JUDGMENT Dev Darshan Sud, J. This petition has been preferred by the NHPC petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) against the award passed on 1.9.2008 Annexure P-7. The claim petition was instituted by M/s Vijay Kumar Sharma (the respondent) against the petitioner herein. The Arbitral Tribunal consisted of Hon’ble Mr. Justice P.K. Palli (Retd.) Presiding Arbitrator, Dr. T.S. Sethurathnam and Mr. Lal Singh Rana, Arbitrators. Ten claims were made by the respondent herein claiming a sum of Rs.1,83,67,496/-. The Tribunal notes that the parties did not lead any oral evidence, which consisted of only the documents filed on record by the parties. On the conclusion of the proceedings it is held:- Summary of the award Sr.No. Claim Items Amount Claimed Amount Awarded 1 Claim No.1(a) (amount withheld by NHPC) Rs. 11,72,599-00 Rs. 11,72,599.00 2. Claim No.1(b) (Release of security) Rs. 8,33,000.00 Rs. 8,30,000.00 3. Claim No. 2 (Refund of excess cost of detonators recovered in violation of the stipulate rate of agreement) Rs. 3,10,424.00 Rs. 2,61,931.00 4. Claim No. 3 cost of idle labour & machinery, due to Lapses on the part of NHPC) Rs. 7,84,000.00 Rs. 4,56,161.00 5. Claim No. 4 (given up) ……. …….. 6. Claim No. 5 (cost of crate work done/performed by the claimant.) Rs. 3,28,125.00 Rs. 2,79,795.00 7. Claim No. 6 (claim on account of cost of formation, cutting of the road done by the petitioner under the orders of the NHPC beyond the Rs.1,34,19,000.00 Rs.1,04,89,686.00 deviation limit) 8. Claim No.7 (given up) ……. …….. 9. Claim No. 8(interest) Claim No. 8(a) given up Claim No. 8(b) (recovery of Rs. one crore held illegal & not recoverable from the claimant.) …….. ……… Total Rs.1,34,90,627.00 10. Claim No. 9 9(a) Interest @ 10% for 16 months w.e.f. 1.5.2007 to 31.8.2008 on amount excluding security i.e. on Rs.1,26,60,627.00 (1,34,90,627-8,30,000) 9(b) Interest @ 10% for 7 months w.e.f. 01.02.2008 to 31.08.2008 on amount of security i.e. on Rs. 8,30,000.00 Rs. 16,88,084.00 Rs. 48,417.00 Grant Total Rs.1,52,27,128.00 2. In all, claim of Rs. 1,52,27,128/- was allowed by the learned Arbitral Tribunal. 3. It is these findings which are challenged before me on a number of grounds by the claimant stating that the award violates the mandate of the Act necessitating the invocation of Section 34. 8,30,000.00 Rs. 16,88,084.00 Rs. 48,417.00 Grant Total Rs.1,52,27,128.00 2. In all, claim of Rs. 1,52,27,128/- was allowed by the learned Arbitral Tribunal. 3. It is these findings which are challenged before me on a number of grounds by the claimant stating that the award violates the mandate of the Act necessitating the invocation of Section 34. Primarily what has been urged before me is that Claim No. 6 being an excepted matter the Tribunal has been remiss in awarding a sum of Rs. 1,04,89,686/- as cost of formation cutting of the road done by them under the orders of the petitioner herein beyond the deviation limit of 30% of the contract document. The learned Tribunal held that it is undisputed that the respondent had ordered the claimants to execute work beyond 30% deviation limit. It was also undisputed that the claimant had executed the said deviated quantity and that he is entitled to special rates for deviated quantity exceeding 30% deviation. The learned Tribunal relying upon Annexure C-16 and C-17 which have been written by the respondent to the petitioner herein held that the entire portion exceeding 30% of the deviated quantity consisted of 100% hard rock and the site being not accessible, the approach path over vertical cliff had to be constructed. The Tribunal then continues that by virtue of Annexure C-22, C-23, C-37, C-38 and C-43 the petitioner has admitted that the said portion was a hard rock and vertical cliff. Annexure C-22 and C-23 were letters written by NHPC to the D.F.O. Banjar in which the portion involving quantity in excess of 30% deviation limit was admitted as hard rock in the shape of vertical cliff. Annexure C-37 was a copy of measurement book which corroborated this fact. On the basis of these documents and technical estimate framed by the petitioner herein, the quantity was fixed as 29757.13 cum which has been accepted by the claimants. On the rates applicable, the Tribunal notes that vide Annexure C-37 the petitioner herein had allowed rates of Rs. 154.89 Ps. per cum while the claimant had claimed the rate of Rs. 564.02 Ps. per cum. The Tribunal on the material concludes that rates of deviated work allowed by the Engineer-in-Charge were not agreed to between the parties nor fixed according to the procedure and within the time schedule contemplated by the contract. 154.89 Ps. per cum while the claimant had claimed the rate of Rs. 564.02 Ps. per cum. The Tribunal on the material concludes that rates of deviated work allowed by the Engineer-in-Charge were not agreed to between the parties nor fixed according to the procedure and within the time schedule contemplated by the contract. Allowing the claim of the respondent herein, the learned Tribunal notes that it was open to go into the fact with respect to the reasonability of the rates claimed and the various items of work executed by the claimant. The Tribunal holds that this must conform to some basic norms including those applicable to and adopted by the Central/State Governments on which reliance was placed by both the parties. On the detailed analysis, the award was made under the various heads claimed by the claimant. 4. After a detailed analysis of the material on record, the Tribunal fixed and awarded Rs. 352.51 Ps per cum. An amount of Rs. 1,04,89,686/- was allowed accordingly. What has been submitted before me is that this is an excepted matter and in this eventuality, the learned Tribunal has acted beyond its jurisdiction in entertaining, adjudicating and allowing the aforesaid rate. In addition, it was urged that claim Nos. 1 and 3 also fall in this category. Learned counsel submits that in case these claims are excluded, the respondent-claimant would not be entitled to any claim whatsoever. 5. On the jurisdiction of this Court under Section 34 of the Act, in Ravindra Kumar Gupta and Company vs. Union of India, (2010)1 SCC 409 the Supreme Court holds: “8.We areof the considered opinion that the High Court committed a serious errorin re-appreciating the evidence led by the parties before the arbitrator. This evidence was duly scrutinized and evaluated by the arbitrator. With regard to claim No.5, the arbitrator has given elaborate reasons. Therefore, finding recorded by the arbitrator cannot said to be either perverse or based on no evidence. A firm finding has been recorded that under claim No.5 there was default and delay on the part of Union of India with respect to: (i) The payment of RARs final bill. (ii) Delay in appointing agency for ATT. (iii) Delay in giving decision. (iv) Increase in height of Tent plinth (given late). This conclusion has been erroneously substituted by the High Court with its own opinion on appreciation of the evidence. (ii) Delay in appointing agency for ATT. (iii) Delay in giving decision. (iv) Increase in height of Tent plinth (given late). This conclusion has been erroneously substituted by the High Court with its own opinion on appreciation of the evidence. Such a course was not permissible to the High Court while examining objections to the award under Section 30 of the Arbitration Act, 1940. 9. The law with regard to scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in a catena of judgments of this Court. We may make a reference here only to some of the judgments. In the case of State of Rajasthan vs. Puri Construction Company Limited. and Another. (1994) 6 SCC 485 , this Court observed as follows: “26 The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Kerala (1989) 2 SCC 38 it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator. In the case of Municipal Corpn. Of Delhi v. Jagan Nath Ashok Kumar 1987(4) SCC 497 , it has been held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It may be possible that on the same evidence the court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award. It has also been held in the said decision that it is difficult to give an exact definition of the word Rs.reasonable'. Reason varies in its conclusions according to the idiosyncrasies of the individual and the time and circumstances in which thinks. In cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determines what is Rs.reasonable' in each particular case. