JUDGMENT 1. - The appellant State is challenging the award dated 21.9.1994 passed by the learned Sole Arbitrator and the Order dated 17.2.2003, passed by the Additional District and Sessions Judge, No. 1, Ajmer hereby the learned Judge has partly allowed the objections raise by the State. Since the learned Judge has rejected most of the objections raised by the State, naturally the State is aggrieved by the Order dated 17.2.2003. (For the sake of brevity the appellant shall be referred to as 'the State' and the respondent shall be referred to as 'the Claimant', throughout this judgment.) 2. The case has a rather checkered history. In order to ensure supply of water to various districts of Rajasthan, The State of Rajasthan decided to construct a dam on the Banes River in Tonk district. The project is known as the Bisalpur Water Supply Project. In order to further implement this project, the Public Health and Engineering Department (henceforth to be referred to as 'the PHED', for short) invited tenders for providing and laying of PSCC Pipes complete with suitable jointing material, Specials, Valves and construction of Valve Chamber, Anchor Blocks, suitable crossing including testing and commissioning of pipeline etc. under the Reorganisation of Water Supply Scheme, Ajmer, Kishangarh, Beawar, (Bisalpur Water Supply Project), Package PL 3-4-7. This work was to be done in four stages. Since different bidders had quoted different conditions, they were all called for a common discussion. Thus, in order to compare the tenders, certain Common Terms of References (CTR, for short) were framed on 22.2.1988. Since the claimant submitted the lowest tender, the State accepted its tender. The work Order was issued on 22.8.1988. According to the Work Order, the work was to commence on 22.8.1988 and was to be completed by 21.8.1990. Hence, the work was to be completed within a period of two years. Since some points were still needed to be clarified between the parties, a provisional agreement was signed on 11.1.1989. However, instead of expediting the completion of the project, the PHED department failed to fulfill various terms of the contract. Hence, the work was to be completed within a period of two years. Since some points were still needed to be clarified between the parties, a provisional agreement was signed on 11.1.1989. However, instead of expediting the completion of the project, the PHED department failed to fulfill various terms of the contract. According to the Claimant, the Mobilisation Advance was not given in the terms agreed upon, the drawings and designs were not supplied on time, the route plan and the survey was not carried out on time, amounts were deducted from the running bills, not sufficient water was given for running the factory etc. Because of the lapses on the part of the PHED department, disputes arose between the parties. According to Clause 23 of the agreement, in case any dispute arises between the parties, then the dispute shall be referred for adjudication to a Sole Arbitrator who was to be appointed by the Chief Engineer. (The clause 23 shall be analyzed and discussed in detail later on). Suffice it to say for the moment that since certain disputes arose between the parties, vide letter dated 18.6.1990, the claimant sent a notice to the Chief Engineer for suggesting the names of three persons so that a Sole Arbitrator could be decided upon and appointed by the Chief Engineer in accordance with Clause 23 of the agreement. However, the Chief Engineer did not respond to the said notice. The claimant again sent a reminder, vide letter dated 17.7.1990, to the Chief Engineer for suggesting the names of there person and for appointing the Sole Arbitrator as agreed upon by the parties. But he continued to maintain a studied silence over the request so made by the claimant. Therefore, having no other option, the claimant filed an application under Section read with Section 8 of the Arbitration Act, 1940 (henceforth to be referred to as 'the Act', for short) before the District Judge, Ajmer. Vide Order dated 27.4.1991, the learned Judge held that he had the jurisdiction for appointing the Sole Arbitrator under Section 8 of the Act. But he deferred the actual appointment of the Sole Arbitrator till a future date. However, as the State was aggrieved by the said Order, if filed a Civil Miscellaneous Appeal before this Court. Vide Order dated 27.4.1991, the learned Judge held that he had the jurisdiction for appointing the Sole Arbitrator under Section 8 of the Act. But he deferred the actual appointment of the Sole Arbitrator till a future date. However, as the State was aggrieved by the said Order, if filed a Civil Miscellaneous Appeal before this Court. Vide Judgment dated 9.8.1991, this court allowed the appeal filed by the State and set aside the Order dated 27.4.1991 passed by the District Judge, Ajmer. The claimant, thereafter, filed a SLP before the Hon'ble Supreme Court. But during the pendency of the SLP, the parties agreed on the name of Mr. B.L. Mathur, Secretary, P.W.D. Department to be appointed as the learned Sole Arbitrator. Therefore, vide Order dated 12.11.1991, the Apex Court directed the Chief Engineer, PHED to appoint Mr. B.L. Mathur as the Sole Arbitrator. Consequently, vide letter dated 16.11.1991, the Chief Engineer, PHED appointed Mr. B.L. Mathur as the Sole Arbitrator "to settle the disputes between the parties." 3. On 16.12.1991, the learned Sole Arbitrator directed the claimant to submit his claim petition by 13.1.1992; he also directed the State to submit its reply to the claim petition by 10.2.1992. The claimant was given time to file his rejoinder, if necessary, by 9.3.1992. He further directed the parties to submit a list of witnesses to each other by 7.3.1992 and to submit the same list before him. However, on 10.4.92, the State moved an application before the learned Sole Arbitrator wherein they claimed that he had no jurisdiction to proceed further as no reference of disputes had been made to him by the appointing authority or the court. Moreover, the claimant was ever increasing his claim amount from time to time. In the notice given to the Chief Engineer, the claim amount was Rs. 2,01,66,547/- , but before the District Court it had increased to Rs. 5,51,90,306/- and now before the Sole Arbitrator it had -to further escalated to Rs. 6,21,29,8261-. Lastly, the procedure adopted by the learned Sole Arbitrator should be revoked and the proceeding be suspended. 