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S.S Jatley Vs. College of Vocational Studies [1993] INSC 358 (17 September 1993)

Ramaswamy, K. Ramaswamy, K. Singh N.P. (J)

CITATION: 1994 SCC Supl. (2) 402

ACT:

HEAD NOTE:

ORDER

1.By order dated 9-10-1987 of this Court, Hon'ble Mr Justice A.C. Gupta, one of the former Judges of this Court was appointed by consent as a sole arbitrator to decide private dispute between the parties pending in the civil suit.

403 The learned Judge after giving opportunities to the parties in his award dated 30-3-1992 found as under:

"I have found that the claimant M/s S.S. Jatley is entitled to realise from the respondent, College of Vocational Studies, Rs 9023 by way of refund of security deposit (Claim A); Rs 9087.70 and Rs 78,996.44 as balance payment for work done and as value of materials left at site (Claim B); and Rs 36,909 as value of Tools and Plants taken over by the respondent (Claim B-1), totalling Rs 1,34,016.14. On the counter-claim of respondent, I have held that a sum of Rs 1,08,000 is payable by the claimant due to his failure to construct the college building in time forcing the respondent to pay for the rented accommodation.

Setting off the counter-claim against the claim, I award a sum of Rs 26,016.14, rounded off to Rs 26,016 (Rupees Twenty-six thousand and sixteen) only in favour of claimant M/s S.S. Jatley. This sum will carry interest at the rate of 18% per annum from the date of this award till it is made the rule of court or till the date of realisation, whichever is earlier. In the circumstances of the case 1 make no order for pendente lite interest.

Also, in the circumstances of the case including the proportion of success of each, the parties will bear their own costs of these proceedings."

2. An application has been made to make this award a rule of the court. Objections have been filed by the appellant under Section 30 of the Arbitration Act, 1940. It is contended by Shri D.V. Sehgal, the learned senior counsel for the contractor that time is the essence of the contract. Under clause 12 of the agreement, the respondent was under an obligation to supply the drawings and specifications. They committed breach of the contract and therefore, the contractor was saddled with liability to incur additional cost in erection of buildings which he had claimed in the suit and became part of the claim in the arbitration, The learned arbitrator had not considered these aspects of the matters, though they expressly drew his attention during the course of arguments. Therefore, non-consideration constitutes an error apparent on the fact of the record under Section 30 of the Act. In support thereof, he placed reliance on K.P. Poulose v. State of Kerala'. We find no force in the contention. An omission to refer the argument addressed before the arbitrator is not a misconduct. But the arbitrator is guilty if he ignores the very material document which throws abundant light on the matter in the controversy or if be makes the award without perusing the contract upon which the rights and liabilities of the parties depend. But the award cannot be set aside unless it appears on the face of the award that the arbitrator ignored the material document. Admittedly, the terms of the contract had not been made part of the award. Therefore this Court cannot look into the terms of the contract to find as to who is responsible for the breach of the contract. In the award, the learned arbitrator has summarised the contentions of the parties arising from the respective letters and considered the claims in the part dealing with the claims and counter-claims. Ultimately, it was concluded that a sum of Rs 26,016.14 was found due and payable to the contractor.

This Court in the aforesaid judgment held in paragraph 6 that the legal misconduct which 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 1 (1975) 2 SCC 236: 1975 Supp SCR 214 404 on the controversy to help a just and fair decision. In this case, the learned Judge has meticulously drawn out the contentions raised by the parties and had adverted to the contention on perusing the record and the contract, the foundation of the rights and liabilities and arrived at a decision. We do not find any inconsistency in his finding.

On the other hand, a meticulous analysis would disclose that the learned Judge had applied his mind to the controversy placed before him and arrived at a decision in the award.

Under these circumstances, we do not find any error apparent on the face of the award warranting interference. The objections are overruled. The award is made rule of the Court.

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