N.K. Jain, J.
1. This miscellaneous appeal is directed Under Section 39(vi) of the Arbitration Act, 1940 against the judgment of learned District Judge, Udaipur dt. 1.8.89 whereby the award given by arbitrator was made rule of the court.
2. The facts in brief are that the appellant is a company registered under the Companies Act. Respondent No. 1 is a registered firm having its registered office at Calcutta and brench office at Udaipur. The appellant and respondent No. 1 entered into an agreement Ex. 1 on 14.5.81 for excavation and removal of overburden at Jhamarkotra Mines, Udaipur on a turn-key basis for excavation, removal transportation including loading and unloading, disposal clumping, dozing, levelling and spreading etc. of over burden at the specified dump yards including final dressing of the mine benches, faces and sides etc. and incidental mining rock phosphate are encoundered during the excavation of over burden, its transportation orestacks etc. The contract is for a period from 31.3.81 to 12.6.84 for the quality of 21.15 lacs cubic mis. subjects to plus minus 10% at the fixed rate of Rs. 35.80 all inclusive per cubic meter in respect of over burden and/or are actually excavated mined, removed etc. Clause 17 of the agreement reads as under:
Clause 17 Blasting Operation : It is express term of this contract that while carrying out the excavation/Mining operations from the aforesaid areas, blasting wherever required, shall be undertaken by the contractor at his cost. The remuneration payable under this contract for the work aforesaid is inclusive of this element which includes cost of explosives, its accessories, transportation, salary and wages of its crew/blasters etc., or otherwise....
Clause 18 of the agreement Ex. 1 reads as under:
The rate aforesaid shall remain firm, fixed and binding during the currency of this agreement till the issue of certificate irrespective of any fall or rise in the cost of mining operations of the work covered by this contract or for any other reason or any account or any ground whatsoever.
Clause 73 of the agreement dated 14.5.81 provided for settlement of disputes and difference 'arising cut of' or 'in any way touching or concerning the contract' by a sole arbitrator to be appointed by a Managing Director of the appellant company.
The respondent vide letter dt. 7.9.83 (Ex. C-46) raised certain disputes and claimed certain reiunbursements and/or additional payment and/or compensation for the alleged breach of the contract by the Rajasthan State Mines & Minerals Ltd, (hereinafter referred to as the appellant Company) but the appellant Company refuted the claims of compensation and/or additional payment of remuneration as to escalat on in the rates over and above Rs. 35.80 per cubic meter, as per Clause 18 of the agreement. On the notice of the claimant dt. 10.11.84 (C-55), the matter was referred to the arbitrator as per Clause 73 of the agreement. Mr. C.S Jha, Chairman-cum-Managing Director, Bihar State Mineral Development Corporation Limited, Ranchi was appointed as a sole arbitrator on by the appellant Company on 5.2.85 (Ex. C-57). A supplementary agreement was entered on 31.1.1985 extending the completion upto 30th September, 1985, which was subsequently extended upto 31st December, 1985. The respondent M/s. Eastern Engineering Enterprises filed a statement of claims in respect of eight items on 19.3.1985. The claim statement contained to following eight items:
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Claim No. Description of claim Relief claimed Remarks
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1 2 3 4
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1. Claim for increase in rate for Claimed reimbursement @ Originally reimbursed
excavation work at the Foot- Rs. 25.40 per cu. m. upto at the rate of Rs 25.40
wall area demand for case- Aug. 83 & thereafter @ was claimed vide letter
lation in the existing rates of 63.56 per cu. m. Over and dated 7.9.1983
excavation above the contract rate of
Rs 35.80 Cu.m. In all claim
under this item quantified
for Rs 1,36,43,218/.
2. Claim for increase in costs of Claimed reimbursement @
work due to use of high explo- Rs. 1.80 per Cu.m. for all
sives instead of use of ANFO excavation done to be done
mixture. under the contract using
high explosivex instead of
ANFO mixture.
3. Claim for reimbursement for Claimed reimbursement of
losses suffered due to non- Rs. 22.55 lacs by way of loss
availability of explosive. during the period February,
1983 to May 1983.
