Judgment : ASHOKE KUMAR DASADHIKARI, J. This is an application under Section 34 of the Arbitration and the Conciliation Act, 1996 filed by the petitioner, Sailendra Nath Pal challenging the award passed by Gaurav Swarup, the President of Agri-Horticultural Society of India, the sole Arbitrator on 17th December, 2009. It appears that the petitioner, Saliendra Nath Pal entered into an agreement dated 14th December, 1993 with the respondent, the Agri- Horticultural Society of India. By and under the said agreement the respondent made over possession of a space between the Northern extremity of the respondent’s garden and its gate opening on Alipore Road measuring about 350 sq.ft. in the said space. The petitioner operating a shop room by the name “The Florist Shop”. The said agreement was for a period of 13 years which has expired on 13th December, 2006. Although, a renewal option for a further period of 13 years were there but the petitioner after expiry of 13 years continued to occupy the said shop room without renewal. The respondent also received rent for the period subsequent to 13th December, 2006. The said agreement contains an arbitration clause which, inter alia, provides for “that in case of any dispute and/or differences arising out of the agreement then the same shall be referred to a sole arbitrator under the provisions of the Indian Arbitration Act, 1940 or any modification thereof. That the President of the Society shall be the Sole Arbitrator. Venue will be the office of the Society and under the jurisdiction of Alipore District Court. The award will not be challenged by the second party and shall be final and binding on both the parties.” The office of the President of the respondent society is held by individuals being member of the society for a period of one year. The respondent society submitted the statement of claim before the President of the respondent on or about July 16, 2007 and the claim was filed before Mr. B.D. Bose who was the President of the respondent at the relevant time. Originally the statement of claim did not contain any prayer for recovery of possessing but at a letter stage the statement of claim was amended and the prayer for recovery of possession was inserted. B.D. Bose who was the President of the respondent at the relevant time. Originally the statement of claim did not contain any prayer for recovery of possessing but at a letter stage the statement of claim was amended and the prayer for recovery of possession was inserted. The petitioner was served with a copy of the statement of the claim by the sole arbitrator and upon receiving such statement of claim the petitioner made an application under Sections 12, 13 and 16 of the Arbitration and Conciliation Act, 1996 contending that the learned Arbitrator is not empowered to adjudicate the nature of disputes between the parties. By that time the term of B. D. Bose as President of the respondent society expired and B. K. Nahata succeeded him. The said B. D. Bose, outgoing President issued directions on B. K. Nahata the new incumbent to the office of the President that the arbitration proceeding will be continued by the new incumbent. The petitioner made an application before the Hon’ble High Court wherein two orders were passed, one is on 24th April, 2008 and the other is on 28th June, 2008. In the order dated 28th June, 2008 the learned Single Judge of this Court passed an order that the relief sought for in this aforesaid application cannot be granted. Parties will takes steps in accordance with law. The points raised in the application will be left upon to challenge by the petitioner at the appropriate stage. The petitioner thereafter filed a suit to safeguard his tenancy right before the Second Civil Judge (Jr. Division) at Alipore being title suit No. 108 of 2008 which is still pending. The petitioner filed different applications which are all pending. However, hearing of the application filed by the petitioner under Sections 12, 13 and 16 of the Arbitration and Conciliation Act of 1996 was adjourned from time to time. By a letter and/or notice dated 25th November, 2008, the Arbitrator fixed 12th December, 2008 and 13th December, 2008 to be the next dates for holding the arbitration sitting. However, hearing of the application filed by the petitioner under Sections 12, 13 and 16 of the Arbitration and Conciliation Act of 1996 was adjourned from time to time. By a letter and/or notice dated 25th November, 2008, the Arbitrator fixed 12th December, 2008 and 13th December, 2008 to be the next dates for holding the arbitration sitting. By a letter dated 4th December, 2008, the advocate on record of the petitioner intimated that the learned Advocate appearing on behalf of the petitioner had difficulties because by his preoccupation and requested the sole arbitrator to adjourn the proposed sitting fixed on the said of dates it was contended that the advocate on record of the respondent did not oppose to such prayer but the arbitrator did not adjourn the matter. He proceeded with arbitration on 12th December, 2008 and proceeded to take up hearing of the said application of the petitioner ex parte and concluded the hearing of the said application. On 18th December, 2008, an order was passed by the Arbitrator rejecting the application of the petitioner made under Sections 12, 13 and 16 of the Arbitration and Conciliation Act of 1996. It was contended that the Arbitrator exceeded his jurisdiction to hold that there exists no landlord tenant relationship between the claimant and the respondent. It was alleged that the Arbitrator, therefore, usurped the jurisdiction of the Civil Court to decide the landlord tenant relationship. On the expiry of the term of B. K. Nahata as the President of the respondent society, one Gaurav Swarup succeeded him. The arbitration proceeding continued before the said Gaurav Swarup and ultimately he passed the award which is under challenge in this petition. Mr. Mitra, learned Senior Counsel appearing in support of the petition have raised three points and the first one is that the award has been passed in violation of principles of natural justice and the second point is that the Arbitrator has traveled beyond the reference made and the award dealing with issues not covered under the reference and the third is that the award is contrary to the laws of land and opposed to public policy. In support of the first point it was submitted by Mr. In support of the first point it was submitted by Mr. Mitra that it would appear from the minutes of the arbitration proceedings held on 12th September, 2009, that on the ground of illness of the Counsel of the claimant/respondent the proceeding was adjourned with a direction on the parties to offer inspection of documents within 19th December, 2009 and copies of the same to be exchanged and filed before 24th October, 2009. The next sitting was fixed on 24th October, 