Punjab-Haryana High Court
Union Of India (Uoi) And Anr. vs Shibboo Mal And Sons And Anr. on 21 November, 2002
Equivalent citations: 2003(1)ARBLR628(P&H), (2003)134PLR541
JUDGMENT M.M. Kumar, J.
1. Challenge in this petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') is to the judgment and decree dated 21.2.2000 passed by the Addl. District Judge, Chandigarh partially accepting the appeal of the petitioners in which the judgment and decree dated 20.10.1994 passed by the Civil Judge 1st Class, Chandigarh was impugned. The Civil Judge in his judgment and decree dated 20.10.1994 had dismissed the objections of the petitioners filed under Section 30 and 33 of the Indian Arbitration Act, 1940 (for brevity 'the Act') and has made the award dated 13.5.1992 as rule of the Court.
2. Few facts may first be noticed so that the controversy raised in the present petition may be put into correct prospective. Some differences between the contractor-respondent and the petitioner had arisen concerning the contract agreement No. CEZ-2/83-84 which related to providing connection from exiting bath/kitchen and conversion of the pan type latrines into water borne sanitation at Ambala Cantt. The dispute was referred to the sole arbitration of Chief Engineer. He announced his award dated 13.5.1992. On the application filed by the contractor-respondent under Sections 14/17 of the Act, the Arbitrator filed this award in the Court. The petitioners filed objections under Sections 30 and 33 of the Act.
3. The principal objections raised by the petitioners before the Civil Judge under Sections 30 and 33 of the Act were that the Arbitrator had misconducted himself and proceeded in awarding highly inflated claims and therefore payer was made to set aside the award concerning claim Nos. 1, 6, 18, 29, 30 and 34. Regarding claim No. 1 it was asserted that the contractor-respondent had signed the deviation order without any reservation. The Arbitrator is alleged to have misconducted the proceedings and exceeded jurisdiction by adjudicating the matter on claim No. 1 despite the fact that decision of the Commander-Works-Engineer (for brevity 'the CWE') was final and binding as per condition No. 62 of the IFW 2249. About Claim No. 6, it was alleged that the Arbitrator had ignored the express conditions 1(d), 1(g), 1(h) of the agreement while awarding the amount of Rs. 10,800/- to the contractor-respondent. In respect of Claim Nos. 8, 18 and 28 it was asserted that the Arbitrator ignored condition Nos. 20, 11(C) and 67 of the contract agreement. In respect of Claim No. 29, it was pleaded that award of interest was not within the domain of the Arbitrator because no such provision had been made in the contract agreement. The award on claim No. 30 was challenged alleging that the arbitrator had ignored the express condition of the contract agreement. Similarly, claim No. 34 was challenged on the plea that the Arbitrator exceeded his authority and jurisdiction by awarding an amount of Rs. 2,000/- because this claim had not been referred for adjudication by the Appointing Authority. With regard to awarding of interest, it was pleaded that the Arbitrator had over-stepped his jurisdiction by ignoring the express condition of the agreement and had awarded post, pendente lite and future interest despite the fact that there was no such provision in the contract agreement. The award of the Arbitrator was supported by the contractor-respondent by raising various pleas. On the pleadings of the parties, following two issues were framed;-
" 1. Whether the award dated 13.5.1992 is liable to be set aside on the grounds taken in the objection petition? OP Objector.
2. Relief."
4. Vide its judgment and decree dated 20.10.1994, the Civil Judge dismissed the objections of the petitioners and made the award of the Arbitrator dated 13.5.1992 as rule of the Court along with post-lite interest @ 15 percent p.a. from the date of decree till realisation. On appeal, the judgment and decree passed by the Civil Judge was modified accepting the objection against claim No. 6 which is pertaining to dewatcring of line in Military Farm Area. In respect of Claim Nos. 1, 9, 18, 28, 30 and 34 and also objection concerning award of interest for pre-reference period, pendente lite period and future period was rejected.
