.F.A. No. 452 of 1997 was preferred by the Union of India and its officers challenging the judgment in Arbitration O.P. No. 18 of 1994 which was filed by the appellants under Sections 30 and 33 of the Arbitration Act to set aside the award. Arbitration O.P. No. 4 of 1994 was preferred by the respondent herein, M/s Asian Techs Limited under section 17 of the Act for passing a judgment and decree in terms of the award. The court below allowed O.P. No. 4 of 1994 and the petitioner therein was granted a decree in terms of the award for an amount of Rs. 50,22,612/- with 18% interest from the date of the decree till realization. O.P. No. 18 of 1994 for setting aside the award was dismissed. Union of India and its officers have come up challenging those orders. 3. Respondent herein, Asian Techs Ltd. entered into an agreement with the Union of India for the construction of "Provision of Lab and Administrative Block" etc. for NPOL at Kakkanad, Cochin. Agreement was dated 2.9.1986 and the probable amount of contract was Rs. 3,58,96,665/-. Construction was to be completed before 8.9.1988. Period of the contract was 24 months. Ext. R1 is the agreement and Ext. R1(a) is the General Conditions of contract known as IAFW -2249. According to the Union of India, due to the delay caused by the respondent, project could not be completed by 8.9.1988, but completed by 30.6.1990. Disputes and differences arose between the parties and the disputes were referred for arbitration to the Chief Engineer, Air Force as per the arbitration clause. Respondent, Asian Techs Limited claimed a total amount of Rs. 1,47,60,385/ with interest and costs. Union of India submitted their defence statement. The Arbitrator in this case entered into reference on 1.1.1993 and passed the award on 30.12.1993. Arbitrator partly allowed claim Nos. 1 to 3,5,9,12,17,19,21,22,24,26,30,35,37,38,40,41,44 and past, present and future interest as per clause 46 raised by the respondents and disallowed the counter claim raised by the Union of India. Ultimately arbitrator passed an award on 30.12.1993 in favour of the respondent Asian Techs Limited allowing their claim to the extent of Rs. 50,22,612/- with interest. Arbitrator partly allowed claim Nos. 1 to 3,5,9,12,17,19,21,22,24,26,30,35,37,38,40,41,44 and past, present and future interest as per clause 46 raised by the respondents and disallowed the counter claim raised by the Union of India. Ultimately arbitrator passed an award on 30.12.1993 in favour of the respondent Asian Techs Limited allowing their claim to the extent of Rs. 50,22,612/- with interest. The award was challenged on various grounds. 4. Standing counsel for the Union of India submitted that the arbitrator had exceeded his jurisdiction and gone beyond the terms of reference and resolved disputes which are not arbitrable. Counsel submitted arbitration clause which forms part of the contract agreement expressly excludes from the purview of the arbitration disputes on which decision of the CWE or any other person is by contract expressed to be final. Reference was made to claims 17,19,21,23,24,26,33,37,38,40 and 41 based on the 'star rates' i.e. value of deviation under condition 62(g) of IAFW 2249 by virtue of its final and binding nature as per the said condition. Counsel also submitted that the arbitrator failed to look into the relevant documents, namely : (i) the condition under the General Conditions of contract I.A.F.W. 2249, (ii) the letter of appointment dated 15.12.1992 of Engineer-in-Chief appointing the Arbitrator, and (iii) the pleading in defence in this regards and thus committed legal and technical misconduct in awarding large amounts against the said claims. Counsel submitted that the learned arbitrator has misdirected and overlooked the relevant provisions contained in the contract. Counsel submitted in those documents extension of time was granted from time to time in terms of condition No. 62 (G) of GE of the contract without any financial effect. Reference was also made to paragraph 11(c) of the terms of contract. With regard to claim No. 9 counsel submitted that the arbitrator awarded an amount of Rs. 73,514/- which forms part of claims 1 to 3. Counsel submitted, accordingly arbitrator committed an error apparent on the face of the award. 5. Counsel submitted that the contractor had already received the entire amount in full and final satisfaction of his claims. Consequently as per clause 65 of the agreement, no further claim shall be made by the contractor after the submission of the final bill and these shall be deemed to have been waived and extinguished. Consequently there is accord and satisfaction in accordance with Section 63 of the Indian Contract Act. Consequently as per clause 65 of the agreement, no further claim shall be made by the contractor after the submission of the final bill and these shall be deemed to have been waived and extinguished. Consequently there is accord and satisfaction in accordance with Section 63 of the Indian Contract Act. 6. Counsel appearing for the respondent submitted that none of the grounds