JUDGMENT
The Court
1. By this motion under sections 30 and 33 of the Arbitration Act, 1940, the petitioner seeks to assail the award dated 6th June, 1997 made and published by Mr. Sankar Bhattacharyya, a retired Judge of this court.
2. It would be convenient at this stage to set out briefly the facts leading to the present application by the petitioner.
3. By a contract in writing dated 7th September, 1983 the petitioner employed the respondent for construction of 9 blocks of 4-storied (16 units) staff quarters for CISF personnel at Brooklyn in Calcutta.
4. The said contract contains the following arbitration clause :–
“68(a) in all disputes, matters, claims, demands or questions arising out of or connected with the interpretation of the contract including the meaning of Specifications, Drawings, Designs and instructions or as to the quality of workmanship or as to the materials used in the work or the execution of the work whether during the progress of the works or after the completion and whether before or after the determination abandonment or breach of the contract the decision of the Engineer shall be final and binding on all parties to the contract and shall forthwith be given effect to by the Contractor.
(b) if, however, the Contractor is dissatisfied with any such decision of the Engineer, he shall within 15 days after receiving notice of such decision require that the matter shall be referred to an arbitrator to be agreed upon between the parties or failing agreement–to be nominated on the application of either parly by the President for the time being of the institution of Engineers (India) and any such reference shall be deemed to be a submission to arbitration within the meaning of the indian Arbitration Act 1940 or any statutory modification thereof. The award of the Arbitrator shall be final and binding on all parties. Upon every or any such reference the costs of and incidental to the reference and award respectively shall be in the discretion of the person arbitrating who may determine, the amount thereof or by when and to whom and in what manner the same shall be borne and paid. During the course of dispute and arbitration the Contractor shall, however, proceed with the work with the diligence in accordance with Engineer’s decision.”
5. On a proper construction of the aforesaid arbitration clause it appears to me that the said arbitration clause is in the widest possible terms and the arbitrator is clearly invested with jurisdiction to adjudicate upon the interpretation of the terms and conditions of the contract between the
parties. The said arbitration clause, however does not contain any stipulation that if the concerned Engineer aoes not give his decision for any reason then the same cannot be resorted to. In my opinion, the concerned Engineer cannot stultify the invocation of the arbitration clause by not giving his decision for any reason. It follows therefore that where the Engineer does not give his decision the appointing authority named in the said arbitration clause and the court have discretion to appoint an arbitrator to adjudicate upon the disputes and differences that may have arisen between the parties. Once such appointment is made it cannot be said that the arbitrator so appointed has no jurisdiction to adjudicate upon the said disputes and differences.
6. Indeed, the petitioner challenged the appointment of one S.N. Sarkar as an arbitrator by the President of the institution of Engineers (India), the appointing authority mentioned in the said arbitration clause, on the ground that the concerned Engineer namely its Chief Engineer had not given any decision on the disputes raised by the respondent by Notice of Motion dated 28th February, 1989. Prayer (a) of the said Notice of Motion was to the following effect :–
“The appointment and/or nomination of the respondent No. 2 as the arbitrator in the matter be set aside and/or cancelled and/or revoked and the respondent No. 1 be directed to submit the details of claims if any, for the decision of the ‘Engineer’ i.e. the Chief Engineer of your Petitioner No. I before proceeding further in any arbitration proceeding.”
7. The application of the petitioner initiated by the aforesaid Notice of Motion was disposed of by Shyamal Kumal Sen J. by his order dated 2nd March, 1989 which is as follows :–
“The Court: Let it be recorded that the Respondents have not filed any affidavit-in-opposition in this proceeding and they do not admit the allegations as contained in the petition. The application is treated as an adjourned Motion in the Day’s List.
By consent of parties, Mr. Sankar Bhattacharyya, a retired Judge of this court, is appointed Arbitrator in the matter. The remuneration of the Arbitrator will be 60 G.Ms. per sitting to be borne by the parties in equal share.
The appointment of the Respondent No. 2 as Arbitrator is hereby set aside.
Each party to bear its own costs.
The Arbitrator will proceed expeditiously in the matter.
The application is thus disposed of.”
