JUDGMENT
J.D. Kapoor, J.
1. Pursuant to the application under Section 14 of the Indian Arbitration Act, 1940 for filing of the award dated 5th October, 1993 and making the same rule of the Court the respondent was noticed. By way of filing objections (IA 1134/96) under Sections 30 & 33 of the Arbitration Act the respondent has asked for setting aside the award mainly on the following grounds:-
(i) That the parties to the agreement never agreed to refer the issues or the alleged claim of the petitioner to the said Arbitrator and as such there was no jurisdiction vested with the Arbitrator to deal with the claims made by the petitioner.
(ii) The Arbitrator being subordinate to the Commissioner of the petitioner had been pressurized and undue influence has been exercised upon him.
(iii) The Arbitrator has violated the principles of natural justice by not granting the reasonable opportunity to the respondent to make its submissions and prove documents in support of its case.
(iv) The Arbitrator has also violated the principles of natural justice by not intimating to the respondent or his counsel that the respondent has been proceeded ex parte.
(v) Since the petitioner did not comply with the conditions of the contract the contract became incapable of performance and the Arbitrator has also gone beyond the scope of reference and erred in awarding lump sum award instead of itemwise.
2. Admittedly the respondent/objector submitted three cheques drawn on Canara Bank against the contract for removal of dead animals from the area excluding in and around Slaughter House for Rs. 3 lacs, Rs. 4 lacs and Rs. 3,34,250/- but on presentation none of the cheques was honoured. However on 7th September, 1992 a show cause notice was issued to the respondent in the following tersm:-
“Since you have been lifting the dead animals from the above area from the date of allotment of contract vide letter No. 396/DHO(PH)/91 dated 19.11.1991 and as such you are liable for payment of the contractual amount of Rs. 20 lacs for the period from 01.04.1992 to 31.03.1993 and Rs. 10,34,250/- against the dishonoured cheques deposited by you.
You have failed to make the payment of contractual amount inspite of numerous requests and reminders as such, committed default in performing the contractual obligations on your part.
Now, I J.N. Bhargava, Additional Commissioner (H), while exercising the powers of the Commissioner delegated to me under Section 491 of the DMC Act and with the prior approval of the Commissioner hereby give notice of fifteen days for termination and determinating your contract as is provided under the agreement. After the expiry of fifteen days from the receipt of notice your contract of lifting of dead animals awarded to you vide letter No. 396/DHO(PH)/91 dated 19.11.1991 shall stand terminated and determined without any further notice to you.”
3. The aforesaid facts and the perusal of the award show that none of the objections raised by the respondent is tenable either on factual or on legal matrix.
4. There is unanimous current of judicial view that award should not be interfered with unless it suffers from such factual or legal errors with when examined subsequently are found to be wholly unsound or wholly incorrect. Otherwise the Court should always refrain from examining the findings of facts by way of re-appreciating or re-evaluating the evidence and the material on record as it does not sit in Appeal. Even if erroneous view has been taken by the Arbitrator in respect of findings of facts, the same should not be interfered with.
5. Substantive requirements the award must satisfy have been succinctly put by Mustill and Boyd- Commercial Arbitration (1982 edition) as under:-
“It must contain an adjudication, not merely an expression of expectation, hope of opinion. Unless it is intended to be an interim award, it must be complete, in that it contains an adjudication on all the matters in dispute. It must be certain, so that it is possible to ascertain from the award precisely what the decision is that the arbitrator has reached in relation to the matter in dispute. It must also be final in the sense that it should not leave any of the issues to be decided by a third party, or (unless it is an interim award) the arbitrator himself”
6. I have perused the instant award and I am of the opinion that the award satisfies all the essential requirements. It not only contains an adjudication but it is definite, conclusive and is fully capable of enforcement.
7. As regards the objection that there was a unilateral reference as to the appointment of the Arbitrator and, therefore, the Arbitrator did not have the jurisdiction it is completely groundless as the respondent has agreed to the appointment of the Arbitrator by way of submitting before the Arbitrator and participating in the proceedings and so much so the time for submitting the award was extended with the consent by the parties.
8. Any party who submits before the Arbitrator to participate in the proceedings cannot subsequently challenge the appointment of the Arbitrator as he participates in the proceedings being fully conscious of the fact that the Arbitrator has been appointed to settle the disputes and differences between the parties. By such a conduct the party not only waives the right to challenge the right of the Arbitrator but acquiesces the appointment of the Arbitrator and, therefore, is debarred from either challenging the appointment or the proceedings.
9. In the regard the observations of the Supreme Court made in Neelkanth and Bros. Construction v. Superintending Engineer National Highways, Salem and Ors., need to be quoted:-
“If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiesce in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings.”
10. As regards the objection that the Arbitrator has awarded a lump sum amount without specifying as to which amount has been allowed and dis-allowed there is no legal infirmity as it is settled law that the Arbitrator is empowered to give the lump sum award.
11. In Firm Madanlal Roshanlal Mahajan v. Hukumchan Mills Limited, Indore, the Supreme Court took the view that the Arbitrator can give a lump sum award as he is not bound to give a separate award for each claim. His award on both fact and law is final and there is no appeal from his verdict. Since his award on both law and facts is final the Court cannot review his award and correct any mistake unless an objection to the legality of the award is apparent on the face of it.
12. The aforesaid reasons pursuade me to dismiss the objections being completely devoid of merit and allow the petition for making the award rule of the Court. The award is hereby made rule of the Court. The suit is decreed with interest @ 12% per annum from the date of the award till its realization.