2009 for framing issues and further hearing. But due to illness of claimant’s Advocate the inspection of documents and exchange of the same could not take place which was informed by petitioner’s Advocate by his letter dated 17th September, 2009. However on the prayer of the learned Advocate of the claimant, on the ground of his illness, the sitting scheduled on 19th September, 2009 was postponed will 24th October, 2009 which was informed by the arbitrator and both parties were requested to offer inspection of documents prior to the date fixed so that proceedings can commence smoothly on 24th October, 2009. It was further submitted that in the next meeting held on 7th November, 2009, the Arbitrator proceeded with the hearing without giving direction for inspection of documents and exchange of the same between the parties. It is alleged that the Arbitrator allowed the claimant to make submission on factual background without the original documents being produced or given inspection of. The Arbitrator disallowed the prayer of the petitioner to adduce oral evidence and directed the petitioner to file his evidence in chief and disclose documents by 19th November, 2009. The inspection of documents relied upon by the claimant was to be taken on 11th November, 2009. It was contended that the advocate on record of the petitioner fell ill from 9th November, 2009 and was ultimately detected to be suffering from malignant malaria on 12th November, 2009. No inspection of document could be taken on 11th November, 2009 and the evidence on affidavit of the petitioner could not also be prepared. The petitioner by his letter dated 16th November, 2009 requested the Arbitrator to fix a date of arbitration sitting after 15th December, 2009 and extend the time to file affidavit of evidence so that he could take help his Advocate. The petitioner by his letter dated 16th November, 2009 requested the Arbitrator to fix a date of arbitration sitting after 15th December, 2009 and extend the time to file affidavit of evidence so that he could take help his Advocate. The Arbitrator by his letter dated 19th November, 2009 condemned the petitioner of delaying the arbitral proceedings on the purported pretext of illness of his Advocate which cannot be valid ground to postpone the proceedings. By the said letter the Arbitrator further directed the respondent to file his affidavits of witness within 27th November, 2009 and fixed the next date of hearing on 28th and 29th November, 2009. By such direction to file affidavits of witness the Arbitrator also acted contrary to the procedure. It was also submitted that being aggrieved by the conduct of the Arbitrator, the petitioner under compulsion with the help of another Advocate filed an application, inter alia, challenging the mandate of the Arbitrator before this Court. Despite having knowledge and/or informed of such application having been filed on 27th November, 2009 which was scheduled to appear on 2nd December, 2009 proceeded with the arbitration sitting on 28th November, 2009 rejecting the petitioner’s request to stay his hands and not to take any step. The letter of intimation and the request was received by the Arbitrator and also record in the minutes meeting held on 28th November, 2009. The arbitrator proceeded to hold and conclude the hearing on 28th November, 2009 in the absence of the petitioner. It was also submitted that it will appear from the minutes of the meeting that the Arbitrator allowed the claimant being the respondent herein to adduce evidence regarding the letter of reference dated 3rd July, 2007 and the envelope said to contain the same which has been allegedly returned with the postal endorsement “not claimed”. It was submitted that the receipt of the said letter was denied by the petitioner yet without any inspection of the same being given to the petitioner the Arbitrator allowed the claimant to adduce evidence behind the back of the petitioner and, thus, denied the petitioner an opportunity to deal with such evidence. On the same date the Arbitrator allowed one week’s time to the claimant to furnish short notes of argument at their prayer. On the same date the Arbitrator allowed one week’s time to the claimant to furnish short notes of argument at their prayer. The Arbitrator also recorded that since an opportunity was granted to the claimant to furnish written notes of argument the respondent was also allowed to file a notes of argument within 12th December, 2009. It was submitted that the first application filed before the High Court was withdrawn by the petitioner with leave to file afresh since there were some mistakes. Second application being A.P. No. 734 of 2009 on the same ground was filed on 12th December, 2009 and filing of second application was communicated but the Arbitrator proceeded to make and publish the award on 17th December, 2009 during the pendency of the application challenging his mandate. The Arbitrator has acted in violation of principles of natural justice by refusing the petitioner full opportunity of hearing under Section 18 of the Arbitration and Conciliation Act, 1996 and allowed the claimant to adduce evidence in the absence of the petitoner without even giving inspection of such document. Mr. Mitra, in support of his contention have cited a Supreme Court decision reported in AIR 1981 Supreme Court 136 Para 24 (S. L. Kapoor Vs. Jagmohan & Ors.), AIR 1989 Delhi 175 Para 8 (Wazir Chand Karan Chand Vs. Union of India) and AIR 1992 Gauhati 13 Para 10 (Union of India Vs. M/s. D. S.Narula and Co.). So far the second point is concerned Mr. Mitra submitted that reference was made only in respect of money claim and the issue of recovery of possession was not referred to the Arbitrator for adjudication. It was also submitted that the Arbitrator cannot adjudicate the issue with regard to tenancy claimed by the petitioner and the agreement between the petitioner and the respondent was that of a tenancy and not license. The petitioner had challenged the jurisdiction of the Arbitrator under Section 16 of the said Act before the Arbitrator and also filed a suit before Alipore Court, inter alia, for declaration of his tenancy which is pending. It was also submitted that the claimant/respondent filed an application for amendment of the statement of claim in order to avoid the suit and for seeking recovery of possession. Since the Arbitrator allowed the amendment the scope of the reference as well as its character is also changed. It was also submitted that the claimant/respondent filed an application for amendment of the statement of claim in order to avoid the suit and for seeking recovery of possession. Since the Arbitrator allowed the amendment the scope of the reference as well as its character is also changed. A recalling application against the order allowing the amendment was filed but the same was rejected. The Arbitrator on the basis of the amended