KUNDALE AND ASSOCIATES Vs. KONKAN HOTELS PRIVATE LIMITED

JUDGEMENT

(1.) The appellants, M/s. Kundale and Associates, are building contractors. They entered into an agreement dated 29th of April, 1975 with the respondents for the work of construction of a hotel building for the respondents at Roha. In respect of the construction work, there were disputes and differences between the parties which were referred to the sole arbitration of H.N. Dallas by an agreement of reference dated 20-9-1976. The arbitrator made his award dated 20-7-1977 under which he has directed the respondents to pay to the appellants a sum of Rs. 54,320/- with interest at 9% from the date of the award till the date of the decree. It is a non-speaking award. The award was filed in the Court of the Civil Judge. Senior Division, Alibagh. The respondents filed their objections to the award which were dismissed by the Civil Judge. The respondents filed their appeal before the High Court. The High Court has allowed the appeal and set aside the award on the ground of legal misconduct by the arbitrator. The present appeal is from the judgment and order of the High Court.

(2.) The High Court appears to have emphasised the fact that no reasons are given in the award. However, under the law then in force, it was open to the arbitrator to give an award without giving reasons since the parties had not stipulated that the arbitrator should give a reasoned award. The High Court also commented on the fact that summary proceedings were not envisaged under the Arbitration Act. The trial Court has, however, noted that both sides led evidence before the arbitrator and tendered documents which were considered by the arbitrator before giving his award. The trial Court has noted that on behalf of the respondents oral evidence of their architect Shri Bhagat and their Director Shri N. G. Bhave was adduced along with documentary evidence. On behalf of the appellants, no oral evidence was led but documentary evidence consisting of letters and other documents was produced. The respondents did not, at any time, protest before the arbitrator against the documents being taken on record without a formal proof as envisaged under the Evidence Act. Documents on both sides have been taken on record by the arbitrator. The arbitrator had also before him joint measurements taken by the architect of the respondents in respect of the work done by the appellants. The arbitrator himself visited the site and inspected the construction of the building. On the basis of this evidence before him the arbitrator gave the award in question. This does not show any legal misconduct on the part of the arbitrator.

(3.) In his award the arbitrator has stated that after carefully considering all the claims and counter claims made by both the parties and after carefully considering the oral and documentary evidence produced by both the parties and the pleadings of both the parties and arguments advanced by the parties, he was making the award. The High Court said that the arbitrator had not applied his mind because the appellants had not led oral evidence. We fail to see how this conclusion can be deduced in the way it has been done by the High Court. Oral evidence was led before the arbitrator by the respondents. The arbitrator has made a general statement that he has considered oral as well as documentary evidence led by both the parties. From this it would not be proper to deduce that oral evidence was led by both the parties and documentary evidence was led by both parties. All that can be said is that whatever evidence whether oral or documentary was led before the arbitrator has been considered by him.