4. Claim for reimbursement of Claimed reimbursement of
additional costs for mining and additional costs at the rate
transport of ore. of Rs. 6/- per ton towards
mining and Rs. 4/- per ton
towards additional tran-
spoliation to the crusher.
Total @ Rs. 10/- per ton for
47856 tonnes of Ore and mixed
Ore upto 31st December, 1984
quantifying claim of Rs.
4,31,890/-.
5. Claim for reimbursement of Claimed reimbursement
additional expenditure incu- @ Rs. 1.82 per Cu.m. for
rred on account of agreement excavation done/to be done
with RPMS. on account of respondent
entering into an agreement
with RPMS dated 26.5.81
Ex. C/I of the Arbitration proceedings. Additional costs
quantified @Rs. 1.80
per Cu.m. in letter dated
7.9.1983 Ex.C/46 page 9.
6. Claim for release of additional Claimed release of duly
securities deposit. discharged Bank
Guarantee of Rs. 51 lacs on
account of Addl. Security
deposit.
7. Claim for reimbursement of Claimed reimbursement of
additional expenses on account Rs 0.90 per Cu.m. of exca-
of revised wage structure w.e.f. vation done since 1.4.83 or
1.4.1983. to be done thereafter as per
Ex. C/58 and C/68.
8. Interest Claimed interest for the
amount of Award @ Rs. 18%
per annum from 1.4.85 to
the date of payment or
decree whichever is earlier.
The appellant filed its reply to claim on 23.4.85 denying all the claims. The arbitrator after considering the evidence and material on record gave an interim award pertaining to item No. 2, 3 and 5 for Rs. 65 lacs on 20.9.85. The claimant filed an application on 17.10.85 Under Section 14(2) and 17 read with 41 of the Arbitration Act and prayed that the direction be issued to arbitrator to submit the award in the court to make the interim award 'rule of the court' and to pass decree. Notice was given, on 9.12.1985, the original interim award was received in the court and the appellant company filed its objection on 18.1.86. The Company filed its reply on 16.8.86 and 25.2.87. The court framed as many as 12 issues. During the pendency of proceedings final award was passed by the sole arbitrator on 18.2.86 awarding claim of Rs. 1.7 crore. Thereafter a corrigendum was issued by the arbitrator on 1.3.1986. The claimant again filed an application Under Sections 14(2) and 17 read with 41 of the Arbitration Act. Notice was given to the Company. The award was received in the court on 22.3.86. The Company filed objections Under Sections 30 and 33 of the Arbitration Act on 15.5.1986. Both the matters were consolidated Reply was filed on 30.8.86 and on 25.2.86 and the court framed as many as 16 issues. Evidence of K.C. Gupta and N.L. Bansal were taken and they were examined and written submissions were made. The learned Distt. Judge after considering material on record and written submissions declared award as 'rule of court' and passed a decree for Rs. 1.7 crore. Hence, the Company has filed this misc. appeal.
3. Mr. H.M. Parekh, learned Counsel for the appellant has submitted that the learned Dist. Judge has acted, without jurisdiction in accepting the interim as well as the final award. He has submitted that the award can be set aside as the arbitrator has ignored fixed rate as mentioned in Clause 17 and 18 of the agreement and traveled beyond its jurisdiction. He has also submitted that the arbitrator has wrongly awarded extra amount despite rate was fixed, this is an error apparent on the face of award and thus the arbitrator has legally misconducted. He has further submitted that the arbitrator has erred in issuing corrigendum without hearing the appellant. Lastly, he has submitted that the arbitrator has been influenced by Mr. K.L. Sehgal and the judgment of learned Dist. Judge whereby the award was made rule of the court is liable to be set aside, in this miscellaneous appeal. He has placed reliance on Associated Engineering Co. v. Government of Andhra Pradesh : [1991]2SCR924 , Continental Construction Co. Ltd. v. State of M.P. 1986 (3) S.C.C. 82 & 1988 S.C. 1166, Alopiprasad & Sons v. Union of India : [1960]2SCR793 , Vie Managing Director J & K Handicrafts Jammu v. Goodluck Carpets 1990 S.C. 864 and K.P. Poulose v. State of Kerala and Anr. : AIR1975SC1259 . Jeevaraj Bhai Seth v. Chintaman Rao A.I.R. 1965 S.C. 2147.