4. The claimant filed their reply to the said application. According to the claimant. Clause 23 of the agreement did not envisage that the Chief Engineer should refer the exact disputes to the learned Sole Arbitrator. 6,21,29,8261-. Lastly, the procedure adopted by the learned Sole Arbitrator should be revoked and the proceeding be suspended. 4. The claimant filed their reply to the said application. According to the claimant. Clause 23 of the agreement did not envisage that the Chief Engineer should refer the exact disputes to the learned Sole Arbitrator. 15 Clause 23 of the agreement merely lays down the procedure for appointment of the Sole Arbitrator. On 6.5.1992, the learned Sole Arbitrator heard the parties on the said application. But he did not decide the said application. On 16.7.1992, the State moved an application under Section 11 of the Act before the District Judge, Ajmer, wherein the State raised the same issue of non-reference of disputes to the Sole Arbitrator. But simultaneously, the State filed both its reply to the claim petition and its counter-claim petition before the learned Sole Arbitrator. Vide order 14.9.1994, the learned Judge dismissed the application under Section 11 of their Act. The learned Sole Arbitrator passed his award, thereafter, on 21.9.1994 whereby he allowed the claim petition filed by the claimant. But for counter-claim No. 3, he rejected the other counter-claims filed by the State. The claimant filed an application before the District Judge, Ajmer for making the award a rule of the court. On the other hand, the State filed objections against the said award under Section 30 and Section 33 of the Act. Vide Order dated 17.2.2003, the learned Judge while rejecting most of the objections, allowed the objection with regard to Claim No. 37A. Hence, this appeal before this court. 5. Mr. Bharat Vyas, the learned Additional Advocate General for the State, has raised number of contentions before this court. Firstly, that the disputes were not "referred" to the learned Sole Arbitrator either by the 35 appointing authoritythe Chief Engineer, or by the court. Therefore, the entire arbitration proceeding was vitiated. According to the learned counsel, Section 2(a) of the Act defines the words "arbitration agreement. Section 2(e) further defines the word "reference" as "reference to arbitration". Thus, "arbitration agreement" is different from "reference". Section 20(4) of the Act ao requires "an order of reference to the arbitrator by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator to an arbitrator appointed by the Court". Section 2(e) further defines the word "reference" as "reference to arbitration". Thus, "arbitration agreement" is different from "reference". Section 20(4) of the Act ao requires "an order of reference to the arbitrator by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator to an arbitrator appointed by the Court". In the present case, the Hon'ble Supreme Court had directed the Chief Engineer to appoint Mr. B.L. Mathur as the Sole Arbitrator, hence, the appointment was under Section 20 of the Act. Thus, the court was duty bound "to make an order of reference to the arbitrator". Since the court failed to do so, the arbitration proceeding stands vitiated. 6. Secondly, in the alternative, under Clause 23 of the agreement, the Chief Engineer was required to refer the dispute to the Sole Arbitrator. so However, he has failed to do so. Therefore, disputes were not validly referred to the Sole Arbitrator. In the absence of valid reference, the entire arbitration proceeding is vitiated. The State had raised this issue as a preliminary issue before the learned Sole Arbitrator vide its application dated 10.4.1992. However, despite the hearing dated 6.5.1992, the learned Sole Arbitrator did not decide the said application finally, but kept it pending, He finally decided it while passing the award. Since the learned Sole Arbitrator decided the claim petition in absence of a proper reference, he has committed "misconduct". Therefore, the award deserves to be set aside. 7. Thirdly, the learned Judge has failed to consider this facet of the 10 case. Therefore, the impugned Order is legally untenable. 8. Fourthly, Mr. Vyas has invited the court to consider the validity of each claim allowed by the arbitrator. 9. On the other hand, Mr. Kishore Srivastava, the learned counsel for the claimants has also raised a plethora of contentions : firstly, the scope of 15 judicial review of an award passed by the Arbitrator is extremely limited. The learned Sole Arbitrator was appointed with the consent of the parties. He has served as Secretary, P.W.D., State of Rajasthan and was well conversant with Engineering matters and knew how to weigh the evidence. During the course of the arbitration proceedings the learned Sole Arbitrator had even visited the site of work, prior to pronouncing his award. The learned Sole Arbitrator was appointed with the consent of the parties. He has served as Secretary, P.W.D., State of Rajasthan and was well conversant with Engineering matters and knew how to weigh the evidence. During the course of the arbitration proceedings the learned Sole Arbitrator had even visited the site of work, prior to pronouncing his award. Thus, he had the benefit of not only the evidence produced by the party, but also had the benefit of personal visit to the site. Since he has dealt with each claim filed by the claimant in great, detail, the award should not be lightly interfered with. 10. Secondly, the Arbitrator was appointed neither under Section 20, 25 nor under Section 8 of the Act. In fact, he was appointed under Clause 23 of the Agreement. Clause 23 of the Agreement does not warrant that the specific dispute be referred to the Arbitrator by the Chief Engineer. But, it merely directs the claimant to refer his dispute to arbitration rather than to a civil court. The notion of "a reference" made by Chief Engineer is alien to Clause 23 of the Agreement. According to the learned counsel, the first part of Clause 23 deals only with the "parties" but does not deal with the "Chief Engineer". Thus only an obligation has been imposed on the parties to go for an arbitration proceeding instead of a civil court. It is the second part, which deals with the appointment