JUDGMENT Hon’ble S.K. Jain, J.—Heard Sri Umesh Chandra, Senior Advocate assisted by Sri Krishna Chandra for the appellant and Sri Virendra Misra and Sri Manish Mathur, learned Counsel for the respondents. 2. The Lucknow Development Authority, Lucknow has preferred this appeal under Section 39 of the Arbitration Act, 1940 against the judgement and order dated 23.5.1995 passed by the 5th Additional Civil Judge, Lucknow by which the objections of the appellant under Section 30/33 of the Arbitration Act, 1940 was rejected and the award dated 31.10.1994 passed by the Arbitrator Sri G.P. Shukla, was made rule of the Court and the respondent shall also be entitled to interest at the rate of 9% per annum on the award. 3. The facts giving rise to the civil appeal are as follows : The respondent submitted a tender for construction of multi storeyed residential flats at La-place Lucknow before the appellant and the appellant awarded a contract for the construction of 144 multi storeyed flats vide an agreement dated 16.5.1983. As per the agreement it was agreed between the parties that the payment shall be made above 117% of the Delhi Schedule of Rates, 1981. The steel and cement were to be issued by the Lucknow Development Authority at the rate of Rs. 5000/- per ton and Rs. 60/- per bag. Clause 57 of the agreement is as under : “In case any dispute or difference shall arise between Lucknow Development Authority and the contractor either during the progress of the work or after completion or after the determination, abandonment or breach of the contract or concerning the work or meaning these presents on the tender, joins, specification or instructions here-in-before referred to as to any other matter or thing arising out of connected with or incidental to the contractor the work to be executed or payment will be made in pursuance thereof then other parties shall forthwith give to the other notice in writing of such dispute or difference and such dispute or difference shall be referred to the sole Arbitration of Chairman, Lucknow Development Authority under Arbitration Act and decision shall be binding on both the parties. The award of said Arbitrator shall be final and binding on the both parties.” 4. The respondent raised certain disputes which were referred for arbitration to the Chairman, Lucknow Development Authority. The award of said Arbitrator shall be final and binding on the both parties.” 4. The respondent raised certain disputes which were referred for arbitration to the Chairman, Lucknow Development Authority. The Chairman, Lucknow Development Authority on 31.7.1989 passed an award by which Rs. 6,37,000/- (six lacs thirty-seven thousand) was awarded for under payment in reimbursement in RCC work and Rs. 1,25,000/- (one lac twenty five thousand) was awarded for reimbursement of extra cost on sight, establishment and Head Office expenses. Rs. 6,55,000/- were awarded towards claim of the contractor for statutory increase of labour during the contract period and escalation in price of material and labour after the original period of contract. Rs. 91,555.20 Paisa was awarded for unauthorized deduction of 0.5% from running payment. Rs. 3,000/- was granted for reimbursement of payment due to over size steel, 10% per annum interest after 30 days from the date of the award i.e. 31.7.1989. The respondent filed objections under Section 30/33 of the Arbitration Act and the Additional Civil Judge vide order dated 27.11.1991 partly allowed the objection and referred the matter for reconsideration to the arbitrator regarding claim No. 1 of the respondent. The award passed by the Chairman, Lucknow Development Authority was sent back by learned 5th Additional Civil Judge, Lucknow to the Arbitrator for deciding afresh the amount to be paid on the quantity of steel for re-inforcement, which was to the extent of 752.455 metric ton for which the contractor had put claim of Rs. 44,05,023.00. The learned 5th Additional Civil Judge vide his order dated 27.11.1991 also directed that in terms of the clause 57 of the agreement, the Chairman Lucknow Development Authority may appoint an arbitrator within two months, so that the dispute regarding claim No. 1 of the contractor on the quantity of steel for re-inforcement may be decided. Sri S.D. Bagla was hearing the dispute who was transferred and certain allegations were made against him and the application was moved to change Sri S.D. Bagla as arbitrator. On this application the learned Civil Judge, Lucknow vide his order dated 26.3.1993 had appointed Sri G.P. Shukla, I.A.S. by name as an arbitrator and had directed him to make the award within four months. This order was made on the ground that the Chairman was frequently transferred. Sri G. P. Shukla gave the award and allowed a sum of Rs. This order was made on the ground that the Chairman was frequently transferred. Sri G. P. Shukla gave the award and allowed a sum of Rs. 44,05,023.00 and also awarded 6% interest per annum for the period during the pendency of hearing and interest of 9% per annum from the date of the award till the payment of decretal