5. The District Judge also rejected the objection concerning claim No. 7. On behalf of the petitioners it was submitted that in terms of Clause No. 7 of the IAFW 2249 change in price had been made consistent with the terms and condition No. 62 of IAFW 2249 and therefore the decision of CWE was binding and final. It was claimed that as there was deviation which would be covered by Clause 7, therefore, it would not be covered by other sub-clauses which are applicable by only to radical changes. The argument of the petitioners was rejected because the Arbitrator has termed the non-payment/incorrect pricing caused due to radical change and not as deviation. The decision whether nonpayment/incorrect pricing was caused due to radical change or deviation was well within the jurisdiction of the Arbitrator. The decision of CWE concerning price was binding and final only if it was a case of deviation. In respect of Claim No. 9, for awarding an amount of Rs. 9615/- it was submitted before the District Judge that the arbitrator ignored condition No. 20 of the contract, agreement. It may be pertinent to mention that Claim No. 9 was regarding reimbursement of amount of extra expenditure incurred due to delay in providing the water connection and insufficient water supply. The argument was rejected on the ground that Clause 20 of the agreement provides that the Contractor would pay for the water from MES supply points used by him in the work and that the Contractor shall arrange water under his own sources to supplement the MES supply of water. Obviously, Clause 20 of the contract agreement do not provide for delay in providing water connection. It was further held that the award of Rs. 9615/- is not severable which should have been made on the basis of insufficiency of water supply as well as delay in providing water connection. Therefore, the amount of reimbursement for extra expenditure incurred due to delay in providing water connection was upheld.
6. An amount of Rs. 3,53,892/- under claim No. 18 was claimed as reimbursement and damages suffered due to delay in handing over site, the delay in giving decision and delay in issue of stores etc. The Arbitrator awarded Rs. 87,596,45P. to the contractor respondent. On behalf of the petitioners condition No. 1lC of IAFW 2249 was relied upon to argue that no claim in respect of compensation or otherwise arising as a result of extension granted under conditions A and B of Clause 11 was to be admitted. The argument was rejected on the ground that Clause 11C or the conditions laid down in Clauses (A) and (B) of Clause 11 would be attracted because the claim was made entirely on facts different than the one covered by conditions (A) & (B). The view of the district Judge under claim No. 18 reads as under:
"In the present case, the respondent under claim 18 claimed damages inter alia on account of the following factors:
i. Delay in acceptance of tender/abnormal rainy season;
ii) Respondent instructions to order radical change/delay in giving decision,
iii) Delay in electric/Water supply connections,
iv) Abnormal delay in issue of stores.
v) Extreme difficulty in arranging labour and transportation of material due to disturbance in Punjab.
vi) Delay in placing work order for provisional quantities.
vii) Compensation for the increased expenditure incurred on establishment and overheads due to delayed completion of works on account of defaults by the respondent in complying with the contract conditions.
