Judgment:
ORDER
J.D. Kapoor. J.
1. The objections preferred through is 12731/95 by the respondents challenging the award dated 21st March, 1995 of the Arbitrator are mainly twofold. The first objection is with regard to the findings of facts given by the Arbitrator which according to the respondent are against the evidence and material on the record as the Arbitrator has on the one hand ignored the documents of the respondent and on the other has relied upon those of the petitioner/claimant. The second objection is that the Arbitrator has gone beyond his jurisdiction by ignoring the relevant provisions of the agreement inasmuch as the statutory deductions on account of Income Tax, water and electricity have not been allowed by the Arbitrator. Further the Arbitrator has ignored the fact that the time was essence of the contract and inspire of the fact that the delay was on the part of the claimant the Arbitrator has awarded the enhanced compensation on account of the delay on the part of the respondent whereas the respondent had rescinded the contract for the delay on the part of the petitioner/claimant. The award as to 15% increase in rates on account of the work carried out beyond the stipulated date is against clause 10(c) of the agreement. Objection has also been raised with regard to the pre-suit interest which according to the respondent is not permissible under the law.
2. On the factual matrix the main objection is with regard to the claim No.1 as the remaining claims are either ancillary to or off-shoot of claim No.1. Claim No.1 was awarded on account of extra works, extra items, short measurements and non-payments or short payments. It is contended that the Arbitrator was precluded from taking corner to corner measurements of window frames whereas he should have taken into account the centre to centre measurements. Further the agreed weight of the steel was 7.11 kg per meter but the contractor used 7.85 kg per meter which was not in accordance with the standard weight and thereby the claim of the petitioner was inflated. Further the claim was towards providing and fixing the grills whereas the Arbitrator has awarded the welding charges for the fixing of the grills which as per the respondent was included in the fixing. Lastly the Arbitrator fell in error in not taking the statutory deductions as provided in Schedule of quantities at page 99 of the agreement. According to this Schedule 1% water charges, 2% Income Tax was to be deducted. Similarly the rebate of 1% on secured advance, 2% rebate on monthly payments and 2% on final bill was to be deducted. The provisions of rebate were not taken into account by the Arbitrator.
3. It is settled law that the Court does not sit in Appeal nor is it required to go into the mind of the Arbitrator as to the findings of facts or interpretation of construction of the terms of the agreement. Unless and until the award or the terms of the agreement. Unless and until the award or the interpretation or the judgment is completely perverse, the award need not be interfered with. There is unvarying unanimous current of judicial opinion that the award is not open to challenge either on erroneous opinion as to the legal proposition where two views are possible or unless and until there are substantial allegations as to the bias or unfairness on the part of the Arbitrator the Award should not be tinkered at all. If the findings of the Arbitrator are adjudged, scrutinized or scanned by way of appeal the very purpose of object of the law of Arbitration would stand frustrated and defeated. Rather such an exercise by the Court would be counter-productive and is, thereforee, beyond its purview.
4. In cases after cases the Hon'ble Supreme Court has cautioned the Courts not to set aside or remit the award merely on account of there being error in respect of finding of fact or construction of the terms of the agreement or the method employed by the Arbitrator in arriving at any kind of conclusion unless perversity is writ large on the face.
In M/s Hindustan Tea Company Vs . M/s k.Sashikant & Company and Anr. : AIR1987SC81 the Supreme Court has observed 'where the award is a reasoned one and the objections raised against the award are such that they cannot indeed be taken into consideration within the limited ambit of challenge admissible under the scheme of the Arbitration Act, the award is not open to challenge on the ground that the Arbitrator has reached a wrong conclusion or has failed to appreciate facts. Since under the law the Arbitrator is made the final arbiter of the dispute between the parties to challenge or reopen the findings of facts is not permissible unless the Arbitrator has completely gone beyond the terms of agreement or travelled beyond its parameters'.
6. In Goa, Daman & Diu Housing Board Vs . Ramakant V.P. Darvotkar : [1991]3SCR904 it was held that Section 16 empowers the Court to remit the awards to the Arbitrator for reconsideration only in three cases specified therein. Clause(c) of Section 16(1) provides that the award shall be remitted to the Arbitrator by the Court where an objection to the legality of the award is apparent on the face of it. Unless the Arbitrator is guilty of misconduct for his failure to give reasons or there is anything to show that the award has been improperly procured and there is allegation on the finding that the arbitrator was biased or unfair or he has not heard both the parties or he has not fairly considered the submissions of the parties in making the award in question, the award cannot be set aside or remitted.