8. It is apparent from the aforesaid order that the petitioner consented to the appointment of the said Mr. Sankar Bhattacharyya as arbitrator to adjudicate upon the disputes that had arisen between the parties. The self same point was sought to be urged by the petitioner in the arbitration proceedings after the statement of facts had been filed By the respondent in May, 1989 before the learned Arbitrator by its application seeking preliminary hearing on the ground that as the concerned Engineer named in the said arbitration clause ‘had no scope to give his decision” the
reference should not be further proceeded with. The said application was rejected by the learned Arbitrator by his order [at page 117 of the petition) which is as follows :–
“After having heard the learned counsel for the parties I feel inclined to think that the first point argued by Mr. Majumdar, learned counsel for the respondent, cannot be entertained. Since I have been appointed as an arbitrator in this case by an Order of the Hon’ble High Court passed with the consent of the parties, the question as to whether there was at all any dispute to be referred to arbitration cannot be allowed to be raised by either party nor can it be entertained by me. In other words, my appointment having been made by an order of the Hon’ble High Court, I cannot go behind the order. In all fairness (to) Mr. Majumdar, it should be mentioned that in view of the above position about which there cannot possibly be any dispute, he did not ultimately pursue that point”
9. The petitioner thereupon participated in the reference before the learned Arbitrator and filed its counter-statement before him.
10. Having regard to the aforesaid it is not open on the part of the petitioner to raise the question as to the arbitrabilty of the disputes that had been referred to the learned Arbitrator for adjudication.
11. The learned Arbitrator held 169 sitting in the reference and made and published his Impugned award after consideration of the documentary and oral evidence and after giving the parties ample opportunity of being heard.
12. By his impugned award the learned Arbitrator has directed the petitioner to pay to the respondent Rs. 23 lacs in full and final settlement of the claims and counter-claims of the parties. The learned Arbitrator has further awarded simple interest and costs in favour of the respondent.
13. Although the learned Arbitrator raised several issues for adjudication he has not dealt with those issues separately but has instead made a non-speaking award covering all the said issues. By passing his said Impugned award the learned Arbitrator has obviously held that he had jurisdiction to make the same and the issue with regard to his Jurisdiction has been answered accordingly.
14. It is well-settled that if the Arbitrator does not deal with the issues raised by him separately that does not by itself vitiate his award.
15. Mr. Bachawat appearing in support of the application assailing the said impugned award urged the following grounds :–
a) The learned Arbitrator failed to decide the arbitrability of the claims made by the respondent;
b) He exceeded his jurisdiction in allowing certain claims of the respondent by disregarding express terms of the contract.
16. With regard to the first ground urged by Mr. Bachawat I have already held that the petitioner is precluded from raising this question. In my opinion the said ground is untenable.
17. With regard to the second ground Mr. Bachawat had relied on certain clauses of the contract between the parties to urge that as the said impugned
award purports to fly in the face of the said clauses the learned Arbitrator has exceeded his Jurisdiction and he has thereby misconducted himself and/or the proceedings. In support of his said submission Mr. Bachawat had relied on the decision of the Supreme Court hi the case of “New india Civil Erectors IP) Ltd. v. Oil and Natural Gas Corporation’: All india Reporter 1997 Supreme Court page 980 (May issue) where in paragraph 7 of the report the Supreme Court has held as follows :–
“….. We must proceed on the assumption that the plains attached
to the Tender notice are the agreed plans and that construction has been made according to them and that in the light of the agreed stipulation referred to above, the areas covered by balconies should be excluded. In this view of the matter we agree with the Division Bench that the arbitrators over-stepped their authority by including the areas of the balconies in the measurement of the built-up area. It is axiomatic that the arbitrator being a creature of the agreement, must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parlies clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account. We, therefore, affirm the decision of the Division Bench on this score.”
18. In the aforesaid case the Supreme Court also considered the fact that the arbitrators in considering Claim No. 4 had construed the terms of the letter of the appellant in the context of the relevant stipulation in the schedule to the tender notice and allowed the said claim. The Supreme Court held (in paragraph 5 of the report) as follows :–
“…..Since the attempt of the court should always be to support
the award within the letter of law, we are incluned to uphold the award on this count (claim No. 4). Accordingly, we reverse the Judgment of the Division Bench to the above extent. The amount awarded by the arbitrator under this claim is affirmed.”
19. None of the clauses contained in the said contract that have been relied upon by Mr. Bachawat contains any term which can be said to exclude the Jurisdiction of the Arbitrator in considering the same. On the other hand, the learned Arbitrator clearly had jurisdiction to interpret the said clauses which he has done in making his said Impugned award. if the learned Arbitrator has chosen to interpret the said clauses in the manner that he has done in making the said Impugned award it is no part of the duty of the court to substitute its own interpretation of the said clauses, particularly when the interpretation by the Arbitrator is neither Irrational nor perverse.
20. In any view of the matter, as none of the said clauses has been referred to by the learned Arbitrator in the said Impugned award it cannot therefore be said that there is any error apparent on the face of the said award.
21. I therefore hold the said second ground to be equally untenable.
22. It must be emphasised that the learned Arbitrator by his said Impugned award has disallowed part of the claim of the respondent.
I find no infirmity in the said award.
For the foregoing reasons, the motion must fall and the same is dismissed but without any order as to costs.
23. Petition dismissed
