ORDER
Prabir Kumar Majumdar, J.
1. This is an appeal from judgment and order dated 25th July 1984 passed by learned single Judge of this court taking arbitration matter.
2. The respondent State of West Bengal made an application under Ss. 30 and 33 of the Arbitration Act for setting aside an award dated 17th September, 1983 passed by the Sole Arbitrator, a retired Judge of this Court. The respondent State of West Bengal challenged the award, inter alia, on the following grounds:
(a) the learned arbitrator travelled beyond the scope of the submission;
(b) by allowing the appellant's claim under Item No. 4(a) in the schedule, the learned arbitrator had acted without jurisdiction;
(c) the learned arbitrator by allowing the appellant's claim on idle labour had acted in express violation of the express term of the agreement under clause 24; and
(d) the learned arbitrator had misconducted seriously by awarding interest.
3. The learned counsel for the respondent contended before the court of first instance that the learned arbitrator had no jurisdiction to entertain the appellant's claim for cost and carriage of earth as these disputes were outside the purview of the agreement between the parties.
4. The next contention of the respondent before the court of first instance was that there was an express clause in the contract totally absorbing the respondent from its liability to pay for idle labour.
5. The respondent took one substantial ground before the court of first instance that the appellant admitted before the learned arbitrator that the appellant had regular books of account written in English which was kept for the purpose of income tax, In spite of repeated suggestion by the counsel for the respondent during cross-examination that the books of account in Bengali produced before the learned arbitrator were manufactured for the purpose of the arbitration proceeding and the arbitrator in breach of his duty did not direct the contractor (the appellant) to produce the regular books of account and thereby seriously misconducted himself and the proceedings in allowing the claim on the basis of the fabricated books.
6. The learned trial Judge accepted this last contention as to the non-production of accounts and set aside the award on this ground, relying on the decision of the Supreme Court in : AIR1975SC1259 (K. P. Poulose v. State of Kerala). The learned Judge, however, rejected other contentions of the respondent as made before the trial Court.
7. In this appeal, Mr. Hiranmoy Dutt appearing for the appellant, the award-holder, has submitted that impugned award is a non-speaking award and it is now settled proposition that if the contract is not incorporated in the award or any document or the contract not referred to in the award, the court cannot look into the contract nor the documents placed before the learned arbitrator to find out whether the learned arbitrator misconducted himself in not giving directions for production of the English books of accounts. It is the contention of Mr. Dutt that it will not appear from the award which account books the learned arbitrator has taken into consideration and if there was any books of account in English, whether learned arbitrator felt it necessary to direct the appellant to produce the same. Mr. Dutt also submits that it cannot be ascertained whether the production of such account books was necessary for the purpose of deciding the issue before the learned arbitrator. It is submitted by Mr. Dutt that it is not the case of either side that there was no evidence to support the conclusions taken by the learned arbitrator. He also submits that the court in a proceeding for setting aside the award cannot re-appraise the evidence led before the learned arbitrator in order to find out whether the learned arbitrator misconducted himself or the proceeding.
8. It is also contended by Mr. Dutt for the appellant that the learned Judge made a wrong appreciation of the decision of the Supreme Court in the said Poulose's case reported in : AIR1975SC1259 . Mr. Dutt submits that this decision was made on the consideration of a speaking award and further it appeared to the Supreme Court on the appraisal of the award that two material documents were filed before the learned arbitrator but not taken into consideration.
9. It is the submission of Mr. Dutt that those account books whether material documents or not could not be ascertained from the award as it is not clear whether the learned arbitrator in coming to his conclusion considered only the account books as produced and no other documents or that he based hisconclusion on the sole consideration of the accounts book placed before the learned arbitrator. Therefore, according to Mr. Dutt, the court cannot make a roving enquiry into the evidence placed before the learned arbitrator to find out what are the documents that were material and in coming to his conclusion whether the learned arbitrator was wrong in not taking into consideration of this document. Mr. Dutt the learned counsel for the appellant, therefore, submits that the learned Judge was wrong in holding that there has been a miscarriage of justice due to the alleged failure of the arbitrator to get hold of all the books maintained by the appellant for the purpose of income tax.
