JUDGMENT
Prasun Kumar Deb, J.
1. All the three appeals have arisen practically out of the same judgment and decree but only for technical purpose, three appeals have been preferred and as such all the three appeals have been heard analogously.
2. The facts are simple. The predecessor of the present respondents, namely, Gurucharan Singh entered into a contract with the appellant i.e. the Union of India through Garrison Engineer, Military Engineer Services, Ranchi for term contract for artificers work including renewal and minor works at Khojatoli, Ranchi. The agreement was executed on 7th August, 1979 and it came into effect from that date. A dispute arose between the parties regarding payment and as such the sole arbitrator was appointed as per Arbitration clause of the agreement but as the arbitrator did not file award, the respondent filed an application on 8.4.1986 under Section 14 (2) of the Arbitration Act (the Act) for direction to the sole arbitrator to file award and the same has been numbered as Arbitration Case No. 101 of 1986. Then the Special sub-Judge Ranchi vide his order dated 6.8.1986 directed the sole arbitrator to file the award and thereafter the sole arbitrator forwarded the award by his forwarding letter dated 20.8.1986 and then Arbitration Case No. 250 of 1986 was started.
3. According to the appellant, it did not receive any notice of filing of the award by the arbitrator but they came to know of such filing of the award and then filed objection under Section 30 and 33 of the Act on 23rd September, 1986. Such objection has been registered as Miscellaneous Case No. 68 of 1986. Against the objection received by the appellant, the respondents also filed objection supporting the award and then both the parties were heard and then the miscellaneous case has been dismissed. On the basis of the dismissal of the Miscellaneous case, Arbitration (Title) Suit No. 250 of 1986 was also disposed of by making the award as rule of the court. Similarly the first Arbitration Case No 101 of 1986 has also been disposed of accordingly, hence these three appeals have been filed. But the moot point of all the three appeals relate to the decision arrived at by the learned Special Sub-Judge, Ranchi, in Misc. Case No. 68 of 1986.
4. Various points were raised in the objection, but the main three points in the objection are that the arbitrator had not filed his arbitration award within the time framed when there was no extension of time on consent of the parties, such extension of time by the arbitrator suo-motu is against the principle of law and hence the award is beyond the period of limitation and as such the same is bereft of making it rule of the court.
5. The second point raised is with regard to non-consideration of Conditions No. (A) and (B) of Clause 11 of the agreement i.e. I.F.A.W. 2249, granting compensation beyond the scope of agreement is not only bad but this would constitute misconducting the arbitration proceeding itself.
6. The third objection is that Clause 70 of I.F.A.W. 2249 which contains that the arbitrator shall give his findings on all matters referred to him and shall indicate his findings along with sums awarded separately on each individual items of the dispute had not been complied with as the arbitrator combined items No. 1 and 2 of the contractor in awarding compensation. The fourth objection is that Clause 17 of the arbitration agreement has not been incorporated in the award which shows that the arbitrator had not applied his mind in going through the different clauses of the agreement in making the award and when the subject matter of arbitration directly hinges on the agreement and if clauses are not being construed in proper perspective then the whole award is bad in the eye of law and infer misconduct of the proceedings.
7. Against such objections, in the counter-objection, in the respondents took all legal pleas in support of the award. According to the objector-respondents, there was no scope of raising such objections in view of the consent given by the appellant regarding extension of time and although there is no written consent given by the objector but by keeping silence he has conceded to the extension applied by the appellant. Further submission is that the whole of the agreement was before the arbitrator and both the parties had submitted to the jurisdiction of the arbitrator and all documents have been filed by the parties along with their claims. Here, in the present case, there is not only a claim by the objector-respondents but also the counter-claim by the Government through Garrison Engineer and when all the referred matters of dispute had been considered by the application of mind then it cannot be said that the arbitrator had not applied his mind and did not consider the different clauses of the agreement.
8. The award in the case is unreasoned one and it is now a settled principle of law that unreasoned award is also a good award, although for the purpose of court to consider the objections raised, reasoned award is better. All objections raised had been considered by the learned Special Sub-Judge, Ranchi, very ably by referring to the various decisions of the Apex Court. Regarding the time frame of the award, it is true that by consent of the parties or by an order of the court, time for award may be extended but there is provision in Section 28 of the Act also.
9. In the present case, 28th February, 1986, was the last date for making and publishing the award but the arbitrator has made and published the award on 7th March, 1986 and it is the contention of the appellant that the award being beyond time is liable to be set aside, but it appears that the appellant’s side by letter dated 24.3.1986 which was marked Ext. A under the signature of Mr. B.S. Grawal, Major, Garrision Engineer consented the sole arbitrator to enlarge the time for making and publishing the award up to 15th March, 1986, when the time limit has been extended by the appellant’s side and when within that extended period, the award has been published, the appellant’s side is estopped from questioning the time limit regarding the publication of the award. It was contended before the lower court and before this Court that as per law, under the Act, the time limit can only be extended by consent of the parties or by the order of the court. Here, there is no order of the court and in respect of consent it is only stated that consent had been given by the appellant’s side and not by the respondents’ side and, as such, it cannot be said that time extension is by consent of both the parties. The first question remains that when extension has been given or consented by the appellant’s side, they are estopped from questioning the validity of extention. The respondents’ side remained silent regarding the extention being made from the side of the appellant and as such silence should definitely be considered as “Mounam Sammati Lachhanam” and the respondents’ side never questioned about the extension being given by the appellant’s side rather they have conceded to it and all along supporting such extension. In that view of the matter, there is no force in the submission of the learned Counsel for the appellant that the award is beyond the period of time. Moreover, it has been held by the various High Courts which had been referred to by the learned court below in the impugned judgment that the extention of time can also be granted by the court under Section 28 of the Act even upto the appellate stage after publication of the award itself. When the arbitration clause is there and the disputes have been referred to the arbitrator by consent of the parties then both the parties have submitted to the jurisdiction and they are to abide by the action and the conclusion of the arbitrator unless there is any apparent error or mis-procedure followed by the arbitrator which may result in misconducting of the procedings. In the present case, as per discussions made above, I fully agree with the finding of the learned court below that the award was not time barred.
