JUDGMENT
Mohd. Shamim, J.
1. Shri Suresh Mehta, Superintending Engineer, was appointed as an arbitrator. He filed his award before this Court dated August 21, 1996. The same was registered as Suit No. 2151-A of 1996. Notices were issued to both the parties in the said suit with regard to the filing of the award. The petitioner herein did to prefer any objections against the said award while the Delhi Development Authority (hereinafter referred to as the respondent) filed objections against the same vide I.A. No. 1149/97.
2. It has been submitted for and on behalf of the objector that the learned arbitrator had no jurisdiction to entertain the claims raised by the petitioner as the same were hopelessly barred by time. This instead of making an award in favour of the petitioner with regard to the said claims the same should have been rejected. The work in question was complete in August, 1989 whereas the arbitration was invoked vide letter dated May, 16, 1994. It is thus obvious that the claims were barred by limitation at the time of the invocation of the arbitration agreement. Most of the claims raised by the claimant were never raised during the currency of the agreement and even after the completion of the work. The said claims are an after-thought and mala fide. The impugned award is in violation of Clause 25 of the agreement whereunder the arbitrator was required to give reasons for arriving at his conclusions. The arbitrator has not given any reasons whatsoever in support of the claims awarded. He did not record any evidence with regard to the claims before awarding the same. The impugned award has been given in violation of the principles of natural justice. The award is contrary to the record and the evidence. The arbitrator has completely ignored various points in controversy involved in the present case. The socalled reasons given by the arbitrator in support of the claims awarded are no reasons at all and are totally extraneous to the points of differences in between the parties. The arbitrator has failed to apply his mind to the points in controversy. The arbitrator has misconducted himself and the proceedings. Hence, the two award is liable to be set aside.
3. While countervailing the said submissions it has been submitted for and on behalf of the petitioner that all the claims were well within time. Hence the same were rightly entertained by the arbitrator. The arbitrator is under no obligation to write a reasoned award just like a Court. It is sufficient enough if he gives some of the reasons for awarding a particular claim in favour of a particular party. The impugned award is a well reasoned award based on evidence. It is wrong to allege that the arbitrator has misconducted himself and the proceedings. Thus it has been prayed that the impugned award alluded to above be made a rule of the Court.
4. Learned counsel for the respondent has raised a preliminary objection with regard to the maintainability of the claims before the learned arbitrator. According to the learned counsel the work in the instant case was completed in August 1989. The petitioner herein applied for appointment of an arbitrator in terms of the arbitration clause as per the agreement on May 16, 1994. Thus they invoked the arbitration clause after the expiry of statutory period of limitation i.e. more than three years. The learned counsel has contended that Art. 55 of the Limitation Act, 1963 is the relevant article which would be applicable to the facts of the present case. The period of limitation as prescribed by the said article is three years from the date of cause of action. Hence the claims were clearly barred by time and the learned arbitrator should have held as such. The learned counsel further contends that the arbitrator was under an obligation to take notice of the fact that the claims were barred by time irrespective of the fact whether such a plea was taken before the arbitrator or not. In this connection the learned counsel has sought help from Section 3 of the Limitation Act which is in the following words: 3. Bar of limitation. – (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defense. (2) …… (a) ……….. (b) ………… (c) ……….”
5. He has then in support of his argument referred to Section 37 of the Arbitration Act which reads as under: “(1) all the provision of the Indian Limitation Act, 1908 shall apply to arbitration as they apply to proceedings in Court. (2) ……… (3) …….. (4) ………
6. The learned counsel thus contends that a duty was cast on the shoulders of the arbitrator before awarding any claims to ascertain the fact as to whether the claims were within limitation. However, no notice of the fact was taken that the claims in the instant case were hopelessly barred by time.
7. Learned counsel for the petitioner Mr. Sharma has urged to the contrary. According to him, in case a plea with regard to limitation is not raised before the arbitrator in that eventually a party not doing so cannot be permitted to take assistance from the provisions of the Limitation Act during the proceedings for making the award a rule of the Court. In the alternative, it has been urged for and on behalf of the petitioner that the claim of the petitioner was well within time and the same was rightly awarded.