of the Arbitrator by the Chief Engineer. The last line imposes a duty on the Arbitrator to give a "reasoned" or "speaking" order. Furthermore, by operation of Section 3 of the Act, contents of First Schedule attached to the Act are deemed to be incorporated in Clause 23 of the Agreement. Sub-clause (6) of the First Schedule lays down that the parties shall be examined by the arbitrator on oath or affirmation in relation to 40 the matters in dispute. This deals with the subject of the dispute. Such disputeclaim or counter-claim-can be submitted on oath or affirmation before the arbitration. The second part of sub-clause (6) of First Schedule deals with the kinds of evidence to be produced by the parties for proving their claim or counter-claim, as the case may be. This deals with the subject of the dispute. Such disputeclaim or counter-claim-can be submitted on oath or affirmation before the arbitration. The second part of sub-clause (6) of First Schedule deals with the kinds of evidence to be produced by the parties for proving their claim or counter-claim, as the case may be. Thus, according to the learned counsel Clause 23 of the Agreement does not require that specific disputes shall be framed and referred by the Chief Engineer to the Sole Arbitrator appointed by him. 11. Thirdly, Section 13 of the Act prescribes the powers of an arbitrator. Under the said provision, the arbitrator does not have the power to decide about his own jurisdiction. Therefore, although the State had filed an application challenging the jurisdiction of the learned Sole Arbitrator in continuing the proceedings, but under Section 13, the Arbitrator could not i have decided the same. The power to decide about the jurisdiction of the Arbitrator lies with a Court under Section 11 of the Act. Hence, even if the had deferred the decision on the preliminary objection raised by the State, it would not amount to a "misconduct" committed by the learned Sole Arbitrator. 12. Fourthly, even after raising the preliminary objection, the State had not only filed the reply to the claim petition, but had also filed its own counter-claim petition before the learned Sole Arbitrator. Thus, the state has acquiescence to the entire arbitration proceeding. Once it has taken part in the proceeding, it is precluded from challenging the proceeding on the ground of non-reference of the dispute to the learned Sole Arbitrator. 13. Fifthly, since only the court could adjudicate on the jurisdiction of the arbitrator under Section 11 of the Act, it is for this reason that eventually the State had field an application under Section 11 of the Act. However, the is said application was dismissed by the learned Judge vide order dated 14.9.94. The State did not challenge the said order. Hence it has achieved finality. This particular order certainly could have been challenged by the State under Article 226 and 227 of the Constitution of India. The present appeal has been filed under Section 39 of the Act. However, now the said order cannot be challenged under the present appeal. The State did not challenge the said order. Hence it has achieved finality. This particular order certainly could have been challenged by the State under Article 226 and 227 of the Constitution of India. The present appeal has been filed under Section 39 of the Act. However, now the said order cannot be challenged under the present appeal. In case this Court were to accept the contentions of the learned counsel for the State that there was a improper reference of the dispute to the Arbitrator, this Court would indirectly set aside the order dated 14.9.94. But the Court cannot do indirectly what it could not do directly. 14. Sixthly, since the order dated 14.9.94 has achieved finality, the State could not have raised the same issue of non-reference of dispute to the arbitrator by the Chief Engineer before the learned Additional District Court while filing their objections before the said court. The said issue is hit by res judicata under Section 11 of the Civil Procedure Code. 15. Seventhly, under Section 39 of the Act, this Court cannot set aside an order passed under Section 11 of the Act. For, under Section 39 of the Act this Court examines only an order passed under Section 33 of the Act. 16. Eighthly, the learned counsel has also questioned the allegation made by the State that the learned Sole Arbitrator has committed as misconduct. After critically analyzing Section of the Act, the learned counsel has argued that none of the three conditions specified by the provision have been made out. Therefore, the learned Judge has rightly refused to interfere with most of the claims granted by the learned Sole Arbitrator. 17. Lastly, the learned Sole Arbitrator has given a detailed reasoning for passing the award in favor of the claimant. The award cannot be re-opened by this court, for this court does not sit as an appellate court over the award. 18. We have heard both the learned counsels for the parties and have perused the impugned Order and the Award. 19. This case raises a number of legal issues; firstly, the scope and ambit of judicial review of an arbitration award and of an order passed by the District Court under Section 33 of the Act. 18. We have heard both the learned counsels for the parties and have perused the impugned Order and the Award. 19. This case raises a number of legal issues; firstly, the scope and ambit of judicial review of an arbitration award and of an order passed by the District Court under Section 33 of the Act. Secondly, whether the words "reference to the arbitration" mean "reference of the disputes to the arbitration" or mean "to refer the parties to present themselves before the so arbitrator and to submit their disputes before him"? Thirdly, whether Clause of the Agreement requires the Chief Engineer to refer the specific disputes to the arbitrator or it merely require the Chief Engineer to appoint an arbitrator without referring the specific disputes to him? Fourthly, whether the arbitrator has committed misconduct by not considering the application filed by the State questioning his jurisdiction? Fifthly, whether the order dated 14.9.94 whereby the learned Judge had dismissed the application under Section 11 of the Act can be challenged and set aside under an appeal filed under Section 39 of the Act before this Court or not? Sixthly, whether the claims filed by the claimant were properly adjudicated by the learned Sole Arbitrator or not? And, lastly, the legal validity of the impugned order dated 17.2.2003 needs to be considered. 