amount. Sri G. P. Shukla on the date of making the award on 31.10.1994, was transferred from the post of Chairman, Lucknow Development Authority and was working as Secretary Planning Commission U.P. Govt. The appellant filed objections under Section 30/33 of the Arbitration Act, 1940 stating inter alia that previously the matter was heard and disposed of and the award was made by the then Chairman, Lucknow Development Authority (Commissioner, Lucknow Division) against which the respondent Wig & Sons preferred objections under Section 30/33 of the Arbitration Act which were disposed of by the Vth Additional Civil Judge, Lucknow after hearing the parties and the award was made rule of the Court except in respect of item No. 1 of the claim which is known as steel item for which the respondent claimed about 44 lakh and the award was for about 6 lakh. The learned Additional Civil Judge while disposing of the case directed that the award so far it related to the aforesaid item be remitted for arbitration by the learned Arbitrator but the learned Arbitrator could not be appointed by the Lucknow Development Authority. Accordingly the respondent moved an application under Section 20 of the Arbitration Act requesting therein that the matter be referred to learned Arbitrator. Then the Hon’ble Court was pleased to refer the dispute to the Commissioner, Lucknow Division by name and at that time Sri G.P. Shukla, IAS was the Commissioner, Lucknow Division. Accordingly he entered into the reference and made the impugned award. Then the Hon’ble Court was pleased to refer the dispute to the Commissioner, Lucknow Division by name and at that time Sri G.P. Shukla, IAS was the Commissioner, Lucknow Division. Accordingly he entered into the reference and made the impugned award. The further objection of the appellant under Section 30/33 of the Arbitration Act was that the learned Arbitrator did not take into consideration that due to bona fide mistake in calculation of the quantity of steel on the reinforcement, the tender became unbalanced and the cost increased exorbitantly on the said item; the learned Arbitrator also did not appreciate that the steel item as shown in the quantity of schedule of items as 350 metric ton which was to be consumed in the said project and if the quantity of 350 metric ton was consumed, there would have been no difficulty but it increased exorbitantly to about 1300 Metric Ton as a result of which the tender became unbalance and a heavy liability came on the shoulders of the Lucknow Development Authority and the Lucknow Development Authority was not bound to pay the rates as mentioned in the agreement for the steel consumed over and above 350 metric ton; the steel was supplied by the department on which labour charges were given to the Contractor; the contractor was asked not to execute the work beyond 350 metric ton of steel and it was also made clear to him that he will not be given any amount on the said item over and above 350 metric ton but the contractor at his own sweet will executed the work and claimed the aforesaid huge amount. This aspect of the matter was not considered by the learned Arbitrator while making the award and as such the learned Arbitrator misconducted the proceedings which rendered the award invalid and in view of the above circumstance, the award deserves to be set aside and not to be made rule of the Court. 5. The respondent filed reply to the objections raised by the appellant stating inter alia that the objections under Section 30/33 of the Indian Arbitration Act have been filed beyond the period of limitation. The objections cannot be termed as misconduct and are beyond the purview of Section 30/33 of the Indian Arbitration Act, 1940.The objections relate to the merit of the whole case which cannot be reviewed. The objections cannot be termed as misconduct and are beyond the purview of Section 30/33 of the Indian Arbitration Act, 1940.The objections relate to the merit of the whole case which cannot be reviewed. The Lucknow Development Authority had raised the same objections before the learned Arbitrator and the learned Arbitrator has duly considered the same and passed the award. The Arbitrator after giving full opportunity to the parties of being heard had judiciously given the award. No legal or valid objections has been raised. 6. The Additional Civil Judge, Lucknow after considering the objection preferred by the appellant as well as the reply submitted by the respondent made the award rule of the Court by the order dated 23.5.1995. The appellant being aggrieved by the order dated 23.5.1995 has approached this Court. 