8. A close scrutiny of Section 3 of the Limitation Act reveals that the same relates to a suit instituted, appeal preferred, an application made after the prescribed period shall be dismissed, although the limitation has not been set up as a defense. Thus a Court has been enjoined to dismiss a suit, appeal and an application whichever might be the case, in case the same has been preferred after the expiry of the statutory period of limitation irrespective of the fact whether limitation is pleaded by way of defense or not. However, the proceedings before an arbitrator are neither a suit nor an appeal nor an application before a Court. It is well known the proceedings before an arbitrator are quasi judicial in nature. They are not judicial proceedings. Thus a party before an arbitrator in order to take advantage of the provisions of the Limitation Act must plead the bar of limitation. In the absence of any such plea it would be presumed that the bar of limitation was condoned and the party not pleading the same did not want to take the benefit of the same.
9. My above view finds support from the observations of a Division Bench of the Patna High Court as reported in Union of India Vs. B.C. Basu and another, , “…. This much is, however, undisputed that neither any objection was taken by the appellant at the time of making of the reference to the arbitrators that a part of the claim was barred by limitation nor any such objection was raised by them before the arbitrators. For the first time the objection was taken before the Court after the award was filed. As the maxim that limitation bars only the remedy but does not destroy the right is well known, no illegality was therefore committed by the arbitrators in entertaining the claim of the contractors for the said period”.
10. In a case as reported in Oil & Natural Gas Commission Vs. Ms/. Clelland Engineers S.A., , the plea with regard to limitation being barred by time was raised before the arbitrator in the following words : “The present arbitration itself is barred by limitation as the alleged claims are relating to the work done in 1981-82″. Even then the Hon’ble Supreme Court opined that it was a bald statement and cannot be treated as a foundation for raising a plea with regard to limitation before the Court. I am tempted here to cite a few lines from para 5 of the said judgment. ” This is a very bald statement without setting out the details as to how the claim made by the respondent before the Arbitrators have become barred by the limitation particularly when the stand of the respondent is that they had running bills and payments were made from time to time and an account has to be taken as to what amount become due and when; the same has to be worked out. Whether all such details have to be worked out and whether the transaction between the appellant and the respondent did not become complete until the payment of final amount are matters of adjudication. Thus, it becomes very difficult to appreciate that the plea raised before the Arbitrators was sufficient to meet the situation to defeat the claim on the bar of limitation. Therefore, we do not think that we can examine the matter in the light suggested now by the learned counsel for the appellant when no foundation has been laid in the course of the proceedings before the Arbitrators either in the pleadings or in the evidence. We are, therefore, of the view that the High Court was justified in dismissing the appeal against the decree passed in terms of the award”.
11. Learned counsel for the respondent on the other hand has placed reliance in support of his contention on the observations of the Hon’ble Supreme Court as reported in Panchu Gopal Bose Vs. Board of Trustees for Port of Calcutta, . I have very carefully examined the facts of the said case, yet I am of the view that the said authority is not at all applicable to the facts and circumstances of the present case. According to the facts of the said case the petitioner slept over his rights for a period of ten years. After laying his claim in the year 1979 he did not raise even a tiny finger of protest. For the first time it was on November, 28, 1989 that he issued the notice to the respondent to refer the case to arbitration. I am tempted here to cite a few lines from the said judgment to illustrate the above point.”…….. even assuming that the petitioner had put forward his claim in July 1979 and the respondent has not acted thereon till November 28, 1989 for long 10 years he did not move his little finger to approach the Engineer and later the Court. For the first time on November, 28, 1989 he issued notice to the respondent to refer the case for arbitration. ….. On this own showing cause of arbitration has arisen in July 1979, the petitioner did not take any action from then. On the other hand when notice was issued in November 1989 the respondent immediately approached the court and sought its leave to rescind the agreement explaining the circumstances. The court exercised the jurisdiction in permitting the respondent to revoke the arbitration agreement …….”.
