Full Judgment
A. Pasayat, J.
1. The appellant filed a petition Under Section 16 of the Arbitration Act, 1940 (in short the Act) before the learned Subordinate judge, First Court, Cuttack with a prayer to remit the award dated 27. 11. 1981 submitted by the Arbitrator for reconsideration of certain aspects, which according to the appellant, were left undetermined.
2. The factual background in which the application was filed before the learned Subordinate Judge is as follows :
The appellant is a handling transport contractor and had entered into agreement with the respondent-corporation for loading and transportation jobs. The appellant lodged a claim that he was entitled to additional remuneration for undertaking certain additional items of work not covered by the contract. Since the Corporation did not accept the claim, the matter was referred to arbitration of one Shri G.C. Chatterjee, Retired Member of the West Bengal Higher Judicial Service. After said Arbitrator submitted his award, the Subordinate Judge, First Court, Cuttack issued notice of the award to the present appellant and the corporation. The former filed an application Under Section 16 of the Act to remit the award for reconsideration, on the ground that entitlement of the claimant of 184% above the scheduled rates, was not adjudicated by the Arbitrator.
The learned Subordinate Judge held that that was not a case which was covered Under Section 16 of the Act and therefore, the application was without any merit.
3. Mr. Mohapatra, learned counsel appearing for the appellant has urged that the undisputed position being that the claimant was entitled to 184% above the scheduled rates, the Arbitrator was obliged to adjudicate that aspect and he having not done so, a portion of the matter referred to him for arbitration remained undetermined, warranting action by the learned Subordinate Judge, and therefore his order is interdicted. Mr. Murty, learned counsel appearing for the respondent corporation, submits that a perusal of the reference that was made to the Arbitrator would show that the present dispute was not referred to the Arbitrator and therefore, the question of some aspects being left undetermined does not arise.
4. The contentions need careful consideration At this juncture it would be useful to refer to Section 16 of the Act. Under; this section, the Court has power to remit the award of any matter referred to arbitration, to the Arbitrator or Umpire for reconsideration provided any or all conditions as enumerated under Clauses (a), (b) and (c) of Sub-section (1) exist. According to Mr. Mohapatra, the present dispute was one which is covered by Clause (a) of Sub-section (1). Clause (a) of Sub-section (1) comes into operation in cases where the matter which was referred to Arbitrator has been left undetermined or where there has been determination of any aspect not referred for arbitration and such matter cannot be supported without a affecting the determination of the matters referred, Section 16 gives discretionary power to the Court. The provisions of the section are statutory and discretionary. Even if some, or any, of the grounds mentioned therein are made out, the Court may, in exercise of its discretion, having regard to circumstances of the case, refuse to remit the award on the ground that substantial justice has been done or that the error has not resulted in failure of justice.
5. The claim of the claimant as appears from the claim petition is to the following effect.
'That the above service is not coming within the purview of contract and an additional item of work for which the first party is entitled to get an additional remuneration of Rs. 18, 358 .50 (Rupees Eighteen thousand three hundred fifty-eight and paise fifty only) from the 2nd party for which the 2nd party is liable to pay.'
The prayer was for determination of this aspect. The Arbitrator has adjudicated this aspect. Therefore, it cannot be said that matter which was referred to Arbitrator was left undetermined. The learned Subordinate Judge was, therefore, justified in refusing to remit the award for reconsideration. Mr. Mohapatra, however, submits that non-interference in appeal may mean that the appellant would not be entitled to 184% above the scheduled rates which is an agreed condition. I find no reason for such apprehension. If under the terms of any contract the appellant is legally entitled to any amount non-interference in appeal cannot stand on the way of the appellant's entitlement.
The appeal is accordingly dismissed. No costs.