Judgment : R.B. Misra, J. - 1. The present arbitration appeal has been preferred under Section 37 of the Arbitration and Conciliation Act, 1996 (in short called "the Act") against the judgment and order dated 1.11.2002 passed by Hon'ble Single Judge in case No. OMP(M) No. 29 of 2000, with a prayer to restore the award dated 30th November, 1999 passed by General Manager Appeals H.P. (West Circle), working as DDG (NM) BSNL. 2. It appears an agreement dated 24th April, 1996 was entered into between the Chief General Manager H.P. Telecom Circle (CGMT HP) and Punjab Communication Limited Whether the reporters of the local papers maybe allowed to see the judgment? (PUNCOM) for maintenance of radio transmission systems in H.P. Circle on Annual Maintenance (AMC) basis. As per agreement 'PUNCOM' was required to establish/maintain Secondary Switching Area (SSA) of H.P. circle. The agreement was effective from 10.5.1996 for a period of two years. The conditions governing the contract between the parties were available in the agreement including the arbitration clause providing for referring any question, dispute or difference arising between the parties under or in connection with the agreement to the sole arbitrator. As per clause 4.1 of the agreement the 'PUNCOM' was responsible for maintenance and restoration of system under maintenance (SUM) and the transmission system from Main Distribution Frame to Main Distribution Frame (MDF to MDF). These interfaces are specified in schedule-III (as per clause 4.1) of the agreement. Against this annual maintenance task the 'CGMT'- HP- Circle was to pay to 'PUNCOM' 8% of the invoice value inclusive of excise duty and sales tax etc. of the equipment deployed on systems under maintenance in accordance with clause 1.3 of the agreement. Since maintenance of the System was to be taken over by 10.5.1996 after submission of Bank guarantee @ 5% of the invoice value of systems, however, the dispute raised regarding payment of dues of 'PUNCOM', as such, as per clause 13.1 of the agreement, the matter was referred to learned Arbitrator. The appellant 'PCL' accordingly filed a claim before Learned Arbitrator. The BSNL/respondent filed reply to the claim petition asserting that there is no invoice value of 'SUMs' mutually agreed between the parties as such there is no Schedule II which can be said to be part and parcel of the agreement and as such dispute raised by appellant was not referable to arbitration. The BSNL/respondent filed reply to the claim petition asserting that there is no invoice value of 'SUMs' mutually agreed between the parties as such there is no Schedule II which can be said to be part and parcel of the agreement and as such dispute raised by appellant was not referable to arbitration. The definitions of various terms/abbreviations used in the agreement have been clarified under the heading of Definition in clauses 1 to 1.7 of the agreement. In addition to that some other abbreviations used elsewhere are 'MUX' which means Multiplexer, 'MW' means Microwave System, 'Mbit' means megabit, 'DDF' means Digital Distribution Frame, 'MDF' means Main distribution Frame and Mbps means megabit per second. 3. The learned Arbitrator gave his award on 30.11.1999. 4. The Union of India, predecessor-in-interest of BSNL/respondent herein filed objections under Section 34 of the 'Act' before High Court. The 'BSNL' has mainly contended in reference to the setting aside of the award as below:- (i) The award is passed on agreement dated 24.4.1996 for maintenance in U.P. Circle, therefore, there is no award in the eye of law pertaining to H.P. Circle. (ii) Freight was specifically excluded in the agreement, bit it has specifically been mentioned in the award by indicating that the payment of frat is passed on mutual agreement of both the parties. (iii) As per agreement the appellant/PCL is to maintain repair up to base band and MUX is excluded as a whole and it has specifically been mentioned in the reply by the respondents herein that Schedule-II and III remained unsigned by both the parties, as such, there was dishonest intention of the claimant/appellant to claim accessories deployed over SUM. (iv) It has also been contended on behalf of the ou appellant/PCL that the appellant was given contract for maintenance of various types and makes of radio transmission systems in H.P. Circle for a period of two years commencing from 10.5.1996, but the work carried out by appellant on reporting by the 'BSNL' under provisions of clause 5.3 of the agreement during the maintenance period and award by the learned arbitrator comes under preview and scope of "clause 1.7 New Jobs" and the same