12. The other authorities which were placed reliance upon the learned counsel for the respondent with regard to the plea of limitation are:
(i) M/s. Jhabbu Mal Jang Bahadur Vs. Nanak Chand Aggarwal and another, AIR 1992 Delhi 55;
(ii) Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, ;
(iii) State of Orissa and Anr. etc. Vs. Sri Damodar Das, AIR Supreme Court 941.
13. None of the said authorities is of any use to the respondent as the facts of the said judgment were altogether different from the facts of the present case.
14. Admittedly in the instant case the respondent did not raise any plea with regard to limitation before the learned arbitrator. They neither did so orally nor by way of pleadings. Hence they cannot be permitted to do so now before this Court.
15. There is another side of the picture. The work in the instant case was admittedly completed on August, 31, 1989. The petitioner herein approached the Executive Engineer for payment and for release of the amount of the bank guarantee vide letter dated March 17, 1990 (vide C-48). Close on the heels of the said letter yet another letter was written which is C-49. It is dated December 31, 1990. Yet another letter dated September 28, 1991 was written on account of the failure of the respondent to make the payment (vide C-50). The respondent in reply to the said letters wrote to the petitioner a letter dated December 26, 1991. The petitioner replied to the said letter vide letter dated January 7, 1992 (C-51) wherein it was specifically mentioned that the department was not interested to make payment and was interested to drag the matter. The petitioners’s letter dated January 7, 1991 was replied to by the respondent through their letter dated January 20, 1992 (C-53). It was through this letter that the respondent rejected the claim of the petitioner. It was further observed in the said letter” … what remains is the amount regarding disputed items which are under process of setting. So where is the dispute that you have been crying about”. The petitioner wrote yet another letter dated September, 6, 1993 (C-54), but to no avail. It was in the above circumstances that the petitioner sought reference of the disputes to an arbitrator vide letter dated May 16, 1994. Thus if the period of limitation is computed from the letter dated January 20, 1992 then the petitioner were well within their right to seek reference of disputes to arbitration within three years. They could have done by January 20, 1995. Yet they invoked the arbitration clause on May 16, 1994. Hence it cannot be said by any stretch of imagination that the claims of the petitioner are barred by time.
16. Learned counsel for the respondent Mr. Shailesh Kapoor has contended that the learned arbitrator had misconducted himself and the proceedings. Hence the impugned award dated August 21, 1996 is liable to be set aside. According to the learned counsel the learned arbitrator was under an obligation to give a reasoned award (vide Cl. 25 of the agreement). However, he has not done so. He has not given out any reasons for arriving at his conclusions. The findings of the learned arbitrator are perverse and not borne out from the record. Thus the impugned award is liable to be set aside. I am unable to agree with the learned counsel.
17. It is a well established principle of law that an arbitrator is not required to write a detailed judgment even in those cases where he is required to give reasons for his findings. It would be considered sufficient enough if one can discern the trend of his thoughts from the observations made in the award. The underlying idea of the Arbitration Act is to simplify the procedure and to quicken the pace of the disposal. This would not be possible in case an arbitrator is expected to act like a Civil Court and to write out detailed judgments. The above view was given vent to by their Lordships of the Supreme Court in Indian Oil Corporation Ltd. Vs. Indian Carbon Ltd. . “In this case, however, we are in agreement with the High Court of Bombay that reasons were stated in the award. … These are the reasons for giving the award. No error of law was pointed out in those reasons. Indeed no proposition of law was stated in the aforesaid reasons, which could be objected to as an error of law. There was, however, no error of fact. It was a possible view to take. It could not be urged that it was an impossible view to take. The arbitrator has made his mind known on the basis of which he had acted; that, in our opinion, in sufficient to meet the requirements even if it be reasons should be stated in the award. It is one thing to say that reasons should be stated and another thing to state that a detailed judgment be given in support of an award. Even if it be held that it is obligatory, to state the reasons, it is not obligatory to give a detailed judgment. This question was considered by the Court of Appeal in England in Bremer Handelsgesellschaft Vs. Westzucker, (1981) 2 Lloyd’s Law Rep. 130.”