20. In order to escape the agony of a protracted trial, in order to save time and expenses, arbitration has developed as an alternate dispute resolution forum. In the commercial world, where time is of essence and large amount of money is involved, the parties prefer to go for arbitration rather than for civil suits. The long gestation period of a civil suit, which meanders through a labyrinth of procedures and, at times, climbs the judicial pyramid, has persuaded the parties to place an arbitration clauses in the contract. The scope and ambit of judicial review over an award passed by an 20 arbitrator are now well settled. The arbitrator is a Judge appointed by both the parties after reaching a consensus, or a Court under the provisions of the Act appoints him. Since the Arbitrator is a Judge appointed by the parties, the parties are bound by his decision even if the award is wrong either on law or on facts. Even an error of law on the face of the award cannot nullify the award. Since the Arbitrator is a Judge appointed by the parties, the parties are bound by his decision even if the award is wrong either on law or on facts. Even an error of law on the face of the award cannot nullify the award. Thus, his decision is final unless the reasons given by him are totally perverse or the award is based on wrong proposition of law. But once it is found that the view of the Arbitrator is a plausible one, the Court cannot reverse it by interfering with the award. Moreover, the interpretation of a contract is a matter solely within the domain of the arbitrator. Therefore, the Court should be very weary of interpreting the contract. Similarly, the courts are precluded from reappraising the evidence produced before the arbitrator. The court does not sit in an appeal over the verdict of an arbitrator by re-examining and reappraising the materials placed before him. In case two views are possible, the Court is not justified in interfering with the award by adopting its own interpretation. Even if it could be proved that the arbitrator has committed some mistake while arriving at his conclusion, such a proof would not invalidate the award. Moreover, it is not "misconduct" on the part of the arbitrator to give a reasoned decision, where his error is one of the fact or of law. Furthermore, even if there is an error of construction of the agreement by the arbitrator, the same is not amenable to correction. Lastly, the reasonableness of an award is not a matter for the Court to consider unless the award is preposterous or absurd. [Refer to Maharashtra State Electricity Board v. Sterlite Industries (India) & Anr., 2001 (8) SCC 482 ), Bharat Coking Coal Ltd. v. L.K. Ahuja, 2004(2) WLC (SC) Civil 400 : 2004 (5) SCC 109 , Rajasthan State Electricity Board v. M/s. Gammon India Ltd., 1998 DNJ (Raj.) 680 , Indu Engineering & Textiles Ltd. v. Delhi Development Authority, AIR 2001 SC 2668 , State of U.P v. Allied Constructions, 2003 (2) WLC (SC) Civil 568 : 2003 (7) SCC 396 , Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises, 1999 (9) SCC 283 and D.B. Sharma so v. Union of India, 2004(5) SCC 325 ]. Thus the power of this Court to interfere with an award is, indeed, very limited. 21. Thus the power of this Court to interfere with an award is, indeed, very limited. 21. Section 2(a) defines the "arbitration agreement" as meaning "a 1 written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." Section 2(e) defines the word "reference" as meaning "a reference to arbitration." This clearly shows that there is a difference between an "arbitration agreement" and "a reference". An arbitration agreement would be an agreement containing an arbitration clause whereby the parties by themselves provide that in case of dispute, the present or future, they shall go for an arbitration proceeding instead of a regular civil suit. The word "reference", on the other hand, is not very well defined. The word "reference" means "a reference to arbitration". However,.the definition does not clarify whether the reference is of "the specific dispute(s), which has arisen between the parties to the named or appointed arbitrator". Or it is the parties who are directed to appear before the arbitrator; therefore, they are "referred to arbitration". Thus, lack of clarity has led to some legal confusion. However, in the case of Bhanwar Lal Kotiya v. P.C. Aggrawal, 1985 (3) SCC 255 , the Hon'ble Supreme Court observed as under : The expression 'reference' in Section 2(a) is an actual reference made jointly by the parties after disputes have arisen between them referring the said disputes for adjudication to a named arbitrator or arbitrators, while the expression 'arbitration agreement" is wider as it combines within itself two concepts; (a) a bare agreement between the parties that disputes arising between them should be decided or resolved through arbitration and (b) an actual reference of a particular dispute or disputes for adjudication to a named arbitrator or arbitrators. Only when the arbitration agreement is of the former type, namely, a bare agreement a separate reference to arbitration with fresh asset of such consensual reference resort to Section of the Arbitration Act will be essential. Only when the arbitration agreement is of the former type, namely, a bare agreement a separate reference to arbitration with fresh asset of such consensual reference resort to Section of the Arbitration Act will be essential. But where the arbitration agreement conforms to the definition given in Section 2(a), the party desiring arbitration can straightaway approached the arbitrator or arbitrators and resort to Section of the Arbitration Act is unnecessary, for consent to such actual reference to arbitration shall be deemed to be there as the second concept is included in the agreement signed by the parties, and the aspect that differences or disputes actually arose subsequently would be inconsequential because the arbitration agreement as defined in Section 2(a) covers no 35 merely present but future differences also. Thus in such a case there will be no question of there being any unilateral reference." 