10. Regarding ignoring of Clause 11 of the Agreement in grant of award in the extended period of the contract work, no submission has been made by the learned Counsel regarding the finding of the learned court below in that score. No error has been committed by the learned court below in deciding that objection and after considering all clauses of the agreement, and the argument, the award has been passed and in that award, various claims had been considered and curtailed in respect of the contractor-respondent. There is one objection that some of the claims of the contractor had been clubbed together in passing the award. There is nothing wrong in such clubbing as the work was continuous one and some of the claims were similar and identical and practically those required to be clubbed together for the purpose of granting relief. Thus, the grounds taken in the appeal have got no force, as mentioned above.
11. Mr. P.K. Sinha, learned Counsel appearing for the respondents has agitated a very relevant and vital point in this appeal. According to him, the appeal itself is not maintainable as the original contractor is dead and in his place, his heirs have been substituted. According to Mr. Sinha, the contract being a personal covenant and when award has been finalised, there is no scope of questioning the money decree on the basis of the award. He has submitted that even if the award is found to be not proper then the same is to be reverted back to the arbitrator again and then the heirs of the contractor would not be in a position to proceed with the same as they are laymen in respect of the contract works and they have not the special knowledge required for the purpose. In this respect, practically in this appeal there is nothing to be discussed as I have already held that this appeal has got no force. Under Section 6 of the Act, it has been provided that the Arbitration Agreement shall not be discharged by the death of any party thereto ei***er as respects the deceased or any other party, but shall in such event be enforceable by or against the legal representative of the deceased. Under Sub-Clause (2) of Section 6 of the Act, it is provided that the authority of an arbitrator shall not be revoked by the death of any party by whom he was appointed. Under Sub-Clause (3) of Section 6, it has been provided that the authority/operation of law by virtue of which any right of action is extinguished by the death of a person shall not affect under this section.
12. Practically Section 6 of the Act has been included on the basis of English Arbitration Act. Previously Arbitration Agreement was to come to an end on the death of any party thereto taking the arbitration agreement to be a personal covenant but because of legal battle in respect of arbitration agreement are being continued for a long period under the various provisions of the Act. This provision of bringing the legal representatives in the helm of affairs of the arbitration agreement had to be brought in. In this respect, Mr. Sinha has referred to a judgment of the Allahabad High Court in Smt. Balika Devi and Anr. v. Kedar Nath Puri . Section 6 of Clause (3) of the Act is based on the legal maxim action personalis moritur cum persona which means that a personal right of action dies with the person. Thus it becomes obvious that Clause (3) refers to actions in torts where the right claimed by a person against a tort-feasor does not survive after his death Where rights to Arbitration Act was subject in respect of partnership business have survived to his legal representative. Clause (3) of Section 6 does not come into play at all. Thus Section 6 of Clause (3) practically guides the other Sub-Clause of Section 6. Referring the English Law in this respect in the case of Cottage Club Estates v. Woodside Estate Co. (Amersham), Ltd., 1927 All ER 397 and Crane v. Hegeman-Harris Co. Inc., 1939 All. ER 68. It is submitted that even coming into force of Section 6 of the Act, Sub-Clause (3) controls the other two Sub-Clause and the Arbitration clauses cannot be said to be not a personal covenant. It remains as a personal covenant and practically it gives benefit under Section 6 of the Act to the person who come to picture on the death of the original contracting party but the benefit can be made available to them, yet not vice-versa. The legal representatives of a party to the arbitration agreement cannot be made to face in convenient position if the right has already been accrued to the legal representatives of a deceased party. Such right should not be taken away on some technical grounds to the detriment of the legal representatives. They can at best be considered to be a party to the agreement of arbitration even after the death of the actual contracting party to extract benefit out of it and not to its detrimental part.
13. I have already mentioned that in this appeal this point was not much necessary to be pressed as the award has already been upheld by the court below and when the award became a rule of the court, it has a form in the money decree then benefits must go in favour of the respondent. On a ***ypothetical position on setting aside the award after the death of the ***ontracting party, the position of legal heirs was only considered in the above discussions. There might be scope of discussion of these provisions more ***aborately when particular case of particular circumstances come to hand other wise there would be only the stretch of imagination which may not be very fruitful or useful for the purpose of discussion on the point being raised but on the limited scope, it can be at best said that the benefit which had already been accrued to the party of arbitration agreement, such benefit always be available to the legal representatives and they can proceed with such award on the legal process.
14. The appeals having no force hereby rejected but no order as to costs.