is not alien to the contract agreement entered between the parties. For reference clauses 5.3 and 1.7 of the contract agreement are reproduced as under:- "Clause 5.3 On occurrence of a fault, firstly CGMHP will investigate and ensure that fault pertains to SUM only. The fault will then be reported on the fault docket enclosed at schedule-IV-A by the 'COORDINATOR' and shall be handed over to RE at SSA, which will be acknowledged by him. Fault rectification process and timing shall start from the time of receipt of the fault docket." Clause 1.7: Any job which is not covered under this contract will be treated as a 'NEW JOB' and such jobs, if done by PCL will be paid extra at DOT rates, as applicable from time to time for such jobs in Himachal Pradesh and in similar weather conditions. Provided where such prevalent rates do not exist, the same will be decided by mutual agreement. Provided further that excess time will not be recorded for new jobs. (v) It has also been contended for and on behalf of the appellant/PCL that it would be erroneous to treat the activities of the appellant not to bring under purview and scope of the "new jobs" as defined under clause 1.7 read with clause 11.3, 11.4 and 11.5 of the contract agreement. For convenience clauses 11.3, 11.4 and 11.5 are reproduced herein below:- 11.3 "Repainting and Strengthening of towers, repairs and replacement of antenne, feed horns, connectors, waveguides/cables, replaying and improvements in earthing, replacement of battery and any damages due to erosion/corrosion/seepage/rain/lightening/ingress of water/extreme environmental changes to the total installation etc. will be responsibility of CGMHP. The time taken for these activities and rectification of faults arising due to these, shall not be counted for calculation of penalty. As a preventive maintenance locktite will be appliedto all antenna stay rod nuts by PCL." 11.4 " Restoration of damage of whatsoever nature to SUM due to non operational factors like fire, rain, accidents, lightening, landslides, avalanche, earth quake sabotage or mishandling etc. will be treated a NEW JOB." 11.5 " Time taken for replacement of Non-PCVL systems under para 8.5, cable, waveguide rapair (Para 5.5.0 to 5.5.5) and reorientation of antenna will form part of the lead time of the corresponding fault dockets and will not be counted for calculation of penalty." The learned Single Judge, however, framed seven issues as below:- "1. Whether the award in question is beyond the scope of agreement and submissions as alleged? OPO 2. Whether the award in question is not a reasoned award? OPO 3. Whether the award in question is against public policy of India? OPO 4. Whether the objection petition is within the period of limitation? OPO 5. Whether this Court has no jurisdiction to entertain the objections? OPR 6. Whether the objections are liable to be dismissed for want of arraying the respondent No. 1 as party thr0ugh its Managing Director? OPR 7. Relief." The learned Single Judge decided the objections of the BSNL preferred under Section 34 of the 'Act' vide judgment dated 1.11.2002. 5. Learned Arbitrator in para 7 of the award has given his findings under sub paras (i) to (viii). In sub para 7(ii) of the award the Arbitrator has observed that "CGMT HP should pay to 'PUNCOM' @8% p.a. of the cost (invoice value) of all antennae of the links the each radio link was a SUM". In para 7(iii) of the award the learned Arbitrator has observed as under:- "As far as other activities of repair/maintenance specifically excluded from the scope of contract but actually carried by M/s PUNCOM are concerned the same should not go "unpaid" to meet the ends of justice. The agreement takes care of this by defining "NEW JOB" in clause 1.7 and further strengthening it in clause 11.4. Hence the following activities which can be included in the MCV as claimed by 'PUNCOM'. + repair of feeder cable/connector/waveguide + removal of moisture from cable/connector/wage guide + removal of faults at channel level. This will include built up as well as terminated channels. CGMT HP should pay to 'PUNCOM' for the work carried out to remove fault on the actual number of feeder cable/including connector/waveguide and channels based on prevailing rate or mutual consent as provided in clause 1.7 of the agreement." 