18. It was further observed (vide para 10).”The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned (award) and the arbitrator does give his reasons in the award, the sufficiency of the reasons depends upon the facts of the particular case. He is not bound to give detailed reasons. The Court does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous”.
19. When an arbitrator is called upon to interpret a particular contract, as is the case in the instant case, in that eventuality his findings with regard to the interpretation of the said contract cannot be assailed simply because the contract could be construed in a different manner. The Court does not sit in appeal over the findings of the arbitrator. It was so held by the Hon’ble Supreme Court in a latest decisions as reported in Himachal Pradesh State Electricity Board Vs. R.J. Shah and Company, : From the aforesaid decisions of this Court, and the last one in particular, it is clear that when the arbitrator is required to construe a contract then merely because view may be possible the court would not be justified in construing the contract in a different manner and then to set aside the award by observing that the arbitrator has exceeded the jurisdiction in making the award”.
20. With the above background let us now examine the findings of the arbitrator on different claims.
Claim No. 1:
21. The claimant claimed a sum of Rs. 3,87,271/- on account of balance payment for undisputed items. The learned arbitrator allowed a sum of Rs. 75,277,77 as the respondent agreed to make the said payment to the claimant (as per Annexure 6).
22. Learned counsel for the respondent while challenging the said claim has contended that no such concession was ever made by the respondent in favour of the claimant. It has been wrongly recorded by the learned arbitrator that the respondent agreed to make the said payment. According to the learned counsel there is no such mention even in the proceedings before the arbitrator. There is no such statement on the file of the arbitrator with regard to the said concession alleged to have been made for and on behalf of the respondent. The learned counsel has thus argued that the finding record by the learned arbitrator on Claim No. 1 is perverse and mala fide. It is thus liable to be set aside.
23. Learned counsel for the petitioner, on the other hand, has submitted that the arbitrator in the instant case was a Superintending Engineer of the respondent. He was an employee of the respondent. Hence how he could have gone against the interests of the respondent if the said concession was not made by an officer i.e. the Executive Engineer who was conducting the proceedings before the arbitrator on behalf of the department.
24. Proceedings before an arbitrator, it is a well recognized principle of law, are quasi judicial in nature. Thus an arbitrator is duly bound to decide cases honesty and sincerely in accordance with law. It cannot be expected from an officer who is acting in a judicial capacity to add some thing from his side to the proceedings or to subtract any thing therefrom unless there are cogent reasons for the same. Hence it is inconceivable that the arbitrator would have incorporated in the award a fact or a statement in the form of a concession by the respondent, at his own volition to the detriment of the respondent. I am not in a position to accept the contention raised by the learned counsel for the respondent.
25. There is another aspect of the matter. The respondent have not placed any thing on record in order to show and prove, even prima facie, that the said fact with regard to the concession was wrongly recorded. In fact it was not so. They could have done so in the form of an affidavit by the Executive Engineer who was conducting the proceedings on behalf of the respondent. Furthermore there is nothing on record to show that the said Executive Engineer ever brought to the notice of the higher authorities that the said concession has been wrongly recorded by the Superintending Engineer i.e., the arbitrator. There is also absolutely nothing on record to show that any action was ever taken against the arbitrator by the respondent who was their employee for misconducting himself during the proceedings. I thus see no reason whatsoever to interfere with the finding of the arbitrator on this point.
Claim No. 5:
26. The petitioner claimed a sum of Rs. 66,475/- under this claim. Out of said claim, according to the claimant, a sum of Rs. 6,475/- was still lying with the respondent. According to the learned Arbitrator there was absolutely no reason whatsoever as to why the said amount was being withheld and retained by the respondent. Hence he ordered for release of the same. I thus feel that the arbitrator was justified in awarding that claim to the tune of Rs. 6,475/-.
Claim No. 6:
27. The claimant claimed a sum of Rs. 8,239.34 but restricted it to Rs. 6,904.26 in the statement of facts on account of substituting agreement No. 2.2(a) with SI for CC 1:5:10 with brick aggregate instead of existing item in the agreement. The learned arbitrator after construing the terms of the agreement in between the parties came to the conclusion that the claimant was entitled to a sum of Rs. 6,904.26. There is absolutely no reasons, whatsoever, as to why the said finding should be disturbed.