4. Mr. L.R. Mehta, learned Counsel for the respondent has supported the award given by the arbitrator and the decree passed by the learned lower court. He has submitted that the award is a non-speaking one for a lump sum without specifying the claim wise amount and even the contract has not been referred to in the award, therefore the same cannot be locked into for determining the validity of award. That apart the point of exceeding jurisdiction was not pressed before the learned lower court and now it cannot be allowed to be raised when it has succumbed to its jurisdiction. He has placed reliance on Sudarshan Trading Co. Govt. of Kerala : [1989]1SCR665 , State of A.P. v. R.V. Rayanim : [1990]1SCR54 , U.O.I. v. Shakambari & Co. 1991 (2) C.C.C. 57 (Cal.), Reserve Bank of India v. Raj Engineering Construction A.I.R. 1991 Ker. 32, Malabar Cement Ltd. v. P.P. George 1990 (1) C.C.C. 58 (Kerala) and U.O.I. v. Abhoy Sarkar 1991 (3) C.C.C. 354 (Cal.).
5. As agreed by learned Counsel for the parties, this appeal in finally heard at the admission stage.
6. I have heard Mr. H.M. Parekh, learned Counsel for the appellant and Mr. L.R. Mehta, learned Counsel for the respondent and have perused the record as well as the case-law cited by learned Counsel for the parties.
Now, I discuss the cases cited before me.
7. In the Managing Director J & K handicraft Jammu v. Goodluck Carpets 1990 S.C. 864, the Supreme Court did not agree with the submission that the award was totally non-speaking but as there was a resume on the incentive scheme and agreement and therefore the specific ground of challenge to the effect that the arbitrator had allowed claim neither contemplated by the incentive scheme nor by the agreement whereunder the reference was made was accepted and the award was set aside partly.
8. In Jeevaraj Bhai Seth and Ors. v. Chintaman Rao (supra) A.I.R. 1965 S.C. 2147 the court 'in dealing with an application to set aside an award by the court is not to consider whether the view of the arbitrator is justified. The Arbitrator's adjudication is generally considered binding between the parties, for he is a Tribunal elected by the parties and power of the court to set aside the award is restricted to cases set out in Section 30 of the Arbitration Act, 1940. It is not open to the court to speculate. Where no reasons are given by the Arbitrator, as to what impelled the Arbitrator to arrive at his conclusion, the assumption that the arbitrator must have arrived at his conclusion by a certain process of reasoning, the court cannot proceed to determine whether the conclusion is right or wrong. It is not open to the court to attempt to prove the mental process by which the Arbitrator has reached his conclusion where it is not disclosed by the terms of the award. In this case, the dispute relates to the partnership business and the partnership deed or agreement was incorporated in the reference and the Arbitrator gave award in disregard to partnership agreement, then the court held that the jurisdiction of the Arbitrator was restricted by the partnership agreement. It the Arbitrator travels beyond the jurisdiction or specific terms of agreement, then the court can find he has exceeded his jurisdiction such an award is said to be beyond Arbitrator's jurisdiction and is invalid. In K.P. Poulso v. State of Kerla : AIR1975SC1259 the main contention was that the Arbitrator has committed legal misconduct in ignoring two main documents, even if these documents were not pleaded before the Arbitrator, the Arbitrator should have summoned for these documents and should have looked into than whether they are material. In such circumstances the court set aside the award.