10. Regarding other points taken by the respondent before the court of first instance, the learned counsel for the appellant submits that the respondent without filing any cross-objection cannot urge in this appeal those points namely, that the learned arbitrator travelled outside the contract or that the learned arbitrator ignored the material provisions of the contract. It is submitted by Mr. Dutt appearing for the appellant that even if the respondent may be allowed to make his submission on the findings of the learned trial Judge against the respondent, then this court should reject the objection that may be made on behalf of the respondent and should affirm the findings as made by the learned trial Judge against the respondent.
11. Mr. Dutt submits that in any event since the contract has not been incorporated in the award and on the principles laid down in the Privy Council decision in Champsey Bhara v. Jivraj Balloo Spinning & Weaving Co. Ltd. AIR 1923 PC 66, which principles have been reiterated in a series of decisions of the Supreme Court till the recent decision of the Supreme Court in The Hindustan Construction Co. Ltd. v. State of Jammu & Kashmir in : AIR1992SC2192 , the court cannot look into the contract or any document not referred to or appended to the award in order to find out whether the learned arbitrator committed an error of jurisdiction. It is also submitted on behalf of the appellant that the learned arbitrator is well within hisjurisdiction to construe the contract and make a finding of his own and if there is any error in such construction that would be an error within his jurisdiction and such error is, not amenable to correction in a proceeding for setting aside the award. In this connection, Mr. Dutt has referred to several decisions of the Supreme Court, : [1989]1SCR665 , : AIR1989SC1263 , : [1990]1SCR54 and : AIR1992SC2192 and also decisions of this court in (1991) 1 Cal LJ 65, (1992) 96 Cal WN 187. We will deal with those cases, if necessary at' the appropriate place in this judgment. :
12. Mr. Gopal Chakraborty, Sensor Advocate appearing on behalf of the respondent State of West Bengal has submitted that he is entitled to challenge the findings made by the learned trial Judge against his client without filing any cross-objection. Mr. Chakraborty submits that the trial court's order ultimately being in favour of the respondent, there is no scope of preferring any appeal from such order of the trial court. He also submits that it is not also necessary to file a cross-objection as his client is entitled even without filing any cross-objection to challenge the findings of the trial court if such findings are against the respondents. Mr. Chakraborty has referred to in this connection, the provisions in 0.41, R. 22 of the Code of Civil Procedure. Mr. Chakraborty has also relied on the Explanation to 0.41, R. 22 of the Code of Civil Procedure and submits that it is not necessary for his client to file any cross-objection to the findings made by the trial court against his client. Mr. Chakraborty has referred to a decision of Supreme Court in : [1965]1SCR712 , : [1982]2SCR178 , : [1974]3SCR882 , : AIR1982Cal127 and AIR 1984 Pat 348. Mr. Chakraborty has submitted that AIR 1984 Patna 348 is a decision taking into account the amendment of 0.41, R. 22 of the Code of Civil Procedure and also the Explanation introduced by such amendment.
13. The next submission of Mr. Chakraborty is that the impugned award is a speaking award and the learned arbitrator after setting out the respective cases of the parties in the award has indicated his reasonsin support of the conclusion arrived at by the learned arbitrator. In support of his contention that the impugned award is a speaking award, he has referred to the Supreme Court's decision in (Indian Oil Corporation Ltd. v. Indian Carbon Ltd.) reported in : (1987)3SCC458 (Union of India v. Hindustan Motors).
14. With regard to the findings of the learned arbitrator, Mr. Chakraborty has submitted that Item Nos. 1, 2 and 3 arc not covered by the contract and the learned arbitrator in allowing claims against those items had ignored the specific clauses particularly clause 24 of the General Conditions of Contract. Clause 24, inter alia, provides that no claim will be entertained and no extra payment will be made to the contractor for delay in execution of the works due to delay in possession of the land or for labourer sitting idle due to any circumstances. It is the submission of Mr. Chakraborty that in allowing the claim of idle labour the learned arbitrator has travelled beyond the contract and has misconducted himself as also the proceedings.
15. Regarding other item being the cost of earth, it is the submission of Mr. Chakraborty that learned arbitrator has failed to take into account that the cost claimed by the appellant on account of purchase of earth from outside is not a claim concerning the contract or arising out of the contract. It is, therefore, the submission of Mr. Chakraborty that the learned arbitrator by allowing such claims against Item No. 3 on account of cost of earth has made an award not coming within the scope of reference. Mr. Chakraborty has placed reliance in a recent decision of the Supreme Court in : [1991]2SCR924 (Associated Engineering v. Govt. of Andhra Pradesh) in support of this contention that the learned arbitrator in making the award has travelled beyond the parameter of contract.