6. Learned Single Judge, while deciding issue No. 1 has concluded in para 16 of the impugned judgment dated 1.11.2002 as below:- "No doubt, the arbitrator clarifies that such repair/maintenance, which are excluded from the scope of contract, are taken care of by the definition of "new job". However, in view of clause 1.7 read with clauses 11.3, 11.4 and 11.5 of the agreement the activities for which the amount has been awarded could not be said to be "new jobs". However, in view of clause 1.7 read with clauses 11.3, 11.4 and 11.5 of the agreement the activities for which the amount has been awarded could not be said to be "new jobs". The impugned award under sub para (iii) of para 7 of the award is thus clearly beyond the scope of agreement between the parties and the jurisdiction of the arbitrator. To this extent Issue No. 1 is decided in favour of the objector." In para 7 (iv) and (v) of the award, the learned Arbitrator has observed as under:- "CGMT HP should pay to PUNCOM @ 8% p.a. of the cost of common units calculated as follows in respect of each 2 Mbps MUX prorate for the period the concerned link was SUM. (Invoice cost of MUX-9.9% fbr spares) X ratio of no. of common units to the total no. of unitsin the MUX. Cost of spares will be deducted on percentage basis where combined cost of MUX and spares is given and invoice clearly indicates the same (v) In summary, basis cost of SUM will be arrived as follows:- Basic cost of (equipment +MUX)+Antennae where basic cost of equipment and MUX excludes cost of spares @ 9.9% of combined cost wherever so invoiced. Where the MUX is a 2 Mbps primary MUX, cost of common units only will be taken. This will also exclude the cost of feeder cable, earthing kit and wall gland. Excise duty, sales tax and freight will be calculated on this basic cost." 7. In para 7 (vi) of the award the interest on delayed payment has been declined and para 7(vii) of the award, the learned Arbitrator has given 60 days time for implementation of the award and in para 7(viii) the learned Arbitrator has observed as under:- "(viii)An Award regarding payment of excise duty, freight charges and maintenance of exclusive power plant based on mutual agreement by both parties has been given vide letter of even no. dated 07/01/99. The same is reiterated here for the sake of completeness. A copy of referred letter is enclosed as Annexure- II" 8. Learned Single Judge while deciding issue No.2 has observed as below:- "17. dated 07/01/99. The same is reiterated here for the sake of completeness. A copy of referred letter is enclosed as Annexure- II" 8. Learned Single Judge while deciding issue No.2 has observed as below:- "17. It was contended by the learned counsel for the objector that it is evident from the reference made to the arbitrator that specific amount was claimed by the claimants and the reference was not to give a declaratory award whereas the arbitrator has not awarded/denied the claims specifically as were made by the respondent. Therefore, it cannot be said to be a reasoned award and deserves to be set aside. 18. It is a fact that the claim of the respondent was for specific amounts under specified heads. The award, however, has been awarded and which one of such amount has been denied partly or as a whole. 19. To be valid an award interalia must satisfy two conditions, viz, (i) it must be certain and (ii) it must contain the decision. To be certain the award of the arbitrator must be clear from the award alongwith nature and extent of duties it imposes on the parties. It must be clear as to what is required to be done and by whom. The comprise the decision, the award must be a complete decision in itself without leaving matters to be dealt with subsequently and must be clear, unambiguous and final in relation to the issues and claims with which it deals. Evidently the award in hand which does not specify the amount which according to it is payable by the objector to the respondent and the claim for the amount which has been denied by it is incomplete, ambiguous and incapable of being implemented/enforced. It is moreso in view of the admitted situation that vide letter 24.1.2000 the arbitrator instead of clarifying the omissions in the award asked the parties to sit together to finalise payments and in the event of there being no settlement to "come "back" to him. 20. In these circumstances, the award though assigns reasons for its conclusions but is uncertain and does not contain the final decision capable of being enforced, and the reasons therefore. This issue is accordingly decided". 