JUDGMENT : Pankaj Bhandari, J. 1. Claimants/appellants have preferred this Civil Misc. Appeal under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 read with Section 13(1A) of the Commercial Courts Act, 2015 against the Order dated 24.06.2022 passed by Commercial Court No.2, Jaipur Metropolitan-II, Jaipur, whereby objection application filed by the appellants/claimants under Section 34 of Arbitration and Conciliation Act, 1996 challenging the Award dated 15.04.2019 was rejected. 2. It is contended by counsel for the claimants/appellants that a Development Agreement (hereinafter referred to as ‘agreement’) was entered into between the appellants and the respondent on 03.09.2009. As per the agreement, the developer was to construct flats, 62% of the constructed area was to be retained by the owner and 38% was to be given to the developer. It is contended that certain disputes cropped-up between the parties and the same were settled under mediation by the Mediator on 20.09.2014. In the Award, following arbitral question was framed by the Arbitrator:- “Whether the excess area after the division of the share of building according to the agreement dated 03.09.2009 is 415.00 sq. ft. or more than that lying in the share of M/s. Spytech Buildcon Pvt. Ltd? If Yes, what amount is to be paid by M/s. Spytech Buildcon Pvt. Ltd. to the owners pertaining to this excess area or in alternative, whether in case if owners are ready to purchase the areas from M/s. Spytech Buildcon Pvt. Ltd. including the excess area, what amount is to be paid by the owners to M/s. Spytech Buildcon Pvt. Ltd”. 3. It is argued that the appellant-owner quoted the rate per sq. ft @ Rs.15,000/-, whereas the developer quoted the rate @ 5,500/- per sq. ft. The Arbitrator took the middle path and determined the rate @ Rs.10,000/- per sq. ft. It is also argued that there was no document or material to arrive at the conclusion with regard to rate per sq. ft. It is also contended that a fixed deposit of Rs.50 lakh was lying with the appellants. Learned Arbitrator while calculating the share of excess area of 415 sq. ft. with the developer, valued it @ Rs.41,50,000/- and adjusted with the amount lying with the appellants and directed the appellants to refund an amount of Rs.8,50,000/- to the developer. ft. It is also contended that a fixed deposit of Rs.50 lakh was lying with the appellants. Learned Arbitrator while calculating the share of excess area of 415 sq. ft. with the developer, valued it @ Rs.41,50,000/- and adjusted with the amount lying with the appellants and directed the appellants to refund an amount of Rs.8,50,000/- to the developer. It is contended that there was no counter claim by the respondent and the Arbitrator has erred in setting off the amount lying in fixed deposit and has further erred in directing the appellants to refund the amount of Rs.8,50,000/- and on non-payment, to pay interest thereon. It is also contended that as per the terms of the agreement, all dues towards the State authorities was to be shared in the ratio of 62:38. State authorities have demanded money and the documents pertaining to the same were on record, however, learned Commercial Court in the impugned order has mentioned that no documents have been produced before the Court. 4. It is contended by counsel for the appellants that the Award is patently illegal and such ground is available under the statue for setting aside a domestic Award. It is contended that the decision of the Arbitrator is perverse and irrational, hence, the same should not have been affirmed by the Commercial Court. In this regard, counsel for the appellants has placed reliance on Patel Engineering Ltd. Vs. North Eastern Electric Power Corporation Ltd. (2020) 7 SCC 167 . It is also contended that it is not permissible for an Arbitrator to travel beyond the terms of reference. If award goes beyond reference or there is an error apparent on face of award, it would be open to court to interfere with such award. Reliance in this regard has been placed on MSK Projects India (JV) Ltd. Vs. State of Rajasthan & Anr. (2011) 10 SCC 573 . 5. Learned counsel appearing for the respondent has opposed the appeal. It is contended that Arbitrator has decided the dispute which was referred to him. Arbitrator has come to the conclusion that 415 sq. ft. excess area was lying with the respondent. On the basis of last registry of that area, Arbitrator has valued the excess area @ Rs.41,50,000/-. It is contended that the Arbitrator has passed the Award on the basis of material available and the learned Commercial Court has upheld the Award. Arbitrator has come to the conclusion that 415 sq. ft. excess area was lying with the respondent. On the basis of last registry of that area, Arbitrator has valued the excess area @ Rs.41,50,000/-. It is contended that the Arbitrator has passed the Award on the basis of material available and the learned Commercial Court has upheld the Award. There is concurrent finding of facts and the scope of Section 37 of Arbitration Act is limited. 6 Counsel for the respondent in this regard has placed reliance on U.H.L. Power Company Ltd. Vs. State of Himachal Pradesh (2022) 4 SCC 116 , Heera Singh Vs. State of Rajasthan AIR 2007 Raj. 213 , Navodaya Mass Entertainment Ltd. Vs. JM Combines (2015) 5 SCC 698 , Swan Gold Mining Ltd. Vs. Hindustan Copper Ltd. (2015) 5 SCC 739 . 