9. In Continental Construction Co. Ltd. v. State of M.P. (supra) A.I.R. 1988 S.C. 1126 the question involved was with regard to extra cost and in view of the specific clause of the agreement, the appellant was entitled to claim for extra cost. The clauses in the contract started that a contractor had to complete work inspite of rise in the price of materials and also rise in labour charges at the rates stipulated. As the work of the construction could not be completed in time by contractor on account of delay on the part of the state. Contractor claimed extra cost which was refused, matter was taken to the court and an Arbitrator was appointed in terms of the contract. Arbitrator gave award and was sent to court, on which basis the decree in terms of award was passed. On appeal the case was remanded to the lower court for fresh decision. Lower court accepted the objections and set aside the award. On appeal High Court also dismissed it, then this special leave petition to the Supreme Court. ; While discussing the facts of the case, the court in para 5 has laid down that three legal issues were referred to Arbitrator and the State raise the legal issues before the arbitrator which he did not decide. In such circumstance of the case the court held that the award given by the Arbitrator, the appellant was not entitled to claim extra cost in view of the terms of the contract and the Arbitrator misconduct himself in not considering this objection of the respondent state before giving award. It was not open to the appellant to claim extra cost towards rise in prices of material and labour. The Arbitrator misconducted himself in not deciding the specific objection raised by the State regarding the legality of extra claim of the appellant.
10. In Associated Engineering Co. v. Government of A.P. and Anr. (supra) 199 (3) J.T. 123 in this case award was made by the Arbitrator ort certain items which was later on made rule of court and the court passed decree in terms of award. On appeal in High Court set aside the decree and award on some of the items namely item No. III, VI and IX and accepted the decree on other items. High Court disallowed these items on the round that the award was against the terms of the contract. In this case Arbitrator made reference to the contract in the award and made reference to certain provisions of contract and gave reasons for maing award. In such circumstance, the Supreme Court has held 'if the Arbitrator travelled outside the bounds of the contract, he has acted without jurisdiction, and it is also an error apparent on the face of it and by paing so he commits misconduct by his award if he decides the matter outside the contract.
11. Union of India v. Shakambari & Co. (supra) 1991 (2) C.C.C. 57 the question was whether the arbitration award is a non-speaking and does not incorporate the term of the contract. In this case there are certain matters which are excepted matters in the contract. Arbitrator while giving award allowed all item for which reference was made by him and the same was upheld by the High Court, in single Bench. Hence, on appeal to Division Bench was preferred. It was contended that the award is without jurisdiction is arbitrator considered items which were excepted in the contract, and thereby misconducted himself and he has filed to consider certain material documents which amounts to legal misconduct. In this case, the Division Bench while dealing with the contention of the appellant held that 'that the appellant did not raise any objections about the arbitrators jurisdiction on the alleged excepted matters any stage before the Arbitrator' the award cannot be tested whether it is good or bad with reference to the agreement since it was incorporated in the award. Another contention of the appellant was that the Arbitrator made an award in disregard of the terms of the contract and as such misconducted. It was held that it is not open to the appellant to attack the award in this Court because parties invited arbitrator to give a decision inrespect of matter claimed by the respondent without any reservation so there is no misconduct on the part of arbitrator. It was further held that 'it is not open to the appellant to invide this Court to test the validity of the award with reference to the terms of the contract in question and the award was upheld.
