HOUSING AND URBEN DEVELOPMENT Vs. DSA ENGINEERS

JUDGEMENT

(1.) Aggrieved by the order dated 21.4.2004 of the learned Single Judge setting aside the award regarding claims No. 2A & 5 and upholding the award regarding other claims the appellant has filed the present appeal. Before the learned Single Judge the argument was advanced on behalf of the appellant/objector, restricting his arguments and objections to claim Nos.1, I-E to 2-A, 5 & 6. It seems that apart from these arguments advanced in Court, the appellant submitted its written submissions, also in respect of claim Nos. 1-H, 1-H(C), 2-F though arguments were not advanced in the Court in respect of these claims.

(2.) In this appeal, Mr.Kumar learned counsel for the appellant has stated that he is confining his arguments only in relation to claim No. 3 in the award made by the arbitrators and rejection of his arguments by the learned Single Judge in relation to said claim No. 3. From perusal of orders of learned Single Judge, it is evident that no argument had been advanced by the appellant in relation to claim No. 3 before the learned Single Judge nor written submissions were given in respect of said claim. On this ground alone, we could have dismissed this appeal. However, as the learned Single Judge has noticed in the impugned order arguments in respect to claim No. 3 and as Mr.Kumar has repeatedly contended that the impugned order be set aside in relation to claim No. 3 as the award was outside the scope of the agreement, we consider the same.

(3.) He has contended and relied on the decision of the Supreme Court in MD. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., (2004) 9 SCC 619, where it was held that in case the arbitrator has no jurisdiction, no jurisdiction can be conferred on the arbitrator even by the consent of the parties. The counsel for appellant has also contended that the jurisdiction of the arbitrator is confined to four corners of the agreement and he can only pass such an award which may be the subject matter of the reference. Lastly, it was contended by Mr.Kumar that the arbitrator has no inherent power, therefore, the award given under claim No. 3 was outside the reference and arbitrators could not have given the said award and the learned Single Judge fell in error while allowing award under claim No. 3.