20. In these circumstances, the award though assigns reasons for its conclusions but is uncertain and does not contain the final decision capable of being enforced, and the reasons therefore. This issue is accordingly decided". While deciding issue No.3, learned Single Judge has observed in last nine lines of paragraph 22 of the impugned judgment as below:- "Thus, in view of the provisions of sections 34 and 36 of the Act, the direction given by the arbitrator to implement the award within two months of the making of the award is contrary to the provisions of the law and is thus illegal and can not be sustained and deserves to be set aside. However, this breach of law is not of the nature on the basis of which the award as a whole can be set aside. This issue is accordingly decided" 9. Issue No.4 pertaining to limitation was decided in favour of the 'BSNL' by holding that the signed copy of award sent vide letter dated 24.01.2000, which was received by the respondent on 31.01.2000 and as such, objection petition was within time. 10. As per clause 4.1 of the agreement PCL/appellant was responsible for maintaining and restoring of SUMs between predefined interfaces only i.e. 34Mb to 34Mb, 2Mb to 2Mb and 8Mb to 8Mb. From clause 2.1 of the agreement it appears that no way scope of other work was envisaged as claimed by the appellant to built up base bands through SUM or accessories of the system like MUX (multiplexer) "A multiplexer (MUX) is a device allowing one or more low-speed analog or digital input signals to be selected, combined and transmitted at a higher speed on a single shared medium or within a single shared device. Thus, several signals may share a single device or transmission conductor such as a copper wire or fiber optic cable. A 'MUX' functions as a multiple input, single output switch. In telecommunications the combined signals, analog or digital, are considered a single output higher speed signal transmitted on several communication channels by a particular multiplex method or technique. With two input signals and one output signals, the device is referred to as a 2-to-1 multiplexer; with four input signals it is a 4-to-1 multiplexer; etc. In telecommunications the combined signals, analog or digital, are considered a single output higher speed signal transmitted on several communication channels by a particular multiplex method or technique. With two input signals and one output signals, the device is referred to as a 2-to-1 multiplexer; with four input signals it is a 4-to-1 multiplexer; etc. This term is also known as a multiplexer." These facts are further clarified in penalty clause in general and clause 11.1.6, 11.1.7 and 11.3 in particular. For convenience clauses 11.1.6, 11.1.7 and 11.3 are reproduced herein below:- "11.1.6 Penalty for excess time as explained above of various streams will be calculated for SUMs at rates given below @ hourly excess time to a maximum limit of four times. The specified rate in each case are as follows:- Bit stream Penalty Rate/24 hrs 34 Mbit base band Rs.2000/- 8 Mbit base band Rs.1500/- 2 Mbit base band Rs.1000/- 11.1.7 The penalty shall be for only on delay in restoration of base band signals (2, 8 and 34 Mbit) and its tributaries (for example, 2 MB tributaries of 8 MB or 34 MB) but not for channel level faults. The over all levy of penalty for a year shall be limited to a maximum of 3% of MCV, contracted annual maintenance charges. 11.3 Repainting and strengthening of towers, repairs and replacement of antenna. Feed horns, connectors, waveguides/cables, relaying and improvements in earthing, replacement of battery and any damages due to erosion/corrosion/seepage/rain/lightening/ingress of water/extreme environmental changes to the total installation etc. will be responsibility of CGM H.P. The time taken for these activities and rectification of faults arising due to these, shall not be counted for calculation of penalty. As a preventive maintenance lock tie will be applied to all antenna stay rod nuts by PCL." Perusal of these clauses demonstrate that penalty was only for delay in restoration of base bands, but not for channel level faults, as such, in our considered view, the subject matter of disputed MUX was never part of the contract. As a preventive maintenance lock tie will be applied to all antenna stay rod nuts by PCL." Perusal of these clauses demonstrate that penalty was only for delay in restoration of base bands, but not for channel level faults, as such, in our considered view, the subject matter of disputed MUX was never part of the contract. The dispute raised by the appellant, as per claim summarized under 3.0 of claim before Learned Arbitrator can be categorized mainly into three issues "(a) Not providing correct Invoice Values of systems under maintenance (SUM) (b) The scope of contract and responsibility in maintenance of the sub systems of the transmission systems (c) Under payments as a consequence of a and b above." The claim was vague in as much as there was no detail of work executed in maintaining the SUM as per agreement and work beyond it. The claim/dispute was pertaining to the work outside the scope of contract and amount paid on the basis of Invoice value. As per agreement there was condition of Schedule II which was value of contract to be arrived mutually, moreso, this value was to be arrived at on the basis of the invoice value of SUMs which was to form part of contract, however, there is no schedule II in existence. 