12. In Malabar Cements Ltd. v. P.P. George and Anr. (supra) 1990 (1) C.C. 58 in this case an agreement was entered into between the parties for construction work with regard to township. The work was to be completed in terms of the agreement in the stipulated time but the same was extended from time to time. There was an arbitration clause in the agreement in case of dispute between the parties. Contractor raised several disputes and filed a suit. On application a reference was made to the arbitrator for deciding issue No. 7 in the suit was the terms of reference. The arbitrator passed an award and gave nonspeaking award and allowed some of the claims of the contractor. Company filed this appeal. It was contended that arbitrator made award in disregard of the agreement, as much he has no jurisdiction and has his conducted. It was held that 'it is now not open to the appellant to attack the award in this Court because parties invited arbitrator to give a decision in respect of matter claimed by the contractor.' Another contention was that the Arbitrator has misconducted in awarding consolidated amount without disclosing any reason. Relying on Santa Sila v. Dhirendra Nath : [1964]3SCR410 it was held that 'an award is good, notwithstanding the arbitrator has not made a distinct adjudication on each or any of the several distinct matters submitted before him, provided he has not excluded any.' It was further observed that 'the court shall approach an award with a desire to support. If it is reasonably possible rather than distorting by calling it illegal.' It is clear that unless a reference to the arbitration specifically so requires the arbitrator is not sound to deal with each claim or matter separately but can deliver a consolidated award, and is no ground to set aside the award in this court. Another contention is that the arbitrator has misconducted in proceedings in awarding cost of escalation contrary to the terms of agreement between the parties. Even if the award does not give any reason in the conclusion reached by the arbitrator, even if the conclusion are wrong. It is not open to the court to interfere with the award. The Supreme Court in Sudarsan Trading Co. v. Govt. of Kerla 1989 (1) K.L.T. 534 has held 'that appraisement of evidence by the arbitrator is never a matter which the court questions and considers. In the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as quantity of evidence and it will not be for the court to take upon itself the task of being & judge on the evidence before the arbitrator that too when the specific questions are referred, the award is not liable to be set aside on the ground or error on the face of award, even if the answer to the question involves an erroneous decision on a point of law and it is not open to the appellant to challenge the award as one going beyond the agreement between the parties.
13. In Union of India v. Shri Abhoy Sarhar and Anr. 1991 (3) C.C.C. 354 contract for construction of station building was entered between the parties and contract was to be completed within specific time but it was not completed within the prescribed time and by mutual consent further time was granted for completion of contract. A dispute arose and matter was referred to the arbitrator. Respondent submitted 14 items and claimed Rs. 8 lacs and odd together wit hinterest. Arbitrator awarded Rs. 2 lacs and odd with interest. It was contended that the arbitrator did not apply his mine and award was made in breach of Clause 17(2) and (3) of the eastern salary General Condition of Contract. By overlooking the General conditions of Contract and provisions, the arbitrator misconducted himself. It was held that the arbitrator considered clauses of the contract including 17(2) and (3) the arbitrator had the jurisdiction to in expire be claused and while interpreting the clauses he awarded conginsation and there is nolegal misconduct as the part the arbitrator. The arbitrator awarding excalation court or delary in railway has not committed legal misconduct.
14. In...the contract for completion of work. Several extensions were granted but respondent failed to complete the work. Notice was issued to terminate the contract. Respondent served with a notice why the work was not completed in time. The appellant filed a claim for damages in the court. An application was filed by the respondent to settle the dispute between the parties by Arbitrator. The court appointed arbitrator. The arbitrator submitted the award staling therein that the appellant was responsible for slow work. The appellant filed cross objections against the award on the ground that the arbitrator misconducted himself in not framing proper issue; whether or not the claimant abandoned the work and thereby committed breach of agreement. Court rejected all the objections. An appeal was preferred. It was held that there is nothing to show that arbitrator had misconducted himself or the proceedings in any other manner nor there is anything to show that the awards have been improperly procured. Under the circumstances of the case, the court is to held that the court is unable to hold that the awards made by the arbitrator is bad for not recording reasons.
15. In State of Andhra Pradesh v. R.V. Rayahim : [1990]1SCR54 The Supreme Court has held that the court can look into the agreement if the arbitrator has exceeded his jurisdiction and incorporated argument in his award, otherwise not. The award with regard to total sum is so as he finds admissible inrespect of claims which the arbitrator has adjusted is no ground to intergere with it.
16. In Reserve Bank of India v. Raj. Engineering Constructions : AIR1991Ker326 it has been held in this case that where the terms of contract or agreement are not incorporated in the award or when the agreement is not part of award, the court has no power to consider various clauses in the agreement nor set aside the award.
17. In Indian Oil Corporation Ltd. v. Indian Carbon Ltd. : [1988]3SCR426 where the reasons are given in the award by the arbitrator then the award cannot be set aside simply on the ground that detailed reasons for arriving at the conclusion are not given.
