JUDGMENT: SANJIB BANERJEE, J. (1) THE basis of the award covered by the Arbitration act, 1940, passed by a retired engineer is assailed primarily on the ground of the mental capacity of the arbitrator. The contract related to the construction to the manufacture, supply, installation and commissioning of a dust control system at the coal handling plant of the respondent at the haldia dock complex. The reference ran into 102 sittings and the controversy that the petitioner refers to arose at and immediately after the 101 sitting. (2) THE minutes of the 101st sitting record that representatives of the respondent in the reference (the petitioner herein) were present before the arbitrator at 5. 10 p. m. and a representative of the claimant arrived shortly thereafter but Counsel for the claimant did not appear till 5.55 p.m. by which time Counsel for the respondent in the reference had already left. The minutes thereafter record that the respondent in the reference had sought leave to deal with the arguments made on behalf of the claimant in its rejoinder. In connection with such request, the arbitrator directed as follows: "i had a check up of my health on 27.09.97 last and the cardiologist advised to continue indoors though he permitted moving about in the ground floor level and did not permit to climb up staricases. As such it will not be possible for me to continue with this Arbitration case indefinitely. As a result the date fixed on 5.11.97 will stand at 5.30 p.m. in my residence. I further understand that during elucidations on different issues you have lengthily spoken about all these matters and regarding your claim also you had already clarified your points. As such I am unable to understand what further clarifications you have to make in regard to your claim against the Claimant. However, as earnestly desire, I have fixed up the date and time as above for your placing the counter replies on the basis of gist of arguments submitted by the Claimants Counsel. The period of Arbitration hearing is for 2 (two) hours and hence it is expected that you have enough time for clarifications during these two hours. On the last date of hearing because of your leaving early no action could be undertaken though the others arrived little late because of traffic jams on the roads. The period of Arbitration hearing is for 2 (two) hours and hence it is expected that you have enough time for clarifications during these two hours. On the last date of hearing because of your leaving early no action could be undertaken though the others arrived little late because of traffic jams on the roads. Hence it is again confirmed that the date of next hearing as fixed on 05.11.97 will stand and in case it is difficult for you to attend the same you are permitted to submit your written replies to reach my hand in time. " (3) THE petitioner next refers to a letter issued by the arbitrator on or about October 21, 1997 which needs to be seen in its entirety: "in connection with above arbitration case for which I have been appointed the Sole Arbitrator as per Registered letter No. M (Pande)/108des/b/3673 dated 15.11.1993 of Shri N.C. Karmakar, Manager (Pande), CPT, HDC I have to disturb you a bit for the facts stated below. The Arbitration case was commenced on 15.12.93 after duly receiving the said appointment order. Since then the hearings continued on different dates as per programme given in Annex-"a". At present the arbitration matter is at the closing stage except for another hearing to be held on 5.11.97 at 5.30 p.m. in my residence at the above address. I am enclosing the copy of the minutes of 10 1st hearing which will give a clear picture of how the matter was continued for months together and years together as well. In this case, however, cause of delay in road traffic the claimants Counsel could not come early and as such the respondent along with their Counsel was permitted by me to leave the arbitration proceeding after about an hours time. The claimants Counsel as well as my stenographer could come and join by 6 p.m. In fact, I had never in the past arbitrated any case for such a long period. May either be the claim was too heavy or the respondent and the claimant had no past experience of the work and i.e. why both were solely dependent on their consultant CMPDIL for their decision after supervision. As a result for a very very long continued works I had developed cardiac problem. May either be the claim was too heavy or the respondent and the claimant had no past experience of the work and i.e. why both were solely dependent on their consultant CMPDIL for their decision after supervision. As a result for a very very long continued works I had developed cardiac problem. Due to this prolonged period of arbitration serious mental agony was turmoiled in my mind for non-completion of the arbitration within a reasonable time, ultimately causing the cardiac attack with me on the night of 5.8.97 for which the undersigned had to rush to Advanced Medicare and Research Institution Immediately as advised by the Consultant Cardiologist for early recovery. I had a thinking in my mind that if I suffer