JUDGMENT
Thomas, J.
1. The award passed by an Arbitrator was made the rule of the Court, and a decree was passed in terms of the award. The State of Kerala and the Superintending Engineer concerned, having failed to get the award set aside, filed this appeal.
2. Different questions, both of law and fact, were canvassed in this appeal including the very appointment of an Arbitrator to decide the disputes. When it was pointed out that the Government did not file any appeal against the order by which the disputes were referred to arbitration, learned Government Pleader made an endeavour to invoke the powers of this Court under Article 227 of the Constitution for quashing the appointment order.
3. Some facts, relevant for this appeal, are the following: Respondent was engaged to carry out the work for making approach road to Mamom bridge for which an agreement was executed by him in favour of the Governor of Kerala. The site was handed over to him on 14-9-84. The work should have been completed on or before 13-4-1986 which is the expiry of a period of 19 months of handing over the site. But the contract was terminated on 5-1-86 due to other reasons. Respondent raised the main dispute that the termination was unjust and illegal. He filed O.S. (Arbitration) No. 342/86 in the Sub-Court, Trivan-drum, under Section 20 of the Arbitration Act, 1940 (for short ‘the Act’). The suit was resisted mainly on the ground that there is no arbitration agreement. However, learned Sub-Judge, on a finding that there is arbitration agreement, referred the disputes to arbitration. The Court appointed a retired Superintending Engineer as Arbitrator from out of the names included in the panels suggested by both sides. The Arbitrator entered on reference 30-12-86 and passed the impugned award on 15-6-87. On the application made by the respondent in the lower Court, the award was made the rule of the Court directing the State to pay the award amount within two months failing which the amount will carry interest at the rate of 9% per annum from the date of decree.
4. The Arbitrator gave award by answering each of the claims made by the respondent in O.S. (Arb.) 342/ 86. The material portion of the award is the following: (The appellants herein are referred to as the respondents in the award):
“I hereby award and direct as follows :
Claim No. 1. The Respondents shall pay the Claimant an increase of 25% (Twenty five per cent) over agreed rates for all items of work done, excluding the cost of department materials, as compensation for loss and damages for works executed by the claimant and recorded for payment.
Claim No. 2. The respondents shall pay the claimant for 25% (Twenty five per cent.) of the earth work done as cutting and filing (the earth work done is quantified as Twenty three thousand seven hundred and ninety nine cubic metres in the final bill), an additional rate of Rs. 19/- (Rupees Nineteen only) per cubic meter as compensation for loss and damages, in addition to the award in Claim No. 1.
Claim No. 3(a) The fine of Rs. 3,000/- (Rupees Three thousand only) imposed on the claimant shall be refunded.
(b) The security and retensions shall be released to the claimant and paid to the claimant.
Claim No. 4. Rejected.
Claim No. 5. The rearrangement of the balance works shall NOT be at the RISK and COST of the claimant.
Claim No. 6. The respondents shall pay interest except on security at 12% (Twelve per cent) per annum on the awarded amounts from 5-1-86 (fifth January nineteen eighty six) to the date of decree.
Claim No. 7. Rejected. Claim No. 8. Rejected.”