18. In Stale of Orissa v. Lall Brothers : AIR1988SC2018 the fact that there is an unreasoned award is no ground to set aside the award. Lump-sum award is not bad per-se. As such an award is conclusive as a judgment between the parties and the court is entitle to set aside an award only on the ground that the arbitrator has misconducted himself in the proceeding or error appellant on the...it in open to the court to speculate, where no reasons are given by the arbitrator, as to what impelled him in arriving at his conclusion. The fact that lump-sum is no ground to declare the award bad.
19. Now I proceed to deal with the contentions of the parties.
20. The award can be set aside if case comes within the purview of Section 30 of the Arbitration Act. From the perusal of the case law cited by the learned Counsel for the parties, the position of law which emerges out is that the court can interfere in the award if it frustrates the contract itself, when the arbitrator has acted without jurisdiction i.e. exceeded his jurisdiction or there is an error apparent on the face of record. In other words, the proceedings before the arbitrator, if in the reference or in the award the agreement is referred, or where the agreement has become a part of the award and the jurisdiction of the arbitrator is restricted, in such a case where the arbitrator incorporated the terms of the contract in his award but did not deal with then or the objections raised have not been dealt with, then it means that the arbitrator has acted without jurisdiction and an error is apprent on the face of it and amounts to legal misconduct. Now, I deal with the first contention of Mr. Parekh, that the dispute of higher rate could not be examined by the arbitrator when the rate was already fixed in the contract as per Clause 17 and 18. In counter Mr. Mehta contends that mere using the word over-look and go-away the jurisdiction without substantiating the same, the jurisdiction of the arbitrator cannot be ousted. The point of jurisdiction was not raised before the arbitrator and now the appellant cannot raise the same in this case. A perusal of record shows that, the respondent vide its letter dt. 7.9.83 (C-46) raised certain disputes claiming certain reimbursement with compensetion for excavation for cubic wt. work. The appellant company refuted the claim vide its letter dt. 10/11.9.84 (C-55) on the ground that as per Clause 17 and 18 rates are fixed @ Rs. 35.80 per cubic mt. A notice dt. 10.11.84 (C-56) was sent to the Managing Director of the appellant company invoking power to reference as per Clause 73 of the agreement and vide letter dt. 5.2.85 (C-57), the Managing Director appointed Shri C.S. Jha, as sole arbitrator 'to decide alliclaims raised by to contractor claimant.' A perusal of the letter dt. 5.2.85 goes to show that there is nothing by which the arbitrator was restricted with regard to rate, on the contrary he was asked to decide all the claims raised by the contractor without any clarification. The appellant raised objection in view of Clause 17 and 18 of the contract in his reply to the claim petition but he has not raised this point before the arbitrator and thus the arbitrator has not discussed it. The arbitration proceedings show that the appellant participated in the proceedings throughout but as stated above never pressed his objection raised in the reply. On the other hand record of the arbitration proceedings further go to show that on the basis of their pleadings and documents the arguments were heard on certain items claim wise by the consent of the parties. The parties desired and agreed to have an interim award of the claims No. 2, 3 and 5 and on the joint request with a clear understanding and it was agreed that the arbitration proceedings shall continue to enable the arbitrator to give final award. The interim award dt. 23.9.85 was given awarding a lump sum of Rs. 65 lacs to the claimant but there was no reference of the agreement in this award. As stated above, this award was challenged in the court and issue No. 2 was framed in this regard. The arbitrator as examined documents, evidence and contention of the parties and after inspecting site passed final award on 18.2.86 without giving any details of the agreement. It is pertinent to note that the arbitration proceedings took 6 months time to complete it and the appellant participated in it from the very beginning. As already stated the appellant never asked the arbitrator to decide his objection at initial stage or final stage, this conduct of the appellant goes to show that he has waived the objection, other wise he must have asked the arbitrator to decide his objection at proper stage. It is not out of place to mention here that the claimant raised a specific dispute