22. Moreover, in the case of Milkfood Ltd. v. GMC Ice Cream (P) Ltd., 2004 (1) WLC (SC) Civil 702 : 2004 (7) SCC 288 , the Hon'ble Supreme Court has made a distinction between Section 8 and Section of the Act and held as under : Section 2(a) defines arbitration agreement to mean a written agreement to submit present or future dispute to arbitration, whether an arbitrator is named therein or not. Section 2(e) defines "reference" to mean reference to arbitration. Therefore, the term 45 "arbitration agreement" is difference from the term "reference". "An agreement to refer" and "a reference" are two separate transactions while an arbitration agreement is only a contract to refer, reference is delegation of authority to a named arbitrator. Section 8 confers power upon the court to appoint an arbitrator so where the parties concurred in the appointment of an arbitrator. In Such a case, after the court appointed an arbitrator, it is the parties who referred the dispute to him. On the other hand, Section enabled a party to apply for filing of the arbitration agreement in the court and that section empowered the court to make an order of reference to the arbitrator appointed by the parties and in the absence of such appointment, the court was empowered to make an order of reference to the arbitrator appointed by it. In other words, under Section unlike Section 8, it is the court which referred the dispute. In the case of Fertilizer Corpn. of India Ltd. v. Domestic Engg. In other words, under Section unlike Section 8, it is the court which referred the dispute. In the case of Fertilizer Corpn. of India Ltd. v. Domestic Engg. Installation it has been held that under Section 20(4), three courses were open to the court. After the arbitration agreement was ordered to be filed, the court shall proceed to make reference, firstly, the arbitrator appointed by the parties in the agreement, secondly, to the arbitrator not named in the agreement but with regard to whom the parties agreed otherwise, and thirdly, when the parties did not agree upon an arbitrator, to an arbitrator appointed by itself. 23. According to the Apex Court, under Section 8 of the Act the Court has merely the power to appoint an arbitrator, but once such an arbitrator is appointed, it is for the parties to refer the specific disputes to him. On the 20 other hand, under Section 20 it is for the Court to make an order for reference of the specific disputes to the arbitrator. 24. But, the present case need not be decided on the anvil of Section 8 and Section 20 of the Act. For, in the present case, the Apex Court had directed the Chief Engineer to appoint the Sole Arbitrator in accordance with 25 Clause 23 of the agreement. Therefore, for the present purpose, it is the interpretation of Clause 23 that is essential. Clause 23 reads as follows: Clause 23.-If any question, difference or objection whatsoever shall arise in any way in connection with or arising out of this instrument, or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as hereinbefore provided for and has bene so decided, every such matter constituting a total claim of Rs. 5,000/- or above whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights or obligations of the parties as a result of such termination shall be referred for adjudication to a sole arbitrator to be appointed as hereinafter provided. 5,000/- or above whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights or obligations of the parties as a result of such termination shall be referred for adjudication to a sole arbitrator to be appointed as hereinafter provided. For the purpose of appointing the sole arbitrator referred to above, the Chief Engineer will on receipt of notice and prescribed fee from the contractors send a panel of 3 names not below the rank of Superintending Engineer of the Rajasthan Government & who shall all be presently unconnected with the contract. The contract shall on receipt of the names as aforesaid select anyone of the person named to be appointed as a sole arbitrator and communicate his name to the Chief Engineer. The Chief Engineer shall thereupon appoint the said persons as the sole arbitrator without delay. The arbitrator shall give reasons for award. Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceedings under this clause. 25. A bare perusal of Clause 23 clearly reveals that it consists of the 1 three parts. Of course the Clause has to be read in a hoslistic manner. But let us initially analyze the clause part-wise. The first part deals with and states that in case any question, difference or objection arise in any manner in connection with or arising out of this instrument or the meaning or in the s operation of the part thereof or the rights, duties or liabilities of either party, every such matter constituting a total claim of Rs. 5,000/- or above shall be referred for adjudication to a sale arbitrator as hereinafter provided. Thus, the first part merely states that the disputes or differences or objections are to be referred to a sole arbitrator who is to be appointed. This part nowhere states that the Chief Engineer shall refer "the disputes, differences or questions or objections". The first sub-clause uses and refers to the parties to the contract. Thus, the first part implies that "the disputes, differences, questions, objections or the scope and ambit of right and liabilities" are to be referred by the parties themselves. 26. This part nowhere states that the Chief Engineer shall refer "the disputes, differences or questions or objections". The first sub-clause uses and refers to the parties to the contract. Thus, the first part implies that "the disputes, differences, questions, objections or the scope and ambit of right and liabilities" are to be referred by the parties themselves. 26. The second part deals with the procedure to be adopted by the Chief Engineer for appointing the sole arbitrator mentioned in the first part : the Chief Engineer after receipt of a notice and prescribed fee from the contractors shall send a penal of three names of not below the rank of Superintendent Engineer of the Rajasthan Government & who shall all be presently un-connected with the contract to the contractor. The contractor shall on receipt of the names select any one of the persons named to be appointed as the sole arbitrator. The contractor shall communicate the name to the Chief Engineer. The Chief Engineer thereupon shall appointed the said person as the sole arbitrator without delay. Even in the second part, the duty to refer the specific objections/questions etc, to the sole arbitrator has not been cast upon the Chief Engineer. The second part merely prescribes the procedure for appointment of a sole arbitrator. Therefore, the requirement that the Chief Engineer is duty bound to refer the specific "questions of dispute, difference, objection" etc. to the sole arbitrator is conspicuously missing from the second part of Clause 23 of the agreement. 