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably knows or ought to know. An arbitrator acting as a judge has to exercise a discretion informed by tradition, methodized by analogy disciplined by system and subordinated to the primordial necessity or order in the social life. Therefore, where reasons germane and relevant for the arbitrator to hold in the manner he did, have been indicated, it cannot be said that the reasons are unreasonable." (Pp.413 & 414) 6. The Court reiterated the principles as laid down in State of Rajasthan Vs. Puri Construction Co. Therefore, where reasons germane and relevant for the arbitrator to hold in the manner he did, have been indicated, it cannot be said that the reasons are unreasonable." (Pp.413 & 414) 6. The Court reiterated the principles as laid down in State of Rajasthan Vs. Puri Construction Co. Ltd. and another, (1994) 6 SCC 485 , M.C.D V.Jagan Nath Ashok Kumar, (1987) 4 SCC 497 , Arsan Enterprises Ltd. V. Union of India, (1999) 9 SCC 449 and ONGC Ltd. V. SAW Pipes Ltd., (2003) 5 SCC 705 . 7. In State of Rajasthan Vs. Nav Bharat Construction Company (2010) 2 SCC 182 , the Court holds:- “17. The jurisdiction of the court to set aside an award under Section 30 of the Act has now been settled by catena of decisions of this Court as we as by the different High Courts in India. Taking those principles into consideration, it would thus be clear that under Section 30 of the Act it must be said that the court is not empowered to re-appreciate the evidence and examine the correctness of the conclusions arrived at by the Umpire in considering an application for setting aside the award. (P.188) 8. To similar effect is the decision in Oil and Natural Gas Corporation (2010) 13 SCC 377 .In Sumitomo Heavy Industries Limited vs. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 ,the Court again reiterated the fact that jurisdiction of the Court is limited . T h e Court held:- “40. The respondent had contended in their arbitration petition before the High Court that it was not permissible to refer to the pre-contractual negotiations and the documents arising therein. What the umpire has, however, done is to look into the context with a view to understand the text. As we have noted above, the umpire has looked into the evidence before him including that of the respondent’s officer as to how MII had participated in the bid clarification meetings. He considered the submission of the appellant as to how the sub-contract was also tax protected, which was their main plea. It is true that if there is an error apparent on the case of the award or where the umpire had exceeded his jurisdiction or travelled beyond the reference, the court can interfere. He considered the submission of the appellant as to how the sub-contract was also tax protected, which was their main plea. It is true that if there is an error apparent on the case of the award or where the umpire had exceeded his jurisdiction or travelled beyond the reference, the court can interfere. However, in view of what is noticed above it is not possible to say that the award suffers from any of the above defects so as to call for interference……. 41. ……..As recently reiterated by this Court in SAIL v. Gupta Brother Steel Tubes Ltd. (2009) 10 SCC 63 if the conclusion of the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award. The High Court has erred in so interfering. 42. Can the findings and the award in the present case be described as perverse? This Court has already laid down as to which finding would be called perverse. It is a finding which is not only against the weight of evidence but altogether against the evidence. This Court has held in Triveni Rubber & Plastics v. CCE AIR 1994 SC 1341 that a perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu v. State (2009) 10 SCC 206 . 43. In the present case, the findings and award of the umpire are rendered after considering the material on record and giving due weightage to all the terms of the contract. Calling the same to be perverse is highly unfair to the umpire. The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of Clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute one’s own view in such a situation in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Mfg. Corpn. Nor can one substitute one’s own view in such a situation in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Mfg. Corpn. V. Central Warehousing Corpn. (2009) 5 SCC 142 the Court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding.“ ( P. 312-313) Precedent need not be multiplied further. Adverting to Clause 18 in the present case which deals wit h deviation learned counsel relies upon the concluding portion of the condition which reads: “The Engineer-in-Charge shall examine the rate analysis submitted by the contractor and fix the rates accordingly. The decision of the E.I.C. in deriving rates as aforesaid shall be final conclusive and binding on the contractor.” Clause 3 9 deals with completion time and extensions and it contains a condition that no monetary claims shall b e entertained by the Corporation for such extended period. Clause 53 reads: Clause 53: Finality Clause: It shall be accepted as an inseparable part of the contract that in matters regarding materials, workmanship, removal of improper work, interpretation of the contract drawings and contract specifications, mode of procedure and the carrying out of the work as stipulated in the clause Nos. 7, 8, 9, 10, 13, 17, 18, 21, 23, 24, 29, 32, 34, 37, 28, 40, 41 and 44 the decision of the Engineer-in-Charge, which shall be given in writing shall be final and binding on the contractor.” The law o n the point has been considered by me in detail. In Civil Suit No. 123 of 2008 titled M/s Sadhu Singh and company vs. M/s National Projects Construction Co. I have considered the applicability of the finality clause which is in pari-materia and verbatim to the contract noted supra. 9. In Civil Suit No. 123 of 2008 titled M/s Sadhu Singh and company vs. M/s National Projects Construction Co. I have considered the applicability of the finality clause which is in pari-materia and verbatim to the contract noted supra. 9. Adverting to the jurisdiction of the Arbitrator, it was held: “Jurisdiction The second more serious objection which has been raised and which is fundamental to the entire dispute between the parties is with respect to the jurisdiction of the Arbitrator to entertain the claim. Learned Senior counsel refers to Clause 18.2, in particular, Sub-clauses (ii) and (iii), Clause 53, which is a finality clause and Clauses 23.6 ( c) and 15.1. Adverting to Clause 53 of the Contract, Volume 4 it reads: “Clause 53 : FINALITY CLAUSE It shall be accepted as an inseparable part of the contract that in matters regarding materials, workmanship, removal or improper work, interpretation of the contract drawings and contract specifications, mode of procedure and the carrying out of the work as stipulated in the clause Nos. 7, 8, 10, 13, 17, 18, 21, 23, 24, 29, 32, 34, 37, 38, 40, 41 & 44, the decision of the Engineer-in-Charge, which shall be given in writing, shall be final and binding on the contractor.” This is the gist of the objectors’ case. The Non-objector refutes these submissions on the ground that the Objector has submitted to the jurisdiction of the Arbitrator, hence now cannot turn around and challenge the award. 8. Learned Senior counsel refers to the Constitution Bench decision of the Supreme Court in Waverly Jute Mills Co. Ltd. vs. Raymon and Co. AIR 1963 SC 90 holding: “20. The point then for decision is whether there is in this case an agreement for reference to arbitration apart from cl. 14 of the contract. It is not contended for the appellants that there was any express agreement between the parties for referring the disputes under the contract dated September 7, 1955 to arbitrators. All that is said is that the respondents filed statements before the arbitrators setting out their defence on the merits, and that must be construed as an independent agreement for arbitration and the decisions in National Fire and General Insurance Co. All that is said is that the respondents filed statements before the arbitrators setting out their defence on the merits, and that must be construed as an independent agreement for arbitration and the decisions in National Fire and General Insurance Co. Ltd. v. Unionof India AIR 1956 Cal 11, and Pratabmu Rameswar v. K.C. Sethia Ltd. 64 Cal WN 616 : ( AIR 1960 Cal 702 ), are cited as authorities in support of this contention. 