11. In reply to claim filed by the respondent as preliminary submissions, it was categorically stated that in absence of invoice value arrived between the parties the respondent released the payment on the basis of tentative invoiced value of 'SUM' which was accepted by the appellant without protest, the report of value of SUM has bee appended as R-1. Since the amount was already paid and accepted there was no dispute referable to arbitration. 12. Even maintenance interface schedule III was not signed as per clause 1.7 which was to be part of agreement, hence even agreement specifying the maintenance interface was not specified, in absence of same repair done was not amenable to arbitration, since it never formed part of contract/agreement. In the facts and circumstances, the issues are emerging for consideration:- (A) Whether Ld. Court has erred in setting aside award as per section 34 of the 'Act'. (B) Whether the dispute was capable of adjudication by arbitrator since dispute was beyond the agreement, and if at all there was concluded contract in eye of law. In the facts and circumstances, the issues are emerging for consideration:- (A) Whether Ld. Court has erred in setting aside award as per section 34 of the 'Act'. (B) Whether the dispute was capable of adjudication by arbitrator since dispute was beyond the agreement, and if at all there was concluded contract in eye of law. (C) If the answer to issue (a) and (b) is in affirmative, whether in appeal any interference can be resorted to as scope of appeal in arbitration is even narrower than section 34. (D) Whether jurisdiction issue can be raised at appellate stage. 13. The issue No. 1 framed by learned Single Judge could be one of ground under section 34(2)(iv) of 'Act' whether the award in question is beyond the scope of agreement and submissions as alleged? It is necessary to refer the submissions made by learned Single Judge in paragraphs 12, 13 and 14 as below:- "12. It may be pointed out that vide para 7 of the award the arbitrator himself had noticed that it was clear from the various provisions of the agreement that the parties failed to take note of the glaring discrepancies and inadequacies in the provisions of the agreement while signing the same and also to a large extent during the contract period. Be it stated that if there are such discrepancies and inadequacies in the agreement the omission cannot be supplied by the arbitrator who is a Creature of an agreement between the parties and whose jurisdiction is governed by the terms of the contract. 13. In sub paras (ii) and (iii) of para 7 of the award, the arbitrator held as under: "(ii) PUNCOM have carried out various types of activities on the antennae and feeder cable systems during the contract period. Only the activity of antenna re-orientation and nut bolt tightening among them can be categorized within the scope of agreement as a maintenance activity as different from repair and replacement, the countract through clause No.11.3. Hence, CGMP HP should pay to PUNCOM @ 8% p.a. of the cost (invoice value) of all antennae of the links for the period the each radio link was 'SUM' . (iii) As for as other activities of repair/maintenance specifically excluded from the scope of contract but actually carried out by M/s. PUNCOM are concerned, the same should not go "unpaid" to meet the ends of natural justice. (iii) As for as other activities of repair/maintenance specifically excluded from the scope of contract but actually carried out by M/s. PUNCOM are concerned, the same should not go "unpaid" to meet the ends of natural justice. The agreement takes care of this defining "NEW JOB" in clause 1.7 and further strengthening it in clause 11.4. Hence for the following activities which can not be included in the MCV as claimed by PUNCOM. repair of feeder cable/connector/wave guide removal of moisture from cable/connector/wave guide removal of faults at channel level. This will include built up as well as terminated channels. CGMT HP should pay to PUNCOM for the work carried to remove fault on the actual number of feeder cable/including connector/wave guide and channels based on a revaling rate or mutual consent as provided in clause 1.7 of the agreement. " (Emphasis supplied) 14. In view of the