16. On the question of jurisdiction of the learned arbitrator, the learned Judge thought that there was no substance in the ground taken on behalf of the respondent petitioner regarding jurisdiction as according to thelearned trial Judge there was clear provisions in the arbitration agreement that the learned arbitrator could entertain 'any question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract'. The learned Judge has further held that the question of jurisdiction should have been raised by the petitioner (respondent State) at the hearing of the appellant's application under S. 20 of the Arbitration Act, and the respondent State accepting the order of the Court, referring the disputes including the disputes adjudicated upon by the arbitrator cannot raise this objection.
17. The learned Judge, however, set aside the award, inter alia, holding that when there was a suggestion on behalf of the State as to fabrication of the books of accounts by the appellant, it was the duty of the learned arbitrator to get the books of account produced before him i.e., the books of accounts in English which, as alleged by the State, was not produced by the appellant before the learned arbitrator. The learned Judge observed that the regular books of account written in English and kept for the purpose of income-tax were material documents and the learned arbitrator ought to have considered the same, and this failure on the part of the learned arbitrator in getting the said books of accounts produced amounted to misconducting the proceedings.
18. It appears to us that whether a particular document is material document or not and whether it should be produced before the arbitrator, is essentially a matter for the arbitrator to decide and whatever decision that is taken by the arbitrator is binding on the parties. Even by a look of the award not containing any discussion about evidence, one cannot ascertain what is material and what is not. It is our view that the court in order to find out which one is material and which should be accepted by the arbitrator and which should not be accepted cannot make a roving enquiry. The decision in K. P. Poulose case in : AIR1975SC1259 should be considered in the context, it is made. In Poulose case the impugned award before the Supreme Court was a speaking award andconsidering such award, the Supreme Court has observed that the case of legal misconduct is complete if the arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring the very material documents which throw abundant light on the controversy to help a just and fair decision. This observation was made in the background that the arbitrator in that matter had arrived at inconsistent conclusions even on his own finding. In our opinion, this observation of the Supreme Court in the said Poulose case upon consideration of a speaking award has no bearing upon the instant case.
19. The next contention as stated above on behalf of the appellant is that the impugned award is not a speaking award and, as such, the Court cannot look into the contract or any document or any other material not being incorporated in the award in order to find out whether the learned arbitrator, as has been contended on behalf of the respondent State of West Bengal, has made his award in express violation of the express term of the agreement in particular clause 24 thereof.
20. It appears from the award that in the recital of the award the learned arbitrator has set out the respective cases of the parties and the argument in support of their respective case. Thereafter the learned arbitrator made the following award:
'I do hereby award as stated below :--
Claimant will get the sums on the following heads : --The sum to be paid by the State of West Bengal
1. Item No.4(a) in the schedule to the claim extra over Item No.1 for all lifts and loads beyond 500ft.up to 1 mile - Rs. 56,118.75 claimed. Butthe State of West Bengal had already paid Rs. 36,000.00 (vide Ext. 2).Hence, the claimant would get Rs. 56,118.75 p. less Rs. 36,000.00i.e.Rs. 30,118.75p. Additional 4.99% i.e. Rs. 109.00 p.
Rs. 21, 127,75 p.....
1. Rs. 21, 127.75 p.2. Cost of idle labour Rs. 1,51,200.002. Rs. 1,51,200.00 p.3. Cost of earth Rs. 71,907.00 p. (The claimant claimedthe price @ Rs. 15.22 p. per % cft. whereas the State admitted theprice Rs. 4/-per% cft. As such the mean is calculated in order to arrive to thecorrect price i.e. Rs. 961 p. is fixed as the price ofearth per % cft. Hence, the price for 7,48,250 cft. @ Rs. 9.61p.per % cft. is Rs. 71,907.00 p.
3. Rs. 71,907.00 p.4.(a)Interest at the rate of 12% per annum on Rs. 21,127.75 p. from 27-9-78 to 19-12-80 is Rs. 5,654.13p.
4.(a)Rs. 5,654.13 p. (b)Interest at the rate of 12% per annum. Rs. 21,127.75 p. from 20-12-80 to 31-7-83 is Rs. 6,626.59 p.