urged by the counsel for the appellants is available for interference with a non-speaking award passed by the arbitrator. Counsel submitted court cannot scrutinize the mental process of the arbitrator and speculate whether good reasons have been stated to arrive at his conclusion. Counsel submitted that the arbitrator is under no obligation to give reasons in support of the decision taken by him unless arbitration agreement or deed of settlement require to give such reasons. Counsel further submitted arbitrator has not traveled beyond clause 62(g) of the General conditions of contract. Counsel submitted by accepting the final bill arbitrable disputes governed by Clause 70 cannot be set at naught. In order to establish the last contention, counsel referred to the decision of the apex court in Union of India v. L.K. Ahuja and Co. (1988 (3) SCC 76) and also the decision in Jayesh Engineering Works v. New India Assurance Co. Ltd. (2000 (10) SCC 178). Counsel also highlighted the fact that in the case of non-speaking award the jurisdiction of the court is very limited. Counsel also highlighted the fact that in the case of non-speaking award the jurisdiction of the court is very limited. Counsel on either side placed reliance on several decisions in support of their arguments. Legal principles on which disputes between the rights of parties are to be adjudicated in this case are settled by several decisions of the apex court. The apex court after an exhaustive survey of the cases on the point has reiterated the legal position in Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises and another (1999 (9) SCC 283). 7. Before we examine the contentions on merits it will be profitable to reproduce and reiterate principles laid down by the apex court in this regard in Rajasthan State Mines' case, supra, which are as follows : (a) It is not open to the court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at the conclusion. (b) It is not open to the court to admit to probe the mental process by which the arbitrator has reached; his conclusion where it is not disclosed in the terms of the award. (c) If the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication then the court cannot interfere. (d) If no specific question of law is referred, the decision of the arbitrator on that question is not final, however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. In a case where a specific question of law touching upon the jurisdiction of the arbitrator was referred for the decision of the arbitrator by the parties, then the finding of the arbitrator on the said question between the parties may be binding. (e) In a case of non-speaking award, the jurisdiction of the court is limited. The award can be set aside if the arbitrator acts beyond his jurisdiction. (f) To find out whether the arbitrator has traveled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. The arbitrator acting beyond his jurisdiction is a different ground from the error apparent the face of the award. (g) In order to determine whether the arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant could raise a particular claim before the arbitrator. If there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to the raising of the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction. (h) The award made by the arbitrator disregarding the terms of the reference or the arbitration agreement or the terms of the contract would be a jurisdictional error which requires ultimately to be decided by the court. He cannot award an amount which is ruled out or prohibited by the terms of the agreement. Because of a specific bar stipulated by the parties in the agreement, that claim could not be raised. He cannot award an amount which is ruled out or prohibited by the terms of the agreement. Because of a specific bar stipulated by the parties in the agreement, that claim could not be raised. Even if it is raised and referred to arbitration because of a wider arbitration clause such claim amount cannot be awarded as the agreement is binding between the parties and the arbitrator has to adjudicate as per the agreement. (i) The arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part but it may tantamount to malafide action. (j) The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable, the arbitrator is a tribunal selected by the parties to decide the disputes according to law. We are of the view the abovementioned principles stated after exhaustive survey of the decisions on the point would be sufficient to resolve the disputes raised by the parties in this case. In a case of non-speaking award court can interfere with the award if the arbitrator has acted beyond the terms of reference thereby committed a jurisdictional error or acted arbitrarily. 