21. Now an agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests and where that is not in existence, at the time when they enter on their duties, the proceedings must be held to be wholly without jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings, even if that is without protest, because it is well settled that consent cannot confer jurisdiction. But in such a case there is nothing to prevent the parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the arbitrators, and in that event the proceedings thereafter before them might be upheld as referable to that agreement & the award will not be open to attack as without jurisdiction. But it will make all the difference in the result whether the parties have entered into an arbitration agreement as defined in S. 2 (a) of the Arbitration Act or have merely taken steps in the conduct of proceedings assumed or believed to be valid. In the former case the award will be valid; in the latter, a nullity. (at p.97-98)(emphasis supplied) 9. Learned Senior counsel seeks support of his contention from the judgment of the Supreme Court in Vishwanath Sood v. Union of India and another AIR 1989 SC 952 and more especially on the interpretation of the Clause with respect to the excepted matters where the Supreme Court held: “9…………We are therefore inclined to hold that the opening part of clause 25 clearly excludes matters like those mentioned in clause 2 in respect of which any dispute is left to be decided by a higher official of the Department. Our conclusion, therefore, is that the question of awarding compensation under clause 2 is outside the purview of the arbitrator and that the compensation, determined under clause 2 either by the Engineer-in-charge or on further reference by the Superintending Engineer will not be capable of being called in question before the arbitrator.” (at p. 958) Learned Senior counsel submits that jurisdiction being basic question for exercise of power of the Arbitrator, he cannot travel beyond the clause which confers jurisdiction on him. He places reliance on the judgment of the Supreme Court in Associated Engineering Co. vs. Government of Andhra Pradesh and another 1991 (4) SCC 93 holding: “24. The arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract. His sole function is to arbitrate in terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled outside the bounds of the contract, he has acted without jurisdiction. But if he has remained inside the parameters of the contract and has construed the provisions of the contract, his award cannot be interfered with unless he has givenreasons for the award disclosing an error apparent on the fact of it. 25. An arbitrator who acts in manifest disregard of the contract acts without jurisdiction. His authority is derived from the contract and is governed by the Arbitration Act which embodies principles derived from a specialised branch of the law of agency (see Mustill and Boyd’s 2nd Commercial Arbitration, end., p.641). He commits misconduct if by his award he decides matters excluded by the agreement (see Halsbury’s Laws of England, Volume II, 4th end., para 622). A deliberate departure from contract amounts to not only manifest disregard to his authority or a misconduct on his part, but it may tantamount to a mala fide action. A conscious disregard of the law or the provisions of the contract from which he has derived his authority vitiates the award. 26. A dispute as to the jurisdiction of the arbitrator is not a dispute within the award, but one which has to be decided outside the award. An umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. He cannot say that he does not care what the contract says. An umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. He cannot say that he does not care what the contract says. He is bound by it. It must bear his decision. He cannot travel outside its bounds. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. As stated by Lord Parmoor, Attorney General for Manitoba v. Kelly, (1922) 1 AC 268: (AC p.276) “It would be impossible to allow an umpire to arrogate to himself jurisdiction over a question which, on the true construction of the submission, was not referred to him. An umpire cannot widen the area of his jurisdiction by holding, contrary to the fact, that the matter which he affects to decide is within the submission of the parties.” Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction. In order to see what the jurisdiction of the arbitrator is, it is open to the court to see what dispute was submitted to him. If that is not clear from the award, it is open to the court to have recourse to outside sources. The court can look at the affidavits and pleadings of parties; the court can look at the agreement itself. Bunge & Co. v. Dewar and Webb (1921) 8 LIL Rep 436. 27. If the arbitrator commits an error in the construction of the contract, this is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Such error going to his jurisdiction can be established by looking into material outside the award. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The reationle of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such jurisdictional error needs to be proved by evidence extrinsic to the award. (See Alopi Parshad & Sons, Ltd. v. Union of India (1960) 2 SCR 793 , Bunge & Co. v. Dewar & Webb (1921) 7 LIL Rep 436, Christopher Borwn Ltd. v. Genossenschaft Oesterreichischer (1954) 1 QB 8, Rex v. Fulham (1951) 2 QB 1, Falkingham v. Victorian Railways Commission 1900 AC 452…). (at pp. 103-104) Learned Senior counsel fortifies his contention with the law as laid down in Rajasthan State Mines & Minerals Ltd. vs. Eastern Engineering Enterprises and another, (1999) 9 SCC 283 . In that case the Court held: “23. It is settled law that the arbitrator is the creature of the contract between the parties and hence if he ignores the specific terms of the contract, it would be a question of jurisdictional error which could be corrected by the court and for that limited purpose agreement is required to be considered………. 44. From the resume of the aforesaid decisions, it can be stated that: (a) It is not open to the court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. (b) It is not open to the court to admit to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of the award. (c) If the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication then the court cannot interfere. (d) If no specific question of law is referred, the decision of the arbitrator on that question is not final, however, much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. (d) If no specific question of law is referred, the decision of the arbitrator on that question is not final, however, much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. In a case where a specific question of law touching upon the jurisdiction of the arbitrator was referred for the decision of the arbitrator by the parties, then the finding of the arbitrator on the said question between the parties may be binding. (e) In a case of a non-speaking award, the jurisdiction of the court is limited. The award can be set aside if the arbitrator acts beyond his jurisdiction. (f) To find out whether the arbitrator has travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. The arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award. (g) In order to determine whether the arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant could raise a particular claim before the arbitrator. If there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to the raising of the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction. (h) The award made by the arbitrator disregarding the terms of the reference or the arbitration agreement or the terms of the contract would be a jurisdictional error which requires ultimately to be decided by the court. He cannot award an amount which is ruled out