JUDGMENT
G.B. Pattnaik, J.
1. This is an appeal under Section 39 of the Arbitration Act at the instance of thePlaintiff-contractor against the judgment of the Subordinate Judge, First Court, Cuttack, in Title Suit No. 423 of 1982 who by the impugned judgment rejected the plaintiff’s prayer to make the award of the arbitrator a rule of the Court and allowed the objection filed by the defendants under Section 33 of the Arbitration Act and has set aside the award dated 27-7-1982.
2. The plaintiff entered into an agreement with the Cuttack Development Authority, respondent No. 2 in the present appeal, for the work “Development of plots in Group-II and Il-A of Sikharpur Housing Accommodation Scheme, Cuttack” and executed the said work. Disputes arose between the parties in respect of some claims made by the plaintiff and an arbitrator was appointed by the Subordinate judge in Miscellaneous Case No. 160 of 1980 to arbitrate upon the said disputes. In the proceedings before the arbitrator, the plaintiff-contractor filed a claim to the tune of Rs.9,92,949. 23 with interest thereon. Respondent No. 2 filed objection before the arbitrator denying the entire claim. Parties led evidence before the arbitrator both oral and documentary. The claimant produced several documents and also examined himself as a witness. On behalf of the respondents only two measurement books were produced. The arbitrator also had inspected the work-site in presence of both the parties. Thereafter the counsel for parties were heard at length and ultimately the arbitrator passed the award. By the impugned award, the arbitrator allowed the claim items 2, 3, 4, 5 and 6 and disallowed the claim items 1 and 7. The award is a non-reasoned and non-speaking award, The plaintiff thereafter filed an application before the Subordinate Judge for making the award a rule of the Court and the defendants filed objection purporting to be under Sections 30 and 33 of the Arbitration Act for setting aside the award. The Subordinate Judge by the impugned Judgment dated 17-6-1985 has rejected the plaintiff’s application and Allowed the objection of the defendants and has set aside the award of the arbitrator.
3. The learned counsel for the appellant contends that the Subordinate Judge has no jurisdiction to interfere with the non-speaking award of the arbitrator by making reference to several documents which did not form a part of the award, nor the documents have been appended to the award and, therefore, the order of the Subordinate Judge cannot be sustained. The learned counsel further submits that there being no error of law apparent on the face of the award, the Court has no jurisdiction to interfere with the same.
The learned Additional Standing Counsel appearing on behalf of the State and Mr. B. M. Patnaik appearing on behalf of the respondent No. 2, the Cuttack Development Authority, on the other Hand, contend that the award is one based on no evidence and, therefore, the Subordinate Judge was fully justified in setting aside the same after perusing the evidence adduced in the case. Mr B. M. Patnaik, the learned counsel further submits that the arbitrator had no jurisdiction to award interest and, therefore, claim item No. 6 could not have been allowed and to that extent the award constitutes an error of law apparent on the face of the award. The rival contentions require careful examination.
4. The power of a Court to interfere with an award of the arbitrator has been discussed in several authorities, of the Supreme Court and of this Court and it no longer remains res integra. The Court possesses a very limited jurisdiction as circumscribed by the provisions of Section 30 of the Arbitration Act to Interfere with an award of the arbitrator. Since the arbitrator is a tribunal selected by the parties, the adjudication made by the arbitrator is generally considered binding between the parties. It is too well-settled; now that it is not open to the Court to interfere with an award when there is no error of law apparent on the face of the award. The Court cannot attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the award itself. In other words, if the award discloses the reasons on which the arbitrator has arrived at his conclusion, then such conclusion can be examined by the Court to find out whether the reasons of the arbitrator in arriving at such conclusion are justified or not, but where no reasons have been assigned by the arbitrator to arrive at his conclusion, it is not open for the Court to determine the same by entering into an area of surmise or conjecture. It is not necessary for me to note, the several authorities oh the point. It would be sufficient to take note of the decision of the Supreme Court in the case of Jivarajbhai Ujamshi Sheth and others v. Chintamenrao Balaji and others, AIR 1965 S. C. 214, on this score where it was held.
“…It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion, where it is not disclosed by the terms of the award….”
To the same effect are the decisions of the Supreme Court in The President, Union of India and another v. Kalinga Construction Co. (P) Ltd., AIR 1971 S. C. 1646 and Union of India v. A. L. Rallia Ram, AIR 1963, S. C. 1685, where the Supreme Court held that arbitrators are Judges both on questions of law and fact and it would not be open for a Court of law to re-appreciate the evidence and arrive at a fresh finding, unless there is an error apparent on the face of the award which makes it unsustainable. So far as the power of the Court to refer to a document which might have been produced before the arbitrator is concerned, the law on the subject has been well-discussed in the decision of the Privy Council in the case of Champsey Bhara & Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd. AIR 1923 P. C. 66 and reiterated by the Supreme Court in the case of M/s. Allen Berry and Co. Private Ltd. v. The Union of India, AIR 1971 S. C. 696. In the latter case, their Lordships of the Supreme Court held thus :
“The question whether a contract or a clause of it is incorporated in the award is a question of construction of the award. The test is, does the arbitrator come to a finding on the working of the contract. If he does, he can be said to have impliedly incorporated the contract or a clause in it whichever be the case. But a mere general reference to the contract in the award is not to be encouraged or extended…. The rule thus is that as the parties choose their own arbitrator to be the Judge in the dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon the law or the facts. Therefore, . even when an arbitrator commits a mistake either in law or in fact in determining the matters referred to him, but such mistake does not appear on the face of the award or in a document appended to or incorporated in it so as to form part of it, the award will neither be remitted nor set aside notwithstanding the mistake”.