It is correctly submitted by the learned counsel for the respondent that some of the above facts and circumstances are not covered and do not arise as a result of the extension granted under conditions A and B. The award of Rs. 87,598.45 under this head has been granted, cumulatively for all the seven factors and circumstances enumerated above. These factors are not severable from each other, To emphasis, it may be stated that some of these extensions are not covered under conditions A & B referred to in condition 11C of 1AFW 2249. Therefore, the Award under this claim head must be upheld as a whole. It may also be noted that the learned Govt. Pleader has submitted that the contract work was to be executed at Ambala and so the disturbances of Punjab were not relevant. In the first place Ambala in Haryana is so near to the border of Punjab, that the disturbances of Punjab do have appreciable effect in Ambala. Therefore, the disturbances in Punjab were not an irrelevant factor. Be that as it may, even if the disturbances in Punjab are altogether ignored, the other six factors enumerated above still survive and some of them are not covered under conditions A and B, referred to above and these are not severable from each other and so the learned trial Court war, not justified in upholding the award under this claim." 7. Under Claim No. 28, the contractor-respondent claimed an amount of Rs. 4,964.03P on account of the expenditure made on technical examination. On behalf of the petitioners it was submitted that according to the provision in the contract agreement the technical examination of the work was to be carried on by the petitioners themselves. The clause further provides that if on technical examination any more payment is discovered in respect of the work done under the contractor then he was to make the payment of the same equivalent to the amount of over payment. In case of refusal to do so, or effecting adjustment the government was entitled to take action of withholding an equivalent amount out of the due to the Government or which may at any time thereafter become due. On behalf of the petitioners it was submitted that according to the agreement condition the Government was entitled to recover an amount of Rs. 4,932.45P from other contract with the Government i.e. CA No. CWE/Amb/11/74-75 and Rs. 31.98P. from this contract. It was further submitted that the Arbitrator ignored the express condition No. 67 of the ISFW 2249 and therefore he has misconducted himself. The argument was rejected on the ground that under condition No. 67 no finality is attached to the demand of the Government. Therefore, the amount on account of technical examination has always been subject to arbitration. It cannot be challenged on the ground that the claim could not be subject matter of arbitration. Thus, it could not be concluded that the Arbitrator over stepped his jurisdiction. Claim No. 28 was also upheld.
8. An amount of Rs. 1636.00 has been awarded as damages for breach of condition of contract concerning payment of final bill amounting to Rs. 5 lacs. On behalf of the petitioners, award under this claim was also challenged on the ground that it was the contractor respondent who showed lack of interest and due diligence to fulfil the contractual obligation inasmuch as he delayed rectification of defects as pointed out at the time of issuing completion certification. Such an obligation is imposed by condition No. 46. It was further pointed out that condition No. 49 has also been contravened as the Contractor has delayed in returning all the unused articles and surplus store material and other items. Another submission made was that condition No. 65 was also violated because the final bill was to be submitted by the petitioners in duplicate within a period of three months from the date of physical completion of the work as certified to the satisfaction of Engineer-in-Chief. The argument was rejected on the ground firstly, the amount was meager and secondly, the question of breach of condition No. 46, 49 and 65 was a question of fact and the Arbitrator has taken a particular view of the matter which cannot be interfered with as the Civil Court is not a Court to appeal over the award of the Arbitrator. It was further held that the Arbitrator did not over stepped his jurisdiction.
9. An amount of Rs. 2,000/- under claim No. 34 was awarded which concerns dismantling of the old water tanks. Challenge to this award was based on the argument that the dispute was never referred to the Arbitrator by the competent authority. This objection was rejected by the District Judge by referring to para 10 of the award wherein the Arbitrator has expressly stated that some of these claims (Claim Nos. 31 to 37) do find place in the original letter of the contractor-respondent dated 18.8.1987 addressed to the Engineer-in-chief. Therefore, the District Judge found that the Arbitrator was within his right of adjudicate and give his award under claim No. 34.
10. The petitioners have also challenged the award of interest for pre reference period namely 29.12.1985 to 31.1.1991 @ 10 percent and pendente lite interest from 1.2.1991 to the date of award @ 8 percent and future interest @ 6 percent to the date of payment or date of decree whichever is earlier (allowing 90 days grace period). Holding that the Arbitrator was entitled to award interest from the date of the award to the date of the decree or till its realisation, the District Judge also upheld the award and reliance was placed on a judgment of the Supreme Court in the case of Hindustan Construction Co. Ltd v. State of J&K, A.I.R, 1992 S.C. 2192. Grant of pre-reference interest and pendente lite interest was held to be within the competence of the Arbitrator under the general principles of law. It was further held that the rate of interest was not excessive or unreasonable. Award of interest @ 15 percent p.a. from the date of decree till the date of payment was also upheld on the ground that it was neither excessive nor unreasonable.