(b)Rs. 6,626.59 p. (c)Interest at the rate of 12% pet annum on Rs. 71,907.00 p. from 27-9-78 in 19-12-80 is Rs. 19,243.49 p.
(c)Rs. 19,243.49 p. (d)Interest at the rate of 12% per annum on Rs. 71.907.00 p. from 30-12-80 to 31-7-83 is Rs. 22.553.19 p.
(d)Rs. 22,553. 19 p. (e)Interest at the rate of 12% per annum on the dues of Rs. 1,51, 300.00 p. forthe cost of idle labour from 27-9-78 to 19-12-80 i.e.,Rs. 40,463.60 p.
(e)Rs. 40,463.60 p. (f)Interest at the rate of 12% per annum on Rs. 1,51,200.00 p. from 20-12-80 to 31-7-83 is Rs. 47,422.95 p.
(f)Rs. 47,422.95 p.5. Cost awarded against the State on 10-1-52 is Rs. 500.00
5. Rs. 500.00 p.6. Cost of petition of Arbitration is Rs. 500.006. Rs. 500.00 p.7. Cost awarded in favour of theclaimant for Arbitration proceedings 60 in number @ Rs. 500/-per sitting including the cost of the advocate, junior, cost of Arbitrator,clerk, stenographer, etc. i.e., 60 x 500Rs. 30,000.00 p. 1/2 ofthe same is Rs. 15,000.00.
7. Rs. 15,000.00 p.8. Security deposit is Rs. 21,094.008. Rs. 21,094.00 p.9. The claimant would getinterest @ 12% per annum from 31-7-83 on the sum of Rs. 2,44,234.75 p. upto the date of the decree.
9. The claimant would getinterest @ 12% per annum from 31-7-83 on the sum of Rs. 2,44,234.75 p. upto the date of the decree.
10. The claimant would get furtherinterest it awarded by the Court as provided in Section 29 ofthe Arbitration Act.
10. The claimant would get furtherinterest if awarded by the Court as provided in S. 29 ofthe Arbitration Act.
I direct the respondent State of West Bengal, to pay the sum of Rs. 4,23,252.70 p. (Rupees four lacs twenty three thousand two hundred fifty two and paise seventy only) to the claimant Sri Shankar Majumdar, in addition to the sums as mentioned in Items Nos. 9 and 10 above.
The counter claim of the respondent State of West Bengal to the sum of Rs. 5,00.923.00 as made against the claimant is, however, refused but without any cost to the claimant on this score.
Sd/- K.J. Sengupta, Arbitrator.
17.9.83'.
21. It appears from the award as set out above, the learned arbitrator has made award against each of the item of claims set out in the award and finally directed the State of West Bengal, the respondent to pay a sum of Rs. 4,23,252.75 p. to the appellant claimant Shankarlal Majumdar in addition to the sums as mentioned against item Nos. 9 and 10 set out in the award. The learned Arbitrator has rejected the counter claim of the respondent State of West Bengal for a sum of Rs. 5,00,923.00 p.
22. In a recent decision reported in : [1993]1SCR229 (Jojodia (Overseas) Pvt. Ltd. v. The Industrial Development Corporation of Orissa Ltd.), the Supreme Court has observed that the grounds upon which the award can be set aside are limited. The Court should be very circumspect about setting aside an award reached by an arbitrator for parties have agreed that the disputes that may arise or have arisen between them should be resolved not by a court of law but by arbitration. In considering the question where the award would become a speaking award, the Supreme Court has observed that a speaking or reasoned award is one which discusses or sets out the reasons which led the arbitrator to make the award. Setting out the conclusion upon the questions or issues that arose in the arbitration proceedings without discussing the reasons for coming to the conclusion does not make an award a reasoned or speaking award.
23. In the instant award we find that the learned arbitrator has made an award of the sums mentioned against each of the items of claim set out in the award. The learned arbitrator has not discussed or set out the reasons for coming to the conclusion which of the items of claims should be allowed and to what extent and which of the items of claims should not be allowed. In our view, therefore, we do not consider the impugned award a speaking or a reasoned award as it will not appear from the award why the learned arbitrator has allowed the claims of the claimant and on what basis. In absence of any reasons for making the said award, we thinkthat it is not open to the court to speculate and probe the mind of the learned arbitrator.