8. We may examine the first contention as to whether claims 17,19,21,23,24,26,30,33,35,37,38,40 and 41 based on the star rates, i.e., value of deviation under condition 62(G) of IAFW 2249 by virtue of its final and binding nature as per the said condition, are within the jurisdiction of the arbitrator or not? The claimant raised a dispute claiming amounts towards extra expenditure incurred in carrying out works during the prolonged period of maintenance of establishment from 8.9.1988 to 30.6.1990, claim for payment due under deviation orders and interest on the amount less paid under various deviation orders. 9. According to the Union of India, the bills concerning the above-mentioned claims have already been finalized as per the procedure laid down in the terms of contract. To satisfy the above claims, an amount of Rs. 7,82,697/- was already awarded by the Union of India on the basis of the claims as per clause 62(G) of the Contract IAFW 2249. According to the Union of India, the bills concerning the above-mentioned claims have already been finalized as per the procedure laid down in the terms of contract. To satisfy the above claims, an amount of Rs. 7,82,697/- was already awarded by the Union of India on the basis of the claims as per clause 62(G) of the Contract IAFW 2249. We may in this connection refer to condition No. 62.Condition No.62 contains in Chapter IV of the agreement which delas with valuation and payment. Clause 62 deals with Valuation of deviations. We may extract the condition mentioned clause 62 for easy reference. 62. Valuation of Deviations - The value of items of work covered by deviation orders shall be ascertained by measurements or lump sum assessment in the following order of precedence :- (A) Applicable to Lump Sum contracts based on Bills of Quantities. a) At applicable rate in relevant part of Sch. A in which the deviation is involved; b) At lowest applicable rates in any other Bill of Quantities; c) At pro-rata rate based on lowest rate for analogous item in the Bill of Quantities for the building/item of work to which the deviation refers; d) At pro-rata rate based on lowest rate for analogous items in any other Bill of quantities; (B) Applicable to Lump Sum Contract based on Pre-priced Schedule A- a) At applicable rate in Schedule A b) At pro-rata rate based on analogous items in relevant part of Schedule A in which the deviation is involved. c) At applicable rate in the M.E.S. Schedule d) At pro-rata rate based on analogous items in the M.E.S. Schedule The rates at (a) to (d) above shall be subject to the Contractor's percentage. (c) Applicable Lump Sum Contracts based on Drawings and Specifications - a) At applicable rate in relevant part of Schedule-A in which the deviation is involved; b) At pro-rata rate based on analogous items in relevant part of Schedule-A in which the deviation is involved. c) At applicable rate in the M.E.S. Schedule; d) At pro-rata rate based on analogous items in the M.E.S. Schedule. The rates at (c) and (d) above shall be subject to the percentage inserted in tender documents for pricing deviations. The rates at (c) and (d) above shall be subject to the percentage inserted in tender documents for pricing deviations. c) At applicable rate in the M.E.S. Schedule; d) At pro-rata rate based on analogous items in the M.E.S. Schedule. The rates at (c) and (d) above shall be subject to the percentage inserted in tender documents for pricing deviations. The rates at (c) and (d) above shall be subject to the percentage inserted in tender documents for pricing deviations. (D) Applicable to Measurement (Percentage Rate) and Term Contracts a) At applicable rate in the M.E.S. Schedule; b) At pro-rata rate based on analogous items in the M.E.S. Schedule (E) Applicable to item Rate contracts a) At applicable rates in Schedule A b) At pro-rata rate based on analogous items in Schedule-A (F) Applicable to contracts comprising Sections/Parts conforming to types (A) to (E) above The principles enunciated in paras (A) to (E) shall apply to the corresponding parts of the contract. (G) For all Contracts - If any work, the rate for which cannot be obtained by any of the methods referred to in paras (A) to (E) above, has been ordered on the contractor, the rate shall be decided by the G.E. on the basis of the cost to the Contractor at Site of Works plus 10% to cover all overheads and profit. Provided that if the contractor is not satisfied with the decision of the G.E., he shall be entitled to represent the matter to the C.W.E. within seven days of receipt of the G.E.'s decision and the decision of the C.W.E. thereon shall be final and binding. If any alternations or additions (other than those authorized to be executed by day work or for an agreed sum) have been covered up by the Contractor without his having given notice of his intention to do so, the Engineer-in-Charge shall be entitled to appraise the Value thereof and in the event of any dispute the decision of the G.E. thereon shall be final and binding. In paragraph 12 of the counter affidavit filed by the respondent in C.M.P. No. 1924 of 1997 in M.F.A. No. 452 of 1997, it is categorically stated that the claims submitted by it related to star rates, Value of deviations under condition 62 G of IAFW 2249. In paragraph 12 of the counter affidavit filed by the respondent in C.M.P. No. 1924 of 1997 in M.F.A. No. 452 of 1997, it is categorically stated that the claims submitted by it related to star rates, Value of deviations under condition 62 G of IAFW 2249. Claimants contention is that rates for items involved in the above-mentioned claims are all far higher than the financial authority conferred on CWE and could not have finalized any such rates and that such rates were to be finalized only by the Chief Engineer, who is happened to be a party to the contract. 