statement of claim ultimately granted an award for delivery of possession of the subject property. Thus, the Arbitrator traveled beyond the scope of the reference and passed the impugned order. The third and last point urged by Mr. Mitra is that the award contrary to the law of the land and opposed to public policy and as such the impugned award should be set aside. According to Mr. Mitra the clauses contained in the agreement dated 14th December, 1993 on a proper construction thereof, is a tenancy agreement not a license. The long tenure of 13 years with a renewal clause for another 13 years, the provision for payment of all taxes including corporation tax, sales tax, professional tax and other statutory obligations coupled with grant of exclusive possession makes the said agreement really a tenancy agreement and not a license as contended by the claimant/respondent. It was submitted that from the letter dated 29th May, 2007 it would appear that the petitioner retained keys of shop room and the shop having a separate entrance with different working hours from that of the claimant’s office and also engagement of own staff, payment of salary, electricity and telephone bills make the petitioner’s claim stronger and the claim of tenancy on the petitioner’s part is lawful. It was submitted that the petitioner is a tenant and the agreement is a tenancy agreement. It was also contended that the arbitrator proceeded on the basis of the clauses of the agreement without considering exclusive possession of the petitioner. Mr. Mitra placed reliance on the judgments reported in AIR 1988 Supreme Court 1848 Para 10 and 23 (Rajbir Kaur Vs. M/s. S. Chokosiri and Co.) 1994 Vol 4 SCC 545 at Page 559 and 2004 Vol 3 SCC 595 Para 8, 9 and 12 (C.M. Beena and Another Vs. P.N. Ramachandra Rao). Mr. Mitra placed reliance on the judgments reported in AIR 1988 Supreme Court 1848 Para 10 and 23 (Rajbir Kaur Vs. M/s. S. Chokosiri and Co.) 1994 Vol 4 SCC 545 at Page 559 and 2004 Vol 3 SCC 595 Para 8, 9 and 12 (C.M. Beena and Another Vs. P.N. Ramachandra Rao). It was submitted that the claimant could not prove any material evidence that the petitioner was a licensee and not a tenant. The finding of the Arbitrator that agreement is a license not a tenancy, is contrary to the settle principles of law. According to Mr. Mitra the award should be set aside. Mr. Chowdhury, learned Counsel appearing for the respondent in reply submitted that to appreciate the real conduct of the parties, the background 11 prior to 12th September, 2007 is also to be noted. Arbitration proceeding was commenced in July, 2007 before the sole Arbitrator B. D. Bose, who was the President of the respondent Society in terms of Clause 25 of the agreement. Subsequent to the vacating of the office by Mr. B.D. Bose, Mr. V.K. Nahata became the President of the Society and continued the proceedings. After retirement of V.K. Nahata, the proceeding commenced before Mr. Gaurav Swaroop who became the President of the Society in the year 2009 and have passed the award. Mr. Chowdhury submitted that from a plain reading of Paragraphs 3 to 10 of the award it would appear that every possible mode was exhausted by the petitioner to make all sorts of application to delay the proceedings. It would also appear that not only the present Arbitrator who has passed the award, but also his predecessors have recorded that the petitioner herein was avoiding the arbitration proceedings on one pretext or the other. It would also appear from record that by filing one application after another, the petitioner had managed not to file its counter statement till September 2009 notwithstanding the commencement of the proceedings more than two years ago. It was also submitted that repeated adjournments taken on one pretext or the other at the instance of the petitioner and he failed to avail of the opportunity granted. It was submitted that from the minutes of the meeting held on 12th December, 2008 it would appear that the meeting fixed on 13th September, 2008, 26th September, 2008 and from 20th November, 2008 to 22nd November, 2008. It was submitted that from the minutes of the meeting held on 12th December, 2008 it would appear that the meeting fixed on 13th September, 2008, 26th September, 2008 and from 20th November, 2008 to 22nd November, 2008. Five sittings were cancelled at the instance of the respondent and on 12th December, 2008 when the application under Sections 12, 13 and 16 was heard, adjournment was sought for on the pretext “that the learned Counsel is busy with another arbitration matter which has to be finished in terms of some directions by the Hon’ble High Court.” It would appear from the award that when proceedings commenced before the present Arbitral Tribunal once again attempt was made to stall the same on the pretext of pendency of a civil suit and an application made by the respondent herein under Section 8 of the Arbitration and Conciliation Act, 1996. It appears from the award that the hearing fixed on 1st August, 2009 was subsequently refixed on 8th August, 2009. Once again request was made for adjourning the same on the pretext that it would not be possible for the Advocate to attend “without instructions”. It was submitted that the background under which the Arbitrator had to proceed with the hearing on 8th August, 2009 would appear from the minutes of the meeting which was quoted in Paragraph 8 of the award. It was submitted that on 8th August, 2009 when the amendment was allowed by a reasoned decision, it was recorded that in spite of giving opportunity to the petitioner herein to file a counter statement even to the original statement of claim no step was taken. However, since an amendment was allowed, the respondent was granted opportunity to deal with the same and two weeks time was granted to file such counter statement to the amended statement of the claim. Time to file such counter statement was extended till 26th August, 2009 and the next date of hearing was fixed on 4th September, 2009. The petitioner instead of filing a counter statement to the amended statement of claim, filed an application for recalling the order and/or direction which was passed on 8th August, 2009 allowing such amendment. The said application was rejected by order dated 4th September, 2009. The relevant portion of the order is quoted hereunder : “. . . . . . . The said application was rejected by order dated 4th September, 2009. The relevant portion of the order is quoted hereunder : “. . . . . . . After the rejection of the application, I brought it to the notice of the respondent that notwithstanding the specific directions given in the previous order to file counter statement . . . . . . Considering the fact that there has been considerable delay in the arbitration proceedings and adequate opportunity had been given earlier also, for the ends of justice one final opportunity has given to the