STATE OF KERALA Vs. M. KUTTAN NAIR

JUDGEMENT

(1.) THIS appeal is directed against the award. passed by the Sub -Court. Thiruvenanthapuram in O.P. (Arbitration) No. 255 of 1987. The State of Kerala and the Superintending Engineer are the appellant before us. The claimant is the respondent in the appeal.

(2.) THE respondent filed an application before the Court below to pass a decree in terms of the award. The award was passed by the Chief Engineer (Arbitration), who was appointed as Arbitrator to adjudicate the dispute between the parties. The Court below by the order dated 30th November, 1990 accepted the award and a decree was accordingly passed in terms of the award. It is against the said order this appeal has been filed.

(3.) THE learned Counsel for the appellants contended that the Arbitrator while passing the impugned award acted without jurisdiction and at any rate he had exceeded the jurisdiction conferred on him. There is no dispute on the proposition that even in a non -speaking award if the Arbitrator has acted without jurisdiction or exceeded his jurisdiction, the aggrieved party can challenge the correctness of the award. In such circumstances, the Court is bound to decide the legality of the award within the premise of Section 30 of the Arbitration Act. Under the above section, an award can be set aside on the ground that the Arbitrator or umpire has misconducted himself or the proceeding, or that the award has been improperly procured. The words 'misconducted himself or the proceeding' contained in Section 30(a) of the Act envisages cases of misconduct, which may be personal or regarding the proceeding. It has also been laid down that the Court cannot set aside a non -speaking award, unless error of law is apparent on the face of the award or in a document incorporated therein. However, the counsel for the appellants, placing reliance on the decision of a Full Bench of this Court in State v. Jolly ((1992) 1 Ker LT 240 = 1992(1) Arb. LR 313), submitted that a non -speaking award could be set aside if the Arbitrator has exceeded his jurisdiction. The question therefore to be considered is whether the Arbitrator has exceeded his jurisdiction.