10. We are of the view the abovementioned contention of the respondent cannot be accepted. After having agreed to that rate shall be decided by the Garrison Engineer and that as per clause 62(G) if the contractor is not satisfied with the decision of the Garrison Engineer, he shall be entitled to represent the matter to the CWE and the decision of the CWE thereon be made final and binding claimants cannot be heard to say that CWE has no power or jurisdiction to resolve the disputes. Disputes between the parties with regard to the claims in respect of star rates can be finalized only by CWE whose decision as per the agreement shall be rendered final and binding. Clause 62(G) stipulates that if any work, the rate for which cannot be obtained by any of the methods referred to in parts (A) to (E) thereon has been ordered on the contractor, rate shall be decided by the GE on the basis of the cost to the contractor at site of works plus 10% to cover all overheads and profit. If the contractor is not satisfied with the decision of the GE, he shall be entitled to represent the matter to the CWE within seven days on receipt of the GE's decision and the decision of the CWE thereon shall be final and binding. In view of the above we notice that the rates applicable had been decided by the GE in accordance with clause 62(G) and accepted under signature by the respondent without any protest. Hence the arbitration award on the above mentioned claims referred to in paragraph 8 of this judgment are hit by clause 62G of Ext. R1(a). 11. We may now consider claims 1 to 3. Hence the arbitration award on the above mentioned claims referred to in paragraph 8 of this judgment are hit by clause 62G of Ext. R1(a). 11. We may now consider claims 1 to 3. Claim No. 1 deals with extra expenditure in carrying out works in the prolonged period of contract from 9.9.1988 to 10.9.1989. Claim No. 2 deals with extra expenditure incurred by the claimants for carrying out the work in the prolonged period of contract from 11.9.1989 to 30.6.1990. Claim No. 3 is with regard to compensation for the maintenance of establishment from 8.9.1988 to 30.6.1990. Dissatisfied with the said amount claim was raised by the respondent before the Arbitrator. Towards claim Nos. 1 to 3 arbitrator awarded additional amount of Rs. 23,45,952/- in addition to Rs. 15.31 lakhs allowed by the appellants towards escalation. According to the respondent amount covered by claims 1 to 3 are supported by evidence, pleadings and documents. Counsel submitted that respondent is only claiming for the extra expenditure incurred for the prolonged period of contract. The contention of the Union of India is that claims 1 to 3 is that such a claim cannot be sustained in view of clause 11 of the General Conditions of contract. It is stated that respondent had signed all the extension orders with nil financial effect. Further, incase of any dispute with regard to the time, delay and extension matter shall be referred to the Accounts officer or 'CWE' in case of contract accepted by the Garrison Engineer whose decision shall be final and binding. 12. We may in this connection refer to clause 11 of the contract which is extracted for easy reference. 11 Time, Delay and Extension- (A) Time is of the essence of the Contract and is specified in the contract documents or in each individual works order. As soon as possible after the contract is let or any substantial Works Order is placed and before work under it is begun, the G.E. and the Contractor shall agree upon a Time and Progress Chart. The Chart shall be prepared in direct relation to the time stated in the contract documents or the Works order for completion of the individual items thereof and/or the Contract or works order as a whole. The Chart shall be prepared in direct relation to the time stated in the contract documents or the Works order for completion of the individual items thereof and/or the Contract or works order as a whole. (B) if the works be delayed :- (a) by reason of non-availablility of Government stores mentioned in Schedule B; or (b) by reason of non-availability or breakdown of Govt. Tools and Plant mentioned in Schedule 'C' then, in any such event, notwithstanding the provisions hereinbefore contained, the G.E. may in his discretion grant such extension of time as may appear reasonable to him and the Contractor shall be bound to complete the Works within such extended time. In the event of the Contractor not agreeing to the extension granted by the Garrison Engineer, the matter shall be referred to the Accepting Officer (or C.W.E. in case of contract accepted by Garrison Engineer) whose