27. The third part merely states that the provisions of Arbitration Act 1940 or any statutory modification or re- enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceedings under this clause. Thus, the arbitration proceeding is to be governed by the Arbitration Act: 1940 and in case of modification and re-enactment by the amended law. 28. A holistic appreciation of the entire clause would clearly bring out the fact that a limited role has been assigned to the Chief Engineer. He has merely to appoint the sole arbitrator after following the procedure established in the second part of Clause 23. Clause 23 nowhere imposes a duty upon the Chief Engineer to refer a specific "differences, disputes, questions, objections" etc. which have arisen between the parties to the sole arbitrator. He has merely to appoint the sole arbitrator after following the procedure established in the second part of Clause 23. Clause 23 nowhere imposes a duty upon the Chief Engineer to refer a specific "differences, disputes, questions, objections" etc. which have arisen between the parties to the sole arbitrator. The task of referring such dispute is left to the parties themselves. Therefore the contention raised by the learned counsel for the State that a duty had 45 been cast upon the Chief Engineer to refer specific disputes, which has arisen between the parties to the sole arbitrator, is unfounded. Clause 23 clearly does not warrant and does not impose such a duty on the Chief Engineer 29. A bare perusal of the record, which has been placed before us, clearly reveals that the State had raised preliminary objection about the improper reference of the dispute to the sole arbitrator before the arbitrator himself on 10.4.92. Although the application was heard on 6.5.92, but the learned Sole Arbitrator did not pass any final order. On 16.7.92 the State filed an application under Section 11 of the Act before the learned District Judge, Ajmer. The said application was decide by the learned Judge vide his order dated 14.9.94. 30. The learned counsel for the State has argued that the learned Sole Arbitrator has committed misconduct by not deciding the application finally filed by hi on 10.4.92. In fact he sat over the application till the passing of the to final award on 21.9.94. This court is unable to accept this contention. Firstly, Section 13 of the Act defines the power of the arbitrator. The said section does not empower the arbitrator and Conciliation Act, 1996 that has granted this power to the arbitrator under Section 16 of the Act of 1996. Therefore, the learned Sole Arbitrator could not have decided the question of his own jurisdiction even if an application had been filed by the State on 10.4.92. Thus, the learned Sole Arbitrator was justified in deferring the matter. Admittedly, on 16.7.92, the State filed an application under Section 11 of the Act on the same preliminary objection. Once the application was filed before the learned District Judge, the Sole Arbitrator was precluded from deciding 20 the application filed by the State till the decision of the learned Judge. Admittedly, on 16.7.92, the State filed an application under Section 11 of the Act on the same preliminary objection. Once the application was filed before the learned District Judge, the Sole Arbitrator was precluded from deciding 20 the application filed by the State till the decision of the learned Judge. The learned Judge dismissed the said application under Section 11 vide his order dated 14.9.94. It is only after this decision that the learned Sole Arbitrator has passed the award on 21.9.94. Hence thus Court fails to see as to how the arbitrator has committed misconduct by not deciding the application dated 25 10.4.92. 31. In case the State were aggrieved by order dated 14.9.94, it was competent to challenge the same under Article 226 and 227 of the Constitution of India before this Court. But, it failed to do so. According to Mr. Vyas the State did not have ample time to challenge the said order as the award was passed on 21.9.94 i.e. within seven days of the dismissal of the application under Section 11 of the Act. This is hardly a justification for not challenging the order dated 14.9.94. Since the said order has not been challenged, naturally it has achieved finality. Admittedly, the said order cannot be set aside by this Court while hearing the present appeal under Section 39 35 of the Act. For, Section 39 does not deal with order passed under Section 11 of the Act. What this Court cannot do directly, this Court certainly will not do indirectly. Therefore, the contention of the learned counsel that the preliminary objection raised by him before the learned Sole Arbitrator and in an application under Section 11 of the Act before the learned Judge should be accepted by this Court, in this appeal is bereft of any force. For, the power bestowed by Section 39 of the Act does not permit this course of this Court. 32. Moreover, the record reveals that after filing of the application under Section 11 of the Act, the State had filed its reply to the claim petition. The State has also filed its counter-claim against the claimant. The State had continued to participate in the arbitration proceedings till the decision of the case. Such a conduct clearly proves that the State had acquiesced in the proceedings. The State has also filed its counter-claim against the claimant. The State had continued to participate in the arbitration proceedings till the decision of the case. Such a conduct clearly proves that the State had acquiesced in the proceedings. Once it has participated in the full length of the arbitration proceedings, it cannot challenge the entire proceedings on the ground of 50 non-reference of the disputes to the learned Sole Arbitrator by the Chief Engineer. The doors once shut cannot be reopened. In the case of M.K. Shah Engineers and Contractors v. State of M.P., (1999) 2 SCC 594 , the Hon'ble Supreme. Court had observed as under : The steps preceding the coming into operation of the arbitration clause though essential are capable of being waived and if one party has by its own conduct or the conduct of its officials, 5 disabled such preceding steps being taken, it will be deemed that the procedural prerequisites were waived. The party at fault cannot be permitted to set up the bar of non-performance of prerequisite obligation so as to exclude the applicability and operation of the arbitration clause. 