respondent to file its counter statement by next Friday i.e. 11 September, 2009 with a copy thereof being served upon the claimant.” It was submitted that Mr. Chowdhury, the next hearing was fixed on 12th September, 2009. On that date though formally a prayer for adjournment was made by the Advocate for the respondent herein who was presented in the sitting, such prayer was recorded and on the same date hearing took place and direction was given in respect of discovery and inspection. Parties were directed to offer his inspection within 19th September, 2009 and copies whereof to be exchanged and filed before the Arbitral Tribunal before 24th October, 2009 for framing issues and 6th November, 2009 was also fixed for further hearing. It was submitted that, although it is contended by the petitioner that proceedings held on 12th September, 2009 have been adjourned at the instance of the respondent herein but it would appear that directions had been given by the Arbitrator after filing of the counter statement by the petitioner and no other work could have been done on that date. It would appear from the minutes that the sitting held on that date though technically records an adjournment, cannot effectively be termed as adjournment. Since all directions that could be passed on that date was duly passed and the process of arbitration was not hindered in any manner. It was submitted by Mr. It would appear from the minutes that the sitting held on that date though technically records an adjournment, cannot effectively be termed as adjournment. Since all directions that could be passed on that date was duly passed and the process of arbitration was not hindered in any manner. It was submitted by Mr. Chowdhury, that the letter dated 17th September, 2009 was written at the instance of the Advocates of the petitioner herein, who misconstrued the directions earlier given and thought a formal sitting was required on 19th September, 2009 for the purpose of completion of discovery and inspection notwithstanding the fact that it has been clearly recorded in the earlier minutes that the said meeting was fixed on 24th October, 2009. Since the Advocate of the petitioner herein interpreted the minutes in the manner as recorded in the letter dated 17th September, 2009, the Advocate of the respondent herein (claimant) to whom it was addressed also to avoid controversy requested for adjournment of the proceedings on 19th September, 2009 and the Arbitrator by his letter by the same date has recorded the same and fixed the next date on 24th October, 2009. It would be clear from the minutes that on 19th September, 2009 no hearing was fixed and the same was for the purpose of inspection and discovery only. The next sitting is duly scheduled on 24th October, 2009 in terms of letter dated 19th September, 2009. It would reveal from the tribunals award that the date fixed on 24th October, 2009 was adjourned and rescheduled at the instance of the Arbitrator on 30th October, 2009 and 31st October, 2009. The said dates were adjourned again at the instance of the petitioner by letter dated 23rd October, 2009. The next was fixed on 7th November, 2009. On 7th November, 2009 the claimant submitted that it would not adduce any oral evidence since the entire case was based on documents and arguments were commenced and concluded. It was submitted that after conclusion of the argument on behalf of the claimant before the Arbitrator, two weeks time was allowed, on the prayer of the respondent’s Counsel, to file affidavit of evidence and the next date was fixed on 21st and 22nd November, 2009. It was submitted that after conclusion of the argument on behalf of the claimant before the Arbitrator, two weeks time was allowed, on the prayer of the respondent’s Counsel, to file affidavit of evidence and the next date was fixed on 21st and 22nd November, 2009. Once again the hearing scheduled on 21st and 22nd November, 2009 was cancelled at the instance of the respondent/petitioner herein on the ground of the illness of the Advocate as would appear from Para 17 of the award and the next was fixed on 28th and 29th November, 2009 whereby another opportunity was given to the respondent in the award case to file its affidavit on evidence. On 28th November, 2009 again adjournment was sought for on the pretext that an application has been filed before the Hon’ble High Court on the previous date that is on 27th November, 2009. Since there was no stay and since repeated opportunity have been granted, the Arbitrator had no other option but to proceed and close the hearing. It was submitted that the Arbitrator have allowed the prayer for adjourn on the ground of illness of the petitioner’s Advocate and, therefore, the petitioner cannot have any grievance. When the plea for Advocate’s illness was taken as a cause for non-filing of affidavit on evidence the petitioner herein was able to file application before the Hon’ble High Court through another Advocate on 27th November, 2009 and, therefore, the petitioner not only had the Assistance of the Counsel as recorded by the Arbitrator but also Assistance of advocate on record through whom the petitioner herein had filed an application before the Hon’ble High Court. Mere application by itself cannot be a bar to proceed further with the arbitral proceedings particularly in the background as aforesaid. It was submitted there was no stay, therefore, the Arbitrator has rightly proceeded with the matter particularly in the background as aforesaid. It was submitted by Mr. Chowdhury, that opportunity was given twice to the petitioner to file its affidavit on evidence and disclose documents by 21st November, 2009 and thereafter by 27th November, 2009, but the petitioner did not file the same deliberately in spite of the fact that he has Assistance of advocate on record through whom he filed the petition before the Hon’ble High Court. Therefore, it was contended that there is no denial of opportunity to the petitioner to present the case and there is no violation of principles of natural justice as alleged by the petitioner. As regards the second point taken on behalf of the petitioner that Arbitrator travelled beyond reference made and dealt with issues not covered under reference, it was submitted by Mr. Chowdhury that the aforesaid contention is untenable as the formal letter of reference was preceded by earlier letters including letter dated 17th May, 2007, 28th May, 2007 and letter dated 25th June, 2007. It was contended that the letter dated 25th June, 2007 specifically records as follows : “. . . . . . . unfortunately you have failed and neglected either to stop the business of the said flower until from our premises or to deliver physical possession of the said flower unit to us or to make any payment on account of liquidated damages. Thus as per Clause 24 of the said agreement, since you have failed to handover the said flower unit