Claim No. 7:
28. The claimant under this claim claimed a sum of Rs. 1,78,620/- on account of change of design from ordinary grill to ornamental grill. There was no dispute in between the parties with regard to the factum of the execution of the work as shown in the photographs placed before the learned arbitrator. The quantity executed by the claimant as per the final bill is 54,512.25 Kg. The difference in rates as per DSR Item for plain grills and ornamental grills worked out to Rs. 3.26 per Kg. The learned arbitrator thus was of the view that the contractor should be paid for ornamental grills as the labour involved in the same was much more. Hence he awarded a sum of Rs. 1,78,620/-. Hence there is no justification for interference with the said observations of the learned arbitrator.
Claim No. 8:
29. An amount of Rs. 14,952/- was awarded under this head on account of difference of the pipes. According to the claimant the rain water Pipe could not be fitted with the AC pipe. As such the claimant were directed by the then Chief Engineer to use SCI soil vent pipe of 100mm dia. The respondent, according to the learned arbitrator, verified from the site and confirmed that ISI marked SCI pipe was used at the site of work. It was in the above circumstances that the learned arbitrator awarded a sum of Rs. 14,952/- to the claimant. Thus I feel this finding does not call for any interference.
Claim No. 10:
30. The claim of Rs. 1,01,899/- is with regard to the use of section FX6 & FX8 in manufacturing the composite units for door and windows instead of F7d as per drawing. It was stated by the claimant before the arbitrator that as per the instructions of the Chief Engineer the claimant have used FX6 and FX8 instead of F-7d. There was no dispute with regard to the quantity. The factum of use of FX6 and FX8 was duly verified by the respondent and there was no dispute with regard to the use of same. Hence the learned arbitrator was of the view that since the work had been executed after 1985, the difference in rates of DSR 85 and DSR 81 was being allowed without enhancement i.e. Rs. 118.23 per sq. mt. for 593.75 sq. mt. which worked out to Rs. 70,199.06. Consequently, the same was allowed. The learned arbitrator has given out very cogent reasons. Thus there is no justification for interfering with his findings.
Claim No. 11:
31. This claim is regarding disposal of surplus earth from the construction site. It was conceded before the learned arbitrator by the respondent that there was no undulation in the site nor any big points existing thereon. Hence the surplus earth was to be disposed of outside the construction site. The claimant in this connection showed 17 original vouchers for cartage to the learned arbitrator and submitted four photocopies thereof by way of sample. It was in the above circumstances that the learned arbitrator opined that the claimant were entitled to Rs. 34,000/-. This Court feels that the learned arbitrator was justified in doing so.
Claim No. 14:
32. The claimant claimed a sum of Rs. 1,55,865/- for the amount demanded under clause 12-A of the agreement for the heavy deviation in item No. 10.2 of agreement i.e. lying of CC path. According to the learned arbitrator that total quantity executed by the contractor was 4204.89 sq. mtr. whereas the quantity required as per the agreement was 689.6 sq. mt. After allowing 20% deviation at the contractual rate the extra work executed by the contractor was 3377.37 sq. mt. He thus awarded the same at the rate of Rs. 22.15 per sq. mtr. i.e. Rs. 74,774.97. The learned arbitrator has given very cogent reasons for arriving at his conclusions and this Court does not see any reason to differ from the same.
Claim No. 15:
33. The claimant under this claim claimed an amount of Rs. 24,691.00 on account of recovery made by the respondent for 75mm and 100mm SCI soil and vent pipe. According to the claimant the recoveries were made at two difference rates. The learned arbitrator after examining the record found that the lines have been scored out but the same have neither been signed by the contractor one by the Executive Engineer. It was in the above circumstances that the arbitrator came to the conclusion that the claim of the claimant was justified and awarded a sum of Rs. 24,691.00 in favour of the claimant. The findings of the arbitrator are just and reasonable and do not call for any interference by this Court.
