JUDGMENT
Vijender Jain, J.
(1) This is a petition filed by the petitioner against the award dated 31.10.1985. The Arbitrator has awarded under different claims certain sums in favor of the claimant. Claim No.1 consisted of 22 claims out of which the Arbitrator has awarded total 7 claims i.e. Claim No. 1 (i), (ii), (vii), (viii) (ix), (x), (xi), in favor of the petitioner, rest of the claims have been rejected by the Arbitrator. In relation .to Claim No.3 the Arbitrator has awarded a sum of Rs.l4,95,460.00 . Under Claim No.4 the Arbitrator has awarded a sum of Rs.5,54,303.00 . Under Claim No.5 the Arbitrator has awarded a sum of Rs. 82751 .00 against a sum of Rs-1,67,711.95 paise claimed. Under Claim No.8 the Arbitrator has awarded interest on the amount of Rs.9,89,466.00 from 5.1.1981 and on the award against Claim No.3 i.e. for Rs.l4,95,460.00 interest has been awarded @ 12% p.a. from the date of the award till the date of payment or date of decree,whichever is earlier.
(2) Learned counsel for the respondent has vehemently argued and assailed the award on many grounds. His submission is that the award is an unreasoned award. He has argued that though the Arbitrator is not supposed to give reasoning but he has to explain the basis or the links on which he has based his award and in the present award the Arbitrator has not given such basis and on that account that award is an unreasoned award and deserves to be set aside. Mr.Sareen, learned counsel for the respondent, has further contended that there was no basis for the Arbitrator to award a sum of Rs.14.95,46076 paise under Claim No.3 because the case of the respondent was that the delay was due to claimant’s own default. He has further .argued that as per the contract agreement, the date of the start of the work was 1.1.1975 and the date of completion stipulated under the agreement was 31.3.1976. Though according to the claimant the actual date of completion was 31.1.1981 but according to the respondent the work was actually completed on 15.9.1983. The main contention of the learned counsel for the respondent is that in paragraph-3.6 of the award. Once the Arbitrator had come to a finding that the delays could not be attributed to the respondent, the Arbitrator had gone wrong in awarding the amount from 1.1.1978 in favor of the claimant. Mr.Sareen has also contended that firstly there was no need for the material, plaint and machinery, the list whereof was with the Arbitrator for the amount of work which was to be executed by the claimant as the same was neither needed nor required for completion of job and award in this head is arbitrary, illegal and against the facts and documents on record. The Arbitrator has awarded a sum of Rs.1,95,885.76 paise in account of compensation payable for idle establishment and incidental expenses and Rs.l2,99,575.00 for compensation payable to idle machinery and T & P The claimant had claimed the rate of compensation for idle machinery and T & P @ Rs.4197.00 per day. The Arbitrator has awarded compensation @ Rs. 2862.50 paise per day. In the counter statement of Claims file by the respondent, the case of the respondent was never that the machinery was not needed. I have seen the arbitration proceedings, there is voluminous documents which have been filed on this aspect of the matter. It is important to mention that in paragraph-37 of the award, the Arbitrator has stated i – “The work came to a stop on 1.1.78 and a prolonged correspondence ensured between the contractors and the Department. The contractors insisted that the antenna panels and microwave dish (which were to be supplied by Department) be handed over to them for proof-testing at Nangal Workshop before transporting the band Iii antenna mast to site at Jullundur for being erected. They also served notice on the Deptt. for damages being suffered by them due to idle labour and machinery. From engineering point of view, this insistence on trial testing on workshop floor was quite justified and in accord with sound engineering practice but .the Engineer-in-charge of project proved obdurate. Due to this deadlock, the work remained suspended till the end of March 1979. On the intervention of Prof. Ramesh of I.I.T. Bombay and Chief Engineer A.I.R., the work of erection of band Iii antenna was resumed in April 1979, and completed in the same month. It was discovered that the holes in the antenna mast and antenna panels were not matching and the contractor’s apprehensions proved correct.”