decision shall be final and binding. (c) No claim in respect of compensation or otherwise, howsoever arising, as a result of extensions, granted under conditions (A) and (B) above shall be admitted. (underline supplied) With regard to Clause 11(A) and 11(B), in case of dispute, it is specifically stated that the same shall be referred to the Accepting Officer or CWE in the case of contract accepted by Garrison Engineer whose decision shall be final and binding. Clause 11(C) stipulates that no claim in respect of compensation or otherwise, howsoever arising, as a result of extensions granted under Conditions (A) and (B) above shall be admitted. The above-mentioned clause would show in case of any dispute or claim or delay in execution of works the same shall be referred to the Accepting Officer or CWE in the case of contract accepted by Garrison Engineer whose decision shall be final and binding. The amounts under claims 9, 17, 35 and 37 are duplication of claim Nos. 1 to 3 and are also hit by clause 11(C) of Ext. R1(a). Claim under 12 is also against clause 46 and 47 of Ext. R1(a) as per which the Union of India is entitled to inspect the site and point out all defective works and the claimant is bound to rectify the same. 1 to 3 and are also hit by clause 11(C) of Ext. R1(a). Claim under 12 is also against clause 46 and 47 of Ext. R1(a) as per which the Union of India is entitled to inspect the site and point out all defective works and the claimant is bound to rectify the same. Aforementioned facts would indicate that in the case of dispute with regards to claims 17,19,21,23,24,33,37,40 and 41 the same shall be decided by the Garrison Engineer and if the claimant is not satisfied with the said decision, the same shall be referred to CWE whose decision shall be final and binding. So far as claims 1 to 3 are concerned, we have indicated that clause 11 stipulates the remedy, that is, reference to the Accepting Officer or CWE in case contract is accepted by the Garrison Engineer whose decision shall be final and binding. 13. We may now examine, in view of the above-mentioned finality clauses 62(G) as well as clause 11, claims with regard to 17,19,21,23,24,26,33,37,40 and 41 and 1 to 3 can be referred to the arbitrator in view of arbitration clause 70 of the General Conditions. We may in this connection extract clause 70 for easy reference. 70. Arbitration. - All disputes, between the parties to the Contract (other than, those for which the decision of the C,W,E, or any other person is by the contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. (underline supplied) Underlined portion of the above clause would indicate that all disputes between the parties to the contract for which the decision of the CWE or any other persons is by the contract expressed to be final and binding are excluded from the purview of the Arbitration. 14. We have therefore to examine various provisions of the General Conditions of contract to see any provision of the contract confers powers on any other authorities and the decision of whom is made final and binding until those authorities and the decision of whom is made final and binding until those authorities decide those disputes. 14. We have therefore to examine various provisions of the General Conditions of contract to see any provision of the contract confers powers on any other authorities and the decision of whom is made final and binding until those authorities and the decision of whom is made final and binding until those authorities decide those disputes. Arbitrator could decide only those disputes except the dispute which is to be decided by the CWE or any other person named in the contract. 15. The words "other than those for which the decision of the CWE or any other person is by the contract expressed to be final and binding" are of considerable importance. Claims 17,19,21,23,24,26,33,38, 39,40, 41 are covered by the finality clause in 62(G) of IAFW and clause 1 to 3 are covered by the finality clause attached to clause 11 which we have dealt with earlier. We are of the view that the Arbitrator has traveled beyond his jurisdiction in determining the claims 17,19,21,23,24,36,40 and 41 and claims 1 to 3. To consider the point whether arbitrator has travelled beyond his jurisdiction it will be necessary to consider the terms of the agreement between the parties containing the arbitration clause. If there is specific term in the contract which does not permit or give power to decide the dispute raised by the contractor or if there is specific bar that the arbitrator has gone in excess of the jurisdiction, the award passed in terms of the arbitration agreement or terms of contract would be a jurisdictional error. In this connection we may refer to the decision of the apex court in Steel Authority of India Ltd. v. J,C, Budhraja (1999 AIR SCW 3258), Inder Singh Rekhi v. Delhi Development Authority (1988 (2) SCC 338), New India Civil Erectors (P) Ltd. v. Oil and Natural Gas Corporation (1997 (11) SCC 75), H.P. State Electricity Board v. R.J. Shah and Co. (1999 (4) SCC 