7. It is also contended by counsel for the respondent that during pendency of the Arbitration proceedings, Arbitrator had retained a cheque of Rs.50 lakh vide order dated 19.01.2015. Thus, Rs.50 lakh was retained in the Arbitration proceedings and the Arbitrator had all rights to adjust the amount of excess area with the cheque which was with the appellants. It is contended that since the security amount was retained by the order of Arbitrator, he had the jurisdiction to deal with the amount while passing the Award. Counsel for the respondent in this regard has placed reliance on MMTC Ltd. Vs. Vedanta Ltd. AIR 2019 SC 1168 . 8. It is also contended that respondent has already submitted an indemnity bond with the appellants and he is bound to honour the said bond, in case of dues outstanding towards the Government Agency. 9. We have considered the contentions and have perused the Award as well as the order passed by the Commercial Court. 10. It is evident that prior to the Arbitration proceedings, the disputes had cropped up between the parties, which were referred to mediation and certain issues were settled on 20.09.2014 by the Mediator. The only dispute which was referred to the Arbitrator was as to whether there is any excess area of 415 sq. ft. with the developer and if yes, as to what amount is to be paid by the developer to the owner. In this regard, learned Arbitrator had come to the conclusion that excess area of 415 sq. ft. was in possession of the developer. ft. with the developer and if yes, as to what amount is to be paid by the developer to the owner. In this regard, learned Arbitrator had come to the conclusion that excess area of 415 sq. ft. was in possession of the developer. No evidence was led by both the parties with regard to the present rate of per square feet area at Takht-e-Shahi Road, Jaipur. Therefore, the Arbitrator looking to the DLC rate of the land, the luxurious furnishings, finishings and facilities of the flat considered the rate @ Rs.10,000/- per sq. ft. and accordingly, came to the conclusion that the developer has excess area worth Rs.41,50,000/-. 11. Since Arbitrator is a person who is appointed by consent of the parties as held by the Apex Court, the decision of an Arbitrator is binding on the parties and the power to set aside the Award can be exercised only in cases where the Court finds that the arbitral award is on the face of it erroneous or patently illegal or in contravention of the provisions of the Act. The Apex Court in Swan Gold Mining Ltd. (supra) has held that the Court shall not ordinarily substitute its interpretation for that of the Arbitrator and that the Arbitrator appointed by the parties is the final judge of the facts. The finding of facts recorded by him cannot be interfered with on the ground that the terms of the contract were not correctly interpreted by him. In the present case in hand, the finding of the learned Arbitrator is a finding of fact which has been upheld by the Commercial Court, hence, we do not find any error in the calculation arrived at by the learned Arbitrator and the objection of the appellant on this ground is not sustainable. 12. The next objection to the Award raised by the appellants was that the Arbitrator has directed the appellant to set-off Rs. 41,50,000/- with the security deposit of Rs.50 lakh retained by them in the arbitration proceedings. It is contended that such was not the terms of reference and the Award tantamounts to allowing the counter-claim whereas, there was no counter-claim by the respondent in the present case. 13. 41,50,000/- with the security deposit of Rs.50 lakh retained by them in the arbitration proceedings. It is contended that such was not the terms of reference and the Award tantamounts to allowing the counter-claim whereas, there was no counter-claim by the respondent in the present case. 13. We are of the considered view that such an objection also cannot be raised for the very reason that in the same arbitration proceedings, Rs.50 lakh was directed to be retained by the appellants as security vide order dated 19.01.2015. The order was passed by the Arbitrator and thus, the Arbitrator had all the rights to direct the appellants to set-off Rs.41,50,000/- from the amount retained by them and refund Rs.8,50,000/- to the developer. Such an Award passed by Arbitrator cannot be said to be beyond the terms of reference. 14. Apex Court in MMTC Ltd. (supra) has held that while interpreting the terms of a contract, the conduct of parties and correspondences exchanged would also be relevant factors and it is within the arbitrator’s jurisdiction to consider the same. In the present case, this cheque amount was retained by the claimants in furtherance of the order of the Arbitrator, thus, the Arbitrator was entitled to pass an order with regard to set-off of the amount payable by the developer against the amount retained by the appellants. Thus, there is no error in the Award and learned Commercial Court has also not committed any error in dismissing the application under Section 34 of the Arbitration and Conciliation Act, 1996. Judgments cited by counsel for the appellants on facts have no applicability to the present case. 15. We do not find any force in the present Civil Misc. Appeal and the same is accordingly, dismissed. 16. Stay application stands disposed.