for long then the case may not be completed by me. Moreover, my tension, anxiety and irritation made me down and I had fallen sick. For my treatment including cost of medicines total cost amounted to Rs. 20,177/-. I have a mind to request both the parties respondent and claimant to bear the proportionate cost of my immediate treatment by paying 1/3 of the amount as stated above. (Copy of details enclosed for ready reference). This is my request, now, the decision is at your end. I hope for a favourable consideration from your end, With very best of respects and wishes. " (4) SINCE the minutes of the 101st sitting were forwarded under cover of the arbitrators said letter, the petitioner issued a clarification on or about october 23,1997 objecting to the recording that no hearing could take place at the 101st sitting on account of representatives of the respondent in the reference having left early. The request made by the arbitrator in his letter of October 21, 1997 was not dealt with. (5) THE 102 hearing in the reference took place on November 26, 1997 and not on November 5, 2007 as earlier planned. Neither party referred to the minutes of the 102 sitting in the pleadings. The minutes of the 102 sitting as submitted by the arbitrator in the bunch of papers reveal that arguments were made at such sitting and the parties consented to the time to make and publish the award to be extended till February 28, 1998. Such minutes have not been challenged by the petitioner and have some bearing on the matter. The minutes of the 102 sitting as submitted by the arbitrator in the bunch of papers reveal that arguments were made at such sitting and the parties consented to the time to make and publish the award to be extended till February 28, 1998. Such minutes have not been challenged by the petitioner and have some bearing on the matter. (6) THE petitioner submits that given the nature of the request made by the arbitrator in the said letter, it would be evident that the arbitrator was generally unfit and was incapable of proceeding with the matter and should be found to have committed grave misconduct. The petitioner suggests that there is justifiable apprehension that the arbitrators demand contained in such letter may have been satisfied by the claimant in the reference which may have proved to be the effective material for the award rather than the oral and documentary evidence in support of the claim adduced in course of the reference. The petitioner submits that it is not necessary to look into the award or the reasons in support of the heads of claim awarded, if the court is satisfied that the arbitrator in issuing the said letter lost his moral right to continue with the reference. (7) INITIALLY, the respondent was called upon only to address on such count that upon issuing the said letter, the arbitrator rendered himself incapable of proceeding with the reference any further. The respondent urges that it was open to the petitioner to immediately run to Court and seek the removal of the arbitrator following the conduct complained of. The respondent does not seek to justify the arbitrators conduct but suggests that inasmuch as the petitioners stayed back till the conclusion of the reference and for the award to be pronounced, the apprehension that the petitioner now puts forth is only a ruse to assail the award on a ground of prejudice. The reference did not conclude at the 101 sitting nor did the award come immediately thereupon. The respondent emphasises that there was one further sitting and a period of three months thereafter before the award came to be made. The petitioners participation in the last sitting and the wait for the award would not permit the petitioner to urge such ground to assail the award and should be viewed merely as an argument of prejudice. The respondent emphasises that there was one further sitting and a period of three months thereafter before the award came to be made. The petitioners participation in the last sitting and the wait for the award would not permit the petitioner to urge such ground to assail the award and should be viewed merely as an argument of prejudice. (8) THE respondent refers to a judgment reported at AIR 1956 Calcutta 11 and relies on paragraphs 6 and 7 thereof. In such case, the award was challenged on the grounds of partiality and partisanship and such issue was set down for trial as it was a question of fact. When the matter came up for evidence on such point, Counsel for the challenger chose not to call any witness to prove the allegations. The ground thus stood rejected for want of proof. Counsels wisdom in not calling the evidence on the point was lauded by P.B. Mukharji, J. It was held that in effectively not pressing such charge, the award-debtor acknowledged that in its participation before the arbitrator knowing him to be partial all the time, such party had taken a chance and was precluded from putting forward such ground upon the award having gone against it. (9) THE petitioner herein submits that the ground urged here is not one of partiality but of the arbitrators mental capacity in the context of the letter