(3) There is a specific finding by the Arbitrator in paragraph-3.9 that after careful considering the facts and circumstances and voluminous documents and after hearing both the parties, the delay from 2.1.1978 to 31.3.79 is attributable to respondent’s default in the matter and contractor should be compensated for the losses. It is well-settled that this Court is not a court of appeal and would not like to go and scrutiny in detail the award of the Arbitrator unless and until it is shown that the award suffers from an infirmity which is apparent on the face of the award or the award is otherwise manifestly perverse on. account of mis- conduct or the proceedings by the Arbitrator. Following the dictum as laid down by Supreme Court in the case of State of Rajasthan V. Puri Construction Co. Ltd. 1994 (6) 12 Jt Sc 414 “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 M/s Sudarsan Trading Co.V.Government of Kerala and another 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. It 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.”
(4) Therefore, I see no reason to set-aside the award made by the Arbitrator under Claim No.3. Claim No.4
(5) This Claim is for a sum of Rs. 6,71,239.16 paise. The Arbitrator has awarded a sum of Rs.5,54,303.00 . The main contention of Mr.Sareen was that at best the Arbitrator could have allowed 14% as departmental charges and any amount over and above i.e. Rs. 1100 per M.T. for fabrication and Rs.550.00 for galvanization charges was not to be allowed to the claimant as the claimant was not entitled to and they have never raised such demand.
(6) On the other hand my attention has been drawn by the learned counsel or the petitioner at document Ex.C-74 which is the minutes of the meeting field on 8.4.1976 between the officers of the Nangal Workshop who were to fabricate the Antenna Mast and the claimant. In paragraph-l, it has been specifically mentioned that the rates for fabrication was RS. 1100.00 per M.T. and galvanization charges as Rs.550.00 per M.T. including 14% . as department charges. The said minutes were forwarded by the claimant to the respondent vide letter dated 12.4.1976 which is Ex.C-75 in which they have enclosed the copy of the minutes and also reiterated that the rate were to be charged at RS. 1100.00 per M.T. Mr.Watel has further contended that in the statement of Claims, Annexure-‘C’, galvanization charges, no departmental charges have been added, 14% departmental charges were only on cost of fabrication.
(7) After taking into consideration the documents, I hold that there is no infirmity in the award of the Arbitrator. It is interesting to mention that the Arbitrator in paragraph-4.3 has held as under – “PERUSAL of documentary evidence leads me to belief that the Department was insisting upon the Contractors to get the work executed at Nangal Workshop. It is significant that the Department did not reply to Contractor’s letters marked C-59, C-75 and C-78. No doubt the Department denied their liability at a later stage but the contemporaneous correspondence is important and revealing.”
(8) I am also supported in my view by a dictum of Supreme Court in Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and anr. 1987 Scc (4) 497, the Supreme Court held I – “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 ‘reasonable’. Reason varies in its conclusions according to the idiosyncrasies of the individual and the time and circumstances in which he 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 ‘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 of 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.” Claim No.5
(9) This is a Claim for Rs. 1,67,711.95 paise for extra cost on account of purchase of steel from open market due to failure on the part of the respondent to arrange Priority Quota Certificate. Under this head, the Arbitrator has allowed Rs.82,751.00 . The arguments of the learned counsel for the respondent is that at the first instance when’ the steel was freely available in the market, no Priority Quota Certificate was required to procure the steel. In the alternative, Mr. Sareen has contended that even if the same was required/it was the claimant who delaved, giving adequate and necessary particulars for getting the Priority Quota Certificate. The Arbitrator has not decided the question as to whether respondent was required to procure the Priority Quota Certificate or not and if he has held that it was claimant who was late in giving necessary particulars to the respondent then the finding of the Arbitrator under Claim No.5 would amount an error which is apparent en the face of the record. If was a question of availability of steel but the Arbitrator had gone wrong in holding about the difference in prices between the Indian Penal Code . and stockyard rates. If there was a delay on the part of the claimant to give necessary particulars for obtaining Priority Quota Certificate and that has been held so by the Arbitrator then the Arbitrator was not justified in awarding a sum of Rs.82,751.00 to the claimant.