11. The only argument which was sustained by the District Judge was with regard to claim No. 6 which concerns reimbursement of additional expenditure incurred for dewa-tering of line in Military Farm Area. Holding that the Arbitrator over stepped his jurisdiction in giving award under Claim No. 6, the District Judge observed as under:
"The appellants have also challenged the Award against claim No. 6 of the respondent to the tune of Rs. 10,800/-. It is submitted that by making this Award, the Arbitrator went against the express conditions 1(d), 1(g) and 1(h) of the contract agreement. Now condition 1(d) inter-alia reads as under:
"1(d). xx xx xxx xx
11. Conditions 1(g) and 1(h) read as under:
"1(g) xx xx xxx xx 1(h) xx xx xx xx
12. Claim No. 6 of the respondent is as under:
"Addl., expenditure for dewatering of lines in Mily. Farm Area which were flooded with water due to leakage of irrigation channel and sub-soil water being at 6-7 below ground in lieu of 6 to 7 meters below ground level stipulated in the C.A."
Objection of the appellants to this claim was under:
"Claim No. 6 of Rs. 24,690.00: Reimbursement of expenditure incurred in dewatering in connection with the work at the Military Farm Area.
Vide condition 1(d) of particular specification Section 11 only possibility has been mentioned that water is likely to be met at 4.5 to 5.00 meters depth, but it is the contractor who has to make sure of it by visiting the site for accurate assessment by executing trial pits and then quoting his rates accordingly and if any water have got accumulated in excavated position, the claimant was required to tail that water out by any mean without any extra cost to the respondent vide Clause 1(g) and 1(h) of the CA at Srl. page 49. The area which passed through field was never been flooded by the irrigation water as alleged by the claimants.
The water which may have been accumulated in the trenches would have been due to rise in water table only and that water was required to be bailed out by the claimant without any extra cost to the respondent as per the contract condition.
In view of the above claim submitted by the claimant is devoid of facts and also un-contractual hence denied."
12A. it is clear from the condition 1(d), 1(g) and 1(h) that the claim of the respondent was squarely under these clauses. For the sake of argument, even if it is assumed that the Military Farm Area had been flooded, that had to be dewatered. This situation is covered under Clause 1(g) reproduced above. Therefore, the Arbitrator clearly over stepped his jurisdiction in giving the award under claim No. 6. For this, terms and conditions 1(d), 1(g) and 1(h) of the contract agreement may be looked into and this award was against the express terms and conditions of the contract agreement, and so it was beyond the jurisdiction of the arbitrator and it amounted to misconduct and mala fide action (see Steel Authority of India Ltd v. J.C. Budharaja, Govt. and Mining Contract case (supra). So this part of the award claim No. 6 is set aside."
12. Shri Kamal Sehgal, learned counsel for the petitioners has asserted that the Arbitrator exceeded his jurisdiction by allowing claim No. 18. According to the learned counsel, no reimbursement of damages suffered due to delay in handing over site, delay in giving decision and delay in issue of stores etc. could be awarded by the Arbitrator because under Clause 11 A(vii), the contractor-respondent is not entitled to make such a claim. He has further pointed out that under Clause 11(B) if the work had delayed then the discretion has been given to the Accepting Officer to grant such extension of time as may appear reasonable to him and the same is required to be communicated to the Contractor by the Garrison Engineer in writing. Sub-clause (C) of Clause 11 further provides that no claim for compensation resulting from extension granted under Clauses (A) and (B) would be entertained. The learned counsel has pointed out that the contractor respondent had applied for extension of time on 25.3.11984 and 18.5.1984 which was granted by the Garrison Engineer on 25.8.1984. He has also referred to another application dated 26.6.1984 made by the contractor-respondent for further extension of time where the prayer has been made for extension of time upto 30.9.1984. Thereafter extension was granted by the Garrison Engineer till 4.11.1984. On the basis of the aforementioned documents, the learned counsel has argued that the contractor respondent was not entitled to be awarded any amount under claim No. 18. He has placed reliance on a judgment of this Court in the case of Union of India v. Om Construction Co., (1997-2)116 P.L.R. 92 and also a judgment of the Supreme Court in the case of Karam Singh Lal v. Union of India, J.T. 2001(10) S.C. 577. He has also placed reliance on a judgment of the Supreme Court in the case of Hindustan Construction Co.'s case (supra).