issued at the very end of the reference. The petitioner states that a challenge at such stage may not have been successful and it was only upon the award, and the tenor thereof, that the petitioners apprehension was substantiated. The petitioner urges that in the arbitrators upholding a part of the third claim, the arbitrators bias and partiality is betrayed. This, according to the petitioner, goes to the root of the matter and requires the award to be set aside. The petitioner relies on the judgments reported at air 1981 Delhi 399 and 1988 (1) Arbitration Law Reporter 278. The second decision is for the proposition that misconduct can be of various hues. In that case, the arbitrator demanded exorbitantly high fees and what the learned Judge has referred to as "five-star treatment". The petitioner relies on the judgments reported at air 1981 Delhi 399 and 1988 (1) Arbitration Law Reporter 278. The second decision is for the proposition that misconduct can be of various hues. In that case, the arbitrator demanded exorbitantly high fees and what the learned Judge has referred to as "five-star treatment". The learned Judge was of the view that the value of the contract or the fact that the project was funded by foreign aid would not tell upon the quantum of arbitrators fees and the fact that the arbitrator had thought it relevant in the matter of assessing his fees and demanding an exorbitant sum warranted the termination of his mandate. The Delhi judgment has been placed for the proposition that in such cases, the parties may not be left without any remedy and the arbitration agreement has to be looked into to ascertain whether the matter may be remitted for reconsideration or whether another arbitrator may be appointed or whether the appointing authority in terms of the arbitration agreement would be free to appoint another arbitrator to assess the matter afresh. (10) AS to the first two heads of claim on which the arbitrator has found in favour of the claimant, the petitioner submits that there are no additional grounds other than the original, omnibus ground of the arbitrators mental capacity on which these can be assailed. It is submitted that the arbitrator has given apparent reasons in justification of his award under the first two heads and ordinarily such reasons may suffice in the context of the scrutiny permissible in proceedings of such nature, but it is the arbitrators overall conduct as evident from his said letter that should weigh with Court in ascertaining whether the reasons proffered are merely lip service or would otherwise be convincing enough to pass muster. (11) IT is, really, the third head of claim on which the arbitrator has allowed a sum of Rs. 6.5 lakh against a claim of about Rs.13 lakh, that the petitioner pins its attack on the award and its suggestion that the reasons scribbled in support thereof would indicate the arbitrators mental make-up. (11) IT is, really, the third head of claim on which the arbitrator has allowed a sum of Rs. 6.5 lakh against a claim of about Rs.13 lakh, that the petitioner pins its attack on the award and its suggestion that the reasons scribbled in support thereof would indicate the arbitrators mental make-up. It is evident from the reasons given that the employer questioned the very basis of the claim under the third head as being an excepted matter, kept outside the purview of any possible claim by clause 65 of the general conditions governing the contract. The petitioner points out to the arbitrator noticing such ground but in leaving the question unanswered in arriving at his conclusion. The petitioner refers to the issues framed by the arbitrator and points out to the very first issue covering such ground. It was not necessary, the petitioner submits, for the arbitrator to have framed issues, but upon raising a question and noticing the petitioners challenge, the arbitrator ought to have dealt with the challenge and not completely disregarded it. (12) THE petitioner also relies on clause 13 (g) of the general conditions to suggest that no claim on account of interest could have been made in view of the bar therein. (13) THE papers submitted by the arbitrator have been opened to find out how the minutes of the 102nd sitting were recorded. The two key aspects of such minutes have been referred to above, one relating to the petitioner concluding its submission and the other relating to the enlargement of the time till February 28, 1998 for making and publishing the award. In continuing with the matter on merits, as the petitioner did, and in consenting to extension of time for the award to be made at such stage, the petitioner did not express any reservation as to the arbitrators mental capacity following either the recording the minutes of the 101st sitting or the issuance of the arbitrators said letter. It was a matter of the moment that ought to have been taken up immediately if the petitioner was serious on such score. It was a matter of the moment that ought to have been taken up immediately if the petitioner was serious on such score. The argument made that the bias that the petitioner apprehended, ultimately