(10) I set-aside Claim No.5 for the reasons observed by me earlier. Claim No.8
(11) The Arbitrator has allowed interest against Claim No.1, 4 and 5 for Rs.9,89,466.00 , which now reads as Rs.9,79,466.00 (a subsequent corrigendum was filed by the Arbitrator) from 5.1.1981, i.e. the date of invoking of the arbitration, till the date of payment or the date of decree, whichever is earlier and on the amount awarded against Claim No.3 i.e. Rs.l4,95,460.00 . Interest has been awarded @ 12%, p.a. from 31.10.1985 till the date of payment or the date of decree whichever is earlier. In view of my setting- aside Claim No.5, the claimant is not entitled to any interest on the amount of Rs.82,751.00 . However, Mr.Sareen has argued that the petitioner is not entitled to interest from 5.1.1981. His submission is that this is not the date when the arbitration was invoked by the petitioner. He has invited the attention of this Court to Sub-section (3) of Section 37 of the Indian Arbitration Act, which is as follows – “FOR the purposes of this section and of the Indian Limitation Act, 1908 (9 of 1908), an arbitration shall be deemed to be commenced when one party to the arbitration agreement serves on the other parties thereto a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement requiring that the difference be submitted to the person so named or designated.”
(12) On the basis of the aforesaid provisions of law, Mr.Sareen has argued that the wordings of this Section has to be construed for the purposes of computation of limitation and not for other purposes. He has argued that it was the petitioner who did not file his statement of claims before the Arbitrator and, therefore, another Arbitrator was appointed, who entered into the reference on 26.2.1983 and at best 26.2.1983 could be the date for . the award of interest and not 5.3.1981 as has been awarded by the Arbitrator. Another contention raised by Mr.Sareen is that in any case interest ought not to have been allowed as no notice under the Interest Act was served by the petitioner to the respondent.
(13) On the other hand, learned counsel for the petitioner has argued that once the party in terms of the arbitration agreement serves on the opposite party a notice requiring a appointment of Arbitrator that date on which notice of such appointment was served will be the date of invocation of the Arbitration agreement and petitioner shall be entitled to interest from that date. Repelling the contention of Mr.Sareen, learned counsel for the petitioner has argued that even if it is assumed that the arbitration proceedings has been commenced/invoked from 26.2.1983. In that eventuality also, he shall be entitled to pre-suit interest for which notice has been given by him. He has invited the attention of this Court to Ex.C-115′ dated 11.1.1978 wherein it had been mentioned that the petitioner shall charge interest @ 18% on the amount not paid by the respondent from 31.1.1978. The contention of Mr.Sareen is that this is not a notice as contemplated under Section 3(b) of the Interest Act as the same is not in relation to a specified sum of money. Section 3(l)(b) of the Interest Act is as follows – “IF the proceedings do not relate to any such debt, then from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings.”
(14) The plane language of this Section does not show that there has to be a specified sum. Classes of cases of specified sum have been incorporated in Sub- section (a) of Section 3 which deals with debt payable by virtue of written instrument. In the case before me, the petitioner served with a notice specifying the date and the rate of interest and, therefore, valid notice in terms of the Interest Act was served on the respondent. I also find no merit in the submission of Mr.Sareen that this notice was only in relation to Claim No. 1.
(15) In the aforesaid premises, I maintain the award as given by the Arbitrator except that the petitioner shall only be entitled to interest @ 12% p.a. on the award against Claim No.1 i.e. 3,42,412.00 and Claim No. 4 i.e. 5,54,303.00 from 5.3.1981 in terms of the award as awarded by the Arbitrator. The petitioner shall also be entitled to interest against Claim No.3 as awarded by the Arbitrator. Mr.Sareen has also cited, in support of his arguments, . Mr.Watel has invited the attention of this Court to a decision of this Court Sunder Lal Khatri v. Dda .
(16) I have given my careful consideration to the submissions made by learned counsel for both the parties and in view of the reasons explained above and observations made, I allow the award except Claim No.5, which is set-aside. The award is made rule of the Court. A decree in terms of the award be passed. Petitioner shall be entitled to interest @ 12% p.a. from the date of decree till its realisation.