above, the arbitrator himself has concluded that only the activity of antenna reorientation and nut bolt tightening among them can be categorized within the scope of the agreement as a maintenance activity as different from repair and replacement, the latter having been excluded from the scope of the contract. Still, he goes on to observe that as far as other activities of repair/maintenance specifically excluded from the scope of the contract but actually carried out by the respondent are concerned, the same should not go unpaid to meet the ends of natural justice. Once a certain part of the activity is found not covered under the contract the arbitrator could not have extended his jurisdiction to entertain such claim which was not covered by the agreement between the parties on the ground "to meet the ends of natural justice". In our considered view, we find no infirmity in decision of learned Single Judge while discussing the above issues as learned Single Judge has rightly concluded that learned arbitrator could not have extended its jurisdiction to entertain such claim not covered by the agreement between the parties once Learned Arbitrator himself admits that the dispute was beyond the scope of agreement/contract, as such, award is in violation of section 34(2) (a) (iv) of 'Act' and has rightly been set aside. The court's power in appeal is even narrower as compared in section 34 of 'Act', hence the Court has to see whether the power has been rightly exercised for setting aside the award. The court's power in appeal is even narrower as compared in section 34 of 'Act', hence the Court has to see whether the power has been rightly exercised for setting aside the award. The award could be set aside if the same is contrary to contract in view of the decision of Hon'ble Supreme Court in 1997 (11) SCC 75 (New India Civil Erectors (P) Ltd. Vs Oil & Natural Gas Corporation) as well as in view of decision in Steel Authority of India Ltd. Vs. J.C. Budharaja, Government and mining Contractor, (1999) 8 SCC 122 . The scope in appeal is limited and there can be no interference if award has been set aside as per section 34, beside as per section 28(3) of the 'Act', Arbitrator is bound to decide dispute as per terms of contract. The dispute was still unresolved wherein Learned Arbitrator has in his award directed the parties to decide the issues mutually. Had the parties were really intended for mutually deciding the matter then there was no question of resorting to arbitration. 15. There was no concluded contract in eye of law since the amount for which Annual Maintenance was awarded was not the part of contract moreso, schedule II had never come into existence. In absence of such aspect there is no valid contract in eye of law. Once there is no contract, no condition of agreement can be looked into. Even the clause of reference of dispute to the arbitrator, hence, reference for arbitration was not justifiable in view of the decisions of Hon'ble Supreme Court in 1996 (2) SCC 667 , para 9 (UP Rajkiya Nirman Versus Indure). In M.D., Army Welfare Housing Organisation V. Sumangal Services (P) Ltd. (2004) 9 SCC 619 Hon'ble Supreme Court has also taken the similar view and has observed as below:- "An Arbitral Tribunal is not a court of law Its orders are not judicial orders. Its functions are not judicial functions. It cannot exercise its power ex debito justitiae. The jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which may be the subject matter of reference". 16. During the course of hearing the objection was raised whether respondents can raise the question of error of jurisdiction at appellate stage. It cannot exercise its power ex debito justitiae. The jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which may be the subject matter of reference". 16. During the course of hearing the objection was raised whether respondents can raise the question of error of jurisdiction at appellate stage. In our considered view, such aspect is no more res-integra in view of the decision of Hon'ble Supreme Court in 2008(2) SCC 350 (Chief Engineer Versus Ravinder Nath). If the question of jurisdiction goes to the root of dispute as is in the case in hand, then the same can be raised at any co lateral stage of proceedings even at the stage of execution proceedings too. We have heard learned counsel for the parties and have perused documents. In our considered view, there is no infirmity in the impugned judgment of learned Single Judge, setting aside the award, which has been made in consonance to the provisions of Section 34 of the 'Act'. We find no merit in the arbitration appeal, accordingly, the same is dismissed.