33. The Apex Court further held as under : The subsequent conduct of the respondents in voluntarily agreeing to the appointment of the arbitrators in both the cases and not pursuing their objections under Section 33 of the Arbitration Act amounts to waiver on their part of the plea of non-compliance with the earlier part of the arbitration clause, if only there was such non-compliance. The respondent-State of M.P has acquiesced in the appointment of arbitrators and the proceedings for settlement of disputes by arbitration. The respondent cannot be permitted to turn around and plead invalidity or non-maintainability of arbitration 20 proceedings by reference to the arbitration clause. 34. Lastly the Apex Court observed as under : No one can be permitted to take advantage of one's own wrong. The respondent-State of MP cannot and could not have been heard to plea denial of the two appellants' right to seek reference 25 to arbitration for non-compliance with the earlier part of clause. In the second case the clause with. Alternatively, even if it was not complied with in that case but certainly in the first case, the fault for non-compliance lies with the respondent-State of M.P. through its officials. In the second case the clause with. Alternatively, even if it was not complied with in that case but certainly in the first case, the fault for non-compliance lies with the respondent-State of M.P. through its officials. The plea of bar, if any, created by the earlier part of clause 30 cannot be permitted to be set up by a party which itself has been responsible for frustrating the operation thereof. It will be a travesty of justice if the appellants for the fault of the respondents are denied the right to have recourse to the remedy of arbitration. 35. In case the argument of learned counsel for the State were accepted that responsibility of referring the specific disputes lay with the Chief Engineer, even then the claimant cannot be faulted for the lapses on the part of the Chief Engineer. The State cannot be permitted to take advantage of its own wrong. Secondly, once the State has participated whole heartedly, has defended its interest against each claim filed by the claimant, the State has acquiesced in the appointment of the arbitrator and in the proceedings for settlement of disputes by arbitration. The State "cannot be permitted to turn around and plead invalidity or non-maintainability or arbitration proceedings by reference to the arbitration clause." 36. In matters of arbitration a pedantic approach is unwarranted since the aim or arbitration is to cut the Gordian knot of complicated procedures, protracted trials, and burgeoning expenses. Instead, a practical view of the procedure has to be kept in mind. A bare perusal of the record reveals that as far back as 18.6.90, the notice sent by the claimant to the Chief Engineer requesting for a panel of three persons had contained a list of disputes, which had arisen between the claimant and the Department. The said letter clearly stated, "Herewith please find a list of claims, matters for determination, and determination of rates needing adjudication by the arbitrator (Marked as Annexure II, Ill & IV respectively). Kindly favour us with the panel of three names as provided in the clause mentioned hereinbefore within a period of 30 days, failing which we shall be constrained to proceed as advised." Thus from day one the area of disputes was clearly demarcated by the claimant to the Chief Engineer. Kindly favour us with the panel of three names as provided in the clause mentioned hereinbefore within a period of 30 days, failing which we shall be constrained to proceed as advised." Thus from day one the area of disputes was clearly demarcated by the claimant to the Chief Engineer. Therefore, the Department had clear knowledge about the disputes that had cropped up between them and the claimant. The same disputes were further referred to by the claimant in his application under Section read with Section 8 of the Act that was filed before the learned District Judge, Ajmer. For, in the Order dated 24.7.94, the learned Judge mentions some of the areas of disputes and clearly says that the details about the dispute are available in paragraph 16 of the application. Once the disputes were brought to the notice of the department, the State cannot claim that it was caught unaware about the specific disputes placed by the claimant before the arbitrator. In order to bring the areas of dispute to the knowledge of the parties. Section 20 the Act warrants the court to refer the dispute(s) to the arbitrator. But, in the instant case the disputes were already well known to the State. Hence, a non-reference of specific dispute by the Chief Engineer to the arbitrator would not make any difference to the State. 37. Furthermore, the Chief Engineer appointed Mr. B.L. Mathur as the Sole Arbitrator vide letter dated 16.11.91. The said letter clearly directed Mr. Mathur "to settle the dispute between the parties". Since the contents of the disputes were well known to the parties, they having been spell out by the claimant to the department, there was no necessity of repeating the disputes to the learned Sole Arbitrator. Redundancy is unwarranted in law. Thus, no prejudice has been caused to the State in case the Chief Engineer did not refer the disputes to the learned Sole Arbitrator. 