or prohibited by the terms of the agreement. Because of a specific bar stipulated by the parties in the agreement, that claim could not be raised. Even if it is raised and referred to arbitration because of a wider arbitration clause such claim amount cannot be awarded as the agreement is binding between the parties and the arbitrator has to adjudicate as per the agreement. This aspect is absolutely made clear in Continental Construction Co. Even if it is raised and referred to arbitration because of a wider arbitration clause such claim amount cannot be awarded as the agreement is binding between the parties and the arbitrator has to adjudicate as per the agreement. This aspect is absolutely made clear in Continental Construction Co. Ltd. v. State of M.P. (1988) 3 SCC 82 by relying upon the following passage from Alopi Parshad v. Union of India AIR 1960 SC 588 which is to the following effect: (SCC p. 88, para 5) “There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered. The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous.” (i) The arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part but it may tantamount to mala fide action. (j)The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable; the arbitrator is a tribunal selected by the parties to decide the disputes according to law.” ( pp.300- 310) Learned Senior counsel submits that in State of Rajasthan vs. Nav Bharat Construction Co. (2006) 1 SCC 86 the Court was emphatic that a claim which cannot be allowed is required to be set aside. (2006) 1 SCC 86 the Court was emphatic that a claim which cannot be allowed is required to be set aside. In particular he makes a reference to para 31 of this judgment and similarly in Ramnath International Construction (P) Ltd. vs. Union of India, (2007) 2 SCC 453 the Supreme Court was concerned with the interpretation of the Clause of the Contract subject matter of the litigation which debars a claim being made in terms of the Contract as entered into between two parties. After considering the submissions of the parties and on interpretation of the contract, the Court held that the arbitrator had misconducted himself in awarding compensation which was not otherwise governed as an arbitral clause in the contract. 10. In Food Corporation of India vs. Chandu Construction and another, (2007) 4 SCC 697 the Court rules: “11. It is trite to say that the arbitrator being a creature of the agreement between the parties, he has to operate within the four corners of the agreement and if he ignores the specific terms of the contract, it would be a question of jurisdictional error on the face of the award, falling within the ambit of legal misconduct which could be corrected by the court. We may, however, hasten toadd that if the arbitrator commits an error in the construction of contract, that is an error within his jurisdiction. But, it he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. (see Associated Engg. Co. v. Govt. of A.P. (1991) 4 SCC 93 and Rajasthan State Mines & Minerals Ltd. v. Eastern Engg. Enterprises (1999) 9 SCC 283 ). 12. In this context, a reference can usefully be made to the observations of this Court in Alopi Parshad & Sons Ltd. v. Union of India, AIR 1960 SC 588 wherein it was observed that the Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The Court went on to say that in India, in the codified law of contracts, there is nothing which justifies the view that a change of circumstances, “completely outside the contemplation of parties” at the time when the contract was entered into will justify a court, while holding the parties bound by the contract, in departing from the express terms thereof. Similarly, in Naihati Jute Mi s Ltd. v. Khyaliram Jagannath AIR 1968 SC 522 this Court had observed that where there is an express term, the court cannot find, on construction of the contract, an implied term inconsistent with such express term. 13. In Continental Construction Co. Ltd. v. State of M.P. (1988) 3 SCC 82 it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award. 14. In Bharat Coking Coal Ltd. v. Annapurna Construction (2003) 8 SCC 154 while inter alia, observing that the arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract, it was observed, thus: (SCC p.p. 161-62, para 22) “22. There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the rule of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas it he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record.” 15. Therefore, it needs little emphasis that an arbitrator derives his authority from the contract and if he acts in disregard of the contract, he acts without jurisdiction. A deliberate departure from contractamounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action (also see Associated Engg. Co. v. Govt. of A.P. (1991) 4 SCC 93 .). A deliberate departure from contractamounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action (also see Associated Engg. Co. v. Govt. of A.P. (1991) 4 SCC 93 .). (at p.p. 702-703) In nutshell, the submission made by learned Senior counsel is that in case of an excepted matter, the arbitrator cannot proceed to assume jurisdiction and adjudicate on such a claim. 11. I may also notice the decision of the Supreme Court in General Manager, Northern Railway and another vs. Sarvesh Chopra (2002) 4 SCC 45 where their Lordship had gone to the extent of holding that the Court is obliged to examine whether a difference which is sought to be referred to arbitration is one to which the arbitration agreement applies and it is not necessary that a departmental or an “in-house” remedy for settlement of claim must be provided by the contract. Merely in absence of such a provision, the claim does not cease to be an excepted matter. 12. Other judgments relied upon by the learned counsel may also be noticed. In Food Corporation of India vs. Sreekanth Transport (1999) 4 SCC 491 the Court held “3. “Excepted matters” obviously, as the parties agreed, do not require any further adjudication since the agreement itself provides a named adjudicator-concurrence to the same obviously is presumed by reason of the unequivocal acceptance of the terms of the contract by the parties and this is where the courts have been found out lacking in their jurisdiction to entertain an application for reference to arbitration as regard the disputes arising therefrom and it has been the consistent view that in the event of the claims arising within the ambit of excepted matters, the question of assumption of the court would not arise. The parties themselves have decided to have the same adjudicated by a particular officer in regard to these matters; what these exceptions are however are questions of fact and usually mentioned in the contract documents and form part of the agreement and as such there is no ambiguity in the matter of adjudication of these specialised matters and being termed in the agreement as the excepted matters.” (at p. 493) To retriate, learned Senior counsel submits that Clause 53 and the matters contained therein impart finality to the decision of the Engineer-in-Incharge and are outside the scope of arbitration. He submits that this clause admits of no other meaning save and except the one plainly incorporated/engrafted. 13. Learned counsel appearing for the claimant places reliance upon the Bharat Sanchar Nigam Ltd. & another vs. Motorola India Pvt. Ltd., AIR 2009 SC 357 . There, the Supreme Court was inter alia concerned with the question of an excepted matter. Considering the rival contentions of parties, the Court holds: “3. The pivotal questions that need to be decided in this appeal are: i) Whether the levy of liquidated damages under clause 16.2 of the tender document is an “excepted matter” in terms of clause 20.1 of the said document so that the same cannot be referred to arbitration or looked into by the arbitrator. ii) Whether clause 62 of the special conditions of the tender document will prevail over clause 16.2 of the general conditions of the contract………. 