as regards the enhancement of rate on 13/17 July, 1981 against rate fixed as per Clause 17 and 18 alongwith other disputes. As per information to the respondent dt. 25.8.83 (c/44), the same was considered by a high power committee constituted of the main officers of the appellant company and it found vide its report Ex. 4 that due to raise in price the claimant is entitled to get extra amount in addition to rate mentioned in Clause 17 and 18 and the same can be disposed of in view of Clause 73 of the agreement by the arbitrator, of the contra it held company liable for the delay in work. Therefore, it cannot be said that the committee has not considered the Clause 17 and 18. The committee while recommending the matter should have that in dispute can beraised in view of Clause 17 and 18 of the contract and at the same to it could have referred on a limited point or could withhold the point of Clause 17 and 18 and in any case when the Managing Director by his order dt. 5.2.85 referred the matter after about 4 years of dispute to arbitrator to decide 'all the claims raised by the contract or' the appellant ought to have referred the point of jurisdiction before the arbitrator itself and could get it decided by the arbitrator first but by not doing so it has succumbed to the jurisdiction of the arbitrator. Furthermore, the point of exceeding jurisdiction was never raised before the learned District Judge. The only issue No. 5 (in civil Misc. 45/86 against interim award) and issue No. 2 (civil Misc. No. 151/91) against the final award) framed in regard to clause No. 17 and 18 were decided against the appellant. Therefore, the argument of Mr. Parekh that they had no option but to refere the matter appears to be unfounded. It is true that law need not to be pleaded only facts are to be pleaded and mere alleging the words like over-look or go-away will not serve the purpose but at the same time the facts are to be pleaded for substantiating it to oust the jurisdiction. It is also true that a legal point which goes to the route of the case can be raised at any time but as discussed above after reference the appellant has never raised this point of exceeding jurisdiction and as in fact he has not challenged jurisdiction of the arbitrator. As such this point in the garb of jurisdiction cannot be allowed to be raised at this stage. Under the circumstances; the case-law cited by the appellant, Associated Engineering Co. v. Govt. of Andhra Pradesh (supra) in which the agreement was found to be incorporated in the award and further the objection regarding lack of jurisdiction was taken from the very beginning is not applicable as in the present case no such objection was taken and the agreement was not incorporated in the award, the case of Continental Construction Co. v. State of Madhya Pradesh (supra) is clearly distinguishable in as much as the relevant clauses of the contract were referred in the...same is not referred in the case in hand, the case of Alopi Prasad & Sons Ltd. v. Union of India (supra) has no bearing to the facts of present case as in that care there was no specific reference of any question of law to the arbitrator and thus the award was set aside, the case of Jeevaraj Bhai Ujaamshi Seth v. Chintaman Rao Balaji (supra) is also not applicable as in that case award was detailed one and resume of the award was given in the award and the objection to jurisdiction was taken, and the case of Managing Director J & K. Handicrafts Jammu v. Gookluck Carpets is distinguishable for the simple reason that in that case the arbitrator had allowed claim neither contemplated by the incentive scheme nor by the agreement whereunder the reference was made while in the present case there are no such facts, and all the aforesaid cases are not helpful to the appellant.
21. The second contention of Mr. Parekh is that the arbitrator had no power to issue corrigendum on 1.3.86 after giving final award on 18.2.86 to correct the rate of claim No. 2 and that correction in any case could only be made after due notice to the appellant. He has placed reliance on State of Kerala and Anr. v. Joseph Vilangandan : AIR1990Ker276 .
22. In State of Kerala v. Joseph Vilangandan (supra) while dealing with the power of arbitrator Under Sections 16 and 13 of the Arbitration Act, 1940 it was observed that even after remand all original powers of the arbitrator so far as they are not affected by the order of remission, or the provisions of the Arbitration Act are revived. But the powers and duties of the arbitrator shall not exceed those which are essential to give effect to the remand order. It was further observed that the arbitrator cannot rectify mistake without notice to the parties and without observing rules of judicial procedure.