24. The learned Counsel for the respondent State of West Bengal has, however, contended that if the arbitrator in allowing certain claim has travelled beyond the parameter of the contract which gives jurisdiction to the arbitrator then, the Court, if satisfied that in allowing such claim the arbitrator has wandered beyond the contract, should set aside the award. It is further submitted on behalf of the respondent State of West Bengal that if by a mere look at the contract, it appears that the learned arbitrator has allowed certain claim which cannot be allowed by the agreement in any circumstances, then the court should not have any hesitation in setting aside the entire award by holding that the arbitrator by allowing claims on the face of a prohibitory clause contained in the agreement has misconducted himself and the proceedings.
25. It has however, been submitted on behalf of the appellant that the respondent has not filed any cross-objection against the findings of the learned Judge against the respondent. The appellant submits that in absence of such cross-objection this court should not entertain any point of objection from the respondent as sought to be made by the respondent. The respondent, has, however, submitted that under 0.41, R. 22 of the Code of Civil Procedure the respondent is entitled to raise this question in appeal without even filing any cross-objection and same is not necessary. We think that the respondent should be allowed to raise this question although there is no cross-objection from the respondent.
26. In Sudarsan's case, : [1989]1SCR665 (supra), the Supreme Court has observed 'an award may be remitted or set aside on the ground that the arbitrator in making it, had exceeded his jurisdiction and evidence of matters not appearing on the face of it, will be admitted in order to establish whether the jurisdiction had been exceeded or not, because the nature of the dispute is something which has to be determined outside the award whatever might be said about it in the awardor by the arbitrator'. The Supreme Court also proceeds to observe that it has to be reiterated that an arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award. It is stated by the Supreme Court referring to Halsbury's Laws of England, (4th Edn. Volume II para 622) one of the misconducts enumerated, is the decision by the arbitrator on a matter which is not included in the agreement or reference. But in such a case one has to determine the distinction between an error within the jurisdiction and error in excess of the jurisdiction. In the view of the Supreme Court the Court has no jurisdiction to do, namely, substitution of its own evaluation of the conclusions of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid or damages liable to be sustained, was a decision within the competency of the arbitrator in this case. By purporting to construe the contract the court could not take upon itself the burden of saying that this was contrary to the contract and as such beyond the jurisdiction. It is observed that there is a distinction between disputes as to jurisdiction of the arbitrator and disputes as to in what way that jurisdiction should be exercised.
27. In Associated Engineering v. Government of Andhra Pradesh, : [1991]2SCR924 , it is observed that if it is apparent not by construction of the contract, by merely looking at the contract that the Umpire travelled totally outside permissible territory and thus exceeding his jurisdiction in making the award, it is an order going to the root of his jurisdiction. It was contended in this case before the Supreme Court that the award being a non speaking award, the court could not examine the reasons. The Supreme Court observed that the award spoke eloquently and it was not merely in the recital or narrative portion of the award that the agreement was referred to, but in making the award under claim No. III the agreement was specifically incorporated by directing payment for escalation on napa slabs under Item II of the Schedule A of the agreement at the rate of Rs. 4.25. The Supreme Court, therefore, found that such agreement was thus bodilyincorporated into the award thereby disclosing an error aparent on its face and the total lack of arbitrator's jurisdiction by reason of his going totally outside and opposed to the contract. In this case, the Supreme Court explained the role of the arbitrator when it says that his sole function is to arbitrate in terms of the contract, he has no power apart from what the parties have given him under the contract. If he has travelled outside the bounds of the contract, he has acted without jurisdiction. But it he has remained inside the parameters of the contract and has construed the provisions of the contract his award cannot be interfered with unless he has given reasons for the award disclosing an error apparent on the face of it. The Supreme Court in this case also observed that if the arbitrator committed an error in the construction of the contract that would be an error within his jurisdiction.
28. It, therefore, appears to us that if the contract is not in dispute, then in order to consider which of the claims of the claimant should be allowed and in allowing such claims if the arbitrator had to interpret certain clauses of the contract and if such interpretation is erroneous, the court could not touch the award as it was within the jurisdiction of the arbitrator to interpret the contract and whether such interpretation was right or wrong the parties would be bound. The court can only interfere with the award if the arbitrator had set out his line of interpretation or reasoning in the award itself and the same is found to be erroneous. This is the law on the point till now sustained by the Supreme Court and the views of the Supreme Court expressed in Sudarsan's case has been reiterated in a later case of the Supreme Court, Hindustan Construction Company Ltd. v. The State of Jammu and Kashmir, : AIR1992SC2192 (supra).