9. Having heard the learned counsel for the parties and after examining the judgment of the High Court and the other materials on record, we are of the view that this appeal must be dismissed. Clause 20 is the arbitration clause and provides that any question, dispute or difference arising under this agreement or in connection therewith would be referred to arbitration. To this, an exception is also provided which lays down that the matters, the decision to which is specifically provided under this agreement, would not be referred to arbitration. Clause 20 is the arbitration clause and provides that any question, dispute or difference arising under this agreement or in connection therewith would be referred to arbitration. To this, an exception is also provided which lays down that the matters, the decision to which is specifically provided under this agreement, would not be referred to arbitration. From a bare reading of clause 16.2 of Section III of the tender document, it is clear that if the tenderer fails to deliver the goods and services on turnkey basis within the period prescribed, the purchaser shall be entitled to recover liquidated damages and the quantum of the liquidated damages assessed and levied by the purchaser shall be final and not challengeable by the supplier. 10. We are in full agreement with the findings of the High Court that there was a dispute as to whether the respondent had at all acted in breach of any terms and conditions of the tender document…….The High Court has pointed out correctly that the authority of the purchaser (BSNL) to quantify the Liquidated Damages payable by the supplier Motorolla arises once it is found that the supplier is liable to pay the damages claimed. The decision contemplated under clause 16.2 of the agreement is the decision regarding the quantification of the Liquidated Damages and not any decision regarding the fixing of the liability of the supplier. It is necessary as a condition precedent to find that there has been a delay on the part of the supplier in discharging his obligation for delivery under the agreement………..Quantification of liquidated damages may be an excepted matter as argued by the appellant, under clause 16.3, but for the levy of liquidated damages, there has to be a delay in a clear dispute as to the fact that whether there was any delay on the part of the respondent. For this reason, it cannot be accepted that the appointment of the arbitrator by the High Court was unwarranted in this case. Even if the quantification was excepted as argued by the appellant under clause 16.2, this will only have effect when the dispute as to the delay is ascertained. For this reason, it cannot be accepted that the appointment of the arbitrator by the High Court was unwarranted in this case. Even if the quantification was excepted as argued by the appellant under clause 16.2, this will only have effect when the dispute as to the delay is ascertained. Clause 16.2 cannot be treated as an excepted matter because of the fact that it does not provide for any adjudicatory process for decision on a question, dispute or difference, which is the condition precedent to lead to the stage of quantification of damages…….. 12. The learned senior counsel for the appellant relied on the decisions of this court in Vishwanath Sood vs. UOI (1989) 1 SCC 657 and General Manager, Northern Railway vs. Sarvesh Chopra (2002) 4 SCC 45 . These cases, we are afraid, will not be of any help to the appellants being distinguishable on facts and having different contractual clauses. We may note that clause 16.2 cannot be treated as an excepted matter. This is because admittedly, it does not, provide for any adjudicatory process for decision on a question, dispute or difference, which is the condition precedent to lead to the stage of quantification of damages nor is it a no claim or no liability clause……. Again in the case of Sarvesh Chopra, this court had held that the claims covered by the no claims clause, i.e., where the contractor had given up the right to make a claim for breach on the part of the government was not arbitrable in terms of the arbitration clause contained therein and clause 63 of the general conditions of the contract which provided for exclusion because no claim clause was excepted as such claims were simply not entertainable. In view of the discussions made hereinabove, we hold that the disputes raised by the respondents are arbitrable and not excepted from scope of arbitration. 13………We find that there is considerable merit in this argument. The true essence of any arbitration agreement is to arbitrate the matters in a cordial way in respect of issues where there is a dispute between the parties. To construe such limited words in clause 16.2 as being so all encompassing would destroy the very foundation of the bargain between the parties. The true essence of any arbitration agreement is to arbitrate the matters in a cordial way in respect of issues where there is a dispute between the parties. To construe such limited words in clause 16.2 as being so all encompassing would destroy the very foundation of the bargain between the parties. The appellant in the present case is acting in an unfair way by seeking to exclude, from arbitration, what it has agreed to arbitrate in the first place……….. 17. The provision under clause 16.2 that quantification of the Liquidated Damages shall be final and cannot be challenged by the supplier Motorolla is clearly in restraint of legal proceedings under section 28 of the Indian Contracts Act. So the provision to this effect has to be held bad.” (at p. 357,360-363) Learned counsel also seeks assistance of the decision in Madnani Construction Corporation Private Limited v. Union of India and others, (2010) 1 SCC 549 which is an another case dealing with excepted matters. The Court holds: “20. It is well settled that the arbitrator is the master of facts. When the arbitrator on the basis of record and materials which are placed before him by the Railways came to such specific findings and which have not been stigmatised as perverse by the High Court, the High Court in reaching its conclusions cannot ignore those findings. But it appears that in the instant case, the High Court has come to the aforesaid findings that the items mentioned above are excepted matters and non-arbitrable by completely ignoring the factual finding by the arbitrator and without holding that those findings are perverse. 21. It goes without saying that in order to deny the claims of the contractor as covered under excepted matters, the procedure prescribed for bringing those claims under excepted matters must be scrupulously followed. The clear finding of the arbitrator is that it has not been followed and the High Court has not expressed any disagreement on that. Therefore, the finding of the High Court that those items are non-arbitrable cannot be sustained. 42. In view of such consistent views taken by both the Constitution Bench judgments, in Irrigation Deptt., Govt. The clear finding of the arbitrator is that it has not been followed and the High Court has not expressed any disagreement on that. Therefore, the finding of the High Court that those items are non-arbitrable cannot be sustained. 42. In view of such consistent views taken by both the Constitution Bench judgments, in Irrigation Deptt., Govt. of Orissa v. G.C. Roy (1992) 1 SCC 508 and Dhenkanal Minor Irrigation Division v. N.C. Budharaj (2001) 2 SCC 721 , we are of the view that in the facts of this case, no interference is called for with the award passed by the arbitrator. The judgment of the High Court is, therefore, set aside and the award is upheld. The appeal is allowed.” (at p.p. 554-555,561)(emphasis supplied) In a nutshell, the submission made by the learned Senior counsel is that since Clause 53 is a direct bar for invoking the arbitration clause and that the claimant’s claim fell squarely within this Clause as also the other Clauses of the Contract as incorporated therein, the award requires to be set aside as the Arbitrator has exceeded his jurisdiction. Learned Senior counsel also submits that the Constitution Bench of the Supreme Court in Waverly Jute Mills Co. Ltd. v. Raymon and Co. (India) Pvt. Ltd. AIR 1963 SC 90 lays down the fundamental law applicable in arbitration cases and in these circumstances every subsequent decision is subject to the ratio descendi of this case. Learned counsel relies upon the decision in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694 to urge that Article 141 of the Constitution postulates/mandates that the decision of the Constitution Bench will be binding. In particular, he refers to the following:-“124. The ratio of the judgment of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh vs. State of Maharashtra (1996) 1 SCC 667 , K.L. Verma v. State (1998) 9 SCC 348 , Adri Dharan Das v. State of W.B. (2005) 4 SCC 303 and Sunita Devi v. State of Bihar (2005) 1 SCC 608 . 127. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia's case (supra). …….. 128. 127. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia's case (supra). …….. 128. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that Rs.Incuria' literally means Rs.carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law' is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. …… 130. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under: "The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue." 131. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754 , Chief Justice Pathak observed as under: "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."…………. 133. In R.Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593 , which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104 . J.S. Verma, J. speaking for the court observed as under: "With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point." 135. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that: (SCC p.682, para 12) “(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.” 137. In Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458 this Court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The Court in SCC para 110 observed as under; (SCC pp 503-05) “110. Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 130 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 Marri Chandra Shekhar Rao 46 had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa 45, therefore, could not have ignored either Marri Chandra Shekhar Rao 46 or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand 42, therefore we are of the opinion that the dicta in S. Pushpa 45 is an obiter and does not lay down any binding ratio. Following Official Liquidator v. Dayanand 42, therefore we are of the opinion that the dicta in S. Pushpa 45 is an obiter and does not lay down any binding ratio. (p.p.739-743) There can be no doubt so far as this proposition is concerned. It is settled law that the decision of the Constitution Bench is binding unless it is varied or set aside by a Bench of equal or larger strength. 14. However, what requires to be noticed is as to whether the two later decisions namely Bharat Sanchar Nigam Ltd. & Another vs. Motorola India Pvt. Ltd. AIR 2009 SC 357 and Madnani Construction Corporation Private Limited vs. Union of India and others (2010) 1 SCC 549 are at variance with what the Supreme Court says in Waverly Jute Mills Co. Ltd. v. Raymon and Co. (India) Pvt. Ltd. AIR 1963 SC 90 or the other decisions relied upon by the learned Senior counsel. Before taking this exercise, I may also note that in Vishwanath Sood’s case, the Supreme Court had impliedly laid down that the principles of natural justice apply to excepted clause and that the officer, competent to adjudicate, did not possess plenary powers to decide against on a particular part. It is held: “8…….But it will be appreciated that in practice the amount of compensation will be initially levied by the Engineer-in-charge and the Superintending Engineer comes into the picture only as some sort of revisional or appellate authority to whom the contractor appeals for redress. As we see, it, clause 2 contains a complete machinery for determination of the compensation which can be claimed by the Government on the ground of delay on the part of the contrator in completing the contract as per the time schedule agreed to between the parties. The decision of the Superintending Engineer, it seems to us, is in the nature of a considered decision which he has to arrive at after considering the various mitigating circumstances that may be pleaded by the contractor or his plea that he is not liable to pay compensation at all under the clause. In our opinion the question regarding the amount of compensation leviable under clause 2 has to be decided only by the Superintending Engineer and no one else.” (at p. 957-958) 10. In our opinion the question regarding the amount of compensation leviable under clause 2 has to be decided only by the Superintending Engineer and no one else.” (at p. 957-958) 10. My attention has been drawn to the judgment of the Supreme Court in State of Orissa and others vs. Bhagyadhar Dash, (2011)7 SCC 406 b y learned counsel appearing for the petitioner to urge that in the excepted matters, the Arbitrator has no jurisdiction . 11. In that case, the Supreme Court was considering Clause 10 of the conditions o f the Contract holding: “20. Clause 10 of the conditions of contract which is the subject of controversy reads thus: "10. The Engineer-in-Charge shall have power to make any alterations in or additions to the original specifications, drawings, designs and instructions that may appear to him necessary and advisable during the progress of work, and the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer-in-Charge and such alterations shall not invalidate the contract, and any additional work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in a respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work. The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificate of the Engineer-in-Charge shall be conclusive as to such proportion. The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificate of the Engineer-in-Charge shall be conclusive as to such proportion. And if the additional work includes any class of work for which no rate is specified in this contract, then such class of work shall be carried out at the rates entered in the sanctioned schedule of rates of the locality during the period when the work is being carried on and if such last mentioned class of work is not entered in the schedule of rates of the district then the contractor shall within seven days of the date of the rate which it is his intention to charge for such class of work, and if the Engineer-in-Charge does not agree to this rate he shall be noticed in writing be at liberty to cancel his order to carry out such class of work and arrange to carry it out in such manner as he may consider advisable. No deviations from the specifications stipulated in the contract nor additional items of work shall ordinarily be carried out by the contractor, nor shall any altered, additional or substituted work be carried out by him, unless the rates of the substituted, altered or additional items have been approved and fixed in writing by the Engineer-in-Charge, the contractor shall be bound to submit his claim for any additional work done during any month on or before the 15th days of the following month accompanied by a copy of the order in writing of the Engineer-in-Charge for the additional work and that the contractor shall not be entitled of any payment in respect of such additional work if he fails to submit his claim within the aforesaid period: Provided always that if the contractor shall commence work or incur any expenditure in respect thereof before the rates shall have been determined as lastly hereinbefore mentioned, in such case he shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him prior to the date of the determination of the rates as aforesaid according to such rate or rates as shall be fixed by the Engineer-in-Charge. In the event of a dispute, the decision of the Superintending Engineer of the Circle will be final." (emphasis supplied) 21. In the event of a dispute, the decision of the Superintending Engineer of the Circle will be final." (emphasis supplied) 21. A reading of the said clause shows that it is a clause relating to power of the Engineer-in-Chief to make additions and alterations in the drawings and specifications and execution of non-tendered additional items of work (that is, items of work which are not found in the bill of quantities or schedule of work). It provides for the following: (a) that the Engineer-in-Charge could make additions and alterations in the drawings/specifications; and that such alterations and additions will not invalidate the contract, but will entitle the contractor to extension of time for completion of work proportionately; (b) that if the additional work to be executed is an item for which the rate is not specified in the contract (or in the schedule of rates for the district), the contractor shall specify the rate and the Engineer-in-Charge may either accept the rate or cancel the order to execute that particular work; (c) that if the contractor commences the work with reference to an item for which there is no rate in the contract and there is no agreement in regard to the rate for execution of such work, he shall be paid at the rates fixed by the Engineer-in-Charge; and (d) that if the contractor disputes the rate fixed by the Engineer-in-Charge, the decision of the Superintending Engineer in regard to the rate for such non-scheduled item shall be final. 