5. Learned Government Pleader vehemently contended first that the reference itself is a nullity inasmuch as the Court has no jurisdiction in the absence of an arbitration agreement to refer the dispute for arbitration. He made an endeavour to convice us that it was on account of connivance between some of the departmental officials and this respondent that the reference order could not be challenged earlier. It is true that some clauses in the printed agreement form which relate to reference for arbitration have been scored off under the signature of the contractor. In one of the clauses the contractor has agreed to abide by all the conditions of Madras Detailed Standard Specification (M.D.S.S.). As a term in the aforesaid specification permitted the disputes to be referred to arbitration, care was taken at the lime of execution of the contract to put asterisks at all places where M.D.S.S. was mentioned and a foot note is added in writing explaining the asterisk marks with the following words: “Excluding Clause (73) and other Clauses relating to arbitration contained therein”. Learned Sub-Judge, who referred the disputes to arbitration, has observed that “I have carefully perused the agreement and I find that there is an arbitration clause in the agreement by the incorporation of M.D.S.S. and in Form 84 Clause 14”. Learned Government Pleader invited our attention to the decision of Full Bench of this Court in State of Kerala v. Abraham, AIR 1989 Ker 61 : (1988(2) KLT 768) in which this Court held that when the arbitration clause in the printed form of the agreement is scored off, even though the terms in M.D.S.S. were made applicable, an intention to dispense with the arbitration clause is clearly discernible and in such cases the Court can hold that there is no arbitration agreement. According to the learned Government Pleader, the position herein is stronger inasmuch as the parties to the agreement have taken care to mention even in the clauses relating to application of M.D.S.S. that such application will be exclusive of clauses relating to arbitration. For two reasons we cannot now hold that the reference is without jurisdiction and the award is a nullity. The first is that the learned Sub-Judge found from Clause 14 of Form 84 which forms part of the agreement that it is a clause for referring the disputes to arbitration. We have noticed that the said clause was not scored off, may be due to some inadvertence. The said finding of the learned Sub-Judge has become final as the appellants have not challenged the said order of the Sub-Judge. The second is that the parties have participated in the arbitration proceedings without raising any objection and thus they have submitted to his jurisdiction.
5A. The other contentions of the learned Government Pleader are the following : (1) There is no award in law since the Arbitrator has written the award on a plain paper. (2) The material portion of the award is vitiated by vagueness as the Arbitrator left it to the execution Court to decide many points of dispute regarding the work done etc. (3) The Arbitrator went beyond his authority by allowing increased rates in the award since the contract contained a specific term that “on no account will the rate once agreed be increased.” (4) Arbitrator was not called upon to decide whether the contractor is entitled to refund the fine amount and hence the Arbitrator went out of his confines in directing the refund. (5) The Arbitrator has no authority to award interest for the period during which the arbitration proceedings were pending.
5B. It is true that the Arbitrator did not engross the award on stamp paper on the day when he published the same. Arbitrator published the award on 15-6-87 in plain paper. He signed it and delivered it on the same day and directed the claimant to produce non-judicial stamp paper for Rs. 500/ – “to file the award in the Court.” Stamp papers were produced before him on 18-6-87 and the award was engrossed on it only then.
6. Learned Government Pleader cited the decision in Pravakar Baral v. Lakhimdhar Naik (AIR 1987 Orissa 100) in which a single Judge has held that after signing the award on a plain paper, the arbitrators became functus officio and they had no power to re-write the same in a stamped paper. It was further held that the Court was also not entitled to remit the award to the arbitrator directing him to re-write the same on stamped paper. Learned single Judge has relied on a decision of the Supreme Court in Rikhabdass v. Ballabhdas (AIR 1962 SC 551) for coming to the said conclusion. From the facts narrated in the Supreme Court case it is seen that the award was unstamped and unregistered and an objection was taken to a judgment being passed on such an award and the trial Court remitted the award to the arbitrator for re-submitting it to the Court on a duly stamped paper after getting it registered. The point considered by the Supreme Court was whether such an award could at all have been remitted to the arbitrator for the purpose of rewriting the award in a stamp paper. The Supreme Court held that after making the award the arbitrator is functus officio.