became apparent in the tenor of the award, is not acceptable as the reasoning given in support of the first and second heads of claim appears to be lucid, considering that the arbitrator was an engineer, and plausible. The reasons given in support of the third head of claim or the arbitrator entertaining such head without considering the petitioners objection may, at the highest, amount to a serious irregularity of the kind that can be addressed and set right in the proceedings of the present nature, but such reasons do not overtly take the colour by which the petitioner paints it. (14) WHETHER under the 1940 Act or under the 1996 Act, a Court presiding over setting aside proceedings assesses an award under three broad heads: substantive jurisdiction, serious irregularity and substantial injustice. The second and the third aspects are linked in that an irregularity would be serious and warrant interference upon it resulting in substantial injustice. There is no challenge on the ground of substantive jurisdiction in this case, and, however grave a charge of misdemeanour levelled against an arbitrator, it is a charge of the nature of serious irregularity. The arbitrators conduct in the issuance of the said letter cannot be condoned, and the respondent has distanced itself from it and not sought to justify it, but the petitioners contemporaneous understanding of the arbitrators letter was not that it would make the arbitrator incapable of continuing with the reference. The petitioner chose to sit by and await the award and though it cannot be said as an absolute proposition that such conduct would completely disqualify such a challenger from urging a ground of this nature, the misconduct alleged ought to be more pronounced and apparent-from the award that what appears from the one here. (15) SINCE the petitioners attack on the first and second heads of claim rest on the ground of misconduct which is found to be not acceptable, the award in respect of such heads cannot be interfered with. (16) IT is the challenge on account of serious irregularity as against the award on the third head of claim, that remains to be assessed. (16) IT is the challenge on account of serious irregularity as against the award on the third head of claim, that remains to be assessed. The petitioner has referred to the judgments reported at 1999 (9) SCC 610 and 2001 (4) SCC 241 for the proposition that if time is extended by an employer on condition, whether in the contract or in the letter granting extension, that no extra cost can be claimed for the period of extension, the arbitrator cannot override such condition to provide for damages or additional costs during the extended period. Clause 65 of the general conditions, in its last limb, provides that no extra payment shall be made to the contractor on any account for extension of time for completion of work. (17) THE respondent resists the petitioners challenge to the third head of claim by referring to the arbitrators finding, under the first head, that it was the employer who was to blame for the delay in the execution of the contract. The respondent says that once the employer was found responsible for the delay, in accordance with the principles embodied in section 70 of the Contract Act, the contractor was entitled to compensation and it is such compensation which has been recognised by the arbitrator and awarded in favour of the contractor under the third head of claim. Clause 65 of the general conditions, according to the respondent, would not cover situations where delay was attributable solely to the employer. The instance mentioned in clause 65 are pointed out and it is submitted that the employer could not take advantage of its own wrong and take refuge under clause 65 to deny a claim on account of damages being claimed by the contractor for delay attributable to the employer. Clause 65 of the general conditions provides as follows: "65. Should the amount of extra or additional work of any kind or other special circumstances including exceptional weather conditions, civil commotion, strikes, or lock-outs which may occur be such as to delay the completion of work, the Contractor shall apply in writting to the engineer for an extension of time for the completion of work within the days of such occurrence. The Engineer shall determine the period of such extension and grant extension of the period of contract and waive the application of the compensation under Clause 48 hereof if he thinks the request reasonable. No extra payment shall be made to the Contractor on any account for such extension of period. " (18) IT is an admitted position that an extension was sought by the contractor following which the time for completion of the contract stood extended. It was open to the contractor to not seek extension upon holding the employer responsible for the delay and seek damages. The instances cited in clause 65 of the general conditions are illustrative and not exhaustive. Once the contractor sought and obtained an extension irrespective of the fact that such extension was on account of delay attributable solely to the employer, the