22. We may next examine whether the last sentence of the proviso to Clause 10 could be considered to be an arbitration agreement. It does not refer to arbitration as the mode of settlement of disputes. It does not provide for reference of disputes between the parties to arbitration. It does not make the decision of the Superintending Engineer binding on either party. It does not provide or refer to any procedure which would show that the Superintending Engineer is to act judicially after considering the submissions of both parties. It does not disclose any intention to make the Superintending Engineer an arbitrator in respect of disputes that may arise between the Engineer-in-Charge and the contractor. It does not make the decision of the Superintending Engineer final on any dispute, other than the claim for increase in rates for non-tendered items. It does not disclose any intention to make the Superintending Engineer an arbitrator in respect of disputes that may arise between the Engineer-in-Charge and the contractor. It does not make the decision of the Superintending Engineer final on any dispute, other than the claim for increase in rates for non-tendered items. It operates in a limited sphere, that is, where in regard to a non-tendered additional work executed by the contractor, if the contractor is not satisfied with the unilateral determination of the rate therefor by the Engineer-in-Charge the rate for such work will be finally determined by the Superintending Engineer. It is a provision made with the intention to avoid future disputes regarding rates for non-tendered item. It is not a provision for reference of future disputes or settlement of future disputes. The decision of the Superintending Engineer is not a judicial determination, but decision of one party which is open to challenge by the other party in a court of law. The said clause can by no stretch of imagination be considered to be an arbitration agreement. The said clause is not, and was never intended to be, a provision relating to settlement of disputes. 23. That Clause 10 was never intended to be an arbitration agreement is evident from the contract itself. It is relevant to note that the Standard Conditions of Contract of the State Government, as originally formulated, contained a provision (Clause 23) relating to settlement of disputes by arbitration, which is extracted below: "Except where otherwise provided in the contract, a questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawing, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of a Superintending Engineer of the State Public Works Department unconnected with the work at any stage nominated by the Chief Engineer concerned. If there be no such Superintending Engineer, it should be referred to the sole arbitration of Chief Engineer concerned. If there be no such Superintending Engineer, it should be referred to the sole arbitration of Chief Engineer concerned. It will be no objection to any such appointment that the arbitrator so appointed is a government servant. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to this Contract." (emphasis supplied)” (at pp.417-419) 12. The Court had consider ed its earlier decision of K.K. Modi vs. K.N. Modi (1998)3 SCC 573 and held:- “6. In K.K. Modi, the clause that arose for consideration was as under: (SCC p. 580, para 3) "9. Implementation will be done in consultation with the financial institutions. For a disputes, clarifications, etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both the groups." This Court held that the said clause was not an arbitration agreement on the following reasoning: (K.K. Modi case K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 SCC pp. 585 & 589, paras 21 & 33) "21. Therefore our courts have laid emphasis on (1) existence of disputes as against intention to avoid future disputes; (2) the tribunal or forum so chosen is intended to act judicially after taking into account relevant evidence before it and the submissions made by the parties before it; and (3) the decision is intended to bind the parties. Nomenclature used by the parties may not be conclusive. ... * * * 33. ... The purport of Clause 9 is to prevent any further disputes between Groups A and B. Because the agreement requires division of assets in agreed proportions after their valuation by a named body and under a scheme of division by another named body. Clause 9 is intended to clear any other difficulties which may arise in the implementation of the agreement by leaving it to the decision of the Chairman, IFCI. This clause does not contemplate any judicial determination by the Chairman of the IFCI. ... Thus, Clause 9 is not intended to be for any different decision than what is already agreed upon between the parties to the dispute. It is meant for a proper implementation of the settlement already arrived at. A judicial determination, recording of evidence, etc. are not contemplated." (emphasis supplied) 7. ... Thus, Clause 9 is not intended to be for any different decision than what is already agreed upon between the parties to the dispute. It is meant for a proper implementation of the settlement already arrived at. A judicial determination, recording of evidence, etc. are not contemplated." (emphasis supplied) 7. In State of U.P. v. Tipper Chand (1980) 2 SCC 341 the following clause fell for consideration: (SCC p. 341, para 2) "22. Except where otherwise specified in the contract the decision of the Superintending Engineer for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, design, drawing and instructions hereinbefore mentioned. The decision of such Engineer as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or things whatsoever, in any way arising out of or relating to the contract, designs, drawing specifications, estimates, instructions, orders, or these conditions, or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment of the contract by the contractor, shall also be final, conclusive and binding on the contractor." The High Court held that the clause was not an arbitration agreement, as it merely conferred power on the Superintending Engineer to take a decision on his own and did not authorise the parties to refer any matter to his decision. 8. This Court in Tipper Chand case State of U.P. v. Tipper Chand, (1980) 2 SCC 341 clarified that in the absence of a provision for reference of disputes between parties for settlement, the clause merely stating that the "decision of the Superintending Engineer shall be final" was not an arbitration agreement. This Court clarified that an arbitration agreement can either be in express terms or can be inferred or spelt out from the terms of the clause; and that if the purpose of the clause is only to vest in the named authority, the power of supervision of the execution of the work and administrative control over it from time to time, it is not an arbitration agreement. It also held that the clause did not contain any express arbitration agreement, nor spelt out by implication any arbitration agreement as it did not mention any dispute or reference of such dispute for decision. 9. In State of Orissa v. Damodar Das (1996) 2 SCC 216 a three-Judge Bench of this Court considered whether the following clause is an arbitration agreement: (SCC p. 222, para 9) "25. Decision of Public Health Engineer to be final.