5. Keeping in mind the aforesaid principles of law, let me now examine the correctness of the rival submissions made by the learned counsel for the parties before me. There is no dispute that the award in the present case is a non-speaking and no-reasoned award though the arbitrator has awarded in respect of some of the items of the claim and has rejected in respect of some other items. Though before the arbitrator large many documents were produced and the claimant also examined himself, but none of the documents have formed a part of the award either being referred to in the award or even being appended to the award in the form of a note. That being the state of affairs, Mr Patnaik, the learned counsel for respondent No. 2 was not in a position to assail the submission of the learned counsel for the appellant to the effect that the Subordinate Judge had absolutely no Jurisdiction to examine some of those documents to arrive at his own conclusion. In the impugned judgment, the learned Subordinate Judge has referred to the measurement books as well as some letters alleged to have been given by the Plaintiff-contractor on 5-5-1978, 29-5-1978 and 19-8-1978. In view of the law laid down by the Supreme Court in Allen Berry’s case (AIR 1971 Supreme Court, 696), the conclusion is irresistible that the Subordinate Judge had no jurisdiction to refer to any of those documents and, therefore, the judgment of the learned Subordinate Judge cannot be sustained in the eye of law.
6 Mr. Patnaik, the learned counsel for respondent No. 2, however, vehemently urges that when a party alleges that the award is based on no evidence, and it is too well-settled that an award based on no evidence can be set aside by a Court, it would be within the powers of a Court to examine the documents produced before the arbitrator for the limited purpose of ascertaining whether the award is one based on any evidence or not. But to my query, the learned counsel has not been able to place reliance on any authority of any Court. True, as has been held by this Court in the case of The Fertilizer corporation of India Ltd. v. M/s Bharat Painters, 61(1986) Cuttack Law Times, 194, an award based on no evidence can be interferred with by the Court since it would constitute a misconduct on the part of the arbitrator within the meaning of Section 30 of the Arbitration Act But in that particular case, this Court had reached the aforesaid conclusion on a bare perusal of the award itself and on the concession of the counsel for either party that parties, in fact, had led no evidence in that case. Where, however, evidence has admittedly been led and the award ex facie shows that the arbitrator has considered those evidence before arriving at his conclusion, the question that remains is whether it would be permissible for a Court of law to examine the materials to accept or reject the contention of one of the parties to the effect that the award is based on no evidence In my opinion, in view of the authoritative pronouncement of the Supreme Court in Allen Berry’s case, referred to supra, it would not be permissible for a Court of law to look to the evidence which do not form a part of the award and a party who alleges that the award is based on no evidence has to establish the same on the face of the award itself. I, therefore, do not find any substance in the contention of Mr. Patnaik, the learned counsel for respondent No. 2 on this score and the same must be rejected.
7. So far as the question of interest is concerned, it has been decided by series of decisions of this Court both of the Division Bench as well as of Single Judges that the arbitrator has the jurisdiction to award interest not only from the date of the reference but also from the date when the amount fell due and this Court has relied upon some of the decisions of the Supreme Court including the case of Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore. AIR 1967 S. C, 1030 and the case of Union of India v. Bungo Steel Furniture Private Ltd , A. I. R, 1967 S. C. 1032. It would, therefore, not be permissible for me to take a different view. I would, therefore, unhesitatingly reject the submission of Mr. Patnaik, the learned counsel for respondent No. 2.
8. The learned Subordinate Judge in his judgment has extracted a passage from the judgment of my learned brother Justice R. C. Patnaik, in the case of State of Orissa represented by the Executive Engineer, R. E. Division, Puri and others v. Gangaram Chhapolia and another, 54(1982) CLT 214. I really fail to appreciate that in what context the said quotation has been extracted in my opinion, the observation of the learned Judge quoted by the Subordinate Judge is wholly inappropriate and has no application to the facts and circumstances of the present case. I would, therefore, hold that the Subordinate Judge committed gross error of law and exceeded his jurisdiction. In interfering with a non-reasoned and non-speaking award by making reference to some documents which even did not form a part of the award on grounds not sustainable in law and, therefore, the said order of the Subordinate Judge cannot be sustained.
9. In the ultimate result, therefore, the judgment of the Subordinate Judge dated 17-6-1985 is hereby set aside and the award of the arbitrator is made a rule of the Court. This miscellaneous appeal is accordingly allowed with costs. Hearing fee is assessed at two hundred rupees.