on or before 13 May, 2009 . . . . . .” It was also submitted that the letter dated 25th June, 2007 has been specifically referred to in the formal letter of reference dated 3rd July, 2007 which is as annexure to the petition. It would also appear from the original statement of claim that liquidated damages have been claimed at the rate of Rs. 5,000/- till the date of delivery of possession. Therefore, delivery of possession and failure and negligence to do the same was a dispute very much within the contemplation of the parties, admittedly arising from the agreement and also was within the scope of reference. Moreover Arbitrator have given a reasoned order while allowing the amendment which is quoted in Paragraph 8 of the award. It was held by the Arbitrator that the dispute is covered in the original reference dated 3rd July, 2007 and arises out of the agreement dated 14th December, 1993. It was contended that not only the relief for eviction was within the scope of reference but as per the present Act it is open to the parties to enlarge the scope of reference by inclusion of fresh disputes and they must be held to have done so when they filed their statement putting forward claims not covered by the original reference. In support of such contention the decision reported in 2006 Vol 11 SCC Page 181 Para 101 (McDermott International Inc. Vs. Burn Standard Co. Ltd.) was cited. Accordingly the aforesaid contention should also be rejected. Mr. Chowdhury in reply to the third point submitted that the award is in accordance with law and not opposed to public policy. It was submitted that the plea of the petitioner to the effect that the agreement in question cannot be construed to be a licence agreement, but in reality it is a tenancy agreement cannot be accepted. He relied upon the same case that was relied on Mr. Mitra and referred paragraphs 18 and 19 of the said case reported in 1999 (4) SCC 545 (Delta International Ltd. Vs. Shyam Sundar Ganeriwala & Ors.). He submitted that in the above referred paragraphs the Hon’ble Apex Court have clearly held that the intention of the parties is required to be gathered from the express words of the various terms provided by them in the deed. He also referred Clause 12 of the deed considered in the aforesaid paragraph contain a similar clause as that of Clause 3 and Clause 26 of the licence agreement of the present case. The Apex Court has construed similar clauses and held that the document has not been drafted by an illiterate layman and the said clause has been mentioned after full understanding to avoid any wrong inference or intention. It was submitted that the intention of the parties is the meaning of the words they are used in the agreement and there could be no intention independent of that meaning and such intention is clear from Clauses 23 and 25 of the agreement. It was submitted that the intention of the parties is the meaning of the words they are used in the agreement and there could be no intention independent of that meaning and such intention is clear from Clauses 23 and 25 of the agreement. It was further submitted that even otherwise also, if the agreement is read as a whole, no other conclusion can be reached except that the said agreement is that of a licence even considering the other provisions like payment of commission at a percentage of the sales, which would vary from month to month, the obligation to deposit duplicate key and obtain the key in the morning and deposit the same in the evening, the obligation pertaining to control of the petitioner herein in respect of the products sold in the said shop, the manner and method of printing of cash memos, the supervision of accounts, the obligation of getting the same audited by a Chartered Accountant of the respondent herein and the obligation to provide inspection of such accounts, etc. It was further submitted that the Arbitrator has correctly interpreted and construed the agreement as a licence agreement and such interpretation cannot be assailed as a question of law. It is within the jurisdiction of the Arbitrator to construe the said agreement. Mr. Chowdhury, referred para 112 and 113 of the case of McDermatt International Inc (Supra) and submitted that interpretation of the contract is a matter for the Arbitrator to determine, even if it rises determination of a question of law. Therefore, once the Arbitrator had the jurisdiction no further question shall be raised and the Court shall not exercise its jurisdiction unless it is found that there exists any bar on the face of the award. It was also submitted that the Arbitrator had correctly interpreting the agreement in the question to be that of a licence agreement and it is not open to the Court to go into it. He submitted that the contention, to the effect the award is opposed to law cannot be sustained. He submitted that the instant application challenging the award under Section 34 of the Arbitration and Conciliation Act, 1996 is liable to be dismissed. The respective contention of both the learned Counsel have been carefully examined by me. The question of violation of principles of natural justice was raised by the petitioner. He submitted that the instant application challenging the award under Section 34 of the Arbitration and Conciliation Act, 1996 is liable to be dismissed. The respective contention of both the learned Counsel have been carefully examined by me. The question of violation of principles of natural justice was raised by the petitioner. It was alleged that sufficient opportunity was not granted to the petitioner. It appears from records that in July 2007 arbitration proceedings started. After careful reading of the award passed by the Arbitrator I find that the petitioner being the respondent in arbitration proceedings took several adjournments. The relevant paragraph from the award is quoted hereunder:- “It also appears from records that repeated adjournments at the instance of the respondent was granted which was recorded in the minutes dated 12th December, 2008. The matter was adjourned on 13th September, 2008, 26th September, 2008, 20th November, 2008, 21st November, 2008, 21st November, 2008, 22nd November, 2008. On the aforesaid dates no hearing could take place. It also appears that by a letter dated 4th December, 2008 adjournment was sought for on the ground that the learned Counsel for the respondent is busy with another arbitration matter as such he cannot appear on the date fixed for hearing that is on 12th December, 2008. However, it was recorded in the minutes of the meeting dated 12th December, 2008 that all the adjournments were given at the instance of the respondent/petitioner herein and it was also recorded that the proceeding was pending for over a year with no effective sitting taking place resulting in ordinary delay. However, on 18th December, 2008 the Arbitrator passed an order rejecting the application