-Except where otherwise specified in this contract, the decision of the Public Health Engineer for the time being shall be final, conclusive and binding on a parties to the contract upon all questions relating to the meaning of the specifications; drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work, or as to any other question, claim, right, matter or thing, whatsoever in any way arising out of, or relating to, the contract, drawings, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or the sooner determination thereof of the contract." (at pp.412-413) 13. It is in this background, the submission made by learned counsel appearing for the parties are to be considered. 14. It is submitted by learned counsel appearing for the respondent that the ratio of Bhagyadhar Dash’ case(supra) is not attracted to the facts of the present case as w h at is claimed in these arbitration proceedings is deviation of tendered items and not for non-tendered items. 15. Learned counsel appearing f o r the petitioner submits that in view of the decision of the Supreme Court supra, claim No. 16 is an excepted matter. 16. I note at this juncture that the Arbitral Tribunal holds: “It is seen from the foregoing pleadings, it is noticed that Respondent have not placed anything on record to show that they conveyed the decision on revision of rates or on any of the claims in writing and in accordance with the procedure prescribed in clause 20 of the General conditions of the Contract to the claimant. Thus, the decision, if any, of the Engineer-in-Charge revising the rates unilaterally and without consulting the at the fag end of the work cannot be seen as a decision conforming to the requirement as laid down in clause 18.2 red (sic. Read) with clause 20. Such a decision which was not taken or conveyed in terms of the contract thus cannot be held to be a final and conclusive decision in terms of clause 53 of the contract. Similarly other items such as fonst (sic. Forest) clearance, reluctance on the part of local people to leave the land along with route of the work do not fall within the scope of Finality Clause. So far as deductions are concerned the Claimant have already recorded their objection in the RA.Final Bill.” 17. The Arbitral Tribunal also holds that it is urged b y the respondent-petitioner herein that all the me measurements and rates in the final bills have been accepted (except recoveries) by the claim ant by signing the final bill and in that eventuality, there can be no arbitration proceedings. It is also held that the claimant has relied upon the decision of the Supreme Court in Bharat Coking Coal Ltd. vs. M/s Annapurna Construction AIR 2003 SC 3660 to urge that merely accepting the final bill would not mean that the contractor is not entitled to raise any claim. This finding was further fortified by the decisions of the Supreme Court in NTPC Ltd. vs. Reshmi Constructions (2004)2 SCC 663 , Damodar Valley Corporation v. K.K. Kar (1974)1 SCC 141 , BHEL vs. Amar Nath Bhan Prakash (1982)1 SCC 625 , Jayesh Engineering Works vs. New India Assurance Company Ltd. (2000)10 SCC 178 , Associated Construction vs. Pawanhans Helicopters Pvt.Ltd. 473 (2008)16 SCC 128. 18. It is submitted by learned counsel appearing for the petitioner that when Clause 18 and 53 are read in conjunction, in which eventually, Claim No. 6 is squarely covered by these Clauses and it is an excepted matter, the Arbitral Tribunal has no jurisdiction to entertain or adjudicate this Claim. He submits that decision of Bhagyadhar Dash’ case (supra)squarely covers this case and does not require any further argument. 19. He submits that decision of Bhagyadhar Dash’ case (supra)squarely covers this case and does not require any further argument. 19. Learned counsel appearing for the respondent-claimant submits that Bhagyadhar Dash’ case is not applicable to the facts of the present case for the reason that it is the case requiring determination as to whether the Arbitrator could or could not be appointed in terms of the Clause of the contract provided therein. Learned counsel submits that the Supreme Court has laid down the applicability of this clause for non-tendered items. Clause 23 in the judgment dealing with Arbitration was deleted and it is only Clause 10 which was considered and assistance was sought from Clause 10 for appointment of an Arbitrator. In view of this situation, the Supreme Court held that no arbitrator could be appointed as Clause 10 did not deal with the matters relating to arbitration but only deals with claims. It is also submitted by learned counsel appearing for the respondent-claimant that even if for the sake of argument Bhagyadhar Dash’s case supra is held applicable in the present case still on the facts while considering Clause 18 and 53 of the Contract the award of rates in relation to Claim No. 6 does not fall within the ambit of excepted matter(s). 20. I have given my anxious consideration to the submissions made by learned counsel appearing for the parties. In Sadhu Singh’s case I had considered both Clauses 18.2 and 53 which were the finality clauses. Adverting to the precedent cited supra, it is held that Clause 53 does not bar the determination of the Arbitral Tribunal. 21. I also refer the decision of the Supreme Court in Sumitomo Heavy Industries Limited vs. Oil and Natual Gas Corporation Limited (2010)11 SCC 296 holds: “42. Can the findings and the award in the present case be described as perverse? This Court has already laid down as to which finding would be called perverse. It is a finding which is not only against the weight of evidence but altogether against the evidence. This court has held in Triveni Rubber & Plastics vs. CCE AIR 1994 SC 1341 that a perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. It is a finding which is not only against the weight of evidence but altogether against the evidence. This court has held in Triveni Rubber & Plastics vs. CCE AIR 1994 SC 1341 that a perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu and Another vs. State (2009) 10 SCC 206 . 43. In the present case, the findings and award of the umpire are rendered after considering the material on record and giving due weightage to all the terms of the contract. Calling the same to be perverse is highly unfair to the umpire. The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute one's own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Manufacturing Corporation versus Central Warehousing Corporation reported in (2009) 5 SCC 142 , the court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding. 44. It is an obligation of the parties to a contract that they must perform their respective promises, and if a party does not so perform, the arbitrator or the umpire has to give the necessary direction if sought. In that process, they have to give a meaningful interpretation to all the relevant clauses of the contract to make them effective and not redundant. In that process, they have to give a meaningful interpretation to all the relevant clauses of the contract to make them effective and not redundant. The intention of the parties in providing a clause like clause 17.3 could not be ignored. It had to be given a due weightage. This is what the umpire has done and has given the direction to the respondent to compensate the appellant for the amount of the necessary and reasonable extra cost caused by change in law. We have no hesitation in holding that the award of the umpire is a well reasoned award and one within his jurisdiction, and which gives a meaningful interpretation to all the clauses of the contract including clause 17.3. In the circumstances in our view the High Court has clearly erred in interfering with the award rendered by the umpire.” (at pp312-313) I do not find any perversity in the award rendered by the Tribunal, which is unanimous. 22. Adverting to the judgments of the Supreme Court, the jurisdiction of this Court is limited and cannot be converted into an appellate jurisdiction. If the view taken by the Arbitrator is possible, it will not be open to this Court to change its view on the conclusion arrived at by the learned Tribunal. In these circumstances, I find that in this case no interference is called for. Therefore, the petition is dismissed. No order as to costs. Before parting, I must notice that the learned counsel appearing for the petitioner has cited a number of decisions of the Supreme Court to urge that adjudication has been made on excepted matters. I have considered all these cases in Sadhu Singh’s case.