Claim No. 16:
34. Under this claim the claimant claimed a sum of Rs. 52,921.73 for wrongful deductions and reductions. The learned arbitrator awarded a sum of Rs. 40,924.50 in favour of the claimant in full and final settlement of this claim. He has given very good reasons in support of his conclusion. I therefore, do not think it proper to differ from him on this point.
Claim No. 17:
35. The claimant laid a claim of Rs. 10,17,727/- as damages for idle labour, staff, machinery, centering sheltering etc. According to the claimant the work was to start from December 17, 1984 and the date of completion was December 16, 1985. However, on account of the defaults on the part of the respondents the final work could be completed on August, 31, 1989. Under the rules it was incumbent on the claimant to have a graduate engineer at the site till the work was completed. As per clause 36 if the graduate engineer was not there recovery could be effected by the respondent, and it was in fact effected when the graduate engineer was on leave. Reliance was placed in connection therewith on Exts. C-7, C-18, C-24, C-26, C-27, C-29 and C-32. In the above circumstances the arbitrator sanctioned a sum of Rs. 5,000/- per month for the period of 14 months by way of salary of the engineer and for maintenance of establishment and machinery. He therefore, awarded a sum of Rs. 2,20,000/- in favour of the claimant. There is absolutely, in view of the above, no justification to differ from the arbitrator on this point.
Claim No. 19:
36. The claimant preferred a claim under clause 10CC on the awarded amount. The respondent also agreed on this point. It was in the above circumstances that the learned arbitrator awarded a sum of Rs. 1,75,753.44. The award is perfectly legal and valid thus does not call for any interference.
Claim No. 20:
37. The claimant claimed pre-suit interest @ 24% per annum from September 1989 to the fate of entering the reference i.e. February 15, 1995. The learned arbitrator however, awarded pre-suit interest from October, 1, 1991 to February 15, 1995 on the awarded amount under Claim Nos. 1, 5, 6, 7, 8, 10, 11, 14, 15, 16, and 19 at the rate of 12% per annum as the notice claiming interest was issued to the respondent on September, 28, 1991 (vide C-50). The claimant further claimed interest on Claim Nos. 2 and 4. Since the amount which was due to the claimant on September 1, 1989 was released on March 7, 1995, hence the claimant claimed interest for the said period. The arbitrator, however, allowed interest on Claim Nos. 2 & 4 from March 31, 1990 to March 7, 1995 at the rate of 12% per annum. I feel the same is not correct. Admittedly, there was no agreement with regard to payment of interest. However, the interest was claimed under Section 3(b) of the Interest Act, 1978. Hence the claimant are entitled to interest with effect from October, 1, 1991 to March 7, 1995 at the rate of 12% per annum as the notice in the present case is dated September, 28, 1991 (Vide C-50). It is a well settled principle of law that the arbitrator has the jurisdiction to award pre-suit interest in cases which arise after the interest Act, 1978. It was observed in State of Orissa Vs. B.N. Agarwalla etc. : In the instant case, the claim for interest even for the pre-reference period has arisen after the Interest Act, 1978 had come into force and, therefore, the arbitrator could award interest for all the three periods … ” In view of the above, the claimant is entitled to interest on Claims Nos. 2 and 4 for the period from October 1, 1991 to March 7, 1995 at the rate of 12% per annum. Consequently, the findings of the arbitrator stand modified to that extent only.
Claims Nos. 21 & 22:
38. The arbitrator awarded pendente lite interest @ 12% per annum for the period from February 16, 1995 to August 21, 1996 and future interest at the rate of 16% per annum, there is no justification to interfere with the same.
39. In the above circumstances I do not see any force in the objections. The same are hereby dismissed with costs. The award dated August 21, 1996 is hereby made a rule of the court with the above modification as pointed out while disposing of Claim No. 20. Let a decree in terms thereof be passed in favour of the petitioner and against the respondent. The petitioner shall also be entitled to pendente lite and future interest at the rate of 16% per annum till the realization of the decretal amount.