of the respondent filed under the provisions of Sections 12, 13 and 16 of the Arbitration and Conciliation Act, 1956.” However, after retirement of B. K. Nahata as President of the said society, Gourav Swarup became the President and the arbitration proceedings resumed before him. However, on 18th December, 2008 the Arbitrator passed an order rejecting the application of the respondent filed under the provisions of Sections 12, 13 and 16 of the Arbitration and Conciliation Act, 1956.” However, after retirement of B. K. Nahata as President of the said society, Gourav Swarup became the President and the arbitration proceedings resumed before him. By a letter dated 26th March, 2009 written by the Advocate of the respondent to the Advocate of the claimant with a copy to the present Arbitrator informed that the civil suit was filed by the respondent against the claimant and in that civil suit an application under Section 8 of the said Act was filed by the claimant and it was contended that it would not be proper to interfere with such pending judicial proceedings which might construe in future as contumacious. Since there was no stay and further since that pendency of the application do not create any embargo on the proceedings before the Arbitrator, the Arbitrator fixed a date for hearing on 1st August, 2009. The hearing so fixed was again adjourned at the request Advocate of the petitioner and the date for hearing was refixed on 8th August, 2009. However, by a letter served on 7th August, 2009 by the Advocate of the petitioner it was informed it would be impossible for the learned Advocate of the petitioner to attend the meeting on 8th August, 2009. On 8th August, 2009 the hearing took place and on that day the amendment application filed by the claimant was allowed and the Advocate of the claimant was directed to serve a copy of the amended statement of claim on the respondent/petitioner herein. The next date of hearing was fixed on 4th and 5th September, 2009. On 4th September, 2009 an application was filed on behalf of the petitioner seeking recalling of the order passed on 8th August, 2009 and said application was heard. On 4th September, 2009 petitioner’s counsel prayed for extension of time to file counter statement and extension was granted till 11th September, 2009 and the next hearing was fixed on 12th September, 2009. On 12th September, 2009 a prayer for adjournment was made by the claimant’s Advocate on the ground of his illness which was not opposed by the Counsel of the respondent. On 12th September, 2009 a prayer for adjournment was made by the claimant’s Advocate on the ground of his illness which was not opposed by the Counsel of the respondent. On that day counter statement was filed by the respondent/petitioner and both parties were directed to offer inspection of documents within 19th September, 2009 and the copies thereof are to be exchanged and filed before 24th October, 2009 when the next sitting is fixed for framing of issues and for further hearing. In that meeting it was also agreed that a further date i.e. 6th November, 2009 is also fixed for further hearing. After issuance of such direction the matter was adjourned. Therefore, under no circumstances it could be effectively termed as adjournment as several directions which could be passed on the date was duly passed and the hearing of the arbitration proceedings took place on that date. It appears from the letter dated 17th September, 2009 issued by the petitioner’s Advocate that he misconstrued the directions given on 12th September, 2009 and thought of a formal sitting was required on 19th September, 2009 but it is evident from the minutes of the meeting dated 12th September 2009 that no sitting was fixed on 19th September, 2009. Thus the letter for adjournment of the proceedings on 19th September, 2009 issued by the Advocate of the claimant is of no consequence. On 24th October, 2009 no hearing took place and date of hearing was rescheduled at the instance of the Arbitrator on 30th October, 2009 and 31st October, 2009. On 23rd October, 2009 a letter was issued by the learned Advocate for the petitioner stating therein that he would be out of station for attaining Circuit Bench Andaman and he will be returning on 1st November, 2009 and further his client would be out of town on 24th October, 2009 and scheduled to reach Calcutta on 24th October, 2009. Therefore, again a prayer for adjournment was made. In view of the aforesaid inconvenience the hearing scheduled on 30th October and 31st October, 2009 had to be cancelled and the meeting was adjourned till 7th November, 2009. On 7th November, 2007 hearing took place and on the prayer of respondent’s Counsel the arbitral tribunal allowed two weeks time to the respondent to submit evidence in chief by way of affidavit and to disclose documents. On 7th November, 2007 hearing took place and on the prayer of respondent’s Counsel the arbitral tribunal allowed two weeks time to the respondent to submit evidence in chief by way of affidavit and to disclose documents. It was also agreed between the Advocates appearing for both sides that Advocate of the respondent/petitioner shall take inspection of the documents relied upon by the claimant at the office of the Advocate of the claimant on 11th November, 2009 at 5 PM. The respondent/petitioner was also directed to disclose his documents and file affidavit of evidence in chief by 19th November, 2009 with a copy thereof being served to the Advocate of the claimant. The next date of hearing was fixed on 21st and 22nd November, 2009 at 11 AM at the same venue. It was made clear that the witness of the respondent/petitioner should be present for cross examination and the Counsel should be ready for their respective arguments relating to the matter. Claimant concluded their factual submission and it was also recorded that they won’t adduce any oral evidence. It was recorded no further notice would be given to the parties. The next date of hearing as scheduled on 21st and 22nd November, 2009 again cancelled at the instance of the respondent/petitioner on the ground of illness of his Advocate. The next date of hearing was fixed on 28th and 29th November, 2009 giving one final opportunity to the respondent/petitioner to file his affidavit of evidence and documents. In the letter dated 19th November, 2009 the Arbitrator informed the respondent/petitioner, in reply to his letter dated 16th November, 2009 that he is making attempts to delay the arbitral proceedings. It was also noted in the letter that in spite of directions the petitioner did not wish to file affidavit of evidence or take inspection of documents. It was also recorded that the petitioner is getting assistance of able Counsel who has been arguing the matter on his behalf and on that ground he refused to postpone the proceedings, however, one final opportunity was given to the respondent/petitioner