38. Mr. Vyas does claim that in case the dispute were to be referred by the Chief Engineer to the Sole Arbitrator, then the claimant would be stopped from escalating the claim amount. According to him the claimant has quoted different claim amount at different stages of the proceedings. Before the Chief Engineer, it had quoted Rs. 38. Mr. Vyas does claim that in case the dispute were to be referred by the Chief Engineer to the Sole Arbitrator, then the claimant would be stopped from escalating the claim amount. According to him the claimant has quoted different claim amount at different stages of the proceedings. Before the Chief Engineer, it had quoted Rs. 2,01,66,547/-, before the learned District Judge in application under Section 20 read with Section 8 of the Act it had quoted a claim amount of Rs. 5,51,90,306/- and yet, before the learned Sole Arbitrator it had filed a claim for Rs. 6,21,29,826/-. Even this contention is unacceptable. For, the claimant has justified the increase in the claim amount on the ground that as the case progressed and as the amount was not paid to it, naturally, the claim amount increased. Moreover, the learned Sole Arbitrator has not awarded the entire claim amount. Therefore, the subsequent increase in the . claim amount was not even believed by the learned Sole Arbitrator. Thus, he did not give any effect to the escalating claim amount prayed by the claimant. 39. In all, the claimant had filed forty-three claims before the learned Sole Arbitrator. Out of forty-three claims, the learned Sole Arbitrator has allowed only eighteen claims. The State had filed its objections to many of the claims allowed by the learned Sole Arbitrator. While the learned Judge dismissed the objections for all the claims, the learned Judge allowed the objection with regard to claim No. 37A. It is neither possible, nor warranted that this court should reappraise the evidence produced about each of the claims allowed by the learned Sole Arbitrator and confirmed by the learned i Judge. For, this court neither sits as a court of appeal above the finding of the arbitrator, nor is it legally required reassessing the evidence produced before the arbitrator. As stated above, the scope of judicial review of the award is an extremely limited one. Still, by way of illustration, to show the s objective assessment of the claims by the learned Sole Arbitrator, let us examine the main bone of contention between the parties. 40. One of the main disputes between the parties relates to releasing of Mobilisation Advance by the State to the claimant. According to the claimant, the Advance was to be paid in one lump sum. 40. One of the main disputes between the parties relates to releasing of Mobilisation Advance by the State to the claimant. According to the claimant, the Advance was to be paid in one lump sum. According to the State the Advance was merely a facility. Therefore, it could be given in installments. Thus, by releasing the advance in installments, the State has not committed a breach of the contract. On the other hand, the claimant has argued that the said advance was not a facility, but was to be given for the construction of factory for the manufacturing of the pipes. This fact is clearly reflected in the 15 CTR and the Work Order. The latter clearly states, "The mobilisation advance is being given for establishment of factory at the site." Thus, according to the CTR, the Work Order and the Provisional agreement, the mobilisation advance was to be given in one go and not in installments. In fact, the condition about the payment of advance in installments was imposed unilaterally for the first time vide letter dated 8.11.1988. The claimant had protested against the unilateral imposition of this condition vide its letter dated 15.12.1988. Interestingly, when the State entered into the provisional agreement on 11.1.1989, i.e. almost after one month, there is no mention of the fact that the advance would be paid in installments. Since the 25 mobilisation advance was given in installments, contrary to the CTR, the Work Order and the Provisional Agreement, obviously the State had breached the contract. 41. Both the learned Sole Arbitrator and the learned Judge have dealt with this issue at great length. They have rightly interpreted the CTR, the Work Order and the Provisional Agreement and rightly concluded that the Mobilisation Advance was to be given in one lump sum and not in installments. A bare perusal of the dates of release of advance clearly shows that the advance was paid in five installments. The State has contended that since the claimant was not in apposition to submit the Bank Guarantee for release of the Advance, the same could not be released on time. However, the evidence on record belies this contention. The claimant had sent numerous letters to the PHED department eliciting availability of funds so that the Bank Guarantee could be submitted. However, the department never replied to the said letters. However, the evidence on record belies this contention. The claimant had sent numerous letters to the PHED department eliciting availability of funds so that the Bank Guarantee could be submitted. However, the department never replied to the said letters. Moreover, on numerous occasions the Bank Guarantee, which was submitted, far exceeded the amount of the Advance actually released in favor of the claimant. Thus, the learned Judge and the learned Sole Arbitrator have validly held that the State had breached the contract in not providing the Mobilisation Advance to the claimant in one lump sum. 42. A bare perusal of the award clearly shows that during the arbitration proceedings the learned Sole Arbitrator had gone to the site of work and had been given certain important documents by the State at the site. The award has dealt with each and every claim of the claimant and has discussed the evidence meticulously. Similarly, the learned Judge has analysed the evidence threadbare. Once the learned Sole Arbitrator and the learned Judge have discussed the facts of the case microscopically, it is not for this Court to re-open and to re-assess each claim. Even if two views are possible, this court is not empowered to substitute its views in place of the interpretation given by the learned Sole Arbitrator. Moreover, as held by the Hon'ble Supreme Court, the interpretation of facts and laws are the sole domains of the arbitrator. Since the parties have appointed the arbitrator, his award binds them. Since the evidence has been discussed in detail, since the learned Sole Arbitrator has passed a reasoned order as required by Clause 23 of the Agreement, the award is neither preposterous, nor absurd. 43. In the result, this appeal has no force. It is, hereby, dismissed. There shall be no order as to costs.Appeal Dismissed. *******