29. It has been contended on behalf of the State respondent that under clause 24 of the contract no claim would be entertained and no extra payment will be made to the contractor for delay in execution of works due to delay in possession of land or for labourer sitting idle due to any circumstances.But, every attempt will be taken from the departmental ends for possession of land quickly. This clause also says that no additional work beyond the tender schedule without the written order of the Engineer-in-charge will be entertained and the contractor will have to arrange Mazdoors for pre-work and post-work section and separate payment will be made to the Contractor for the same.
30. Now from the impugned award it appears that the learned arbitrator has allowed certain claims being cost of idle labour. It will not appear from the award whether such additional work had to be done because no site was made, available or whether there was any written order of the Engineer-in-Charge permitting such additional work after a lapse of certain time. Further, it would not also appear from the impugned award nor can it be ascertained therefrom whether the contractor, being the appellant, had to arrange mazdoors for pre-work and post-work section and whether some separate payment was agreed to be paid to the contractor (the appellant). In order to ascertain this, the Court has to speculate where no reasons are given in the award as to what impelled the arbitrator to arrive at his conclusion which the court cannot do nor can the court probe the mental process of the arbitrator as to how the learned arbitrator has interpreted such clause and how did he find that the appellant being the claimant was entitled to such award on account of idle labour. In absence of reasons indicated in the award itself, no one can ascertain how and why such claim was allowed. Similarly on the claim on account of cost of earth work it appears from the impugned award that the appellant claimed certain rate and the State admitted certain rate per % Cft. Considering the mean, the learned arbitrator fixed certain rate. Again it is not possible to speculate the reasons why and on what basis and under which provisions of the contract such claim was allowed. Therefore, in our opinion, it cannot be said that the learned arbitrator has travelled beyond the contract, nor can it be said that he was not within the parameters of the contract.
31. We have indicated above that thelearned trial Judge has set aside the award by holding that it was incumbent upon the arbitrator to get hold the accounts books and having failed to get hold of these books and to consider the same, he has misconducted the proceeding resulting in miscarriage of justice. We are unable to accept this view of the learned Judge. If it appears on the reasoning in the award that there were certain materials which were ignored by the arbitrator and by ignoring such materials the arbitrator had come to wrong conclusion then it is possible to say the arbitrator ought to have taken into consideration these materials. All these would be possible if there is any discussion of the evidence in award itself and also on the reasoning in the award. It would then be possible for the Court to consider whether the learned arbitrator has properly exercised his jurisdiction in ignoring such material, and in such a case one may seek assistance from the decision in K. P. Poulosi's case : AIR1975SC1259 (supra).
32. The Supreme Court in series of cases consistently held that when there is no reasoned and there is no incorporation of a contract or any document in the award the court cannot look into any document to find out any error including the error of jurisdiction. It is also now a settled proposition, uptil now not departed, that the court cannot reappraise the evidence considered by, the arbitrator to find out whether the arbitrator has committed a wrong. We also feel it is well within the jurisdiction of the arbitrator to consider which document or evidence is material for deciding a particular issue. It is also settled proposition that it is not case of misconduct on the part of the arbitrator if the arbitrator commits an error both on the question of law or on the question of fact. The award can only be amenable to correction if there is any error of law appearing on the face of the award.
33. Therefore, we do not agree with the reasoning of the learned Judge that the arbitrator having failed to get hold the concerned books and to consider the same had misconducted the proceedings which could result in miscarriage of justice. We holdthat the learned Judge was not right in setting aside the award on this ground.
34. For the reasons aforesaid, we do not see any ground to interfere with the instant award and we do not find any infirmity in the award. The award is sustained. We set aside the judgment and order dated 25th July, 1984 passed by the learned trial Judge. We allow this appeal. There will be no order as to costs.
35. Mr. Chakravorty, Senior Advocate for the appellant, prays for Certificate of Appeal. We do not think that any substantial question of law of general importance is involved. We refuse to grant such certificate as prayed for.
36. There will be an order for stay of the operation of this judgment for a period of fortnight from date as prayed for by the learned counsel for the appellant.
37. All parties are to act on a signed copy of the operative portion of this judgment onthe usual undertaking.
Samaresh Banerjea, J.
38. I agree.
39. Appeal allowed.