to file affidavit of evidence within 27th November, 2009. It was also recorded that inspection of documents should be provided to the petitioner on the next sitting and by that letter the Arbitrator directed the Advocate of the claimant to produce all the originals available to enable the respondent/petitioner to take inspection. It was also recorded that inspection of documents should be provided to the petitioner on the next sitting and by that letter the Arbitrator directed the Advocate of the claimant to produce all the originals available to enable the respondent/petitioner to take inspection. The contents of the letter is quoted under Paragraph 18 of the award. It is pertinent to mention that in the aforesaid letter the Arbitrator made it clear that on the date fixed i.e. on 28th and 29th November no adjournment for any reason whatsoever would be given. The opportunity granted to the respondent is peremptory and in compliance with the requirements of natural justice, etc. On 28th November, 2009, once again a letter was received from the respondent/petitioner, seeking cancellation of hearing fixed on the ground that an application has been filed on 27th November, 2009 before the Hon’ble High Court at Calcutta, which was scheduled to appear on 2nd December, 2009. In that application the petitioner have prayed, inter alia, for termination of the mandate of the Arbitrator, since the Arbitrator is acting with some bias in the arbitral proceedings. However, the prayer was rejected by the Arbitrator and he proceeded with the arbitral proceedings recording in the minutes of the meeting dated 28th November, 2009 that even in spite of granting several opportunity to the respondent/petitioner, he did not avail such opportunity and instead he has written a letter to the Arbitrator containing the purported allegations. Since there was no interim order the arbitration proceedings continued ex parte and the claimant was granted one week time to furnish notes of argument and the respondent/petitioner was also granted same opportunity. It was made clear that the notes of argument should be filed by both claimant and the respondent within 12th December, 2009. Thus, it appears that enough opportunity was given to the petitioner to take appropriate steps by him which he did not accept rather he has tired all along to delay the proceedings by taking one plea or the other. It appears that out of two learned Advocates, one fell ill and the other one was there, who is also conversant with the case of the respondent/petitioner and the petitioner could have taken help from the other learned Advocate for taking appropriate steps of the matter. It appears that out of two learned Advocates, one fell ill and the other one was there, who is also conversant with the case of the respondent/petitioner and the petitioner could have taken help from the other learned Advocate for taking appropriate steps of the matter. It appears that even in spite of illness of one of his learned Advocates the petitioner did not find it difficult to move applications one after another before the High Court. Therefore, the plea of Advocate’s illness is not at all an acceptable ground to hold that the petitioner was denied opportunity to present his case. The judgments cited by Mr. Mitra is not applicable in the facts and circumstances of the case. In my considered view there is no denial of opportunity to the respondent/petitioner herein to present his case nor there is any violation of natural justice as alleged by him. The petitioner who was granted sufficient opportunities but he failed to avail the same, should not be allowed to say that he was not granted opportunity to represent his case or there is any violation of principles of natural justice or the same could be a ground for filing application for setting aside for award. So far as the second point as argued by Mr. Mitra that the Arbitrator travelled beyond the reference and the award deals with issues not covered under the reference is also without any merit. It appears that formal letter of reference proceeded by letters dated 17th May, 2007, 28th May, 2007 and the letter dated 25th June, 2007. It was specifically recorded in the letter dated 25th July, 2007 that the petitioner herein have failed and neglected either to stop business of the said flower unit from the premises or to deliver physical possession of the flower unit to the claimant or to make any payment on account of liquidated damages. Thus, as per Clause 24 of the said agreement the petitioner has failed to handover the said flower unit on or before 13th May, 2009. The letter dated 25th June, 2007 has been specifically referred to in the formal letter of reference date 3rd July, 2007. From the original statement of claim it would appear that liquidated damages at the rate of Rs. The letter dated 25th June, 2007 has been specifically referred to in the formal letter of reference date 3rd July, 2007. From the original statement of claim it would appear that liquidated damages at the rate of Rs. 5000 was claimed till the date of delivery of possession and, therefore, delivery of possession and/or failure of delivery of possession on the part of the petitioner was very much a dispute within the contemplation of the parties, admittedly arising form the agreement and further it was within the scope of reference. It would appear form Paragraph 8 of the award that the Arbitrator at the time of allowing the amendment application gave sufficient reasons. The Arbitrator while passing the order for amendment has considered the letters dated 17th May, 2007, 28th May, 2007 as well as 3rd July, 2007 and has held that the claim for delivery of possession is covered in the letter of reference and the same arises out of the agreement dated 14th December, 1993. It was rightly held by the Arbitrator that the claim is not only covered under the original reference but it arises out of the agreement dated 14th December, 1993. It is true that the amendment was necessary to avoid multiplicity of proceedings and also for complete adjudication of all disputes between the parties arising out of the same agreement as well as the same cause of action. In this regard it would be appropriate to refer the decision cited by Mr. Chowdhury (McDermatt International Inc) supra in which it was held by Supreme Court that :- “In fact BSCL never raised any plea before the arbitrator that the said claim was arbitrary or beyond its authority. Such an objection was required to be raised by BSCL before the arbitrator in terms of Section 16 of the 1996 Act. It may also be of some interest to note that this Court even prior to the enactment of a provision like Section 16 of the 1996 Act in Waverly Jute Mills Co. Ltd. v. Raymon & Co. Such an objection was required to be raised by BSCL before the arbitrator in terms of Section 16 of the 1996 Act. It may also be of some interest to note