7. Section 17 of the Kerala Stamp Act requires that all instruments chargeable with duty and executed by any person in the State of Kerala shall be stamped “before or at the time of execution”. An award is an instrument chargeable with duty. (Vide Article 12 in the schedule of the Stamp Act). Section 34 of the Stamp Act contains a ban that “no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.” Learned counsel for the respondent tried to surmount the aforesaid technical difficulty by contending that when an award was engrossed on a stamp paper that can be treated as an award notwithstanding the fact that he prepared the award in a plain paper on an earlier occasion. The document now produced in Court as the award will nevertheless be treated as an award under Section 14(2) of the Act, according to the counsel. The provision requires the arbitrator to sign the award when he has made the award and notice thereof shall be given to the parties of the making and signing thereof. Subsection (2) says that the arbitrator shall at the request of any party to the arbitration agreement, upon payment of the fees and charges due in respect of the arbitration and award “cause the award or a signed copy of it” to be filed in Court and the Court shall thereupon give notice to the parties of the filing of the award. Learned counsel contended that even if the document relied on by the Court is not the original award, it is still valid since the same was forwarded by the arbitrator to the Court. We do not think that the aforesaid technical flaw can be regarded as fatal. The decision of the Supreme Court in M. Chelamayya v. M. Venkatartnam (AIR 1972 SC 1121) supports the said contention. In that case an award for partition of immovable properties was made and signed in a plain paper and it was contended that there was no award inasmuch as the same was not engrossed on stamp paper and also because it was not registered. On the question of award not having been engrossed on stamp paper, the Supreme Court held as follows:
“It is true that the award in the original is not engrossed on a stamp paper. What the arbitrators had done at the time of filing the award was to file the original award along with a true copy of it engrossed on a stamp of Rs. 2,865/-. It is not disputed that an instrument of this kind can be admitted in evidence after proper duty and penalty is paid. The High Court has rightly pointed out that the intention of the arbitrators in engrossing a copy of the award on the stamp paper and producing the same attached to the original award was merely to show that the required stamp duty and penalty had been paid. It is not disputed that the actual value of the stamp used covers more than the stamp duty and penalty required for the document and, therefore, there is no difficulty in holding that the award is admissible in evidence and cannot be rejected on the ground that the proper duty and penalty has not been paid.”
Here the question of penalty does not arise because the documents produced as the award, even if it is only a copy, is on proper stamp paper. The plain paper copy of the award signed by the arbitrator was not acted upon by the lower Court. What is admitted in evidence and acted on by lower Court is the award engrossed on stamp paper. No objection was taken in the Court below when it was admitted in evidence. No contention was raised about its non-admissibility. No such ground was taken up in the application for setting aside the award. Even in the memorandum of appeal, no ground was raised on that score. In such circumstances, we are not inclined to non-suit the respondent merely on the technical point now raised that the document is only a copy of the award which is engrossed on the stamp paper.
8. We shall now proceed to consider whether the award is vague. The most seriously contested dispute is answered on Claim No. 1 in the award, (We extracted the answer earlier). The arbitrator by answering the said dispute seems to have left opened many side issues, involved in it, to be determined in execution. What are the items of work done by the respondent? Learned Government Pleader submits that there is serious controversy over that point. Without resolving the controversy, the arbitrator left it to the execution Court to take evidence and determine as to which are those items of work done. The practice of arbitrators leaving such points to be decided on evidence in execution stage has been deprecated in no uncertain terms by Subramonian Poti, J. (as he then was) in the order dated 22-9-80 in C.R.P. 495/78 of this Court. The arbitrator in the said case had passed an award stating that “the claimant will be paid 10% more than the measured quantity on embankment for conveyance charges for item 4(b) of appendix 1 after deducting the quantity cut earth”. Learned Judge found the language in the award as too tough even to a technically equipped engineer. His Lordship observed thus: “apart from the language, the determination calls for a further calculation based upon several records such as the measurement books a matter on which there may still be scope for controversy. Why the arbitrator should not at least take the trouble of doing this work rather than leaving it to the parties to fight out later is a question one may naturally ask, particularly one comes across such terms in awards frequently. When such an award comes up before a Court for passing a decree, a decree follows. The trouble commences when the execution starts and then all books are called for, evidence let in and then begins the real fight which take parties to this Court and this Court quite often spends a lot of time in the matter. Attention of few minutes by the arbitrator could obviate these wasteful exercises”. Learned Judge has further observed that “Courts are not obliged to pass a decree based on the awards unless the awards are self-contained, if the award calls for other records or evidence so as to be the basis for an executable decree the award is incomplete”.
9. We are in respectful agreement with the aforesaid observations of the learned Judge. As the award is too vague and indetermina-tive of the main points in controversy, we find it difficult to confirm the decree which was passed in terms of such an award.
10. Learned counsel for the respondent conceded fairly that the arbitrator went out of his confines in directing refund of the fine amount, as the arbitrator was not called upon to decide any such dispute. We do not think it necessary to decide the remaining questions raised by the learned Government Pleader, since we are remitting the case to the arbitrator for passing a fresh award on all the points in dispute.
In the result, we allow this appeal and set aside the judgment and decree of the Court below. The award is set aside and the matter is remitted to the arbitrator to pass a fresh (reasoned) award within four months from the date of receipt of records.
Appeal is disposed of in the above terms.