23. Under Section 13(d) of the Arbitration Act, 1940 power has been vested on the arbitrator to correct any clerical mistake or error arising from any accidental slip or omission. This is a power, the arbitrator can exercise suo-motu. While changing the rate, the arbitrator observed that at page 4 in line 10 form the top of the page rate for claim No. 2 has been typed Rs. 0.45 per cu.m. and the correct figure is Rs. 0.75 per cou.m. and it was also uneffected. The learned Dist. Judge framed issue No. 3 in this regard and after considering gave its finding in favour of the claimant. : [1967]1SCR105 correction was make behind the back of Union of India and it was held that Union of India suffered no prejudice as the sum awarded to the contractor was not changed.
24. Therefore, under the facts or circumstances of this case in view of the above case, the corrigendum issued on 1.3.86 by the arbitrator is within his competence and no prejudice has been caused to the either side as no change in the ultimate amount has been made. The decision of Kerala High Court in State of Kerala v. Joseph (supra) is not applicable to the facts of the present case as in that case the case was remanded and the arbitrator was called upon to exercise his power in terms of the remand order but he exceeded the remission order whereas in this case the corrigendum was issued suo-motu by arbitrator before the award was remitted to the court. Thus, the learned Dist. Judge has rightly decided this issue in favour of the respondent and keeping in view the finding arrived at by the learned Dist. Judge on the facts of this case, I am of the opinion that the award cannot be set aside on this basis.
25. Lastly, Mr. Parekh has contended that Mr. K.L. Sehgal is known to the arbitrator Mr. C.S. Jha and influenced him. In this regard suffice it to say that the appellant company was knowing this fact that Mr. C.S. Jha, the arbitrator had one time worked as an expert in Hindustan Zinc Smelter, Udaipur despite that the Managing Director of the Company on which power has been conferred to appoint arbitrator as per Clause 73 of the contract appointed Mr. C.S. Jha as a sale arbitrator on 5.2.85 even knowing these facts well. Mr. K.L. Sehgal was present in the proceedings on 30.7.85, 31.7.85, 20.8.85 and 23.9.85 and Mr. K.P. Gupta has admitted in his statement that he never raised any objection in this regard earlier. The learned Dist. Judge framed is ue No. 6 and decided issue No. 6 and 7 in favour of the claimant. In the absence of satisfactory evidence or objection and without there being any material on record, it cannot be Said that Mr. Sehgal has influenced Mr. Jhe merely on the basis of acquitance and the contention that Mr. K.L. Sehgal has influenced the arbitrator has no substence. Thus, the learned Dist. Judge has rightly decided issues in favour of the claimant and I find no error in finding, so as to set aside the award on this count also. The contention of the learned Counsel for the appellant has no substance.
26. As discussed above, in the present case, the appellant company appointed Mr. C.S. Jha as a sole arbitrator and made a reference. The arbitrator derives his power from reference which furnishes the source and prescribes the limit of his authority as in this case the arbitrator was asked to decide all claims raised by claimant contractor. The Company allowed the arbitrator to allow with the proceedings without pressing its objection of jurisdiction or competence. Thus, now the court would not permit the appellant company to limit the scope of reference to any particular clause of agreement when it has referred all the disputes and to lie by or act in an indecisive manner so as to obtain the benefit of award if it is in his favour and endeavour to set it aside, if it is not on the ground of jurisdiction. The final award has also been published on 18.2.86. Admittedly the award is non-speaking one for a lump-sum without specifying the amount claim wise, making no reference of agreement which as per the decision of Apex Court is not bad in law and I have no hesitation to say that the arbitrator has not exceeded his jurisdiction. Moreover, the arbitrator has not legally misconducted himself or the proceedings nor the award is improperly procured. The award is in accordance with law and the arbitrator has not committed any error on the face of record. The learned Dist. Judge has considered all disputed points and after considering so, made award rule of court. In view of this, the award and decree passed by the learned Dist. Judge are not liable to be set aside and the same require no interference by this court.
No other point was pressed before me.
27. In the result, this appeal is dismissed having no force with cost. The judgment and decree passed by the learned Dist. Judge are maintained.