that this Court even prior to the enactment of a provision like Section 16 of the 1996 Act in Waverly Jute Mills Co. Ltd. v. Raymon & Co. (India) (P) Ltd. Clearly held that it is open to the parties to enlarge the scope of reference by inclusion of fresh disputes and they must be held to have done so when they filed their statements putting forward claims not covered by the original reference.” Therefore, there is no substance in the argument that issue of recovery of possession was not referred to the Arbitrator for adjudication or the amendment allowed by the Arbitrator have changed the nature and character of the reference. Accordingly the plea taken on behalf of the petitioner is also rejected. It is held that the Arbitrator is authorised to amend the statement of claim, if it is found that the amendment sought for arises out of the same agreement and also covered by it. Now I shall deal with the third and last point raised by Mr. Mitra that the award is contrary to law of the land and opposed to public policy. It appears from the award that the Arbitrator after taking note of various clauses interpreted the agreement and have come to a definite conclusion that the agreement in question cannot be construed to be an agreement of tenancy and is an agreement granting only license in respect of the Flower unit. In my opinion the phrases used in the clauses are to be looked into for gathering the intention of the parties as well as for ascertaining the meaning of the words used in the agreement. There could be no intention independent of the meaning and such intention is clear from the Clauses 2, 3 and 25 of the said agreement. In a situation like this the Hon’ble Supreme Court held in a case, relied upon by both the learned Counsel, reported in 1999 (4) SCC 545 (Delta International Ltd. Vs. There could be no intention independent of the meaning and such intention is clear from the Clauses 2, 3 and 25 of the said agreement. In a situation like this the Hon’ble Supreme Court held in a case, relied upon by both the learned Counsel, reported in 1999 (4) SCC 545 (Delta International Ltd. Vs. Shyam Sundar Ganeriwalla & Ors) in paragraphs 18 and 19 to the following effect :- “in our view, the submission of the learned Counsel for the appellant requires to be accepted because as stated above, it is nowhere pleaded that the deed executed between the parties is a camouflage to evade the rigours of the provisions of the Rent Act nor is it stated that a sham document is executed for achieving some other purpose. In these set of circumstances, the intention of the parties is required to be gathered from the express words of various terms provided by them in the deed. For this purpose, Clause 12 of the document is to be taken into consideration and due weight is required to be given to what the parties have stated. It provides as under: It is hereby expressly agreed upon and declared by and between the parties that these presents shall not be treated or used or dealt with or construed by the parties in any way as a tenancy or lease or as a document within the purview of the West Bengal Premises Tenancy Act or any modification or amendment thereof or to confer any relationship as landlord and tenant between the parties hereto. ” “The aforesaid term of the document is not provided by an illiterate layman or poor person in need of some premises for his residence or business, but is executed by two companies where it can be presumed that it is mentioned after full understanding and to avoid any wrong inference of intention. It specifically mentions that only a licnece was created and not a lease. The said clause is in positive as well as negative from providing that the agreement was a licence and should not be treated or used or dealt with or construed by the parties in any way as lease or to confer any relationship as landlord and tenants between the parties. The said clause is in positive as well as negative from providing that the agreement was a licence and should not be treated or used or dealt with or construed by the parties in any way as lease or to confer any relationship as landlord and tenants between the parties. When the parties which are capable of understanding their rights fully, expressly agreed and declared that the document should not be construed in any manner as creating any relationship as landlord and tenant between them, it would be impermissible to conjecture or infer that their relations should be construed as that of landlord and tenant because certain terms mentioned in the deed can have a double intendment. As stated above, the intention of the parties is the meaning of the words they have used and there could be no intention independent of that meaning. The learned Single Judge of the High Court rightly, therefore, held that this clause stares in his face in construing it as a lease deed.” Mr. Mitra placed reliance on two other Supreme Court Cases reported in AIR 1988 SCC 845 Para 10 and 2004 (3) SCC 595 to assert his contention that the test of exclusive possession and the payments to be made by his client are all important factors to be considered by the Arbitrator which he has failed. After careful reading of the aforementioned decisions it can safely be concluded that the real intention to be gathered by reading the document as a whole and that the test of exclusive possession may be one of the considerations but not the only test. It would be appropriate to refer paragraphs 112 and 113 of the McDermatt International Inc’s case which is very relevant in this regard. The said two paragraphs reads as follows:- “It is trite that the terms of the contract can be expressed or implied. The conduct of the parties would also be a relevant factor in the matter of construction of a contract. The construction of the contract agreement is within the jurisdiction of the arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties. The construction of the contract agreement is within the jurisdiction of the arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties. It is also trite that correspondences exchanged by the parties are required to be taken into consideration for the purpose of construction of a contract. Interpretation of a contract is a matter for the arbitrator to determine, even if it gives rise to determination of a question of law. (See Pure Helium India (P) Ltd. v. ONGC and D.D. Sharma v. Union of India).” “Once, thus, it is held that the arbitrator had the jurisdiction, no further question shall be raised and the court will not exercise its jurisdiction unless it is found that there exists any bar on the face of the award.” Thus, I hold that the Arbitrator has correctly interpreted the agreement and he had the jurisdiction to do the same. Accordingly the third point raised by Mr. Mitra also fails. For the aforementioned reasons the application is dismissed, but without any order as to costs.