214) and Tamil Nadu Electricity Board v. Bridge Tunnel Constructions and others (1997 (4) SCC 121). In suresh Chandra Panda's case, supra (1999 (9) SCC 92) the apex court had occasion to consider a similar provision. That was a case where court was dealing with the expression 'except as otherwise provided in the contract'. In that case claim 2,3 and 6 were decided by the arbitrator in arbitration under Clause 23 of the agreement between the parties. That was a case where court was dealing with the expression 'except as otherwise provided in the contract'. In that case claim 2,3 and 6 were decided by the arbitrator in arbitration under Clause 23 of the agreement between the parties. Contention was raised that those claims are covered by clause 11 of the agreement and are not arbitrable. The court therefore considered the inter-relationship between the arbitration clause 23 as well as clause 11 of the agreement. Similar question came up for consideration before the apex court in Prabhartak Commercial Corporation v. Chief Administrator, Dandakaranya Project (1991 (1) (SCC 498) wherein also the court considered the inter-relationship of similar clauses in a construction contract. The court held that when an arbitration clause specifically excluded from its purview disputes which were covered by clause 13-A those disputes would not come within the ambit of arbitration clause. The abovementioned principles would be applicable to the facts of this case also. Consequently claim Nos. 1,2,3,17,19,21,23,24,26,33,37,38,40 and 41 are also not arbitrable under clause 70 of the Terms of contract, by virtue of clause 11(c) and 62(G) of IAFW 2249. 16. We may indicate that the arbitrator allowed claims Nos.1,2,3,5,9,17,19,21,23,24,26,30,33,35,37,38,40,41,44 and 46 and rejected rest o f the claims. Out of the above claims some were allowed in full and others in part. We have also referred to certain claims in the earlier part of the judgment. Claims 5 and 9 also would go along with claims 17,19 etc. Which were dealt with in the earlier part of the judgment. Paragraph 24 of the affidavit itself would show that those claims are due under deviation orders which come within the purview of clause 62(g). Consequently they are not arbitrable. Claims 44 and 46 which are part and parcel of claims 1 to 41, consequently it would also fall within the ambit of dispute falling under clause 62(G) of the contract. 17. We are of the view the mere fact that appellant had cleared the final bill would not mean that there is accord and satisfaction under Section 63 of the Contract Act. In this connection we may refer to the decision of the apex court in Pradip Port Trust and others v. Unique Builders (2001 (2) SCC 680). The apex court in Jayesh Engineering Works v. New India Assurance Co. In this connection we may refer to the decision of the apex court in Pradip Port Trust and others v. Unique Builders (2001 (2) SCC 680). The apex court in Jayesh Engineering Works v. New India Assurance Co. Ltd. (2000 (10) SCC 178) held that whether the contract has been fully worked out and whether the payments have actually been made in full and final settlement are questions to be considered by the arbitrator when there is a dispute regarding the same. We need not labour much on this point raised by the respondent since we have held that claims already finalized under Clause 62(G) by Garrison Engineer or CWE and the Accepting Officer or CWE under Clause 11(c) are not arbitrable under Section 70 of the Terms of Contract. If at all the respondent had any dispute with regard to those claims the authorities notified under the contract, that is, Commander Works Engineer (CWE)/Accepting Officer are to decide and their decisions according to clause 62(G) and 11(c) would be final and binding. Thus finality clause under 62(G) and 11(c) have been exempted from the purview of clause 70 of the Arbitration clause. We are therefore inclined to allow the appeal as well as the revision. 18. We therefore hold that the award passed by the arbitrator in respect of claim Nos. 1 to 3, 5, 9, 17, 19, 21, 23, 24, 26, 30, 33, 35, 37, 38, 40, 41, 44 and 46 is against the conditions agreed to by the contracting parties and in conscious disregard of the terms of the contract and also the arbitration clause from which the arbitrator derives his authority. We are however not interfering with the award in respect of claim No. 12 alone, which in our view is binding on the appellants. We hold that the arbitration clause 70 was conditional one giving finality to the decisions of CWE as per the various provisions, clauses 62 (G) and 11(c), of the contract. The award of the arbitrator and the orders of the court below in arbitration O.P. Nos 4 and 18 of 1994 to the extent to which they are covered by clauses 62(G) and 11(c) except claim No. 12 are set aside and the arbitration O.P. 18/94 filed by Union of India is allowed as above. The appeal and the revision are allowed as above. The appeal and the revision are allowed as above. In the facts and circumstances of this case we are not awarding costs.