13. Challenging the order of the District Judge as well as of the Civil Judge, regarding claim No. 34, the learned counsel has submitted that it was never referred to the Arbitrator. He has also challenged the awarding of amount of Rs. 9,615/- under claim No. 9 concerning reimbursement of extra expenditure incurred due to delay in providing water connection and insufficient water supply.
14. He has further argued that Claim No. 1 has been wrongly decided in favour of the respondent-contractor because the decision with regard to pricing determined by the CWE was final. According to the learned counsel parties have agreed under Clause 62(G) to accept the decision of the CWE as final and in any case it was a deviation in prices within the meaning of Clause 62 of the IAFW 2249, In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Vishwanath Sood v. Union of India, A.I.R. 1999 S.C. 952 to argue that such a matter could not be referred to the Arbitrator once the decision of the CWE has been accepted as binding by the parties to the contract.
15. Challenging the award of interest the learned counsel has submitted that the Arbitrator exceeded his jurisdiction and there is an error apparent on the face of the record. The learned counsel has argued that once the dispute is outside the scope of the arbitration agreement then the Arbitrator would not enjoy any jurisdiction to adjudicate upon such a matter. Learned counsel has placed reliance on paragraphs 15 and 22 of the judgment rendered by the Supreme Court in Steel Authority of India Ltd. v. J.C. Budharaja, A.I.R. 1999 S.C. 3275. Reliance has also been placed on Associated Engineering Company v. Government of Andhra Pradesh, A.I.R. 1992 S.C. 232; Tamil Nadu Electricity Board v. Brij Tunnel Construction and Anr., A.I.R. 1997 S.C. 1376; New India Civil Erectors (P) Ltd. v. Oil and Natural Gas Corp., A.I.R. 1997 S.C. 980; Executive Engineer REO v. Subhash Chander Panda, (1999)9 S.C.C. 92; V.G.J. George v. Indian Rare Earths Ltd., (1999)3 S.C.C. 762; State of Orissa v. Sudhakar Dass, A.I.R. 2000 S.C. 1294; Sudarshan Trading Company v. Government of Kerala, A.I.R. 1989 S.C. 890; Ram Chander Reddy v. State of Andhra Pradesh, (2001)4 S.C.C. 241 and General Manager Northern Railways v. Sarvesh Chopra, (2002)4 S.C.C. 45.
16. The learned counsel has also placed reliance on a judgment of this Court in C.R. No. 464 of 2001 (Jaswant Singh v. Union of India and Ors.,) decided on 4.10.2002 to argue that therein identical contract agreement and Clauses 11 (A), (B) and (C) were involved and the claim of the contractor was declined by this Court. He has also referred to the judgment in Karam Singh Lal's case (supra).
17. The next submission of the learned counsel is concerning Claim Nos. 22 and 30. He has submitted that under condition No. 66 if any over payment has been made then the petitioner is entitled to recover and the arbitrator has acted without jurisdiction in entertaining this claim and refusing to grant the benefit of recovery of Rs. 4,932.45P, which was due to the petitioners from the other contract being CA No. CWE Amb/1174-75. He has further pointed out that interest @ 10 percent was leviable on such recovery. Similar submissions have been made with regard to claim No. 30.
