GREAVES LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The question that arises before this Court is with regard to the award passed by the sole arbitrator on 29/9/1994 in respect of disputes which had arisen between the parties.

(2.) Without going into the details the sum and substance of the cases of the parties are as follows. The learned counsel for the petitioner submitted that the award, insofar as claim Nos. 2 (a), 3 and 8 are concerned, requires to be sustained and be made a rule of the Court. He further submitted that insofar as claim Nos. 1, 2 (b), (c) and 4 to 7 are concerned, the same require to be remitted for arbitration inasmuch as the learned arbitrator has not adjudicated claims. He submitted that the learned arbitrator had not adjudicated claims as, at that time, an earlier arbitration proceeding was pending between the parties which would form the basis of decision insofar as these claims were concerned. Now that the earlier arbitration proceedings have already culminated in an award dated 20.05.1992 which has been made a rule of the Court by an order dated 18.04.2000 passed in OMP No. 49/1992 and CS(OS) No. 3096/1992, the unadjudicated claims can be referred to an arbitrator to be nominated by the Engineer-in- Chief, Kashmir House, New Delhi - 11 in terms of the contract between the parties. His submission, with regard to these claims, is that under the present award these claims were not adjudicated upon as the same were regarded by the arbitrator as non-arbitrable being subjudice. Now that the matter is no longer subjudice and has been concluded by virtue of the order dated 18/4/2000, these claims can be adjudicated upon. Insofar as the latter submission with regard to the non-adjudicated claims is concerned, the learned counsel for the respondent states that the decision on these claims would be dependent upon the award already made in the earlier proceedings, which culminated in the same being made a rule of the Court on 18.04.2000 as mentioned above. According to her also, these claims can now be referred to an arbitrator in terms of the contract between the parties for adjudication.

(3.) The main dispute, therefore, in this matter is with regard to claim No.3. It is the objection raised by the learned counsel for the respondent that the arbitrator has awarded an amount of Rs.1,00,187.00 against a claim of Rs.2,37,766.22 in respect of loss and damage claimed by the petitioner due to alleged prolongation of the contract period. It is her contention that this amount has been awarded contrary to the provisions of clause 11 of the Indian Army Forms Works ? 2249 (General Conditions of Contract) which is applicable to the transaction between the two parties. It is, therefore, her contention that the award is beyond the terms of the contract between the parties in so far as claim No.3 is concerned and the same is accordingly liable to be set aside. The learned counsel for the petitioner, on the other hand, contended that the award, at least as regards claim No.3 is a non-speaking award and would be open to examination only if a clause of the contract is mentioned in the award itself. He submitted that while disposing of claim No.3, there is no mention of the aforesaid clause 11 in the award and, therefore, this Court ought not to embark upon an examination of the provisions incorporated in clause 11 and try to arrive at a conclusion as to whether the arbitrator has made a correct or incorrect award. He referred to a decision of the learned Single Judge (B N Kirpal, J, as he then was) in the case of Jagdish Chander v Hindustan Vegetable Oils Corporation and another: AIR 1990 Delhi 204 to submit that it is not permissible for the Court to look into a contract when the contract is not incorporated in the award. He referred to paragraph 29 of the said decision wherein it is observed that it is not permissible for the Court to look into the contract as the contract is not incorporated in the award. He then referred to a Division Bench decision in the case of M/s Des Raj and Sons v Union of India and another: AIR 1984 Delhi 365. In the said decision it was, inter alia, held that in a non-speaking award where the arbitrator neither has made any particular reference to any clause of the contract nor has incorporated the contract in the award, in the sense that he has invited those reading the award to read the contract, the Court is not entitled to look at the contract and search it in order to see whether there is an error of law. It was further held that the Court has no means to enter his mind and to explore his thought processes. Paragraphs 7 and 12 of the said decision are relevant for the purposes of the present case and the same are set out hereinbelow:-