7. In two recently decided cases namely Himachal Pradesh State Electricity Board Vs . R.J. Shah & Company : [1999]2SCR643 and Arosan Enterprises Ltd. Vs . Union of India & Anr. : AIR1999SC3804 the observations of the Supreme Court are more scathing in nature with regard to the objections of the kind which have been raised in the instant case. In Himachal Pradesh's case(supra) the Supreme Court has held that where the dispute before the Arbitrators clearly related to the interpretation of the terms of the contract it was held to be not a ground for setting aside the award or remitting the same and that when the Arbitrator is required to construe a contract then merely because another view may be possible the Court would not be justified in construing the contract in a different manner and then to set aside the award by observing that the arbitrator has exceeded the jurisdiction in making the award. However observations of the Supreme Court in this regard need to be reproduced and are as under:-
'To determine whether the arbitrator has acted in excess of jurisdiction or not the Supreme Court has laid the criteria that what has to be seen is whether the claimant could raise a particular dispute or claim before an arbitrator and if the answer is in the affirmative then it is clear that the arbitrator would have the jurisdiction to deal with such a claim and on the other hand if the arbitration clause or a specific term in the contract or the law does not permit or give the arbitrator the power to decide or to adjudicate on a dispute raised by the claimant or there is a specific bar to the raising of a particular dispute or claim then any decision give by the arbitrator in respect thereof would clearly be in excess of jurisdiction'.
8. In Arosan Enterprises Ltd. Vs . Union of India & Anr. : AIR1999SC3804 the Supreme Court considered almost every possible eventuality and every kind of objection which is being raised by the Government authorities day in and day out. The Observations are terse and as under:-
'Reappraisal of evidence by the Court is not permissible and as a matter of fact exercise of power by the Court to reappraise the evidence is unknown to proceedings under Section 30 of the Arbitration Act. In the event of there being no reasons in the award, question of interference of the Court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the Court unless of course, there exists a total perversity in the award or the judgment is based on a wrong proposition of law. In the event however two views are possible on a question of law as well, the Court would not be justified in interfering with the award. The common phraseology 'error apparent on the face of the record' does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The Court as a matter of fact, cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is possible view the award or the reasoning contained therein cannot be examined.'
9. Another significant observations of the Supreme Court made in Municipal Corporation of Delhi Vs . M/s Jagan Nath Ashok Kumar and another : [1988]1SCR180 need to be quoted and are as under:-
'Appraisement of evidence by the arbitrator is ordinarily never a matter which the Court question and considers. The parties have selected their own forum and the deciding forum must be conceded the power of appraisement of the evidence. It was further held that the Arbitrator is the sole judge of the quality as well as quantity of evidence and it will not be for the Court to taken upon itself the task of being a judge of the evidence before the Arbitrator. It may be possible that on the same evidence the Court might arrive at a different conclusion than the one arrived at by the arbitrator but that itself is no ground for setting aside the award of an Arbitrator.
10. The objections raised by the respondent in the instant case when tested on the anvil of the ratio of the law governing the rejection, acceptance or remittance of the award prove damp squib and have been raised merely for the sake of objections and to justify the acts of commission and omission on the part of the respondent and to cover up their own wrongs.
11. As regards the objection that the compensation awarded on account of delay is not based upon the facts and evidence, the boot is on the other leg. The reasons given by the Arbitrator are quite sound and based upon the documents. Since the findings as to the delay on the part of the respondent is finding of fact based upon the material and documents before the Arbitrator it also needs no interference. The award in respect of the claims 2,3,6,7,10,12 and with regard to counter-claim 1 to 6 is hereby confirmed.
12. The next question that arises for determination is whether the petitioner can be awarded pendente lite interest from the date of the award till the date of the payment or not. The Arbitrator while dealing with the claim of interest observed that since that was not part of the reference made by the Department and the Department has contended that no award can be given with regard to the interest he has no implied power to arbitrate on the claim and hence no award is made. As is apparent from the observations of the Arbitrator he did not award the interest under the conception that he has no power to arbitrate on this claim and not on the premise that the petitioner's claim as to interest was not admissible or justified.
13. There is a difference and distinction between rejection of the claim of a party being groundless and non-awarding of the claim because of the assumed non-jurisdiction of the Arbitrator. In the instant case the Arbitrator declined to make any award in this regard for the reasons that he has no power to arbitrate on this claim. The contention that once the Arbitrator has declined to award interest the Court has no jurisdiction to grant pendente lite interest is completely devoid of merit as it is only where the claim of interest is rejected on merits that the Court may no grant pendente lite interest.
14. The reliance placed by the counsel on Union of India Vs . Jain Associates : [1994]3SCR551 is misplaced as in the said case the Arbitrator had declined to award the interest and it was observed that Section 29 of the Arbitration Act carries with it the embargo that it shall no be permissible for the Court to award the pendente lite interest prior to the date of the passing of the decree. It was held that Section 34 empowers the Court to grant interest pendente lite and future interest till the date of the realisation. However the ratio of the above authority is not applicable in a case where the Arbitrator has considered the claim to the award of interest and rejected the same but where the Arbitrator the Arbitrator declines to return any finding in this regard either because of non-reference of because of assumed non-jurisdiction.
15. Since there is unanimity in the view that the Arbitrator has the power to award the interest from the date of reference and if the Arbitrator has failed to return any finding and has not awarded interest on the presumption that he has no jurisdiction to award the interest, the Court does have the power to award the interest.
16. In the result the objections being devoid of merits are hereby dismissed. The award is made a rule of the Court. The suit is decreed in terms of the awarded amount Along with pendente lite and future interest 12% per annum till the date of realisation.
17. The FDR lying deposited the favor of the Registrar shall be released to the petitioner/claimant within two weeks and the amount against the said FDR shall stand adjusted towards the decretal amount.