18. Shri Manohar Lal, learned counsel for the contractor-respondent has argued that once the relevant clause of the contract agreement have been interpreted in a particular way by the Arbitrator then such an interpretation would be final especially when the Arbitrator has not set out the same in the award. He has submitted that the Courts would not be competent to deduce reasons for the award from the record accompanying the award and then examine whether those reasons were erroneous or not by placing it own interpretation on the relevant clauses of the contract. In support of his submissions, the learned counsel has placed reliance on two judgments of the Supreme Court in the case Hindustan Construction Co. 's case (supra) and para 35 of the judgment in the case of Arosan Enterprises Ltd. v. Union of India and Anr., 1999(3) Arbitration Law Reporter 313.
19. On the basis of the aforementioned judgments, the learned counsel has submitted that unless there is an error apparent on the face of the record, the Civil Court would not be competent to search for mistakes in the award by referring to the various documents and averments on the record of the Arbitrator. Therefore, he submits that submission of the learned counsel with regard to extension of time sought by the contractor-respondent in respect of Claim No. 18 and Clause 62(G) in respect of claim No. 9 etc. cannot be examined by this Court. He has further submitted that Clause 62 alone would be applicable to the case of the contractor-respondent and Sub-clause (G) of Clause 62 would not at all apply. In this regard he has referred to Clause 17 which exclude the items where decision of CWE is said to be final between the parties and would not be referable to the arbitration. Therefore, the learned counsel has submitted that the reference of dispute to the Arbitrator proves that the claim was covered by Clauses (A) to (E) and not by Sub-clause (F). He has then referred to the last line of the contract agreement IAFW 2249 by saying that the award of the Arbitrator shall be final and binding on both the parties to the contract. He has also pointed out that Claim No. 32 was referred to the Arbitrator on 18.8.1987.
20. The learned counsel has vehemently argued that none of the points raised before this Court has ever been raised before the Arbitrator and had it been done then they could have reconsidered or withdrawn their claim. For this proposition, he has placed reliance on para 12 of the judgment in the case of Inder Sain Mittal v. Housing Board, A.I.R. 2002 S.C. 1157 and argued that once a party has acquiesced by his conduct by participating in the proceedings and taking chances therein, it cannot object to the award if it is decided against his interest. Such a party is estopped from challenging the validity of the award as the objection under Section 30 of the Act would be deemed to have been waived. He has placed reliance on para 32 of the judgment of the Supreme Court in the case of Sudarshan Trading Company (supra) and also another judgment of the Supreme Court in the case of Pakhar Singh v. State of Punjab, A.I.R. 1995 S.C. 2185.
21. Referring to the arguments of the learned counsel for the petitioner based on Karam Singh Lal's case (supra), the learned counsel has submitted that the same is distinguishable because the dispute there revolves around a question of speaking and non-speaking award. According to the learned counsel, the ratio of the judgment in the case of Karam Singh Lal (supra) would not apply to the facts of the present case.
22. I have thoughtfully considered the respective sub-missions made by learned counsel for the parties and am of the view that the instant petition is liable to be dismissed because it appears to be wed settled that the award of an arbitrator shall not be set aside as provided by Section 30 of the Act excepting for three grounds mentioned therein, namely, (a) arbitrator has misconducted himself; (b) award has been made after the suppression of the arbitration or the proceedings becoming invalid; and (c) the award has been improperly procured or invalid, On the basis of Section 30 of the Act, the Supreme Court in Arason Enterprises Ltd. 's case (supra) held that only on the aforementioned three grounds the award could be challenged or set aside. It has also been observed that once the arbitrator being the Judge chosen by the parties has announced the award, then his decision as such is ought to be final between the parties. The exercise of re-appraising the evidence, the absence of reasons or the judicial review of the reasons would not justify the interference in the award. The Supreme Court reiterated the following observations made in the case of Sudarsan Trading Co. v. Government of Kerala, 12 A.I.R. 1989 S.C. 890:-