7. The learned Counsel for the appellant submitted that Sri G.P. Shukla had no jurisdiction to make the award, as when he made the award he was not the Chairman of the Lucknow Development Authority and the learned Civil Judge erred in appointing him by name. He further submitted that as per the arbitration clause Chairman, Lucknow Development Authority could be appointed as an Arbitrator and Sri G.P. Shukla could not be appointed as an Arbitrator under Section 20 of the Arbitration Act by name and the order of the Civil Judge dated 16/26.3.1993 appointing him as Arbitrator is illegal and as such the award is nullity. He further submitted that Clause 57 of the Arbitration Clause provides that the Chairman of Lucknow Development Authority could only act as Arbitrator and when Sri G.P. Shukla made the award, he was not the Chairman of Lucknow Development Authority and was working as Secretary, Planning Commission in U.P. Government and as such he was not competent to make the award as he was no more the Chairman of Lucknow Development Authority. It is further submitted by the learned Counsel for the appellant that the order dated 26.3.1993 passed by Civil Judge, Lucknow by which Sri G.P. Shukla I.A.S., by name, was appointed as Arbitrator, is illegal and without jurisdiction and as such the award made by Sri G. P. Shukla is nullity in view of the law laid down by Hon’ble Supreme Court in the case of Bhupinder Singh Bindra v. Union of India and another, (1995) 5 SCC 329 . Learned Counsel for the appellant has also submitted that learned Arbitrator while making the award did not consider the fact that the steel items as shown in the quality or schedule of item as 350 metric ton only was to be consumed in the said project but 1300 metric ton was consumed by the contractor as a result of which the tender became un-balanced and heavy liability came on the appellant otherwise also the appellant was not bound to pay the rate as mentioned in the agreement for the steel consumed over and above 350 metric ton as originally only 350 metric ton of steel was asked to be consumed and it was made clear by the appellant that it will not pay any amount on the said item over and above 350 metric ton. Thus the Arbitrator made the award without application of mind and in view of the law laid down by Hon’ble Supreme Court in the case of Dandasi Sahu v. State of Orissa, AIR 1990 SC 1128 the award stands vitiated. It has also been submitted by the learned Counsel for the appellant that the interest awarded by the Arbitrator is against the amended provisions contained in the First Schedule to the Arbitration Act with effect from 31.7.1989. 8. The learned Counsel for the respondent Sri Mishra submitted that the appellant, during the arbitration proceedings, did not challenge the order dated 16/26.3.1993 passed by learned Civil Judge by which Sri G.P. Shukla I.A.S. by name was appointed as Arbitrator. He further submitted that there is no illegality in the order passed by the learned Civil Judge appointing Sri G.P. Shukla I.A.S., by name, as Arbitrator and the said order was passed after previous Arbitrator Sri S.D. Bagla, was transferred and an application was made to replace the Arbitrator on the ground of misconduct. In support of his submission, the learned Counsel has relied upon the case of Krishna Bhagya Jala Nigam Ltd. v. G. Harishchndra Reddy and another, 2007 AIR SCW 527, wherein it was held that where the Arbitrator was appointed with the consent of the parties and it was not challenged before the Court below and the parties participated in the proceedings, the plea that there was no arbitration clause cannot be raised subsequently. He further submitted that the perusal of order dated 16/26.3.1993 suggests that Sri G.P. Shukla was appointed Arbitrator by name after considering the submissions of learned Counsel for parties and at the time of appointment he was posted as Vice Chairman of the Lucknow Development Authority and no objection was ever raised by the appellant regarding competence of Sri G.P. Shukla during the arbitration proceedings where the appellant participated in the arbitral proceedings till the award was made, now it is not open to him to raise the objection that appointment of Sri G.P. Shukla as Arbitrator by name was illegal or without jurisdiction. Learned Counsel for the respondent is support of his argument has relied upon the case of Prasun Roy v. Calcutta Metropolitan Development Authority and another, (1987) 4 SCC 217 , wherein Hon’ble the Supreme Court has observed that long participation in the proceedings before the Arbitrator without any objection will bar challenge to the validity of the order of the Court by which the Arbitrator was appointed. The appellant also did not challenge the appointment of Sri Shukla, by name, as arbitrator when he filed objection before the Court below. In support of the submissions, learned Counsel has relied upon the case of Hindustan Construction Company Limited v. Governor of Orissa and others, (1995) 3 SCC 8 , wherein Hon’ble the apex Court has laid down that the State Government could not be allowed to challenge the jurisdiction of special Arbitrator during appeal. 