contractor could not seek extra payment for the extended period in view of the clear bar under clause 65 unless the employer relaxed the condition on being persuaded by the contractor that the delay was solely on account of the employer. (19) THE respondent urges that there are intelligible reasons in support of the award made by the arbitrator under the third head of claim and the petitioners challenge is without basis. On the strength of the decision reported in 1989 (1) SCC 532 , the respondent submits that even if it is obligatory for the arbitrator to state reasons, the arbitrator is not obliged to give any detailed judgment and if the basis for making an award is discernable, that should suffice. Even by such test, the award under the third head cannot be sustained. Merely because the arbitrator has found that the employer was responsible for the delay in the completion of the work, would not imply that the last limb of clause 65 of the general conditions went out of play altogether. Clause 65 encompasses delays on all counts, including delays attributable solely to the employer. (20) THE clause is clear and unambiguous. It robs the contractor of any right to claim on account of additional costs incurred during the period of extension. The arbitrator disregarded such clause in awarding in favour of the claimant in respect of the third head. Clause 65 encompasses delays on all counts, including delays attributable solely to the employer. (20) THE clause is clear and unambiguous. It robs the contractor of any right to claim on account of additional costs incurred during the period of extension. The arbitrator disregarded such clause in awarding in favour of the claimant in respect of the third head. The very basis of the claim under the third head was questionable, the arbitrator did not attempt to deal with the petitioners objection and it is irrelevant that the arbitrator made an unreasoned, wild assessment as to quantum, since such claim could not have been entertained at all. The award in favour of the respondent under the third head of claim in the sum of Rs. 6.5 lakh is set aside. (21) IN assailing the award on account of interest, the petitioner has fairly referred to a recent judgment of this Court passed on October 11,2007 in Ap. No. 200 of 2001 (The Board of Trustees for the Port of Calcutta vs. M/s. S. Nag and Co.). In such judgment, clause 13 (g) of the general conditions was noticed and on the basis of, inter alia, the judgment reported at 1996 (1) SCC 516 , it was held as follows: "ordinarily, the arbitrator has authority to award interest for all four stages: from the time of accrual of cause of action till filing of the arbitration proceedings; during pendency of the proceedings before the arbitrator; future interest arising between the date of the award and the date of the decree; and, interest from the date of the decree all realisation of the award. These are the four stages that are covered by the 1940 Act, though the third and fourth stages merge into one under the 1996 Act since an award under the 1996 Act does not need the imprimatur of court for it to become executable. The arbitrator was free to interpret clause 13 (g) of the general conditions for his authority to award interest pendents lite and interest till realisation of the dues. But, as the Supreme court held in the Engineers-De-Space-Age case, the arbitrators authority is only as to interest pendents lite and post-award. For the prior period, the arbitrator could not have granted interest. But, as the Supreme court held in the Engineers-De-Space-Age case, the arbitrators authority is only as to interest pendents lite and post-award. For the prior period, the arbitrator could not have granted interest. The next consideration would be as to the date from which interest may be granted- whether it would be the date on which the arbitrator enters upon the reference or it would be an earlier date. Under the 1940 Act, an arbitration is deemed to commence when one party to the arbitration agreement serves on the other, a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be a person named or designated in the agreement, requiring that the difference be submitted to the person so named designated. It should be such date on which the claimant invokes the arbitration agreement that should be reckoned as the date from which interest may be awarded. This ought to be so as, in the absence of an arbitration agreement the claimant may have filed a suit on such date. " (22) ON the same reasoning, the challenge to the award of interest has to fail. Interest has been granted by the arbitrator from December 15, 1993 and it was on such date that he entered upon reference. The rate of 15 per cent per annum granted by the arbitrator is neither unreasonable nor out of step with the high interest rates then prevailing. (23) THE award is thus modified. The principal sum awarded is reduced by Rs. 6.5 lakh. The award will carry interest at the rate of eight per cent per annum on the principal sum awarded and the award made on account of costs from the date hereof till payment. There will be no order as to costs.