"A court of competent jurisdiction has both right and duty to decide the lis presented before it for adjudication according to the best understanding of law and facts involved in the lis by the judge presiding over the court. Such decision even if erroneous either in factual determination or application of law correctly, is a valid one and binding inter parties. It does not therefore, stand to reason that the arbitrator's award will be per se invalid and inoperative for the simple reason that the arbitrator has failed to appreciate the facts and has committed error in appreciating correct legal principle in basing the award. An erroneous decision of a court of law is open to judicial review by way of appeal or revision in accordance with the provisions of law. Similarly, an award rendered by an arbitrator is open to challenge within the parameters of several provisions of the Arbitration Act. Since the arbitrator is a Judge by choice of the parties, and more often than not, a person with little or no legal background, the adjudication of disputes by an arbitration by way of an award can be challenged only within the limited scope of several provisions of the Arbitration Act and the legislature in its wisdom has limited the scope and ambit of challenge to an award in the Arbitration Act. Over the decades, judicial decisions have indicated the parameters of such challenge consistent with the provisions of the Arbitration Act. By and large the courts have disfavored interference with arbitration award on account of error of law and fact on the score of misappreciation and misreading of the materials on record and have shown definite inclination to preserve the award as far as possible. As reference to arbitration of disputes in commercial and other transactions involving substantial amount has increased in recent times, the courts were impelled to have a fresh look on the ambit of challenge to an award by the arbitrator so that the award does not get undesirable immunity. In recent times, error in law and fact in basing an award has not been given the wide immunity as enjoyed earlier, by expanding the import and implication of 'legal misconduct' of an arbitrator so that award by the arbitrator does not perpetrate gross miscarriage of justice and the same is not reduced to mockery of a fair decision of the lis between the parties to arbitration. Precisely for the aforesaid reasons, the erroneous application of law constituting the very basis of the award and improper and incorrect findings of fact, which without closer and intrinsic scrutiny, are demonstrable on the face of the materials on record, have been held, very rightly, as legal misconduct rendering the award as invalid. It is necessary, however, to put a note of caution that in the anxiety to render justice to the party to arbitration, the court should not reappraise the evidences intrinsically with a close scrutiny for finding out that the conclusion drawn from some facts, by the arbitrator is according to the understanding of the court, erroneous. Such exercise of power which can be exercised by an appellate court with power to reverse the finding of fact, is alien to the scope and ambit of challenge of an award under the Arbitration Act. Where the error of finding of facts having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible viewpoints, the interference with award based on erroneous finding of fact is permissible. Similarly, if an award is based by applying a principle of law which is patently erroneous, and but for such erroneous application of legal principle, the award could not have been made such award is liable to be set aside by holding that there has been a legal misconduct on the part of the arbitrator. In ultimate analysis, it is a question of delicate balancing between the permissible limit of error of law and fact and patently erroneous finding easily demonstrable from the materials on record and application of principle of law forming the basis of the award which is patently erroneous. It may be indicated here that however objectively the problem may be viewed, the subjective element inherent in the judge deciding the problem, is bound to creep in and influence the decision. By long training in the art of dispassionate analysis, such subjective element is however, reduced to minimum. Keeping the aforesaid principle in mind, the challenge to the validity of the impugned award is to be considered with reference to judicial decisions on the subject."
23. It is also well settled that once the party has acquiesce to the invalidity of his conduct by participating in the proceedings and has taken chance, it is not open to him to raise objection to the award because it has been decided against him by raising the plea that the arbitrator had no jurisdiction. In a recent judgment in the case of Inder Sain Mittal (supra), their Lordships of the Supreme Court observed as under:-
"In view of the foregoing discussions, with reference to the provisions of the Act, we conclude thus:
(i) Grounds of objection under Section 30 of the Act to the reference made, with or without intervention of the Court, arbitration proceedings and the award can be classified into two categories, viz., one emanating from agreement and the other law. (ii) In case the ground of attack flows from agreement between the parties which would undoubtedly be a lawful agreement, and the same is raised at the initial stage, Court may set it right at the initial stage or even subsequently in case the party objecting has not participated in the proceedings or participated under protest. But if a party acquiesced to the invalidity by his conduct by participating in the proceedings and taking a chance therein cannot be allowed to turn round after the award goes against him and is estopped from challenging validity or otherwise of reference, arbitration proceedings and/or award inasmuch as right of such a party to take objection is defeated.