9. It has also been argued that the learned Arbitrator has rightly awarded pendente lite interest of 6% per annum during the pendency of arbitral proceedings and 9% per annum for the period till the amount awarded was not paid. Learned Counsel for the respondent has also relied upon the case of Hindustan Construction Company Limited v. State of J & K, (1992) 4 SCC 217 wherein it was held that an Arbitrator is competent to award interest for the period from the date of award to the date of decree or date of realisation and interest pendente lite can also be awarded. He further relying upon the case of Krishna Bhagya Jala Nigam Limited (supra) in which Hon’ble the Supreme Court has also observed that the interest for pendente lite period and future interest at 9% per annum is reasonable has submitted that the learned arbitrator committed no error in awarding the interest. 10. We have given our thoughtful consideration to the submissions made by the learned Counsel for the parties and gone through the record. 11. The first question which is to be answered in this appeal is whether the appointment of Sri G.P. Shukla I.A.S., by name, was illegal and without jurisdiction and as such he was not competent to make the award in question. 12. Sri G.P. Shukla was appointed as Arbitrator by name, by the Civil Judge Lucknow vide order dated 16/26.3.1993. The perusal of the order suggests that Sri S.D. Bagla Chairman, Lucknow Development Authority was transferred and in his place Sri G.P. Shukla was posted as Chairman, Lucknow Development Authority. An application for appointment of an independent arbitrator was made, making allegation against Sri S.D. Bagla by the respondent. The respondent requested for appointment of Sri G.P. Shukla and further submitted before the learned Civil Judge that the Chairman is frequently transferred, therefore, Sri Shukla be appointed by name. This fact was admitted by the appellant and no objection for appointment of Sri G.P. Shukla was raised. Under these circumstances Sri G.P. Shukla was appointed as arbitrator by name. The appellant in its objection under Section 30/33 of the Arbitration Act did not challenge the appointment of Sri G.P. Shukla I.A.S. as Arbitrator. Hon’ble the Supreme Court in the case of State of Rajasthan v. Nav Bharat Construction Co., 2005 (1) Arb Law Reporter 495 (SC) has held that where an Arbitrator has been appointed with the consent of the parties and the dispute was referred to him and the parties submitted to the jurisdiction of the arbitrator and participated in the proceedings, the State was estopped on the doctrine of acquiescence and waiver from raising objection to the competence of the substituted Arbitrator and validity of the arbitration proceedings by taking recourse to the arbitration clause of the agreement. Hon’ble the Supreme Court in the case of BSNL and others v. Subash Chandra Kanchan and another, (2006) 8 SCC 279 has held that where the appellant had consented to the appointment of an arbitrator, it was not open to them to subsequently contend that no consent was given by them or Counsel who gave the consent had no instruction. 13. It is true that as per clause 57 of the Arbitration Agreement, the arbitrator could be the Chairman of Lucknow Development Authority. Sri G.P. Shukla when appointed as an Arbitrator with the consent of the parties, was the Chairman of the Lucknow Development Authority. He was appointed as Arbitrator, by name, with the consent of the parties. The appellant submitted to his jurisdiction during the arbitration proceedings conducted by him in his capacity as Chairman, Lucknow Development Authority and also when he was transferred from the post as Secretary, Planning Commission did not raise any objection regarding his appointment by name. Keeping in view the law laid down by the Hon’ble Supreme Court relied upon by the respondent, we are of the opinion that there was no illegality in appointing Sri G.P. Shukla, by name, as Arbitrator because he was appointed with the consent of the parties and the parties submitted to his jurisdiction. He was not in-capacitated to make award when he was posted as Secretary, Planning Commission U. P. Government. 14. Since Sri G.P. Shukla was appointed as an Arbitrator by name with the consent of the parties and the appellant and the respondent submitted to his jurisdiction during the arbitration proceedings conducted by him when he was Chairman of the Lucknow Development Authority and thereafter when he was Secretary, Planning Commission U.P. Government, it cannot be said that Sri G.P. Shukla was incompetent to decide the arbitration proceedings. The award given by him is just and legal award in view of the law declared by Hon’ble the Supreme Court. 15. The award given by him is just and legal award in view of the law declared by Hon’ble the Supreme Court. 15. The second question which is to be answered in this appeal is regarding the submissions of the learned Counsel for the appellants relating to the fact that the Arbitrator while making the award did not consider the fact that steel item as shown in the quality or schedule of item as 350 metric ton only was to be consumed in the said project but 1300 metric ton was consumed by the contractor as a result of which the tender became un-balanced and heavy liability came on the appellant and otherwise also the appellant was not bound to pay the rate as mentioned in the agreement for the steel consumed over and above 350 metric ton as originally only 350 metric ton of steel was asked to be consumed and it was made clear by the appellant that they will not pay any amount on the said item over and above 350 metric ton and it is a case of non-application of mind. The perusal of award suggests that the appellant had agitated this point before the learned Arbitrator, who had considered the same and passed the award after affording the opportunity of hearing to the parties. This objection relates to the merit of the case. The Arbitrator, in the case of reference made to him being a person chosen by the parties is the sole and final Judge of all questions. The award made by him could be interfered with only in limited circumstances as provided under Sections 16 and 30 of the Arbitration Act. Section 16 of the Arbitration Act 1940 reads as under : “16. Power to remit award.—(1) The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit— (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or (b) where the award is so indefinite as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it. (2) Where an award is remitted under sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court : Provided that any time so fixed may be extended by subsequent order of the Court. 3. An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.” 16. The perusal of this section which shows that the Court may from time to time remit the award or any matter referred to arbitration to the Arbitrator or umpire for reconsideration. The award remitted under sub-section (1) shall become void if the Arbitrator failed to reconsider it and submit its decision not within the time or where the award is indefinite as to be incapable of execution. In the present case, we find that the earlier award was made on 31th July, 1989. 17. The respondent filed objections under Section 30/33 of the Arbitration Act and the Additional Civil Judge vide order dated 27.11.1991 partly allowed the objection and referred the matter for reconsideration to the arbitrator regarding claim No. 1 of the respondent and the Arbitrator after affording opportunity of hearing and considering the submission made by the parties, passed the aforesaid award. The learned Civil Judge while passing the impugned order dated 31.10.1994 has recorded the finding that arbitrator committed no mistake in calculating the quantity of steel consumed. Prima facie there appeared to be no mistake in the award made by the Arbitrator. 18. Learned Counsel for the appellant has not specifically stated as to how the sum awarded by the Arbitrator was not legally payable by the appellant. The perusal of the claim preferred by the respondent and the directions for payment of compensation of amount by the Arbitrator goes to show that the case of the appellant was duly considered by the Arbitrator. No mistake of law has been pointed out in the award. Learned lower Court has also decided the objections of the appellant under Section 30/33 of the Arbitration Act. 19. Third and the last question which is to be answered in this appeal is that whether the learned Arbitrator could award pendente lite and future simple interest at the rate of 6% per annum and 9% per annum respectively. Learned lower Court has also decided the objections of the appellant under Section 30/33 of the Arbitration Act. 19. Third and the last question which is to be answered in this appeal is that whether the learned Arbitrator could award pendente lite and future simple interest at the rate of 6% per annum and 9% per annum respectively. The argument of the learned Counsel for the appellant is that the Arbitrator cannot award the interest in view of the amended provisions contained in first Schedule of the Arbitration Act with effect from 31.7.1989. 20. The Hon’ble Supreme Court in the case of Hindustan Construction Company Limited v. State of J and K (supra) has held that the Arbitrator is competent to award interest for the period for which the proceedings remained pending and till the date of realisation of the amount awarded. Hon’ble the Supreme Court in the case of Krishna Bhagya Jala Nigam Ltd. v. G. Harischandra Reddy and another (supra) has awarded pendente lite and future interest at the rate of 9% per annum and in the case of State of Rajasthan v. Nav Bharat Construction Co. (supra) has observed that the interest at the rate of 12% is reasonable. Keeping in view the law laid down by Hon’ble the Supreme Court, no interference is called for in the interest awarded by the arbitrator pendente lite and future. The arbitrator was competent to award the interest. 21. The learned Civil Judge after considering the objections of the appellant passed the impugned order that the award could be rejected only on legal ground, no such ground was taken under Section 30/33 of the Indian Arbitration Act. He also observed that it was not a case of misconduct by the Arbitrator. The objections were filed beyond time; the objector has failed to point out any illegality in the award and thus made it the rule of the Court. 22. For the forgoing reasons the appeal is devoid of merit and is dismissed. The parties shall bear their own cost. ————