(iii) Where ground is based upon breach of mandatory provision of law, a party cannot be estopped from raising the same in his objection to the award even after he participated in the arbitration proceedings in view of the well settled maxim that there is no estoppel against statute.
(iv) If, however, basis for ground of attack is violation of such a provision of law which is not mandatory but directory and raised at the initial stage, the illegality, in appropriate case, may be set right, but in such an eventuality if a party participated in the proceedings without any protest, he would be precluded from raising the point in the objection after making of the award."
24. If the facts of the present case and the arguments raised by the petitioners are examined in the light of above principles enunciated by the Supreme Court, then it would be evident that no interference in the judgments of both the Courts below is called for. The argument concerning Claim Nos. 18.34.9.1 and award of interest cannot be reopened by the petitioners. Claim No. 18 concerns reimbursement of damages suffered by the contractor-respondent owing to delay in handing over the site, delay in giving decision and delay in issuing stores because the Arbitrator deemed to have viewed Clauses 11(7) and 11-B in a particular manner. From the award concerning Claim No. 18 it is not clear whether such a plea was raised before the arbitrator or not. Therefore, it is not possible to re-appraise the evidence and conclude that the discretion to grant extension of time by the accepting Officer was exercised and extension was granted leading to the conclusion that the contractor-respondent was not left with any claim. Similarly, regarding Claim No. 34 it cannot be said that the petitioners have not participated and acquiesce in the arbitration proceedings. In respect of Claim No. 9 which is re-imbursement of extra expenditure incurred due to delay in providing water connection and insufficient water supply, it can also not be claimed that no illegality in awarding a partly sum of Rs. 9615/- can be pointed out, In respect of interpretation of Clause 62(G), the decision of the Arbitrator shall be deemed to be final because it was within the jurisdiction of the arbitrator to decide whether it was a deviation or ridicule change. He held that it was not a case of deviation but of ridicule change and the decision of CWE was to be applicable only in cases of deviation. Therefore, the interpretation given by the Arbitrator must be regarded as final as he is the chosen judge of the parties. The aforementioned principle laid down by the Supreme Court would also take care of the argument in respect of award of interest. Therefore, I do not find any valid ground to interfere in the order passed by the Additional District Judge. The argument of learned counsel for the petitioners based on the judgment of the Supreme Court regarding award of interest in J.C. Budharaja's case (supra) has also not impressed me because there is no clause pointed out by the learned counsel which might prohibit awarding of interest. In that case there was no express prohibition incorporated in the contract for award of damages or compensation. It was in these circumstances that the award of the arbitrator was held to be beyond jurisdiction. The other judgments on this question relied upon by the learned counsel would also not be applicable for the same reasons. For example the case of Subhash Chander Panda (supra) is also based on the same reasoning and there was express prohibition for referring the dispute to arbitration. Therefore, I have no hesitation in rejecting the argument that the Arbitrator exceeded his jurisdiction or that there is an error apparent on the face of record vitiating the award.
25. Similarly, the argument that the claim of the contractor-respondent had been declined by this Court in Jaswant Singh's case (supra) has also not impressed me because therein a particular view has been taken by the Courts below and this Court did not deviate from the interpretation given to Clauses 11(A), (B) and (C) of the agreement. The judgment in Karam Singh Lal's case (supra) relied upon by the learned counsel is an authority for the proposition that the scope for interference in a non-speaking award is very limited because in an application to set aside such an award, the Court is not to consider whether the view of the Arbitrator was justified or not. The adjudication made by the Arbitrator is generally considered binding between the parities. Therefore, that judgment would also not advance the case of the petitioners and I have no hesitation in rejecting that argument.
For the reasons stated above, this revision petition fails and the same is dismissed.